Appeal against conviction for assault occasioning actual bodily harm. Allegation where wife was victim, but she had declined to give evidence, and not attended. The Court’s attention was not drawn to section 116 of the 2006 Act, and the evidence admitted without explanation as to how it had been applied.
Held: The appeal was allowed: ‘There are many practical measures that could have been adopted in our view to ensure, first of all, that this complainant was located in a timely fashion, that her attendance at court was ensured, to protect her welfare and the welfare of her children and, importantly, to ensure the rights of this appellant, however fanciful his defence, to cross-examine the complainant on the matters that she alleged against him. The fact that to embark upon those measures would have meant a delay in the commencement of the trial or would otherwise have imposed upon the police officers concerned the necessity to track down the complainant does not provide, in our opinion, a sufficient basis upon which the prosecution could legitimately have made this ‘hearsay’ application to the court.
We stress that there will be many cases of domestic violence where it may become inevitable and absolutely necessary for a court to ensure justice is done and to admit the statement of the complainant. In such cases it often will be the case that the complainant is the only witness, but this in itself is not a good reason necessarily to refuse such applications. What we do stress equally, however, is that if such an application is to be made, it should be properly based, it should be properly evidenced, and the court has a responsibility to properly investigate the matter. We regret that in this case that investigation does not appear to have taken place. We cannot be satisfied from the transcript of the ruling that the judge did take into account appropriately all matters concerning this complainant’s absence, nor take all necessary steps as would ensure her welfare and the fairness of the trial by obtaining her attendance.’
Judges:
Macur LJ, Walker J, Zeidman QC HHJ
Citations:
[2015] EWCA Crim 1317, (2016) 180 JP 132
Links:
Statutes:
Jurisdiction:
England and Wales
Criminal Practice, Criminal Evidence
Updated: 04 June 2022; Ref: scu.553262
