Musone v Regina: CACD 23 May 2007

A serving prisoner was stabbed to death in his cell. The appellant admitted that he had punched the victim twice but maintained that another man had stabbed him, which explained the incriminating presence of the victim’s blood in the vicinity of the appellant’s cell and on his hand. As the victim lay dying, he uttered, according to the statement of a fellow prisoner, Patterson, ‘Bushman. Bushman done it’ (meaning the appellant). The appellant appealed his conviction for murder. Patterson refused to make a statement under section 9 Magistrates Courts Act 1980 and refused to come to court. He was arrested and at the appellant’s trial for murder he was brought to court but refused to answer questions. The judge ruled that Patterson’s informal statement which constituted double hearsay was admissible under section 114(1)(d) and section 121(1) of the Act.
Late in the trial, his counsel had also sought to admit evidence that his co-accused, though acquitted, had admitted an earlier murder to the defendant. The judge had considered this an ambush of the co-defendant, and had refused to admit the evidence, relying upon that co-defendant’s right to a fair trial, and in the alternative, on the failure of the defendant to serve notice of his intention to rely on such evidence.
Held: The appeal failed. The double hearsay evidence had been properly admitted. The judge had been correct that he could refuse to admit the evidence under either section 101 of the 2003 Act, or under section 78(1) of the 1984 Act. It will be very rare for a court not to admit evidence with probative value for a failure to comply with procedural rules, but the failure to serve notice of his intention to rely on evidence of a co-worker’s bad character might leave its non-admission as the only way to protect the co-defendant’s fair trial.
Moses LJ, Underhill J, Stewart J QC
Times 11-Jun-2007, [2007] EWCA Crim 1237
Criminal Justice Act 2003 101(1)(e), European Convention on Human Rights 6, Police and Criminal Evidence Act 1984 78(1)
England and Wales
Cited by:
CitedRegina v EED CACD 28-May-2010
A witness had been warned to attend court, but had not served with an order and did not attend. The defendant appealed against his conviction saying that her evidence should not have been read to the jury. He had faced allegations of sexual abuse of . .

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Updated: 03 February 2021; Ref: scu.252513