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 his wife’s younger sisters. Two gave evidence, but the third did not attend. Her evidence was presented as hearsay to rebut the defendant’s allegation of recent concoction.
Held: The appeal failed. The trial judge is the gatekeeper responsible for the fairness of the trial, and the examination of the factors set out in section 114(2) and any other relevant factors must be performed with caution when the object is to fill a gap caused by the non-attendance of a live witness on grounds which do not fall within section 116. Though the evidence was not entirely difficult for the defendant, it was prejudicial. The judge had failed to analyse whether the prosecution was at fault in not requiring her attendance. It should not have been admitted. Nevertheless, ‘as the evidence emerged, the appellant was in hardly a worse position than he would have been if the statement had not been admitted. On the contrary, he was now in a position to construct an argument, without having to put that argument to the witness that the reason why the statements differed, was because there had indeed been collaboration between LT and ML as alleged.’ A consideration of the issue of the truthfulness of the hearsay evidence was largely subsumed in the jury’s principal task of which it was reminded by the judge time and again, namely to judge the truthfulness of the complainants themselves . . the jury that they believed all four women.
Pitchford, Rafferty LJJ, Goldstone QC J
[2010] EWCA Crim 1213, (2010) 174 JP 289, [2010] Crim LR 862
Bailii
Criminal Justice Act 2003 114(1)(d)
England and Wales
Citing:
Cited – O’Hare, Regina v CACD 7-Sep-2006
Scott Baker LJ said that: ‘We think it is important to point out that, as a matter of generality, section 114 cannot and should not be applied so as to render section 116 nugatory.
But section 114(1)(d) should not be so narrowly applied that it . .
Cited – Regina v Z CACD 23-Jan-2009
The defendant appealed against convictions for rape and indecent assault under the 1956 Act. The allegations dated from 1985 to 1989 when the complainant had been between 9 and 13. The prosecution brought in a doctor who said that in 1993 D . .
Cited – Regina v Adams CACD 23-Nov-2007
The defendant appealed his conviction after the court had allowed a prosecution witness’ statement to be read. The witness did not attend, only being notified in the last few working days before the hearing.
Held: Though the defendant’s appeal . .
Cited – 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 . .
Cited – Horncastle and Others, Regina v SC 9-Dec-2009
Each defendant said they had not received a fair trial in that the court had admitted written evidence of a witness he had not been allowed to challenge. The witnesses had been victims, two of whom had died before trial. It was suggested that the . .
Cited – RL v Regina (Evidence of wife) CACD 7-May-2008
The defendant appealed against his conviction for sexual assault on his daughter. Whilst he was in custody, the police approached his wife and took a statement from her which was used in evidence. The defendant complained that since they had not . .
Cited – Sak v Crown Prosecution Service Admn 13-Nov-2007
Whether the court had been correct to allow hearsay evidence from a doctor who had attended the defendant in the police cells but who had not attended court. . .
Cited – Regina v Adams CACD 23-Nov-2007
The defendant appealed his conviction after the court had allowed a prosecution witness’ statement to be read. The witness did not attend, only being notified in the last few working days before the hearing.
Held: Though the defendant’s appeal . .
Cited by:
Cited – Barnaby v The Director of Public Prosecutions Admn 6-Feb-2015
Admission of hearsay evidence
The defendant appealed by case stated against his conviction for assault. He said that certain evidence, a statement from the complainaint, and a recording of the 999 call, should not have been admitted as hearsay.
Held: Fulford LJ said: . .
Lists of cited by and citing cases may be incomplete.
Criminal Evidence
Updated: 02 November 2021; Ref: scu.416167