The defendant had been seen fleeing the area of a crime. Some days later he volunteered a statement admitting his presence in the area, but providing an innocent explanation. He did not give evidence at trial. His statement was put in by the prosecution, but the judge directed the jury that they could rely upon the admission but the parts where he gave an excuse were not evidence. He appealed.
Held: The jury must be given comprehensible directions. They could not make sense of part only of the statement. The whole evidence should be considered as evidence, and the judge could allow the jurirs to attach different weights to different parts, and he could point out the failure of the defendant to submit to cross examination.
‘It is only if the jury think that the facts set out by way of excuse or explanation might be true that any doubt is cast upon the admission . . ‘
‘Evidence contained in a confession is however an exception to the hearsay rule and is admissible. The justification for the adoption of the exception was presumably that, provided the accused had not been subjected to any improper pressure, it was so unlikely that he would confess to a crime he had not committed that it was safe to rely upon the truth of what he said. This exception became extended to include not only a full confession to the crime but also a partial confession in which the accused admitted some matter that required to be established if the crime alleged was to be proved against him. …
The difference in the authorities centres upon the status to be attached to those parts of a mixed statement that excuse or explain an admission and are intended to show that the admission does not bear the inference of guilt it might otherwise attract: for example, ‘I admit that I stabbed him but he was about to shoot me,’ or, as in this appeal, ‘I admit I was at the scene of the burglary but I was looking for something that had fallen off my car.’ All the authorities agree that it would be unfair to admit the admission without admitting the explanation and the only question is how best to help the jury evaluate the accused’s statement. The view expressed in Duncan, 73 Cr App R 359 is that the whole statement should be left to the jury as evidence of the facts but that attention should be drawn, when appropriate, to the different weight they might think it right to attach to the admission as opposed to the explanation or excuses. The other view, which I might refer to as the ‘purist’ approach, is that, as an exculpatory statement is never evidence of the facts it relates, the jury should be directed that the excuse or explanation is only admitted to show the context in which the admission was made and they must not regard the excuse or explanation as evidence of its truth.’ (Lord Havers)
and: ‘My Lords, the weight of authority and common sense lead me to prefer the direction to the jury formulated in Duncan, 73 Cr App R 359 to an attempt to deal differently with the different parts of a mixed statement. How can a jury fairly evaluate the facts in the admission unless they can evaluate the facts in the excuse or explanation? It is only if the jury think that the facts set out by way of excuse or explanation might be true that any doubt is cast on the admission, and it is surely only because the excuse or explanation might be true that it is thought fair that it should be considered by the jury. I agree with Lawton LJ that a jury will make little of the direction that attempts to draw a distinction between evidence which is evidence of facts and evidence in the same statement which whilst not being evidence of facts is nevertheless evidentiary material of which they may make use in evaluating evidence which is evidence of the facts. One only has to write out the foregoing sentence to see the confusion it engenders.’
Lord Havers went on to amend and answer in the affirmative the question before the court: ‘where a statement made to a person out of court by a defendant contains both admissions and self exculpatory parts do the exculpatory parts constitute evidence of the truth of the facts alleged therein?’
Lord Havers
[1988] 86 Cr App R 274, [1988] 1 WLR 7, [1988] 1 All ER 65, [1988] Crim LR 303
England and Wales
Citing:
Applied – Regina v Duncan CACD 1981
Where a defendant has not given evidence the whole of a ‘mixed’ statement, one which includes matter which is incriminating and also matter which is exculpatory, should be admitted in evidence, if it is to be admitted at all. Nevertheless, the court . .
Cited by:
Cited – Regina v Lambert HL 5-Jul-2001
Restraint on Interference with Burden of Proof
The defendant had been convicted for possessing drugs found on him in a bag when he was arrested. He denied knowing of them. He was convicted having failed to prove, on a balance of probabilities, that he had not known of the drugs. The case was . .
Cited – Ian Cauldero and Nigill Francois v The State PC 28-Sep-1999
PC (Trinidad and Tobago) The defendants appealed their convictions for murder. They complained at to the judge’s direction as to a statement and as to intent, where they had said that the gun had been wrestled . .
Cited – Shirley, Regina v CACD 8-Nov-2013
The defendant had been convicted of several very serious sexual and physical assaults and rapes. He appealed against his conviction, saying that the judge had not fairly represented his defence to the jury. He said that the complainant had been . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 16 December 2021; Ref: scu.194987
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