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 complained of sexual abuse by Z when she was a young girl. D would not give evidence, wanting to put the events behind her. The judge treated the application as ‘routine and straightforward’.
Held: It had been an error. Had D given live evidence, there could have been no complaint. The evidence went to propensity and corrected Z’s portrayal of himself as a good family man.
Stanley Burnton LJ pointed to the gap in the judge’s ruling: ‘ It can be seen that sub-section (1) comprehensively restricts the circumstances in which hearsay evidence may be admitted in criminal proceedings to those set out in its four paragraphs. Paragraph (d) is the only paragraph having positives substantive effect: the other paragraphs of sub-section (1) simply refer to other provisions or rules of law permitting such evidence to be admitted. Paragraph (d) is unhelpfully drafted. It has been referred to as creating a residual power or as a safety valve; considered in isolation, it might be given a wide or a narrow application.
However section 114(1)(d) must be construed and applied in its statutory contact. In particular, in a case such as the present, where the evidence in question is of a statement making an allegation of misconduct, it must be read together with section 116. That section is narrowly drawn. It is headed ‘cases where a witness is unavailable’, which would not include the case of D. The conditions for the admission of hearsay under section 116(1) are set out in sub-section (2) . . none of these applied to D.
In our judgment, section 114(1)(d) is to be cautiously applied, since otherwise the conditions laid down by Parliament in section 116 would be circumvented . . section 114(1)(d) should not be so narrowly applied that it has no effect. It follows that there will be cases in which hearsay evidence may be admitted under it in circumstances in which it could not be admitted under section 116 . . the reluctance or apparent but untested unwillingness of D to testify did not justify his submissions. This was a case in which the restrictions on hearsay in section 116 were being circumvented. As we indicated in the preceding paragraph of our judgment, the effect of the admission of this evidence was potentially very damaging; and it was very difficult for the appellant to deal with it other than by a simple denial. We need not consider what the position would have been if D had been served with a witness summons and refused to attend or to testify: that did not happen.’

Stanley Burnton LJ, Gross, Royce JJ
[2009] EWCA Crim 20, [2009] Crim LR 519, [2009] 3 All ER 1015, (2009) 173 JP 145, [2009] 1 Cr App R 34
Criminal Justice Act 2003 114(1)(d), Sexual Offences Act 1956
England and Wales
AppliedO’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 . .
CitedRegina 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:
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 . .
CitedRegina v Twist and Others CACD 12-May-2011
The court considered the application of the 2003 Act to communications made to, or by, the defendant, and in particular text messages sent by mobile telephone.
Held: The four appeals against conviction were dismissed. Singh established that . .
CitedAdeojo and Another v Regina CACD 6-Feb-2013
The defendants appealed against their convictions for murder saying that the court should not have relied upon hearsay evidence. A witness had refused to give evidence, but his earlier evidnece was used.
Held: The appeals failed. The judge had . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 31 December 2021; Ref: scu.311781