Under S.114(1) CJA a statement not made in oral evidence in the proceedings is not admissible of a matter stated unless an exception applies. This is commonly known as hearsay evidence. Sir Rupert Cross defined hearsay as “an assertion other than one made by a person while giving oral evidence in the proceedings regarding any matter stated”. The House of Lords has clearly approved of this definition in R v Sharp. Also Patel v Comptroller of customs shows us that the rule applies to documents and not just oral comments made out of court. S.115(3) CJA defines a matter stated as one which was made for the purpose of causing another person to believe the matter. This is important because if the evidence is admitted as evidence that words were said rather than of the truth of their content then it isn’t hearsay. Several things which the prosecution wish to use as evidence are hearsay. The security guard identified his attacker before he died and the prosecution want PC baker to testify as to what he said. Stephanie is unlikely to be able to attend the trial but her previous statements are important evidence. Finally the registration details obtained from the national computer only exist in document form therefore they will be handed to the court and not produced in court this means they too are hearsay.
S.118(1)4a CJA preserves the Res gestae exception. This is a preserved common law exception so its meaning can only be found in case law. In R v Andrews it was held that an event needed to be so dramatic and distressing that at the time it dominated the victims mind to such a degree that the possibility of malice or concoction can be ruled out, put in the words of lord Ackner “so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection”. The court extensively cited Ratten v The Queen as authority for this view which has been repeatedly followed in murder cases such as R v Turnbull and R v Blastland and even in cases involving minor assaults such as in R v Nye. In the present case given the guards wounds he would certainly have had the state of mind described by lord Ackner for what he said to be admitted under the res gestre exception. The facts on which this was accepted in Turnbull and Blastland are very similar to the current case so the law clearly allows for this evidence to be used. In R v Waugh it was held that incomplete dying statements could not be admitted. Since he only identified the attacker as S.T the defence may try to use this however in Turnbull the victim just said Tommo had killed him and this was not held to be incomplete therefore such an argument will not succeed.
Under S.116 (1) CJA and 116 (2)c CJA If a witness is abroad then his previous testimony can be read out in court if his live testimony would have been aloud and the court is sufficiently satisfied of his identity and it is not reasonably practical to secure his attendance. Stephanie is doing postgraduate studies in china. She would have been a competent witness and appears to be well identified so these requirements of S.116 CJA are satisfied. In R v C it was held that no reasonable steps could be taken to return to the UK a witness who was refusing outright to do so. Given the importance and expensive nature of post graduate courses she is likely to strongly refuse. This case could be distinguished on the grounds that she may return after her course. There is no case law on this situation but I believe the court will not postpone the trial until she returns because there does not seam to be anything in her statement which the defence could benefit from cross examining, she could not have been mistaken about seeing such a dramatic event and there will be no way to show, through questioning, that she may be mistaken about the number plate she gave. In R v Glyma setting up an expensive live video link was not held as reasonably practical due to the expense and organisation that would have been involved. This shows that the prosecution need to bother trying to negotiate an alternate solution with her.
S.117 CJA allows for documents to be admitted if it was supplied by a person with relevant knowledge to a person in trade, business, profession or other occupation, or as the holder of a paid or unpaid office. Any information held on the police computer would have been submitted by the owner of the cycle to the relevant authority. The owner would have had the personal knowledge required and the clerk who received it would have been doing it as his occupation therefore the requirements of S.117 are met and so this is admissible.
Under S.34(1)-(2) of CJPOA if between being cautioned and being charged an accused fails to mention during questioning something which he later uses in his defence and it would have been reasonable for him to mention it at the time the jury may draw an adverse inference which appears proper. Under S.58(2) of YJCE this section only applies if the accused has been given the opportunity to consult a solicitor. In this case Simon has failed to mention that he had an alibi which he has evidence to back up and he did have a solicitor present who advised him to stay silent. There is no rule for determining the reasonableness of not mentioning a fact so this has been left to the opinions of judges when summing up and juries when coming to a verdict this is clearly illustrated in R v Webber. In R v Hoare the court held that if a solicitor advises a client to remain silent an adverse inference cannot be drawn if this was the reason for silence and it was reasonable to stay silent in light of all the circumstances. This is well established in English law and can be observed in cases such as R v Howell, R v Argent and Condron v UK. Some cases have suggested that a solicitors advise to stay silent will always prevent an adverse inference from being drawn such as R v Betts however in this case Kay LJ went on to say “That conclusion does not give licence to a guilty person to shield behind his solicitor” as a result this case was interpreted as actually supporting the former doctrine in Hoare as so is definitely not the current state of the law.
Clearly the solicitor’s advice for Simon to stay silent alone will not prevent an adverse inference from being drawn as long as his silence was reasonable. I cannot say for sure if it will be held to have been reasonable for him to stay silent. On one hand he may have forgotten that he was with her as the question does not mention the nature of that day he spent with her however if it was something he should have remembered then the question why he didn’t mention it before will be asked and a suspicion of concoction and corroboration between him and Maxine will certainly be grounds to draw an adverse inference as in all the cases which I have mentioned where it has been aloud it has been something the defendant must have known about such as the fact he was acting in self defence.
The courts have realised that identification of humans can easily be mistaken for around a century and yet jurors are not typically aware of this problem In R v Turnbull lord Widgery stated that “In our judgment when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it” however he also said that “if he gets only a fleeting glance of the thief's face as he runs off but he does see him entering a nearby house. Later he picks out the accused on an identity parade. If there was no more evidence than this, the poor quality of the identification would require the judge to withdraw the case from the jury; but this would not be so if there was evidence that the house into which the accused was alleged by X to have run was his father's.” so for cases where the identification evidence is of a poorer quality the judge would have to direct the jury to be cautious if there is other evidence and hold that there is no case to answer if there isn’t any other evidence. In Nembhard v The Queen the judges said “It is important in the interests of justice that a person implicated in a killing should be obliged to meet in Court the dying accusation of the victim—always provided that fair and proper precautions have been” In R v Edward the judge held that “a Turnbull direction was not required in respect of a motor car because, unless deliberately altered, perhaps by having its colour changed, a car did not change shape, colour or size, whereas a human being's facial expression, bodily position and appearance altered frequently”. There are two pieces of identification evidence here that of Stephanie and that of the dead guard. The identification made by the guard would normally be classed as poor quality evidence since he only partially unmasked the man, only had a moment to observe him and although he frequented the same pub that alone does not say how well he knew his face. However the Nembhard case clearly shows that an identification of a dying man is exempt from the Turnbull dicta for public policy reasons. Although the Edward case expressly referred to identification of cars its dicta was because their appearance is far more simple and static than a human face. Because the robbers were masked Stephanie only said the men were white slim and in their 20s this amounts to recollection of a limited set of features and is far from a full identification therefore it is highly likely that the court will accept that the Edward dicta applies and not give a warning against the value of this evidence. Under PACE code D an identity parade must be held if an identification has been made outside of any formal identification procedure and the accused denies being the person identified unless it will serve no purpose. This is relevant because Simon has completely denied being involved in the robbery and Stephanie did not attend an identity parade however because she only saw masked men and not a recognisable individual having a parade is unlikely to be useful so the fact that one has not been held does not matter.
S.98 CJA defines bad character evidence as evidence of, or a disposition toward any misconduct not related to the current offence. Misconduct is defined in S.112(1) CJA as the commission of an offence or other reprehensible behaviour. The use of the term disposition toward suggests that very little evidence of misconduct is sufficient indeed R v Z shows that even a previous acquittal is enough. Simon’s previous assault and theft are both offences and the law makes it clear that mere evidence of them is sufficient. S.101 CJA gives an exhaustive list of gateways by which evidence of a defendant’s bad character is admissible in court. There are two which could be relevant and they are that it is important explanatory evidence or it is relevant to an important matter in issue between the defendant and the prosecution. Under S.102 CJA important explanatory evidence is anything which is necessary to properly understand other evidence or the case as a whole. Case law has shown that a history of similar things is not a valid reason (R v Edwards, R v Ifzal Iqbal) rather it must be things directly related to that specific events in question (R v Edward, R v Osbourne) Nether his previous conviction or the accusation of theft are needed to understand any of the evidence so this gateway cannot be used. S103(1) describes an important matter in issue as the question of whether the defendant has a propensity to commit offences of the kind with which he is charged. In R v Hanson the court identified 3 questions which have to be answered in the affirmative to satisfy this statute 1. Does the history of conviction(s) establish a propensity to commit offences of the kind charged? (The statute states that this can be shown by previous offences of the description or of the same category as identified by the attorney general.) 2. Does that propensity make it more likely that the defendant committed the offence charged? 3. Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings being unfair if they are admitted? Under SI 2004/3346 theft and robbery are considered to be of the same category of offence however In DPP v Chand it was held that although shoplifting and stealing a charity box were of the same type of offence one did not show an increased likelihood of committing the other. Simon has been accused of armed robbery and murder. Although theft and armed robbery are in the same category there is clearly more difference between them than there is between shoplifting and taking a charity box therefore his previous accusation of theft will not be held to make him more likely to commit the offence. The same can be said of his assault conviction. It is not of the same description as the murder because they will say different things on the charge sheet and so far no statutory instrument has been made to group murder and assault together however this alone will not make it inadmissible since the statute allows for other means of showing propensity. However I do not think any court will find that a conviction for assault makes it more likely that a person has committed murder also in Hanson a conviction that was 8 years old was only aloud because it was of a sexual nature and sexual offenders don’t normally change, Simon would have been a teenager when he committed the assault 10 years ago therefore the passage of time is probably too great.
Under S.53 YJCA all people are competent to testify unless they are the accused or cannot understand questions and give understandable answers. The case of Hill shows that even the most severe mental difficulties did not prevent a person being held to have the required understanding even in an age of prejudice and lack of understanding towards such people. This means that Justin might be able to testify against Simon in spite of his difficulties if separate trials are held instead of a joint trial.
To summarise the prosecutions situation. The best evidence is Justin’s confession however his mental difficulties will probably render his confession inadmissible and failing that its reliability will certainly be undermined. It is unlikely that this can be rebutted. Stephanie’s witness account describes what happened and although they are only able to get her statement read out by a third party this should not harm the case much because the defence have little that needs to be cross examined because the only thing she said which implicated the defendants is the number plate everything else she said is just evidence that the event did happen and there can be no doubt that it happened. The dead guard identified his attacker as S.T however these initials alone do not guarantee that he was identifying Simon Timms and even if they did the guard only got a brief glimpse of his face and was vague about how well he knew him. The police report shows that the bike used belongs to the brothers this is a reliable piece of evidence however it does not prove that the accused were the ones using it at the time and the story about forgetting to report the theft to the police could be true for all anyone knows. Finally Simon claims to have an alibi and since the witness to this is the dead mans grandchild this is likely to be seen as very reliable despite the fact that he did not mention it quickly. Issues regarding pre trial publicity and bad character evidence are not likely to be accepted in this case.
In conclusion there is nothing to stop the prosecution proceeding. However the evidence is all circumstantial and although there are multiple coincidences there are not many of them and there is a alibi therefore they have little chance of getting a conviction. The guards identification combined with the inadmissible confession would form a stronger case against Simon therefore I recommend having separate trials so that they are no longer co-accused. This will mean Justin’s confession will be usable against Simon and Justin will be compellable to testify against him providing he can understand the questions and give understandable answers in spite of his difficulties. The verdict will still be doubtful due to the reliability of Justin’s evidence but this option is more likely to be successful.
BIBLIOGRAPHY
Books
Gregory Durston, Evidence, Oxford university press 2008
Journals
Criminal Justice Act 2003: Part 3: evidence of bad character, Crim. L.R. (2004), Jul, 533-555
Evidence and procedure: retrial for serious offence, Crim. L.W. (2009), 1, 3-4
Evidence: joint trial - admissibility of co-accused, Crim. L.R. (2005), Sep, 720-722
Identification - importance of full force of Turnbull direction, Arch. News (2004), 10, 2
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Criminal Justice Act 2003
Police and Criminal Evidence Act 1984
Youth Justice and Criminal Evidence Act 1999
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Criminal Justice Act 1988 c. 33 Schedule 13
Crime (International Co-operation) Act 2003
The Criminal Justice Act 2003 (Categories of Offences) Order 2004
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Condron v UK (2000)
Director of Public Prosecutions v Jason Chand (2007) WL 2912
Hill (1851) 2 Den 254
Leith McDonald Ratten Appellant v The Queen Respondent (1971) 3 W.L.R. 930
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Patel v Comptroller of Customs 1966, PC
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R v Sharp (1988) 1 wlr 7
R v Summers (1964) Crim. L.R. 328
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R v Weir and others (2006) 1 cr app r 19
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The Queen v C & K (2006) EWCA Crim 197
Waugh v. R. (1950) A.C. 203
Wolmington v DPP (1935) AC 462
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R. v Rosemary Pauline West (1996) 2 Cr. App. R. 374
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R v McCann (1991) 92 Cr. App.R. 239
R v Reade (1993) unreported
UH Law of Evidence module guide 2008/09 P:22
S.82(1) Police and Criminal Evidence Act 1984
R v Kenny (1994) crim lr 284
R v Wahab (2003) 1 cr app r 15
R v Moss (1990) 91 Cr. App. R. 371
R v Paula Bailey (1995) 2 Cr. App. R. 262
S.77 Police and Criminal Evidence Act 1984
S.114(1) Criminal Justice Act 2003
Gregory Durston, Evidence, Oxford university press 2008 pp:242
Patel v Comptroller of Customs 1966, PC
S.115(3) Criminal Justice Act 2003
R v Andrews (1987) 2 WLR 413, HL
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R. v Ronald Turnbull (1987) 2 W.L.R. 413
R v Blastland (1985) 3 W.L.R. 345
R. v Brian Nye (1978) 66 Cr. App. R. 252
Waugh v. R. (1950) A.C. 203
116(1)-116(2) Criminal Justice Act 2003
R v Glyma (2007) ewca 429
S.117 Criminal Justice Act 2003
S.34(1)-S.34(2) Criminal Justice and Public Order Act 1994
S.58(2) Youth Justice and Criminal Evidence Act 1999
R v Webber (2004) 1 W.L.R. 404
R v Hoare and another (2004) EWCA Crim 784
R v Betts (2001) 2 cr app r 257
Gregory Durston, Evidence, Oxford university press 2008 pp:540
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Nembhard v R. (1982) 74 Cr. App. R. 144
R. v Edward Owen Browning (1992) 94 Cr. App. R. 109
Police and Criminal Evidence Act 1984 Code D S 3.12
S.98 Criminal Justice Act 2003
S.112(1) Criminal Justice Act 2003
R v Z (Prior Acquittal) (2000) 2 AC 483
S.101 Criminal Justice Act 2003
S.102 Criminal Justice Act 2003
R v Edwards (stewart) et al (2006) 2 cr app r 4
R v Ifzal Iqbal (2006) EWCA Crim 1302
R v Edwards (Karl) (2006) 1 Cr App R 3
R v Osbourne (2007) Crim LR 712
S.103(1) Criminal Justice Act 2003
R v Hanson (2005) EWCA Crim 824
The Criminal Justice Act 2003 (Categories of Offences) Order 2004
Director of Public Prosecutions v Jason Chand (2007) WL 2912
S.53 Youth Justice and Criminal Evidence Act 1999