2024 Feb 9
The defendant and his co-accused were charged with robbery, it being the Crown’s case that he, along with his co-accused and another man, travelled in a car to where a delivery van was parked, punched the driver and threatened him with a knife before stealing the van and its contents. In a late defence statement the defendant stated that he intended to call alibi evidence of two witnesses to demonstrate he had lent the car to a woman shortly before the robbery. At trial, she gave evidence that she drove the car to and committed the robbery with others without implicating the defendant. The Crown relied on a combination of evidence and the issue was whether the defendant and his co-accused participated in the robbery. The defendant decided not to call his second witness after he said in his police statement that the defendant had lent the woman a different car some time after the robbery. Late in the trial the Crown applied to bring him to court but he could not be found and just before the conclusion of the evidence applied to adduce his statement not to assert the truth of the contents of the statement but as rebuttal evidence to contradict the defendant’s alibi. The judge held that the statement was not hearsay pursuant to section 115 of the Criminal Justice Act 2003 and ought to be admitted in the interests of fairness. The second witness’s statement was read to the jury and the Crown addressed them in terms that it relied the witness as a witness of truth. In a later written ruling the judge held that since the issue in relation to the rebuttal evidence did not arise until after the defendant had given evidence the Crown were entitled to rely on it and the purpose of adducing it was to show that it contradicted the defendant’s evidence and was capable of disproving his alibi which was at the heart of the case. She further ruled that if she was wrong and the evidence was hearsay it would have been admitted under section 116 or section 114(1)(d) of the 2003 Act and the section 114(2) factors were irrelevant to whether it ought to be excluded on the grounds of fairness. She gave the conventional hearsay directions. Both men were convicted. The defendant appealed against conviction on the ground that the judge erred in allowing the Crown to read a witness’s written hearsay statement to the jury after the close of the defence case to rebut the defendant’s defence of alibi and it should have been excluded under section 78 of the Police and Criminal Evidence Act 1984 after considering the factors in section 114(2).
On the appeal—
Held, appeal dismissed. The statement could have been read to the jury on either of the mutually inconsistent bases that (i) it was false and demonstrated that the defendant was willing and able to procure people to tell lies for him, requiring the jury to be sure that it was dishonest and false, or (ii) it was reliable, true hearsay evidence of the matters stated in the statement, admissible under section 116 or 114(1)(d) of the Criminal Justice Act 2003, on which the jury were invited to rely. The issue having arisen after the completion of the defence case, there had been a general discretion to permit or refuse evidence in rebuttal. The question of whether it was admissible and if so, on what basis became elided with the discussion about fairness. The first basis for admission should have involved an inferential finding that the defendant had contrived a false defence and required it to be explored with him in cross-examination, but it was only explored in general terms by counsel for the co-defendant. The judge admitted the statement on the first basis and, in case she was wrong, on the second basis as well, but depended on the proposition that the Crown were not relying on the truth of the statement, as she demonstrated in her direction to the jury. That direction ignored the way in which prosecuting counsel addressed the jury and the inference that the witness must have said something equally false but different to the defendant’s solicitors at the defendant’s request was very strong and a proper basis for the statement to be admitted in evidence. The second basis for admission did not arise and the judge erred in saying it did if she was wrong in her main decision and in giving the conventional hearsay directions. In all the circumstances, although the way in which the statement was treated at trial was not entirely satisfactory, it was admissible and the judge’s direction that it undermined the defendant’s alibi defence and meant that if people were lying their accounts may be inconsistent identified accurately the proper basis for admissibility. It was inconsistent for the judge then to say that the Crown’s position was that they had no idea whether the witness’s statement was true, particularly in light of the way the Crown had addressed the jury. The safety of the conviction was not, however, in doubt because the Crown’s case had been overwhelming and the defendant’s case depended on a number of wholly implausible coincidences (paras 42–45).
Bartholomew O’Toole (assigned by the Registrar of Criminal Appeals) for the defendant.
Asma Khan (instructed by Crown Prosecution Service, Appeals Unit, Special Crime Division) for the Crown.