No: 2007/04101/C2 
Neutral Citation Number: [2008] EWCA Crim 260
IN THE COURT OF APPEAL 
CRIMINAL DIVISION
SITTING AT CARDIFF CROWN COURT
The Law Courts
Cathays Park
Cardiff, CF10 

Date: Friday, 25th January 2008
 
B E F O R E:
 
LORD JUSTICE PILL
MR JUSTICE RODERICK EVANS 
MR JUSTICE WALKER 
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R E G I N A 

‑v‑ 

IAN JON PULLEY
 
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Mr G Walters appeared on behalf of the Appellant 
Mr M Spackman appeared on behalf of the Crown 
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J U D G M E N T 

1.	LORD JUSTICE PILL:  On 6th July 2007 in the Crown Court at Swansea, before His Honour Judge Diehl QC and a jury, Ian Jon Pulley was convicted of inflicting grievous bodily harm, contrary to section 20 of the Offences Against the Person Act 1861.  On 15th August 2007 he was sentenced to an extended sentence of 5 years, pursuant to section 227 of the Criminal Justice Act 2003, made up of a custodial term of 3 years' imprisonment and an extension period of 2 years.
2.	Pulley appeals against conviction by leave of the single judge.
3.	The point at issue is the admission into evidence of statements made by the victim of the alleged assault.  The alleged victim was the wife of the appellant, Kimberley Pulley.  On 1st March 2006 she received a substantial injury to her left hand.  The tip of her ring finger was severed and the tip of her little finger partially severed.  The prosecution case was that the appellant had caused the injuries by assaulting the complainant, first by stabbing her with a fork in the thigh, where there were signs of injury, and then by attacking her with a machete.  The appellant, her husband, denied the offence.  His case was that the injury to the hand had been caused when the complainant accidentally trapped her fingers in the door at the matrimonial home.  He denied stabbing the complainant in the thigh with a fork.  He denied using a machete to injure her hand.
4.	Sadly, the complainant died, for reasons unconnected with the events of 1st March, later in 2007 and before the trial.  A successful application was made to put in evidence three statements which she made about the events of that day, the first of them being given on 2nd March, the day immediately following the date of the alleged offence.
5.	Counsel have agreed what needs to be mentioned as indicating the substance of her evidence, or "the high point", as counsel put it.  There was an argument about what they were going to have for dinner.  She had prepared salad; he wanted chips.  He stabbed her twice with a fork to her thighs.  It was, however, the injury to the hand which formed the substance of the charge, and the issues argued before the jury.
6.	The appellant went to the utility room and took possession of a machete, which they owned and used on occasions in the preparation of meat for eating.  He joined her in the kitchen.  Her account, as recorded in her statement, was:
"He was shouting and bawling, 'I am going to have you'.  At that stage I really did think that he would hurt me, but did not believe that he would use the machete.  For some reason I raised my left hand to protect my head, and I then felt extreme pain in my left hand and saw that the top of my little and ring finger of my left hand had been chopped off.  At home and in the ambulance and at the hospital he kept telling me to say I had hurt my fingers in the door.  But after I had told an ambulance man that it was an accident, I decided that I was going to tell the truth about what he had done.  While I cannot be sure that he used the machete, as I was and still am in such shock."
In the statement she maintained that she had not been drinking that evening, and said that she was willing to have a blood test to demonstrate that she had not been drinking.
7.	In a subsequent statement the complainant purported to identify the machete, and she said that it had been used in order to bone a breast of lamb about a month before 1st March.  In a later statement the complainant also said:
"I know he will say it was an accident, that I jammed my hand in the door.  This was no accident.  He hurt me with the machete.  He also stabbed both my legs with the fork, causing injuries.  I did not do these myself."
8.	The appellant summoned an ambulance to the house.  The paramedic who attended, Mr Harris, gave evidence that the appellant had told him that he had had an argument with his wife and she had caught her fingers in the door when he was shutting it.  When Mr Harris saw the complainant she did not tell him how the injury had been caused.  In the ambulance and in the absence of the appellant, she said "He did it", but Mr Harris thought that the comment related to the door‑shutting account given to him by the appellant.  However, an argument persisted in the ambulance, the complainant saying, "You did it, you did it" to her husband.  He did not hear the appellant telling the complainant to say that she had trapped her fingers in the door.
9.	Mr Fair, another paramedic who attended in the ambulance, said that the complainant also told him that her hand had become stuck in the door.  He had suspicions about that, having observed the nature of the injury to the hand.  He confirmed that the complainant was saying, "He did it".  He notified his suspicions to Senior Nurse Sharp after they had reached the hospital.
10.	A nurse at the hospital, Mr Powell, said that the complainant had told him in the presence of the appellant that the appellant had purposely trapped her fingers in the door, and he also made a report to Nurse Sharp, his supervisor.  The complainant asked for Mr Powell's help in calling the police.
11.	Miss Sharp gave evidence of the reports of concern to her, and that the complainant had told at a later stage that the appellant had deliberately caused her injuries with a machete.  The complainant made that complaint to her.  Nurse Sharp had known the complainant for many years. 
12.	Two police officers also gave evidence by way of statements that the complainant had told them that the appellant had assaulted her with a machete.  Medical evidence was given by Dr Yaqoob, consultant orthopaedic surgeon.  He had not examined the complainant, but had seen medical notes which included a photograph of the injury.  His evidence, as summarised by the judge, accurately as counsel agree, was that the injury to the hand was on a balance of probability more likely to have been caused by a sharp instrument than it was by a closing door, though the other possibility could not be excluded.
13.	Dr Yaqoob referred to notes prepared by his junior, Dr Danana, who had seen the complainant on admission, and Dr Danana had noted that the appellant had trapped her fingers in the door.  He also noted that the complainant was at that time under the influence of drink.
14.	A scenes of crime officer, Detective Constable Morris, found bloodstains on the carpet in the lounge of the home and some on the front settee.  There was a blood‑stained towel in the kitchen, but no blood or blood trail was found on the kitchen floor.  The door frame, where the appellant alleged the injury had occurred, found a "weak positive" for blood, and that was at hand level on the door.
15.	The machete identified, and not disputed to be the family machete, was examined by Mr Little, a scientific witness.  He found no trace of the complainant's DNA on it or on its sheath.  However, some non‑human material was found on one side of the handle towards the blade.  He accepted that a bladed weapon may not become blood‑stained as a result of a single strike, but he would have expected the transfer to the blade of some cellular material from the victim, and no such material was found.  As to the suggestion that the knife had been cleaned, it was accepted that one would then have expected the non‑human material found on it also to have been removed.
16.	The complainant provided a sample of blood for analysis.  It was found to contain a substantial percentage of alcohol.  A back calculation was done which showed the likely reading at the time of the relevant events in the house to have been several times above the legal limit for driving.
17.	The appellant gave evidence.  He described the events of the evening.  He had been drinking cider.  He had not seen his wife drinking, though she had had a serious drinking problem.  He went into the kitchen to wash up after dinner.  He closed the door to the living room by leaning against it with his bottom, using enough force to shut it.  He was not aware that his wife was near the door.  As he shut it, he heard a scream and saw something fall to the ground, which was the end of her finger.  It was bloody.  He took a flannel from the bathroom and wrapped it round her fingers.  He took her to the settee and sat her down, putting a bag of frozen food on the finger.  He called the emergency services.
18.	The appellant denied that he told his wife what to say to the paramedics or to the hospital staff.  He recalled her telling a doctor that she had shut her fingers in a window.  There was evidence that a number of affectionate letters had been sent by the complainant to him following the events and his remand into custody.
19.	In terms of weight on the door, the appellant said in cross‑examination that he put his full weight of 19½ stone in his attempt to shut the door.  He denied cleaning the blade of the machete on his return.
20.	The judge summed up the case in great detail, and no criticism is made of his summing‑up.  He did consider in detail the inconsistencies which were present in the prosecution case and the submissions which had properly been made on the appellant's behalf by Mr Walters of counsel, who appears before this court.
21.	Mr Walters submits that the written statements should not in these circumstances have been admitted.  His submission is that there was no sufficient assessment of the reliability of the maker of the statement, and a decision that the statements qualified for admission was inappropriate.  He submits that the decision was outside the discretion of the judge if properly exercised.
22.	Mr Spackman, for the prosecution, of course relies on the breadth of the judge's discretion when deciding on the admission of evidence.  The court should not interfere with that.  The judge conducted a proper exercise in relation to reliability and was entitled to admit the evidence.  Unfortunately, the judge was not referred to the statutory requirements in section 114(2) of the Act.
23.	The submission is that the trial was rendered unfair by the admission of the complainant's statements.  The starting point is, of course, Article 6(3)(d) of the European Convention on Human Rights, which provides that everyone charged with a criminal offence has certain minimum rights, one of which is:
"to examine or have examined witnesses against him ..."
24.	Reference was made to Luca v Italy (2003) 36 EHRR 46.  That ruling and more general considerations have been the subject of consideration in the courts of England and Wales.  It is accepted, by virtue of section 114 of the Criminal Justice Act 2003 ("the 2003 Act"), that statements may be admitted.  The test as to admissibility is set out in section 114(2):
"In deciding whether a statement not made in oral evidence should be admitted under subsection (1)(d), the court must have regard to the following factors (and to any others it considers relevant) —  
 (a) how much probative value the statement has (assuming it to be true) in relation to a matter in issue in the proceedings, or how valuable it is for the understanding of other evidence in the case; 
 (b) what other evidence has been, or can be, given on the matter or evidence mentioned in paragraph (a); 
 (c) how important the matter or evidence mentioned in paragraph (a) is in the context of the case as a whole; 
 (d) the circumstances in which the statement was made; 
 (e) how reliable the maker of the statement appears to be; 
 (f) how reliable the evidence of the making of the statement appears to be; 
 (g) whether oral evidence of the matter stated can be given and, if not, why it cannot; 
 (h) the amount of difficulty involved in challenging the statement; 
 (i) the extent to which that difficulty would be likely to prejudice the party facing it."
25.	Section 116 specifies the situations in which a witness is "unavailable" for the purpose of that consideration, and the death of the proposed witness is, of course, one such situation (section 116(2)(a)).
26.	Attention is also drawn to the general discretion to exclude evidence under section 78 of the Police and Criminal Evidence Act 1984 ("the 1984 Act"), preserved by section 126(2) of the 2003 Act, where:
"... having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."
27.	In his ruling, which was also in some detail and gave careful consideration to the points raised, save that unfortunately section 114(2) was not referred to, the judge concluded, by way of explanation of a ruling given the previous afternoon:
"... I ruled shortly yesterday that the statements should be admitted and that their admission in evidence would not have such an adverse [effect] upon the fairness of these proceedings that I should decide otherwise or indeed such as to render the proceedings as a whole unfair to the defendant."
28.	In the course of the ruling, the judge had said, having referred to the contradictions in the complainant's statement and other matters raised:
"That again, in my judgment, I interpose, is an asset which aids the defence not the prosecution and does not need or require [in justice] to the defendant any further exploration."
29.	Again, at page 11D:
"As to the lie about drink and intoxication itself, those matters in my view clearly serve to assist the defence."
30.	The circumstances in which statements should be admitted were considered in this court in R v Imad Al‑Khawaja [2005] EWCA Crim 2697, the judgment of the court being given by Jack J.  That was a case where the defendant was convicted of two counts of indecent assault on a female.  The prosecution case was that the allegations of the two complainants were mutually supportive.  The prosecution also relied on the strikingly similar evidence from two other women.  One of the complainants had died and the judge admitted her statement.
31.	It was held in this court that the judge had been entitled to do so.  The defendant was able to attack the accuracy of the relevant complainant by exploring the inconsistencies between her statement and the other witnesses.  The court referred to the strong public interest in the admission of a statement in circumstances such as those, though it must not override (the court stated at paragraph 26) the requirement that the defendant have a fair trial.
32.	The judge noted that it was not a case where collusion between the complainants was suggested.  There was nothing to suggest that the women knew the details of each other's allegations, and evidence of improper suggestions made to the other two witnesses who gave evidence.  The court concluded: 
"28.  We have concluded that the rights of the appellant under Article 6 were not infringed by the admission of the statement.  We consider that his rights were sufficiently protected in the circumstances of his case.  His trial was not unfair."
33.	The court went on to say that appropriate directions to the jury were required and were given.  The court concluded:
"We should also say that overall the evidence against the appellant was very strong.  We were wholly unpersuaded that the verdicts were unsafe."
34.	Two separate cases were considered by this court in R v Cole and Keet [2007] EWCA Crim 1924, Lord Phillips CJ presiding.  The Lord Chief Justice referred to Article 6 and to the statutory requirement, which we have already cited.  At paragraph 10, the court cited the judgment of the European Court of Human Rights in Luca:
"The evidence must normally be produced at a public hearing, in the presence of the accused, with a view to adversarial argument.  There are exceptions to this principle, but they must not infringe the rights of the defence.  As a general rule, Art. 6(1) and (3)(d) require that the defendant be given an adequate and proper opportunity to challenge and question a witness against him, either when he makes his statement or at a later stage."
35.	Having considered Luca, the court stated at paragraph 13:
"Furthermore, Luca was a case where the evidence in question was the main evidence against the accused.  It cannot be treated as authority for the proposition that in all circumstances hearsay evidence cannot be adduced unless the defendant is able, or has had the opportunity, to examine the maker."
36.	At paragraph 21:
"21.	  There are many reasons why it may be impossible to call a witness.  Where the defendant is himself responsible for that fact, he is in no position to complain that he has been denied a fair trial if a statement from that witness is admitted.  Where the witness is dead, or cannot be called for some other reason, the question of whether the admission of a statement from that witness will impair the fairness of the trial will be depend on the facts of the particular case.  Factors that will be likely to be of concern to the court are identified in section 114(2) of the Act.
22.  	In accordance with these conclusions, we shall proceed to consider the individual appeals on the basis that Article 6 imposes no absolute embargo on the admission of the hearsay evidence adduced by the prosecution in either case."
The court went on to consider the facts of the two cases and held that statements had in each case properly been admitted.
37.	Keet was convicted of attempting to obtain property by deception (count 3) and damaging property (count 4).  The prosecution case was in part based on the evidence of Mrs Soper, a lady who was 82 years old.  She was approached by the defendant with a view to doing roofing work on her house.  She was told that further work would be required and would cost £6,000.  Mrs Soper said that she would have to get this from the bank.  She told her daughter what had happened and her daughter was angry, whereupon the matter was reported to the police.
38.	Inspection of the roof revealed that a tile had been lifted and a piece of roofing felt cut out.  This formed the subject matter of count 4.  The prosecution case was that the damage was caused deliberately so as to justify the further work for which £6,000 was claimed.  Evidence was called that the original work done should have cost about £100, and evidence critical of the work in fact done was produced.
39.	In that context the court considered, at paragraph 38, the provisions of section 114.  Amongst their comments were these:
"d) The circumstances in which the statement was made suggested that the maker believed in the truth of the statement.  It was not suggested by the appellant that the evidence in question was untruthful; indeed he accepted that part of it was accurate.  He merely contended that Mrs Soper must have been mistaken as to certain other parts.
e)  There is ... a degree of confusion in the statement about particular dates.  Overall, however, the statement paints a coherent picture and it has been accepted that Mrs Soper, although elderly and subsequently affected by dementia, was rational when she made it."
In those circumstances the court held that the judge had been right to admit the statement.
40.	Cole was convicted of assault occasioning actual bodily harm to his girlfriend, now deceased.  The witness not able to give evidence was Sharon Tracey, her room‑mate, and count 1 was based on Sharon Tracey's evidence of witnessing the appellant assault her on three separate occasions.  The background was of course the inability of the deceased victim, Katy Smith, to give evidence.  It was accepted that on count 2 the case depended largely on statements alleged to have been made by the deceased to her brother, also not available to give evidence.  Other witnesses gave evidence of upset and injury of the deceased, including evidence that she had had a black eye.  Count 3 was based on inferences to be drawn from the injuries found on the body of the deceased.
41.	In this case, too, the court considered the overall impact of the evidence in relation to the non‑availability of an important witness.  The court concluded:
"73.  	The facts of this case are very different from those of Keet.  If each statement is considered in isolation it is both less cogent and less significant than the evidence of Mrs Soper.  The statements are lacking in detail and in precision as to date.  When the factors in section 114 are considered in respect of an individual statement, the case for admission is weaker than it is in Keet.  But the correct approach is not to consider each statement on its own, but to consider it in its context.  Each statement is part of a wider picture.  That picture is coherent and compelling.  It is of a relationship between the deceased and the appellant that was punctuated by physical violence on his part."
42.	The court set out the detail, including the closeness of the relationship and the presence of the injuries.  The court concluded that:
"78.  ... the admission of the hearsay evidence was in the interests of justice and consistent with a fair trial."
43.	Mr Walters submits that both those cases are distinguishable, on the general principles to be applied, because the evidence in the present case emerging from the statements of the deceased does not fit into the coherent picture present in the other cases and is not accepted by the defendant.
44.	Reliance is placed on the case of R v Sellick [2005] EWCA Crim 651 (to which reference was made in paragraph 16 of Keet and Cole).  Waller LJ, giving the judgment of the court, stated propositions resulting from the Strasbourg decisions, one of which, (iv), cited at paragraph 16: 
"iv)	  The quality of the evidence and its inherent reliability, plus the degree of caution exercised in relation to reliance on it, will also be relevant to the question whether the trial was fair."
45.	Mr Walters submits that the evidence is not inherently reliable.  He relies on a number of factors emerging from other evidence before the court.  First, there was no blood apparent in the kitchen where the violence was alleged to have taken place.  Second, the blood spattering was throughout the lounge, which is where the complainant was led so that she could sit and wait for the ambulance.  Third, there was blood on the door frame at about handle level, and that was consistent with the appellant's account of where the injury had been sustained.  Fourth, a spot of blood was found on the carpet below the point where the appellant said the injury had taken place.  Fifth, the scientific examination of the machete did not show blood.  As to the suggestion that it had been cleaned, and the appellant had the opportunity to clean, the presence of non‑human tissue, that would have resulted from the lamb boning, was still there.
46.	In relation to the reliability of the complainant's evidence, Mr Walters relies upon the contents of the report of the request for emergency assistance, which was consistent with the appellant's account.  A paramedic gave evidence that the complainant had given an account that the injury had been caused by a door.  He also gave evidence that he had not heard the appellant telling the complainant what she was to say.  At the hospital a doctor was told that the injuries were caused by the jamming of the fingers in a door.  The suggestion had also been made that the injury had been caused by a deliberate slamming of the door on the complainant.  That might involve an offence, but it was not consistent with the complainant's account.
47.	Reliance is also placed on the untruthfulness of the complainant's statement that she had not been drinking.  It is clear, and accepted on the evidence, that she must have been very substantially under the influence of alcohol at the time of the offence.  Her denial goes to her credibility; the influence of the drink on events is not said to be relevant.
48.	Further, following the detaining of the appellant, the complainant wrote him a number of letters in affectionate terms, in one of which she said, "All this crap should never have happened," the meaning of which is arguable, but does add weight, it is submitted, to the suggestion that her complaints had been manufactured.
49.	Clearly there would have been very substantial grounds for cross‑examination of the complainant had she given evidence, because of her inconsistencies, lies and the other evidence to which we have referred.
50.	The prosecution rely on the medical evidence that, on a balance of probabilities, it was likely that the injury was caused by a machete, a slicing injury rather than a slamming injury.  That is consistent with the complainant's amount in the statements, though it is not conclusive evidence, the doctor accepting that the other possibility could not be excluded.  The prosecution also submit that the lie in relation to the taking of alcohol is not material to the issues which the judge had to consider.
51.	Mr Spackman submits that in his discretion the judge was entitled to admit the statements under the 2003 Act, having due regard to section 78 of the 1984 Act and to the statements of principle.  It should be stated that the case of Cole and Keet, on which Mr Spackman relies, was not available to the judge when he made his ruling on 3rd July 2007.
52.	It has been necessary to consider the facts of those cases and Al‑Khawaja to establish the principles permitting the admission of the statements and their application to the current facts.
53.	We cannot accept the proposition that the presence of serious inconsistencies and lies in the statement of an absent witness necessarily operates in favour of its admission, because inconsistencies favour the defence.  On that approach the court is less likely to admit an apparently reliable statement than an apparently unreliable statement.  That conflicts with proposition (iv) in Sellick, cited by this court at paragraph 16 of Cole, and is contrary to section 114(2)(e) of the 2003 Act, which provides that the court must have regard to: "how reliable the maker of the statement appears to be". 
54.	That approach to inconsistencies and lies does emerge from the judge's ruling as cited, though other factors were also present.  It was not a correct approach in our judgment.  It may well have influenced his eventual ruling.  That enables this court to exercise its own discretion.
55.	We have considered the cases of Al‑Khawaja, Cole and Keet and have thought it appropriate to refer to the facts in those cases in some detail.  In each of those cases the contents of the statements fit comfortably with other available evidence, which indeed provide substantial support for their accuracy.  That is not the situation in this case.  The medical evidence is consistent with the complaint made by the victim.  Much of the evidence, which we have summarised, gives rise to serious questions, and doubts, about the accuracy of the account contained in the statements admitted.
56.	We have come to the conclusion that the admission of the statements in this case, in a situation in which the maker of the statements could not be cross‑examined, did in the circumstances deprive the appellant of a fair trial.  We have particular regard to section 114(2)(e), to which we have referred.  Of the other factors stated, some favour admission, others are neutral.  But there could not be a fair trial in this case, having regard to the very serious doubts about the reliability of the statement concerned, without the maker of the statement being available for cross‑examination.
57.	The trial was not in that respect fair, and it follows that the verdict is, in our judgment, unsafe and the verdict must be quashed.  The appeal accordingly is allowed.
58.	Are there any applications?
59.	MR WALTERS:  None, my Lord, except the discharge of the appellant.
60.	LORD JUSTICE PILL:  Mr Spackman? 
61.	MR SPACKMAN:  No, thank you, my Lord.
62.	LORD JUSTICE PILL:  There are no other matters on which attention arises, so a discharge is appropriate? 
63.	MR SPACKMAN:  Yes, it is.
64.	LORD JUSTICE PILL:  Thank you very much.  We are grateful to both counsel for their submissions.
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