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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Barnes, R. v [2020] EWCA Crim 959 (16 June 2020) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2020/959.html Cite as: [2020] EWCA Crim 959 |
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CRIMINAL DIVISION
The Strand London WC2A 2LL |
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B e f o r e :
MRS JUSTICE WHIPPLE DBE
and
MR JUSTICE MURRAY
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R E G I N A | ||
- v - | ||
OLIVER BARNES |
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Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected]
(Official Shorthand Writers to the Court)
Mr A Hallworth appeared on behalf of the Crown
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Crown Copyright ©
LORD JUSTICE COULSON:
(a) The evidence of Robert Pope. Mr Pope said that he was in his living room with Simon Gidman when two men, uninvited, entered together. One of the men, whom he knew as O'Brien, had a hammer and said, "Give us your money and your drugs". Mr Pope was struck. He left the room to go and fetch help. When he returned, he saw Mr Gidman fighting with O'Brien, who was trying to retrieve the hammer. Mr Pope sustained various injuries.
(b) The evidence of Simon Gidman. He said that he was with Mr Pope when two men "came in closely". The first man was O'Brien. The second man was not known to him: it was common ground that it was the appellant. Mr Gidman said that both men were aggressive. O'Brien had a hammer and charged at him. Both men made demands. O'Brien said several times "Give us your fucking drugs and money". He said that Mr Pope, who was sitting on the sofa, was struck by O'Brien with the hammer. Mr Gidman said that he fought O'Brien and took the hammer. He said he thought that he hit O'Brien with it. Both men then charged at Mr Gidman, causing him to fall to the floor, where he received a multitude of kicks and punches. Mr Gidman then said that he was restrained by the appellant with a foot which stomped on and pinned him down by the throat. He said that he let go of the hammer and continued to be restrained. He then was repeatedly struck with the hammer by O'Brien. He sustained several injuries, including seven stitches to the face.
(c) The evidence of Amy Hilton. Amy Hilton was in a relationship with the appellant. She said that she had wanted to end it. On the day of the attack, the appellant had first dropped her at her cousin Rosanna's house and was invited in. O'Brien, who was Rosanna's partner, was there. Amy Hilton said that O'Brien and the appellant then left together and returned 45 minutes later. When they returned, O'Brien had a cut to his head and the appellant had hurt his knuckle. They said that they had been in a fight. They said that the appellant had protected O'Brien "or he would have been dead". O'Brien told Rosanna to do as she was told which related to the instruction to her regarding the disposal of the hammer. DNA found on the hammer linked it to O'Brien.
(d) The evidence of Rosanna Hilton, which was read to the jury. She, as we have said, was at the time O'Brien's partner. She said that O'Brien and the appellant went out and returned together. When they returned, O'Brien was covered in blood. He said that he had been hit with a hammer. They talked about the appellant "punching that guy". Rosanna Hilton said that O'Brien had said in his recounting of the events that he had instructed the appellant to stand on the man's neck, whilst O'Brien hit him with a hammer. Rosanna Hilton said that both men appeared to be proud of what they had done. She said that O'Brien told her to get rid of the hammer and that she and Amy disposed of it in a recycling bin. She later told the police where it was and they retrieved it. It was the evidence of Rosanna Hilton which now gives rise to the appeal against conviction.
"It seems to me that initial efforts to secure her attendance by cajoling, reassuring and encouragement cannot be criticised as such efforts in my experience often have a higher success rate in persuading reluctant witnesses to attend court than more strong-arm tactics. Equally, since it became clear that initial approach was not bearing fruit, the obtaining of a summons and efforts made by the officer in the case to contact her both directly and through her family have exhausted all reasonable avenues."
"(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."