Case No:  CO/2258/2018
Neutral Citation Number: [2018] EWHC 3062 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT IN WALES

Courtroom No. 12

Cardiff Civil Justice Centre
2 Park Street
Cardiff
CF10 1ET

11.08am – 11.40am
Tuesday, 16th October 2018

Before:
THE HONOURABLE MRS JUSTICE ANDREWS DBE

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B E T W E E N:
CHRISTIAN GRIFFTHS

and

CROWN PROSECUTION SERVICE

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Transcript from a recording by Ubiqus
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This transcript has been approved by the judge.

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MR J EVANS appeared on behalf of the Applicant
MR L CHINWEZE (Solicitor) appeared on behalf of the Respondent

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JUDGMENT
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MRS JUSTICE ANDREWS:  

1.	This is an appeal brought to the High Court by way of case stated from the Gwent Magistrates Court.  The case stated for the opinion of the Court by the Justices is set out very clearly and cogently, and I have read it very carefully. 
2.	The background concerns an alleged incident of domestic violence.  As is often the case, there were no witnesses to the incident other than the Complainant, a Miss Smith, and the Appellant, who was her partner at the time.  He was charged with assault by beating ,and the trial took place on 7 February 2018 in relation to an incident that had only occurred during the previous month, on 4 January 2018. 
3.	On the day of the incident, Miss Smith made a statement to the police which, as is normal in such cases, had the standard rubric at the top that reads:
 ‘This statement consisting of ... pages each signed by me is true to the best of my knowledge and belief, and I make it knowing that if it tendered in evidence I shall be liable to prosecution if I have wilfully stated in it anything which I know to be false or do not believe to be true’.  
In that statement, Miss Smith speaks about what she describes as a fight between herself and the Appellant.  She says, ‘it all happened so fast, I am not sure how it got to the point of the fight.  He hit me in the head a number of times, he punched me and ragged my hair.’ She says that he knocked her out when he hit her in the head.  The incident then moved into the kitchen and she describes what was going on in the kitchen.  She states that the children were witnesses to part of the incident at least.  She does say in her account that she kicked the Appellant and she also says that she bit him, although she was not sure where.  There is reference to the use of a bat; she says their youngest son had run upstairs with the bat and she had grabbed it to stop him from getting involved in the fight.  On arrest, the Appellant immediately told the police that his partner had come at him with a baseball bat and that he had been acting in self-defence.  
4.	On 27 January 2018, the Complainant decided to retract her statement.  Again, she made a statement to the police with the same rubric at the outset.  She said that she had made a complaint about her partner assaulting her and she was aware he had been charged with assaulting her.  ‘I wish to withdraw this complaint.  I do not want to go to Court.  Nobody has forced me to withdraw this statement.  I do not feel pressurised by anyone to drop this complaint’.  Then she gave her reasons why she did not want to press charges.  She basically said that she did not want her partner to have the possibility of going to prison, she wanted him to be around for their children and she did not want the results of going to court because she works long hours and she looks after her children.  At no point in that retraction statement did she dispute the truthfulness of what she had said to the police on the first occasion.  
5.	The Justices describe in the case stated what happened when she came to Court.  She was sworn on oath and she began her examination in chief by confirming that her two witness statements were true when she made them.  She then said, ‘I can’t remember anything that happened in January and I don’t want to be here.  I just want to move on.  I have retracted my statement.  We both done wrong that day’.  Because of that, prosecuting counsel applied for permission to treat her as a hostile witness.  The Justices gave permission under the legislation, and there is no complaint by Mr Evans for the defence about that decision.  The two witness statements were then put to the witness.  She agreed that they were her statements, and again she confirmed that the contents of those statements were true.  The Justices then allowed them to be adduced, pursuant to s119 Criminal Justice Act 2003.  The consequences of that decision are that the statements were admitted as evidence of the truth of their contents, notwithstanding the technical hearsay nature of them.
6.	The Complainant then refused to be taken through her statements at all.  Prosecuting counsel gave up and the defence then attempted to cross-examine her.  Mr Evans, who appeared today, was trial counsel.  He had a difficult job.  He asked her if he could take her through her statements and she said no.  She added that her recollection of the events that day was the same.  She then, as the Justices put it, ‘steadfastly refused to subject herself to cross-examination’ and became distressed.  The Justices agreed to a short adjournment.  She came back, and she was given warnings as to the consequences of failing to answer questions.  Mr Evans had another go at attempting to cross-examine her, but the witness stated, ‘I don’t want to answer any questions.’  It was in the light of that, that the Justices invited the witness to withdraw and submissions were made by the advocates in her absence.  
7.	The first of the decisions complained of by the Appellant in the appeal by way of case stated was a decision by the Justices not at that stage to stay the action for abuse of process.  Mr Evans’ submission was that the defence was unduly prejudiced by the refusal of the key witness to submit to cross-examination.  He was unable to test what she had said to the police or the reasons why she retracted her statement, and that, he said, inherently deprived his client of receiving a fair trial.  The defence was left with nowhere to turn and that was an invidious and unfair position to find oneself in.  
8.	The prosecution opposed the application for a stay. They relied, amongst other authorities, on the well-known cases of R v Felton Magistrates Court, ex parte Ebrahim [2002] EWHC Admin 130 and Mouat v DPP [2001] 1 WLR 1293.  There was also some guidance to be found in the more recent decision of the Divisional Court in Morgan v Director of Public Prosecutions [2016] EWHC 3414 Admin, another appeal by way of case stated in a domestic violence case.  As in the present case, there had been a refusal by the Magistrates Court to exclude the evidence of the Complainant under s.78 Police and Criminal Evidence Act 1984.  However, there was no abuse of process argument. The Justices in that case then went on to reject a submission of no case to answer, and found the allegations proved.  
9.	In many respects, the case of Morgan is very similar to the present. The complainant in that case, having made a 999 call to the police and some statements which were recorded on the body cam of one of the attending officers, then refused to come to trial, saying that she was terrified. She became extremely distressed.  In fact, she refused to answer a witness summons, so she did not even appear at the trial. In the light of that, her evidence was admitted under the hearsay provisions of Criminal Justice Act.  The Court in that case found that it was possible for the defendant to have a fair trial because he could give his own account of what happened, and the inability to cross-examine the complainant could properly be taken into account in terms of the weight to be given to the hearsay evidence.  The Divisional Court decided that that approach was within the ambit of the discretion of the trial judge and that on evaluating the hearsay evidence, it was entirely within the realms of the judicial discretion not to exclude it under s.78.  The Divisional Court went on to say that it was open to the judge to come to the conclusion that there was a case to answer (since there was a case to answer). It concluded that the verdict could not be described as perverse.  
10.	Of course, this Court must bear in mind that each case will turn on its own peculiar facts, and the specific facts of another case cannot afford much, if any, guidance in the current case; it is the principles to be derived from the authorities that are helpful. However, Morgan serves as a general illustration of the point that it does not necessarily or inevitably follow from an inability to cross-examine the complainant that the defendant will not get a fair trial, even where they are the only protagonists.  
11.	The authorities make it clear that the real question for the court when faced with a situation such as this is whether a fair trial was possible, and whether any appropriate weight could be attached to the evidence of the witness.  In this case Mr Evans submitted that the evidence of the Complainant was the only evidence that the prosecution had to go on.  Whilst there was some evidence of injury to her, described by the Justices in the case stated as a ‘small cut to her left eyebrow and two small scratch marks to her upper chest’, which injuries were photographed by the officer in the case, and those photographs were in evidence, those injuries were as consistent with a case of self-defence as they were with the case that the Appellant was the attacker.  Therefore, the injuries added little or nothing to the prosecution case.  Apart from that, there was the evidence as to what the Appellant said when he was arrested, which was that she had hit him around the head with a baseball bat and, ‘stabbed me in the back with a baseball bat’, and that she had attacked him first and he had responded in self-defence.  That of course was a matter that the Justices were entitled to take into account when weighing up the evidence as a whole. 
12.	Mr Evans submitted that as far as the facts are concerned, the key problem for the prosecution was that the witness had not simply said that her earlier account was true. Having said that, she then went on to say that she did not remember what happened in January at all and, perhaps more pertinently, that ‘we both done wrong that day’.  Given that she had accepted some culpability for what happened during the fight, Mr Evans submitted that the Justices could not have reached the conclusion that his client could have a fair trial in the circumstances of not being able to probe that answer and test it further, because that evidence cast doubt on who was the aggressor. Moreover, if she was now accepting that she was to some extent at fault, no properly directed finder of fact (in this case, the Justices) could reach the conclusion that they were sure that the Appellant was responsible for assaulting her, rather than that he was acting in self-defence.  
13.	I can understand why that submission was made, but this Court must first look at the matter in terms of whether the Justices properly approached the exercise of their discretion as a matter of law. If they did, the next question is whether the decision that they reached at each stage of the trial was one to which a reasonable panel of justices could have come, having properly directed themselves on the law.  
14.	As far as the stay was concerned, paragraph 9 of the Case Stated states that:
‘The Justices retired to consider the application and decided to reject it.  We consider that the Appellant could have a fair trial, even though the witness had refused to answer questions in chief and further questions in cross-examination’.  
They very fairly have stated in their case stated that they did not give their reasons for reaching that conclusion when they announced the decision in open court. They then went on to say that they were not going to pursue the witness for contempt.  
15.	Mr Chinweze, who represented the prosecution before me today, submitted that it is to be inferred that the Justices accepted the submissions that had been made on that occasion by the prosecution, which was in line with the thrust of the authorities.  The Appellant had given an account in interview and would have the opportunity of doing so again at the trial, just as the case was in Morgan and Ebrahim. Mr Chinweze submitted that the refusal of the stay application could not possibly be characterised as a decision which no reasonable Justices properly directing themselves could have reached, because it was open to them to come to the conclusion that the disadvantages faced by the defence could properly be taken into account, as could indeed the contemporaneous account of events by the Appellant. Therefore, if one looked at all the relevant material on the whole, taken holistically, it was open to them to come to the conclusion that there was no unfairness such as mandated a stay. 
16.	In answer to that, Mr Evans said, ‘this is a bright line case’. He submitted that the facts indicated that the witness had not only resiled from what she had originally stated but acknowledged that her original statement was misleading because she now accepted that she had done something wrong. That went to the heart of the question of fairness in this case.  
17.	I have considered that submission with some care.  However, as I have already pointed out in my recital of what the witness said to the police on the first occasion, even then she accepted that she was in possession of the baseball bat, and that she bit the Defendant and that she may have kicked him om various occasions during the incident.  That is entirely consistent with an acceptance that she had done something wrong. However, at no stage in her statements to the police, or in such evidence as she gave at trial, did she accept that she was the aggressor or say anything that might even suggest that she was the one who started the argument.  On the contrary, she confirmed the truth of her original statement more than once and even when retracting that statement, she did not resile from its truth. 
18.	The Justices therefore were in a position where they could properly admit the earlier statements as evidence of the truth of their contents, notwithstanding what had happened.  They had seen and heard the witness and could evaluate her credibility to the extent that they were able to do so.  They properly took into account what she had said, including ‘we both done wrong that day’, and the fact that she was now saying in February that she could not remember what happened in January. They also properly took into account the fact that the defence was inhibited from pursuing any line of cross-examination, because the Complainant was stubbornly digging her heels in and refusing to answer questions from the prosecution and the defence at the time.  In looking at fairness, they said ‘it is open to the Defendant to give evidence, and we can take into account what he said immediately as he was arrested, which was that he was acting in self-defence’.
19.	Given that they properly evaluated and balanced all the relevant factors, in my judgment they were entitled to deny the Appellant a stay on grounds of abuse of process.  
20.	One then moves on to the next two points, which were that the Justices should have acceded to a submission of “no case to answer” in reliance on the second limb of the test in R v Galbraith [1981] 73 Cr App R 124. and a complaint about their ultimate decision, the Galbraith submission having been rejected, that the Appellant was guilty of the offence charged.  
21.	As I pointed out to Mr Evans in the course of argument, and as he very fairly accepted, once it has been concluded that there is a case for a defendant to answer and he chooses, as is his right, not to go into the witness box, (there being no other defence evidence) it is a bit difficult for him to say that the case has not been proved to the criminal standard, because the test in Galbraith is whether a reasonable tribunal properly directed in accordance with the law can convict on the prosecution case.  Logically, once you have concluded that you can do that, and the defence tenders no evidence, then obviously a conviction is very likely to follow.  Indeed, it might well be that a decision to acquit in those circumstances could be described as perverse.  Therefore, the real question in issue in this case is whether the Justices erred in failing to stop the case at half time.  
22.	The way in which they approached the matter is set out in paragraph 13 and 14 of the Case Stated.  They say that the defence relied on the witness’s refusal to answer questions, her status as a hostile witness, the lack of any other independent evidence of the assault and what they describe as her ‘limited but revealing’ evidence to the Court which was the statement that she did not remember and the observation that ‘we both done wrong that day’.  The prosecution opposed the application because they pointed out that she had never said that she had been lying.  
23.	The Justices decided to reject the submission because the witness had confirmed the truth of the contents of her statements and her evidence was capable of belief.  They also said her injuries had been corroborated by the police officer.  That is true as far as it goes but really, as I have said, the injuries would not have carried the case any further had they decided that the evidence of the complainant was unreliable.  The injuries are equivocal, in terms of establishing who caused them. 
24.	The real question is whether at this stage, the Crown having closed its case, it was open to the Justices properly directing themselves on the law to say that a reasonable tribunal, that is themselves, could have convicted the Appellant on the evidence of Miss Smith.  In my judgment, the decision that it could was a decision that was reasonably open to them in the circumstances.  The observation that she made in the witness box, ‘we both done wrong that day’, falls a long way short of an admission that she was the aggressor.  It is consistent with what she said to the police in her first statement, as I have already pointed out.  
25.	Even if she had gone into the witness box and given a completely conflicting account of what had happened, that would have formed no basis for a halftime submission unless it was manifestly obvious that the witness was so completely unreliable that no weight whatsoever could be placed on her evidence. Morgan is a case where the witness never turned up at Court, but there have been many cases (often of domestic violence) in which the key prosecution witness has given evidence at trial and turned hostile, and has basically agreed to everything that defence counsel has put to them, or, having initially identified the defendant as the person who injured them, has said at trial that it was not the defendant at all, it was somebody else (e.g. it was an intruder), or that they injured themselves accidentally, or they cannot remember who it was or cannot identify who it was.
26.	In all such cases, the job for the tribunal of fact will be to decide whether the first account is truthful, whether the second (conflicting) account is truthful, or whether they cannot tell which account is truthful. They must decide, ultimately, whether any of the evidence of that witness is reliable or not.  That is essentially a decision for the finders of fact, be that a jury or Justices; and provided that all relevant considerations are taken into account, a decision as to the reliability of a witness is one that cannot be easily impugned.  The assessment of witnesses is always a matter for the Court below, which has had the advantage of seeing and hearing them; and in this case the question for this Court is whether the Justices were entitled to say: ‘it is open to us, properly directing ourselves, to treat Miss Smith as a truthful witness notwithstanding her behaviour in Court this morning’.
27.	In my judgment, they were entitled to reach the conclusion that she was telling the truth, particularly since she had confirmed that her original statement was true not once but twice, and her reasons for retracting it were nothing to do with the truthfulness of the statement.  The one-off remark, ‘we both done wrong that day’, was so equivocal that although relevant to the assessment made of her credibility, it would not be enough to justify this Court in deciding that no tribunal of fact properly directing itself as a matter of law could have accepted the truth of her original account and would have had a reasonable doubt as to whether she was the victim or the aggressor in the incident. 
28.	That being so, it follows that the Justices did not err in going on to convict the Appellant.  It is striking that their grounds for doing so include a specific statement that they did not consider the issue of the Appellant’s failure to go on and give evidence was something from which they could properly draw an adverse inference.  They could have drawn an adverse inference, but they did not do so.  They were nevertheless satisfied that even though the witness no longer supported the prosecution, she was truthful, and they did not find that her refusal to be cross-examined undermined her credibility in the particular and peculiar circumstances of this case.
29.	In my judgment, notwithstanding the very attractive way in which Mr Evans put his “bright line” point, at the end of the day that was a conclusion that the Justices were entitled to reach.  Accordingly, the three questions for the opinion of the High Court are each to be answered in the negative.  There was no error in failing to accede to the application for a stay, there was no error in failing to accede to the half-time submission of no case to answer and they did not err in convicting the Appellant on the basis of the evidence of the Complainant as presented to the Court and the other evidence to which they referred.

End of Judgment