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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Rodrigues v AG 22-Jan-2021 [2021] JRC 015 (22 January 2021) URL: http://www.bailii.org/je/cases/UR/2021/2021_015.html Cite as: [2021] JRC 015, [2021] JRC 15 |
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Magistrate's Court Appeal - reasons for dismissing the appeal against conviction.
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Before : |
R. J. MacRae, Esq., Deputy Bailiff, and Jurats Ramsden and Pitman |
Roberto Rodrigues
-v-
The Attorney General
Advocate J-A. C. Dix for the Appellant.
Ms L. B. Hallam, Crown Advocate.
JUDGMENT
THE DEPUTY BAILIFF:
1. On 18th December 2020, the Court heard the Appellant's appeal against his conviction, that conviction being recorded against him in the Magistrate's Court on 5th October 2020. On that date the Appellant was convicted of three offences of violence upon his former partner, whom we will call C, as follows:
(i) Charge 1 - common assault upon C on 24th April 2020;
(ii) Charge 2 - grave and criminal assault upon C on 25th April 2020; and
(iii) Charge 3 - common assault upon C on 16th May 2020.
2. The principal grounds of appeal, as supplemented by the skeleton argument filed on behalf of the Appellant and as further particularised below are that the Magistrate was wrong to exercise her discretion so as to admit two witness statements made by C dated 17th May 2020 as hearsay evidence under Article 67A(4) and Article 64(1)(A) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the Law").
3. The hearsay provisions of the Law were implemented on 31st October 2019 having been introduced by way of an amendment to the Law by virtue of provisions contained in the Criminal Procedure (Jersey) Law 2018 ("the 2018 Law"). There are currently no Jersey authorities, on the researches of counsel, considering these provisions of the Law.
4. In order to properly understand the grounds of appeal in this case it is necessary to set out the background to the prosecution; the chronology of the Court proceedings and then to summarise the relevant parts of the trial, including the ruling of the Magistrate on the admissibility of C's evidence.
5. At the time of the matters giving rise to the charges, the Appellant and C were in a relationship and living together in an hotel.
6. Charge 1 was an allegation of common assault on 24th April 2020, the Appellant having thrown C off a bed within their bedroom at the hotel, causing bruising to her spine. The only evidence in support of this allegation was in C's witness statement dated 17th May 2020 made under the provisions of Article 9 of the Criminal Justice (Evidence and Procedure) (Jersey) Law 1998. This statement contains the standard declaration required to make it admissible under Article 9, namely:
"This statement is true to the best of my knowledge and belief and I make it knowing that, if it is tendered in evidence, I shall be liable to prosecution if I have wilfully stated anything in it, which I know to be false, or do not believe to be true."
7. This statement is signed by C. By way of additional background, C says that her and the Appellant have been together for three years at the time of the first assault and that the recent difficulties in their relationship began in March 2020.
8. As to Charge 2, on the day following the allegation which gave rise to Charge 1 and in the same room, on 25th April 2020 the Appellant hit C's spine with a wooden rolling board and then stamped on her head twice with bare feet. C was scared and telephoned her father at his home. He called the police. The police arrived and the Appellant was arrested. C was left with a sore head, "bust lip" and a black eye. C's father provided a witness statement. He said that C had sent him a message saying "call the police" and a short video showing damage to a door in which she could be heard saying "you've broken the door, you have just broken the door, blood all over me". This video was admitted by agreement under the customary law res gestae principle which is preserved by the provisions of the Law. When the police arrived body worn camera footage (which was also admitted as res gestae evidence by agreement) showed C stating that the Appellant had stamped on her head and kicked the door down.
9. Notwithstanding this incident, C said in her witness statement "when I spoke to the police at the time I did not wish to make a formal complaint and I still do not wish to make a complaint".
10. When the Appellant was interviewed by the police after the second incident he made no comment to questions asked. He was released on police bail with a condition not to contact C. He broke this condition and their relationship resumed.
11. On the evening of 16th May 2020, the Appellant and C argued in their bedroom in the hotel. During the argument C pushed the Appellant and he bit her right hand. C said "I think he then pushed me out of the door and I have hurt my head. I don't know if he kicked me or if I hit it as I fell to the floor". Again she called the police. A photograph of the alleged bite was admitted in evidence as an exhibit.
12. C concluded her first witness statement (her second statement was very short and merely clarified one matter) by saying "I do not wish to make a formal complaint at this time. I do not want him to get into trouble."
13. The Appellant entered not guilty pleas on 22nd June 2020. The trial was originally listed for 24th and 25th September 2020. The Crown made an application to adjourn the trial on 23rd September 2020 on the footing that the prosecuting advocate was unwell and there was no other advocate available. The trial was adjourned to 1st October 2020. On that day C failed to attend Court. C had informed the IDVA (Independent Domestic Violence Advocate) that she had attended a funeral the previous day and was too unwell and emotional to attend. The Crown made an application to adjourn the trial, which was opposed. The Crown stated that they would not make an application for the issue of a witness summons as they regarded it to be inappropriate. The Magistrate asked whether the Crown had considered making an application under the hearsay provisions of the Law. The Crown stated that if the application for adjournment was refused then they would not be making such an application as in the circumstances of the case they did not think that it would be appropriate. The prosecutor observed "she is the prosecution's only witness, Ma'am".
14. The prosecutor was reminded by the Magistrate that whether or not to admit hearsay evidence is a matter for the Court's discretion and the Magistrate observed "the weight which hearsay evidence can bear can sometimes be a considerable weight".
15. The Magistrate granted the application to adjourn the trial until 5th October 2020. On this day C attended Court but informed the prosecuting advocate that she was not willing to give evidence. This information was relayed to the defence. Defence counsel asked whether the Crown would be applying to treat C as a hostile witness. The prosecuting advocate said that she would not, but that she would make an application under Article 67A of the Law to admit the statements as hearsay evidence. No prior notice of this intention on the part of the Crown had been given.
16. The prosecuting advocate opened the case for the Crown, played the WhatsApp video evidence and the body worn camera evidence and then called C to give evidence. C gave evidence behind a screen. She affirmed, gave her full name and before giving any material evidence as to the facts said "whilst I am here I do not wish to give any evidence and I do not wish to testify against Robbie Rodrigues". After this reply the prosecution immediately made an application under Article 67A of the Law in relation to C's witness statements.
17. Before considering the application the Magistrate invited the Crown to establish "what the statements were".
18. C then confirmed that she had signed both statements; and was asked "When you signed that declaration, was that true? Was your signature confirming the truth of that paragraph you've just read out?". C replied "yes". She gave the same confirmation in relation to the truth of the second witness statement. She was finally asked "and is it still your position that your statements contain the truth". C replied "Yes, but I'm not here today to give any evidence". The prosecuting advocate went on to read to the Court the threshold conditions for admissibility under Article 67(a)(4) (to which I will return below). The defence objected to the admissibility of the evidence on the footing, in summary, that C's witness statements were most of the evidence in the case, that C had "made it very clear that she doesn't want to support these allegations and has stated she doesn't want to give evidence and testify against [the Appellant]" and that, accordingly, it would be unfair to admit both of the statements, and that C could not be cross-examined on the statements if she was not prepared to give evidence.
19. The Magistrate then asked to see the two statements of C, which were provided to her unredacted. The Magistrate gave a brief ruling and said:
"I have to apply the overriding objective in this case, which is to do justice, and in my view we have two statements here, the truth of which [C] has asserted to in the statement itself and confirmed the truth of those statements today in court. It is in the interests of justice that serious allegations such as these be heard by the Court and that the Court admits these statements and will give these statements such weight as the Court believes they bear at the end of the evidence, bearing in mind all the evidence in the case.
Miss Dix says that the defendant will not have an opportunity to cross-examine on that. He can put questions to [C]. She is here and whether or not she chooses to answer those questions in another matter, but he can ask the questions. He can also give evidence on his own behalf and make submissions. Therefore, I admit these two statements under Article 67A."
20. After this ruling the prosecuting advocate said that she had no further questions for C. The Magistrate then addressed C and said:
"Those statements are now in evidence before the Court. I appreciate you do not want to give that evidence, but nevertheless I believe it is in the interests of justice that those statements are before the Court and I have admitted them as evidence, which means that Advocate Dix can now ask you some questions about those."
21. In fact, although C said when she was cross-examined that she did not wish to give evidence, ultimately she did answer most of the questions put to her and her cross-examination occupies over 20 pages of transcript. Although she repeatedly said that she did not want to get the Appellant into trouble, she repeated that the statements that she had made were the truth, although C said that the statement was "not very well worded" and that there were "numerous spelling mistakes" and "it's not very elaborate at all".
22. After the close of the prosecution case, the Appellant gave evidence. He denied all the allegations that had been made by C and said that their relationship had been a "toxic" one.
23. In the defence closing speech, counsel summarised her arguments in the following terms:
"In conclusion it is my submission that the evidence you are considering these charges on today is only of the witness statement of [C]. She did answer some questions in cross-examination and it is accepted that there is a statement from her father that confirms only the text messages that were sent and indeed the WhatsApp video. She has accepted in her evidence that she exaggerated that she was covered in blood and she did not ... it is our submission that she did not present as a truthful or credible witness because she did not want to give her full testimony today and go through these allegations she had previously made. She is hurt by the breakdown of this relationship and, therefore, she wanted to carry on supporting these false allegations as another means of punishing Mr Rodrigues."
24. After closing speeches, the Magistrate retired and returned to give her decision later in the day. She said:
"I am going to deliver an oral judgment in this case. If either party should find themselves in an appeal position, I will produce a more detailed judgment, and that more detailed judgment will be the authoritative version."
25. She went on to summarise the allegations against the Appellant and said:
"The prosecution evidence rested, to a large extent, on the statements of [C]. This is her written statements. Those were admitted by the Court under Article 67A. There were her answers in cross-examination. There was a WhatsApp video and a body worn video, some agreed facts and an Article 9 statement from [C's] father. The defendant gave evidence on his own account. There is no evidence from interviews.
[C] attended court, but made it very clear from the outset that she did not wish to give evidence and did not wish to get her boyfriend, the defendant (or her ex-boyfriend, should I say) into trouble. She confirmed that she had made the two statements, dated 17th May. She confirmed that she was aware of the headings on those statements concerning the truth of the contents of the statements. In fact, she read those headings out, she confirmed that she had signed both of those statements and she confirmed that the contents of those statements were in fact true. The prosecution applied to admit both statements under Article 67A of the Police Procedures and Criminal Evidence Law as truth of their contents.
In my view, the statements complied with the requirements of Article 67A(7)(a) to (e) and, once I was satisfied that they met the requirements, I had to consider whether it was right to admit those statements under Article 64(2). I had regard to the factors in Article 64(2).
In my view, this was a slightly different case of hearsay evidence compared with many. In many cases concerning hearsay evidence the maker of the statement is not present, but in this case the maker of the statement was present. Nevertheless, the Court will always be cautious when admitting hearsay evidence and is aware of the fact that hearsay evidence is not the same as direct oral evidence. However, having the maker of the statement here and being subject to cross-examination or available for cross-examination was, in my view, a significant issue in this case. The witness was here and she confirmed the truth of the contents of the statement. She was also there during the alleged incidents.
If true, these statements would be highly probative of the charges the defendant faces. There is some supporting evidence from the WhatsApp video, the Article 9 statement and the body worn video. Clearly something had happened and, in my view, these statements were crucial to the case. They were made relatively soon afterwards to the police. There was little prospect of obtaining oral evidence from [C] as she refused to give oral evidence which might be harmful to her boyfriend and in fact she had made her position clear when she gave her statement back in May. The reliability of her statement could be tested by cross-examination and the statements could be challenged both by cross-examination and the defendant's own evidence, bearing in mind particularly that the defendant was present at these incidents too. It would not be difficult for him to challenge this evidence and, in my view, was not a difficulty which would cause prejudice.
I also had regard to the overriding objective, which is to deal with cases justly. These are serious allegations of domestic violence and, in my view, to deal with them justly they needed to be determined by judicial process, not the preferences of the person concerned, however strong those preferences were, and I admitted the statements.
[C] was cross-examined and she made it very clear that she was a most reluctant witness. In my view, she was reluctant not because she had lied to the police and now wanted to retract that, but because, for reasons of her own, she did not want Mr Rodrigues to get into trouble. She had said this in her statements and she repeated it in court. Despite her clear desire to leave the court and not be subject to cross-examination, she still maintained on several occasions that her statements were in fact true. She simply did not want Mr Rodrigues to be in trouble.
[C] did not reiterate every allegation under cross-examination, but she confirmed that the contents of the statements, made much nearer the time, were in fact true. Far from undermining the contents of the statement, the cross-examination in fact reinforced [C's] evidence in those statements as true. In my view, she was not an unreliable witness. She confirmed the truth and was not undermined in any significant way by cross-examination. She could have changed her account but she didn't do so despite how reluctant she was to be in court."
26. The Magistrate went on to consider the evidence of the Appellant and concluded that C, although reluctant, was a truthful witness; that the Appellant was not a reliable witness and concluded that she was sure that the Appellant was guilty of Charge 1 as alleged, Charge 2 as alleged and Charge 3 that the Appellant was guilty of common assault and not grave and criminal assault, owing to the nature of the injury.
27. The Appellant was then released on conditional bail for reports.
28. Subsequent to the Appellant lodging his notice of appeal, the Magistrate provided, on 27th November 2020, her written reasons for her decision.
29. These are extensive and run to 16 pages. In this judgment it is only necessary to refer to the certain passages relating to the decision to admit the statements under the Law.
30. At paragraphs 24 to 28 of the written reasons, the Magistrate said:
31. Later, in her written reasons at paragraph 53, the Magistrate noted that the provisions of the Law largely mirrored those contained in the English Criminal Justice Act 2003 ("the 2003 Act"), in particular Article 63, 64 and 67A are identical to sections 114, 115 and 120 of the 2003 Act. The Magistrate said that the approach to considering the admissibility of hearsay evidence in England and Wales is set out by Hughes LJ in Riat [2012] EWCA Crim 1509:
32. The Magistrate went on to set out the terms of Articles 63, 64 and 67A of the Law. The Magistrate was satisfied (and this is not challenged) that C's purpose of making her statements was or included both purposes set out in Article 63 of the Law, i.e. to cause another person to believe the matter or to cause another person to act on the basis that the matter is as stated. As to Article 67A of the Law, Article 67A is entitled "Other previous statements of witnesses" and provides (so far as is relevant) as follows:
33. As to the requirements under Article 67A(4)(b), the Magistrate held that the requirements were met as C confirmed, after she had taken the affirmation, that she had made the statements dated 17th May 2020 and that their contents were true.
34. Although she did not set out her reasons for so doing (which we do not criticise), she held that the first two conditions under 67A(7) were satisfied. She also held that the third condition under 67A(7)(c) was satisfied even though C said in her statement that she did not wish to make a formal complaint. The Magistrate held that the term complaint "may be understood as being an allegation made to the police or other authority with a view to prosecution, disciplinary action or similar". She held that "the term "complaint" must have a wide meaning not confined to a "formal complaint"".
35. As to the fourth condition, there was no suggestion that C's complaint was made as a result of a threat or a promise - thus satisfying Article 67A(7)(d).
36. Fifthly, as to the requirement in Article 67A(7)(e), even though C had said that she did not wish to give evidence against the Appellant, in the Magistrate's view she had given oral evidence in connection with the subject matter of the statement before the statement was adduced because she had read out the paragraphs in each statement confirming that the contents of the statement were true to the best of the knowledge and belief of the witness as set out above; C confirmed that she had signed each statement and that the contents of both statements were true. The Magistrate said that there was no "indication in 67A as to how much evidence must be given". The Magistrate was conscious that on the facts of this case the giving of evidence by the witness was not substantially different from the witness giving the indication required under Article 67A(4)(b). Nonetheless, having regard to the overriding objective of the 2018 Law, as set out in Article 2, and the requirement of the Court to ensure the implementation of the overriding objective under Article 5 of that Law, the Magistrate felt that Article 67A(7)(e) could be interpreted so as to extend to the facts of this particular application.
37. At paragraph 73 of the Magistrate's written reasons, the Magistrate said that:
38. It is convenient to note at this stage that the fifth sentence above must be incorrect. It cannot be correct to interpret the term "evidence" in Article 67A(7)(e) as including the contents of the two witness statements. That is to put the cart before the horse as it is only if a witness has given oral evidence in connection with its subject matter that the statement can be adduced with the leave of the Court.
39. At paragraph 74 of her written reasons, the Magistrate went on to say:
40. Pausing here, two observations can be made. First, although not required by the terms of the statute, there is no difficulty in principle when the Court is exercising its powers to admit statements of a witness under Article 67A to also consider the factors set out in Article 64(2). Indeed there is a view or at least an informal rule of practice in England and Wales that it is appropriate to consider such matters as are set out in Article 64(2) (i.e. the equivalent sub-section under the 2003 Act) when considering the exercise of the Court's powers to admit the evidence under Article 67A. However, such an exercise is not required by a statute and it would not have been a failure on the part of the Magistrate not to refer to the considerations set out in Article 64(2). The Magistrate, as already referred to above, when she gave her judgment at the end of the trial, said that she had regard to the factors set out in Article 64(2) when considering whether or not to admit the statements, having concluded that the requirements under Article 67A(7) were met. Secondly, in the first part of paragraph 74 of the Magistrate's written reasons, as quoted above, the Magistrate said that she was considering whether or not the statement should be admitted under Article 64(1)(d) which gives the Court the power to admit statements not made in oral evidence if the Court is "satisfied that it is in the interests of justice for it to be admissible". Article 64 in its entirety provides as follows:
41. The Magistrate went on at paragraphs 75 to 83 to consider, so far as is relevant, the matters set out in Article 64(2) for the purpose of exercising or purporting to exercise her discretion to admit the evidence under Article 64(1)(d).
42. The difficulty, and again we make this observation prior to considering the grounds of appeal below, with the Magistrate referring in her judgment to the alternative gateway for admissibility pursuant to Article 64(1)(d) is that this was never canvassed by the Magistrate with prosecution or defence counsel during the trial, or indeed mentioned in the judgment that the Magistrate gave either immediately after hearing the application or in her judgment given at the end of the trial.
43. The paragraphs of the Magistrate's detailed reasons from paragraphs 74 onwards perhaps read as if the Magistrate had Article 64(1)(d) in mind when she admitted the evidence at trial. This cannot have been the case, otherwise this alternative gateway would have been canvassed with counsel.
44. Although it may be open to this Court on appeal, insofar as the same could be achieved without injustice to either party, particularly the Appellant, to dismiss this appeal on grounds other than those that were argued before the Magistrate (the parties accepted this in the course of the argument and these are consistent with the provisions of Article 20 of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949), it is not appropriate for a trial court on facts such as this to provide reasons for the admission of evidence that were not canvassed with counsel in the course of the hearing during trial.
45. The proper course for the Magistrate was to:
(i) Indicate during the course of the trial that she was considering admitting the evidence under the alternative basis of Article 64(1)(d) and invite submissions on this issue; or
(ii) Subsequently invite submissions on this basis for admission of the evidence for the purpose of the preparation of her written reasons; or
(iii) To indicate in her written reasons that she had expressly not considered the admissibility of the evidence under Article 64(1)(d) during the trial but noted that the evidence could have been admitted on such basis but expressed no concluded view on the same because the matter was not canvassed in the presence of counsel.
46. Although it was not a point taken by the Appellant, there is no difficulty with a court admitting a statement under Article 64(1)(d) after the evidence has been heard by the trial court and even, if appropriate, late in the trial; it is not necessary for the application to be made prospectively before the evidence is given (see the decision of the English Court of Appeal in R -v- Nguyen [2020] EWCA Crim 140 at paragraph 58). Before this Court, on appeal, the issue of admissibility under Article 64(1)(d) could properly be canvassed as both parties were represented and we had the Magistrate's views set out in her written reasons before us.
47. Finally, in her written reasons the Magistrate referred to various supporting evidence, particularly the body worn camera and the WhatsApp video which she regarded as supportive of C's account.
48. The Magistrate concluded at paragraph 88:
49. The substantive grounds of appeal in this case are not to be found in the notice of appeal but the skeleton argument filed on behalf of the Appellant. Normally that would be an undesirable state of affairs but is explicable in this case because the full reasons for the decision of the Magistrate were only revealed by the detailed reasons produced at the end of November 2020.
50. We will consider each ground of appeal separately; the arguments from both parties in respect of each ground and the Court's conclusions in respect of each ground, before moving on to the next ground of appeal.
51. The submission was that the title to Article 67A of the Law (and its equivalent, section 120 of the 2003 Act) were of significance. Both read "other previous statements of witnesses" - with the emphasis of the word "other". The contention was made that the word "other" in the context of this part of the Law and the specific context of this Article means that Article 67A applies only to statements other than witness statements in the proceedings. It was further submitted that the witness statements in this case were not "previous statements"; they were the evidence in the case and the only statements from C.
52. We agree with the Crown that this argument is unsustainable. If it was correct then most if not all Article 9 statements would not be admissible under Article 67A under any circumstances. That cannot be in the intention of the statute and is not consistent with the wording of this Article. Article 67A is the final provision of the Law relating to the admissibility of hearsay evidence and in those circumstances the natural meaning of the word "other" is a reference to statements other than those dealt with in previous provisions. In any event the title of the article in many and certainly this context is not of assistance in interpreting the provision which follows.
53. It was not challenged that the evidence was statutory hearsay for the purposes of Article 63 of the Law. It is not challenged that the admissibility condition under Article 67A(4)(b) was met. As to the five additional conditions set out in Article 67A(7), it was submitted that the condition in Article 67A(7)(a) namely "the witness claims to be a person against whom an offence has been committed" was not satisfied because C simply confirmed that she signed the statements, that she signed a declaration of truth and that by her signature she confirmed the truth of the contents and that it remained her position that the statements were true. It is said that because there was no oral evidence on oath from C in which she claimed to have been the person against whom an offence had been committed that Article 67A(7)(a) was not satisfied. The Crown say that by the contents of her statement C claimed to be a victim of an assault at the hands of the Appellant. We agree. There is no reference in (a) to the witness having to give evidence to the effect that they are the victim of an offence. The word "claim" is used. The Court was entitled to have regard to the charges laid against the Appellant and the contents of C's statement in deciding that the first requirement was satisfied.
54. As to the second requirement under Article 67A(7)(b) namely "the offence is one to which the proceedings relate" again it is argued that this was not satisfied because C had not given any oral evidence about any offence having been committed. Again, the Crown say there is no requirement that the witness gives evidence that relates to the subject of the proceedings in this provision. We agree. It is sufficient that the offences with which the Appellant was charged is one to which the proceedings relate. This is obviously the case as this was a trial of the Defendant in relation to offences against C.
55. As to Article 67A(7)(c), namely the statement "consists of a complaint made by the witness ... about conduct which would, if proved, constitute the offence or part of the offence", it is said that this was not satisfied because the two witness statements were not "previous" statements - they were statements in the case. We have dealt with this point already and we agree with the Magistrate's analysis to the effect that these statements constituted a "complaint" made by C.
56. As to Article 67A(7)(d), it is not argued by the Appellant that the complaint was made as a result of a threat or a promise and accordingly that sub-paragraph of the Article is not engaged.
57. As to Article 67A(7)(e) the Appellant argues that the witness did not give oral evidence "before the statement is adduced" for the purpose of this provision. It is argued that the requirement in Article 67A(7)(e) that the witness gives evidence "in connection with its subject matter" before the statement is adduced is a distinct and separate condition in addition to the requirement in Article 67A(4)(b). It was argued that if the evidence that the witness made the statement and that it was true to the best of her knowledge and belief was sufficient, then there would be no need for Article 67A(4)(a) or alternatively no need for the provision in Article 67A(7)(e). Reliance was placed on the decision of the English Court of Appeal in R -v- AA [2007] EWCA 1179 which considered the terms of the equivalent English provision, namely Section 120 of the 2003 Act. The case concerned the admissibility of a recent complaint of rape to a friend of the victim whose statement was read to the jury. The court reviewed the terms of Article 120 and noted at paragraph 11 "Thus whereas previously an earlier statement by a complainant was not itself evidence of the truth of what was stated, now, subject to the specified conditions being fulfilled, it constitutes precisely such evidence". The court needed to consider whether or not the terms of sub-section 4(b) of Section 120 were fulfilled. At paragraph 13 of the judgment Laws LJ said:
58. This authority does not in fact assist the Appellant in his argument on appeal. It is relevant to the provisions of Article 67A(4)(b) and not to Article 67A(7)(e). Indeed, none of the doubts as to the prosecution satisfying the requirements of Article 67A(4)(b) that existed in the case of R -v- AA exist in this case.
59. Archbold (2021 Edition) at paragraph 11-40 is of assistance in relation to the general effect of these provisions, as a matter of English law, and does raise the specific point made by the Appellant in relation to this specific sub-paragraph of Article 67A. Archbold says:
60. I agree with the Crown that the Magistrate was entitled to conclude that C had given sufficient oral evidence to satisfy the condition set out in Article 67A(7)(e). The Magistrate was right that it was appropriate to consider the overriding objective. It is of significance that Article 5 of the 2018 Law does expressly provide that the Court must act to ensure the implementation of the overriding objective when it, inter alia "interprets legislation" and of course these provisions of the Law were introduced by the 2018 Law. The implementation of the overriding objective includes, inter alia "acquitting the innocent and convicting the guilty"; "dealing fairly with both the prosecution and the defence" and "respecting the interests of witnesses..."
61. Obviously the overriding objective cannot lead to an interpretation of statutory provisions which is surprising or inconsistent with the words of a provision in a law but, on the facts of this case, the Magistrate was not merely entitled but was correct to determine that the witness had given oral evidence in connection with the subject matter of the statement before the statement was adduced. C had identified the statement as hers and agreed that it was true at the time she made it and was still true at the time that she gave evidence. Bearing in mind the purpose of these provisions, namely to admit into evidence complaints made by victims of offences against them, it would not be surprising if applications to this effect were made early in the evidence of a witness. It would frustrate the intention of the legislature when enacting these provisions if they were interpreted in an unduly restrictive way.
62. Accordingly, this ground of appeal is rejected.
63. We have dealt with the first point already and agree with the defence. The Crown did not apply to adduce the evidence under Article 64A(1)(d) and no submissions were made by either party.
64. There are various authorities emanating from England and Wales which have considered the equivalent to Article 64(2) of the Law and the nine factors which the Court must have regard to when deciding whether or not to admit evidence under paragraph (1)(d), as listed in Article 67(2). In R -v- Taylor [2006] EWCA Crim 260, Rose LJ stated:
65. Reference was also made to the case of R -v- Z [2009] EWCA Crim 20. In that case the prosecution adduced by way of hearsay the evidence of a woman who claimed to have been sexually abused and raped by the appellant but who did not now wish to give evidence on the grounds that she wished to put the experience behind her. The evidence was admitted under Section 114(1)(d) (the equivalent of Article 67(2)).
66. Stanley Burnton LJ giving the judgment of the Court of Appeal, said:
Section 116 is the equivalent to our Article 65.
67. In R -v- Z, the Court concluded in relation to this issue:
Accordingly, the convictions were unsafe and were quashed.
68. The Appellant also drew to our attention the case of R -v- Tindle [2011] EWCA Crim 2341. T had allegedly assaulted his pregnant former partner, X. X had made an emergency call to the police which was recorded and she made a witness statement on the same day describing the alleged assault. She later made a further witness statement in which she confirmed the contents of her original statement, but said that she wished to withdraw the allegation as she wished to put the matter behind her. No attempt was made to have her attend T's trial to give evidence until after the trial had started. The Crown applied to have the recording of the emergency call and her statements adduced as hearsay evidence under Section 114 of the 2003 Act and Section 116 of the same Act (equivalent to our Article 64(1)(d) and Article 65 respectively). The application under the equivalent to Article 65(2)(d) was rejected as the prosecution had not taken reasonable steps to locate X. However, the trial judge allowed the application under the equivalent of Article 64(1)(d). The Court of Appeal referred to the decision in Z referred to above. In the Court of Appeal, Stanley Burnton LJ said:
69. Of course, in this case the Crown did secure the attendance of the witness, which is an important feature. If she had failed to attend and there had been no evidence that her failure to attend was through fear, then, assuming the prosecution knew where she was, it would have been very difficult for the Magistrate to reach the conclusion that she did.
70. Advocate Hallam told us of the difficulty she faced on the morning of the trial. She told us that she discovered at 9.03am on the morning of the trial that C was not prepared to give evidence. This was established by way of a phone call from the IDVA. The trial was due to start at 10am.
71. Advocate Hallam tried to persuade C to give evidence. She threatened to leave the Court and Advocate Hallam said that she would obtain a witness summons and that the police would then bring her to Court. All this was relayed to Advocate Dix as soon as Advocate Hallam was able to do so before the trial began.
72. In her written reasons in which she refers to the matters listed under Article 64(2) of the Law which she regarded as relevant, the Magistrate said, in respect of these factors:
73. It can be seen that the Magistrate in fact addressed all nine factors set out under Article 64(2) although not required, in our view, to do so. It is said that she failed to consider Article 64(2)(g). This is not correct - in paragraph 81 the Magistrate does precisely this. It is incorrect to say that the Magistrate's findings at paragraphs 82 and 83 could not be made at the time of the application because it was not then known if C would answer questions when cross-examined and that the Magistrate was accordingly wrong to say that the statements "could be challenged in cross-examination". But the Magistrate did not make any such finding at paragraphs 82 and 83. Paragraph 82 merely says that she was "available for cross-examination" and paragraph 83 specifically says that it was "unknown" whether or not C would answer questions in cross-examination. In fact, C did answer such questions. The only criticism that could be made of the Magistrate's reasons was of paragraph 79 when she described C as a "reliable witness" and subsequently said that "she did not attempt to deny the contents of her statements nor to give inconsistent evidence". In our view that was a finding that could only be made at the end of C's evidence and not at the time the application was made. However overall we have concluded that the Magistrate's reasons for exercising the power to admit the statements under Article 64(1)(d), had they been given after hearing argument would have been justified. Accordingly, if the gateway to admissibility under Article 67A had not been open in this case, then the Court could, on the facts of this case, have been satisfied that it was in the interests of justice for the evidence to be admitted under Article 64(1)(d).
74. The Crown drew to our attention the decision of the Court of Appeal in R -v- Horncastle [2009] EWCA Crim 964 where a five judge Court of Appeal, presided over by Thomas LJ, held that there neither is nor should be a rule that hearsay evidence cannot be the sole or decisive evidence relied upon by the Crown. It is essential that such evidence can be properly assessed and tested so that it is safe to rely upon and so as to ensure that a defendant's human rights under the ECHR and general rights to a fair trial are preserved. The Court of Appeal noted at paragraph 60, in respect of the potential adoption of a test that would exclude any evidence in a statement of an absent witness on the grounds that it was sole decisive that:
75. Thomas LJ went on to consider these two assumptions and illustrated that they were in many circumstances flawed and unwarranted.
76. Article 67C provides:
77. This point can be taken shortly. The Magistrate was not a jury. If the Law had intended to prevent the Magistrate from considering statements in these circumstances, then it would have said so. This part of the Law applies both to proceedings before the Magistrate's Court and the Royal Court.
78. However, a witness statement should, if necessary, be redacted to remove prejudicial material before it is provided to the Magistrate by the prosecution. This did not occur in this case and the first witness statement of C contained two paragraphs which ought to have been redacted. On the facts of this case no miscarriage of justice flows from this omission on the part of the Crown. However, it is important that care is exercised in any future similar circumstances.
79. The Appellant argued that the proper course was for the Crown to have applied for permission to the Court to treat C as a hostile witness and thereafter cross-examine her on the contents of her statement which now, under the provisions of the Law can, in such circumstances, be treated as proving the truth of their contents and be relied upon as such. This, again, is reversal of the customary law position. Such a course, it is said, would have been better than making an application under Article 67A. The upshot would have been, pursuant to Article 67 of the Law, that if C had admitted making a previous inconsistent statement (assuming she gave evidence inconsistent with that statement) then that inconsistent statement would be "admissible as evidence of any matter stated of which oral evidence by the person would be admissible".
80. It was pointed out to counsel for the Appellant that the overall effect of such an application might have been very similar to the effect of the Crown's application to adduce the evidence under Article 67A, in that the Magistrate would have been entitled to have regard to the contents of the statements when deciding whether or not the Crown had discharged the burden of proof which lay upon it. Counsel for the Appellant accepted this observation. Counsel for the Appellant said the Crown was too quick to make an application under Article 67A and should have probed the witness and established whether or not she was a hostile witness. It is argued that this may have been a more helpful, so far as the Court was concerned, forensic evidence exercise because when the specific allegations put in the statement were put to her, then C may have commented upon them in detail and indicated whether or not she accepted them.
81. However, it might have been difficult for the prosecution to show that C was a hostile witness as opposed to simply being an unwilling witness. The authorities referred to in Archbold on this point do not speak with one voice and it is observed at 8-243 that "No distinction in principle is to be drawn between a witness who gives evidence inconsistent with a witness statement and one who is reluctant to say anything or professes to have forgotten what happened; if the judge is satisfied that he is hostile, he has a discretion to allow cross-examination: Honeyghon and Sayles above." The Crown would have been running the risk that the judge might have refused leave to cross-examine C on the footing that she was not in fact hostile and that would have put the prosecution in real difficulties. At 8-244 Archbold refers to the case of Thompson [1977] 64 Cr App R 96 where a prosecution witness, having been sworn and having answered certain preliminary questions, said that she was not going to give evidence. The judge allowed her to be treated as hostile and to be cross-examined about a statement she had made to the police. The Court of Appeal did not interfere with this decision.
82. We do not think it is appropriate to set out in this judgment, bearing in mind that we were not referred to any Jersey authority on the approach to be taken to hostile witnesses, the circumstances in which a witness may or may not be treated as hostile. Certainly there were reasonable prospects of the Crown succeeding in such an application on the facts of this case. Whether such an application is to be preferred, in the context of a witness who the Crown viewed as the victim of domestic violence, to the route by which the Crown sought to adduce the evidence in this case is a moot point.
83. It might be contrary to the best interests of the witness (a victim of crime) to hear herself being described as "hostile" when giving evidence.
84. In any event, as the Crown contend, the prosecution is entitled to present its case as it thinks fit, provided it complies with the relevant legislation, in particular the overriding objectives as provided for in the 2018 Law.
85. Accordingly, the appeal is dismissed.