| NICC 18||Ref:||MAG9247|
|Judgment: approved by the Court for handing down||Delivered:||11/04/2014|
|(subject to editorial corrections)*|
The Application before the Court
"(1) In criminal proceedings the court may refuse to admit a statement as evidence of a matter stated if –
(a) the statement was made otherwise than in oral evidence in the proceedings, and
(b) the court is satisfied that the case for excluding the statement, taking account of the danger that to admit it would result in undue waste of time, substantially outweighs the case for admitting it taking account of the value of the evidence."
"In any criminal proceedings the court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears that, 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".
The court's approach to the issue of exclusion
"The interests of justice seem to me to be a relevant test."
In reaching this conclusion, Gillen J appears to have placed weight on the view of Lord Phillips CJ in R v Cole and Kerr  1 WLR 2716 where the "interests of justice" test was linked to an analysis of the factors referred to in section 114(1)(d) of the Criminal Justice Act 2003, which is the English equivalent of article 18(1)(d) in the Northern Ireland 2004 Order. While those particular provisions are concerned with the interests of justice in the context of the admissibility (not the exclusion) of certain hearsay evidence, both Lord Phillips and Gillen J regarded them as a useful guide to the issue now under consideration. This court sees no reason to deviate from that approach which was not disputed by either counsel when the application was being argued. However, the court is of the view that the elements to be considered under Article 18(2) should not be seen as, and were never intended to be, an exhaustive statement of what may be relevant in considering the issue now under discussion.
"(2) In deciding whether a statement not made in oral evidence should be admitted under paragraph (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 sub-paragraph (a);
(c) How important the matter or evidence mentioned in sub-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".
"The purpose of the criminal law is to permit everyone to go about their daily lives without fear of harm to person or property. And it is in the interests of justice that serious crime should be effectively investigated and prosecuted. There must be fairness to all sides. In a criminal case this requires the court to consider a triangulation of interests. It involves taking into account the position of the accused, the victim and his or her family and the public".
A second principle derived from the Strasbourg jurisprudence is the fair balance principle. At paragraph  of his decision in R v Brown (supra) Gillen J indicated, in a dictum this court will bear in mind:
 "Finally I bear in mind, as Strasbourg jurisprudence has recognised, that there is a need for a fair balance between the general interest of the community and the personal rights of the individual. I must not only safeguard the rights of the individual to have a fair trial, but the interests of the community and victims of crime must also be respected."
The application of the above approach to the circumstances of this case
(i) That Mr Mann at the time suffered from a significant alcohol problem.
(ii) That he suffered from regular use of cannabis.
(iii) That he was a person who at the time had a criminal record which included a substantial number of convictions for dishonesty offences.
The live issues
In a recent case, R v Rodgers  NICA 71 the Northern Ireland Court of Appeal per the Lord Chief Justice said (at paragraph ):
"Once the hearsay evidence is admissible through one of the gateways the court needs to examine the apparent reliability of the evidence and the practicability of testing and assessing its reliability. This is because such evidence will generally be admissible where it is either demonstrably reliable or capable of being properly tested."
"The written arguments in several of the cases now before us suggest that this language may be understood to mean that hearsay evidence must be demonstrated to be reliable (i.e. accurate) before it can be admitted. This is plainly not what these passages in Horncastle say … This court was far from laying down any general rule that hearsay evidence has to be shown (or 'demonstrated') to be reliable before it can be admitted, or before it can be left to the jury."
The same judge went on to say at paragraph :
"The true position is that in working through the statutory framework in a hearsay case, the court is concerned at several stages with both:
(i) The extent of risk of unreliability; and
(ii) The extent to which the reliability of the evidence can safely be tested and assessed …
The availability of good testing material … concerning the reliability of the witness may show that the evidence can be properly tested and assessed. So may independent supporting evidence".
"The essential question for us is whether the judge was right to conclude that the interests of justice test was satisfied. It is clear from Riat that Ibrahim did not require that a judge had to be satisfied that hearsay evidence was 'demonstrably reliable' in order to admit it under the Act. There was no general rule to that effect."
Having quoted part of paragraph  in Hughes LJ's judgment in Riat, Treacy LJ went on (still at paragraph ):
"The court stressed the twin alternatives concerning hearsay evidence, which is either demonstrating reliability or is capable of proper testing as referred to in Horncastle. At paragraph  the court spoke of a need for the evidence to be shown to be 'potentially' safely reliable before it is admitted. It is not the task of the judge to look for independent complete verification. What the judge must do is to ensure that hearsay evidence can safely be held to be reliable by a jury. This involves considering its strength and weaknesses, the tools available for testing it, and its importance to the case as a whole."
"28-(1) This articles applies if in criminal proceedings –
(a) a statement not made in oral evidence in the proceedings is admitted as evidence of a matter stated, and
(b) the maker of the statement does not give oral evidence in connection with the subject matter of the statement.
(2) In such a case –
(a) any evidence which (if he had given such evidence) would have been admissible as relevant to his credibility as a witness is so admissible in the proceedings;
(b) evidence may with the court's leave be given of any matter which (if he had given such evidence) could have been put to him in cross-examination as relevant to his credibility as a witness but of which evidence could not have been adduced by the cross-examining party;
(c) evidence tending to prove that he made (at whatever time) any other statement inconsistent with the statement admitted as evidence is admissible for the purpose of showing that he contradicted himself."
The reliability of Mr Mann
The reliability of Mr Mann's account
"Stopping the case where evidence is unconvincing
29-(1) If on a defendant's trial before a judge and jury for an offence the court is satisfied at any time after the close of the case for the prosecution that—
(a) the case against the defendant is based wholly or partly on a statement not made in oral evidence in the proceedings, and
(b) the evidence provided by the statement is so unconvincing that, considering its importance to the case against the defendant, his conviction of the offence would be unsafe,
the court must either direct the jury to acquit the defendant of the offence or, if it considers that there ought to be a retrial, discharge the jury."
"The notional jury will be directed in general terms in respect of hearsay that they have not had the chance of observing the witness … [and] will receive a tailored direction from the judge about the treatment of hearsay evidence in [the] particular case."
The notional jury will also be reminded about the inability of the defence to cross examine the witness.