England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Manchester Civil and Family Justice Centre 1 Bridge Street West Manchester Greater Manchester M60 9DJ
		6 December 2016

1. LORD JUSTICE TREACY: This appellant appeals by way of Case Stated against the decisions of District Judge Prowse, sitting at Manchester and Salford Magistrates' Court, whilst trying allegations of assault by beating and criminal damage on 4th December 2014. The primary decision challenged relates to the admission of two pieces of evidence under the res gestae principle, pursuant to section 118(1) of the Criminal Justice Act 2003, which preserved certain common law categories of admissibility.
2. This was a case involving alleged domestic violence. The evidence admitted was (a) a 999 tape of the call made by the complainant, Sarah Cassidy, and (b) bodycam footage captured by a police officer who attended the scene in response to Ms Cassidy's 999 call. The court has seen and heard those materials.
3. Having admitted the evidence and refused a submission that it should be excluded, pursuant to section 78 of the Police and Criminal Evidence Act 1984, the judge rejected a submission of no case to answer. Having heard evidence from the appellant the judge found both allegations proved.
4. All of these various matters are the subject of challenge in this appeal.
5. The Case Stated is set out in succinct form as follows:

"1. On 4 December 2014 I tried and convicted the appellant Martin Edmond Morgan of assaulting Sarah Cassidy ('the complainant') by beating her on 2 0ctober 14, contrary to S.39 of the Criminal Justice Act 1988, and also of damaging her property on the same date, contrary to S.1 of the Criminal Damage Act 1971.

2. The appellant's application for this court to state a case relates to four aspects of that hearing:

a. Whether I was right to admit into evidence pursuant to S. l88.4 of the Criminal Justice Act 2003 (res gestae) the 999 call made by the complainant to the police and her statements to the attending police officers recorded on the bodycam of one of those officers.

b. Whether I was right to refuse to exclude that evidence pursuant to S.78 of the Police and Criminal Evidence Act 1984.

c. Whether I was right to reject a submission of no case to answer at the conclusion of the Crown's case.

d. Whether my findings of fact on conclusion of the evidence were perverse.

It is therefore necessary for me to summarise the evidence relevant to those four aspects, pursuant to Part 64.3(4)(d) of the Criminal Procedure Rules 2013.

3. In the 999 call the complainant sounds extremely distressed. She is finding it difficult to speak coherently and the operator has to repeat back what she has said for confirmation that she has been heard correctly. She says that the appellant has left but she is terrified that he will return and the operator continues to speak to her, reassuring her that police officers are attending, until those officers arrive. She admits the officers, and the bodycam footage overlaps the ending of the 999 call. On that footage the complainant can be both seen and heard to be distressed and distraught and the officers had to get her to calm down before they could take a completely coherent account from her. The complainant had initially run out of the property and hidden outside so that there was a slightly greater delay than is perhaps typical when the issue of res gestae is to be considered.

4. The Crown contended that this evidence fell within that provision and the defence contended that it did not, relying inter alia upon that time delay. I considered the applicable law, helpfully summarised at paragraph 11-78 in Archbold Criminal Pleading, Evidence and Practice 2015, and in particular R v Andrews (D) [1987] AC 281, and concluded that I could be satisfied that the complainant was so emotionally overpowered by the event that I could disregard the possibility of concoction or distortion. Notwithstanding the slight delay in time I was of the opinion that her demeanour was such that her mind was still dominated by the events she was describing. I therefore admitted that evidence.

5. The Crown had applied for a witness summons in respect of the complainant but she had not attended at court, and it was not intended that a warrant would be applied for or an adjournment sought, which is the reason for the defence application to exclude the evidence from the 999 call and the bodycam footage, pursuant to S.78 of the Police and Criminal Evidence Act 1984. I heard the evidence of PC Pickford, the warrant officer who served the witness summons. He stated that when he spoke to the complainant she was upset, burst into tears, was shaking, and saying she did not want to go to court to 'go through it' and that she was terrified at the thought of having to relive the incident. The officer had had previous experience of serving witness summonses and thought that she was very genuine.

6. The defence contended that if the complainant was not available to be cross-examined the defendant could not have a fair trial. I therefore considered the application of S.78, and in particular the relevant law summarised in paragraphs 15-401 et seq of Archbold, took into account the general proposition that proceeding upon hearsay evidence alone should be very much the exception and also the dictum of Lord Ackner in Andrews that the use of this doctrine as an attempt to avoid calling the maker of the statement when available is to be deprecated.

7. In the statements which the complainant made she not only described being assaulted by the defendant, which included him forcing tobacco into her mouth, but also the damage which lie had caused. The damage was captured by the bodycam and also the presence of a hammer in the bath which was relevant to the issue of damage, as was tobacco in circumstances potentially corroborative of the complainant's account. There was also visual evidence of some injury to the complainant. The nature and extent of the damage was not in contention and additionally came from statements of police officers. I was of the opinion that the reason for the Crown not seeking to compel the complainant's attendance was principled and not an attempt to avoid calling a witness whose credibility was, from the Crown's perspective, questionable. Furthermore, there was evidence potentially corroborative of the complainant's account which was admissible independently of the hearsay evidence. In those circumstances I found that it was possible for the defendant to have a fair trial as he could give his own account of what he said occurred and that the inability to cross-examine the complainant could properly be taken into account in terms of the weight which I gave to the hearsay evidence.

8. At the conclusion of the Crown's evidence the defence submitted that there was no case to answer. I was asked to consider that while there was photographic evidence of injury to the complainant's eye and her knee the complainant's hearsay evidence was silent as to how that had occurred. The complainant had stated that the defendant had banged her head on the wall and the defence submitted that that evidence was not consistent with the photographs. I was asked in addition to those specific points to bear in mind the question of weight generally to be given to the hearsay evidence when it had not been possible to test this in cross-examination.

9. In approaching this decision I asked myself the hypothetical question whether, properly applying R v Galbraith 73 Cr App R 124 (as summarised at paragraph 4-364 of Archbold), I should withdraw the case from the jury were I sitting with one. I was of the opinion that those inconsistencies related to the weight to be given to the complainant's hearsay evidence, taken together with the visual evidence, and taking account of the absence of cross-examination, and did not so discredit the Crown's case that the matter should not proceed. The points raised were quintessentially issues of fact and weight, to be determined by the tribunal of fact.

10. The Crown's evidence in summary was the complainant's hearsay statements that she had been assaulted by the defendant and that he had caused all of the damage which was observed by the attending police officers and the injuries which they recorded and photographed.

11. The defendant gave evidence. He stated that his relationship with the complainant had been difficult and that they had separated but reconciled several times. He described her as jealous to the point of being paranoid that he was in sexual relationships with other women.She had been violent with him in the past and had also caused damage to her own property when angry. There had been an argument earlier during the evening in question and he had gone out to avoid confrontation, returning later, but the argument had recommenced to the point where he had said he had had enough and was going home. He said that the complainant then became frantic, threw things at him, and assaulted him. Regarding substantial damage caused to the bathroom door the complainant had caused that herself by slamming it and a hole in a panel had been caused by her throwing a bowling ball at him. He could not account for the presence of a hammer in the bath other than suggesting that the complainant herself had put it there. He denied any assault upon the complainant and said that the tobacco which the police officers had seen on the floor was spillage from a packet from which he had been rolling a cigarette and which he was attempting to put back in the packet. He denied tipping over the couch, claiming that he had seen the complainant do that herself and also that she had caused all of the other damage by 'smashing up her own flat'which was something she had done before. He could not account for the broken front window stating that it had not been broken when he had previously left the house but that he had riot broken it himself. He denied that the complainant had run out of the house to hide until lie had left.

12. I did not find the defendant's account in relation to the damage to be credible. I did not find the defendant's account about the tobacco to be credible, I took into account as a question of weight the fact that the defence had been deprived of an opportunity to cross-examine the complainant, but also her plainly distraught demeanour both iii the 999 call and also in the bodycam footage. I found that to be far more consistent with the account which she gave than the defendant's contention that she was angry as a result of the argument he had described. I also found the injuries which the police officer saw to be more consistent with the complainant's account. I did not consider that the complainant's account of having her head banged on the wall was inconsistent with there being no visible sign of injury. I was therefore satisfied so that I was sure that the complainant was assaulted by the defendant as she described and/or as shown by her injuries, and that it was the defendant who had caused the damage.

QUESTIONS

13. The questions for the opinion of the High Court are:

(1) Was I right to admit under the res gestae principle the complainant's hearsay

evidence contained in:

(a) the 999 tape

(b) the bodycam footage?

(2) Having admitted the hearsay evidence was I right to refuse the application to exclude it?

(3) Was I right to find that there was a case to answer?

(4) Having heard the evidence was it permissible that I made the findings of fact which I did and to convict the defendant of both charges?"

6. It is now 2 years since the date of the trial. The matter has not proceeded with the sort of expedition required. An initial application for the judge to state a case was made in time on 21st December 2014. Initially the judge declined to state a case and correspondence ensued. Eventually, on 9th March 2015, a first draft of the Case Stated was provided in the form reproduced above. Representations were invited. On 30th March, a letter was e-mailed to a generic e-mail address at court, making certain representations as to the first draft. It was not received by the court's legal advisers. No hard copy was sent and the e-mail had not been sent to the e-mail address shown on the letter from the legal advisor enclosing the draft case.
7. The appellant's solicitors did nothing until 10th November, when a chasing e-mail was sent to the legal adviser. He did receive that e-mail and contacted the judge who by then had retired. The judge declined to amend the case, no longer having access to any court papers. The legal adviser confirmed this by e-mail on 1st December 2013 and requested a fee if the application was to be proceeded with. This was not received until 31st December 2015. The case was lodged on 14th January 2016.
8. That delay is most unfortunate. I consider that the appellant's solicitors are primarily at fault in failing to respond to the e-mail address shown and by delaying many months before pursuing the absence of any reply to their representations. The onus is on the appellant to progress this case, and this has not happened in these proceedings.
9. The appellant's skeleton argument has in part strayed outside the matters within the Case Stated. In a hearing by way of Case Stated the matter is to be decided within the framework of the stated case. The appellant has made an application, as recently as 25th November 2016, seeking to expand the material to be considered by this court. We did not accede to the generality of that application, save in relation to parts of a letter from the applicant's solicitor to the legal advisor dated 30th March 2015, responding to the draft case.
10. Firstly, we have accepted additional material that the complainant's account in the 999 call was that she had initially hidden outside the house in the state of undress before returning to make the call. That period was initially stated by her on the tape to have been for about 2 hours. She promptly corrected this to an estimate of about an hour. It is clear, from listening to the 999 call, that throughout the complainant was in a distraught state as she attempted to give a coherent account to the 999 operator.
11. We have also received further detail in the summary of the appellant's evidence which included allegations that the complainant was a drug user, who may on the night in question have received a visit from a drug dealer and who had been consuming alcohol.
12. We were prepared to proceed on the basis of those amendments to the case, accepting that those matters had been drawn to the district judge's attention at the time of the trial. Had he received the letter of 30th March 2015 he might well have incorporated them into the Case Stated.
13. There is no doubt that those matters were raised before and were considered by the judge as part of the submissions made to him. We have also been prepared to accept, as part of the chronology of the hearing, that the res gestae application, under section 118 was preceded by an unsuccessful application made by the Crown, under section 116(2)(e), to admit a witness statement made by the complainant on the following day. It seems likely to us that the judge rejected that application because of an apparent failure by CPS or police to consider special measures for the witness.
14. We have been prepared, exceptionally, to make those amendments to the stated case so that justice may be done. At the same time, we reiterate our concern that the matter was left to lie for so long by the appellant's solicitor after there had been no response to his initial representations on the case. With those exceptions we decline the very belated invitation to receive further materials.
15. The appellant's case is that although the complainant sounded and appeared genuinely distressed, both in the 999 call and the bodycam footage, the judge was wrong to admit the evidence. It was common ground that within the recorded evidence the complainant had identified the appellant as responsible for a physical attack upon her and for causing damage to her flat. The objection to the admissibility of the evidence is on the basis that the possibility of concoction or distortion could not be disregarded.
16. Firstly, the appellant had given an account in interview denying responsibility and this was broadly consistent with evidence he later gave. Secondly, there was a possibility of concoction or distortion in that the complainant herself might have wished to avoid responsibility for assaulting the appellant and damaging property in a rented flat which did not belong to her. Thirdly, there was a delay between the events complained of and the statements sought to be introduced, which were, it was contended, highly relevant to the possibility of concoction or distortion. Fourthly, the possibility was advanced that during the period of delay some other person, such as a drug dealer might have attended at the premises and been the cause of the complainant's apparent distress. Fifthly, the bodycam evidence consisted of material which had been in part adduced through questions put by the police officer. This was said to impact upon the question of spontaneity of the statement. Sixthly, the allegation of damage was said to be vague, in that the complainant had referred to the appellant "smashing up the flat".
17. Allied to those submissions were submissions that even if prima facie admissible, the evidence should have been excluded pursuant to section 78, primarily on the basis that the appellant could not test the evidence of what the complainant had said in cross-examination. In this context, reliance was placed on the fact, which we are prepared to accept was the case, that no application for special measures was made nor had the absent complainant been advised about their possibility.
18. That, it was submitted, was an important matter. Moreover, attention is drawn to the observations at paragraph 22 in R v Riat & Ors [2013] 1 Cr App R 2, where the court referred to the non-exhaustive considerations listed in section 114(2) of the 2003 Act, as being useful aide memoire for any judge considering the admissibility of hearsay evidence, whether under that section or under section 78 of PACE or otherwise. It is submitted that, applying those considerations, the judge failed to get the balance right.
19. Additionally, in considering the issue of the non attendance of the complainant, the judge had failed to attach sufficient importance to a failure to advise the complainant as to special measures. By admitting the evidence the judge had distorted the process to the prejudice of the appellant, and the District Judge's reference to the possibility of the appellant giving evidence was akin to the reversal of the burden of proof. The admission of the evidence was unfairly prejudicial and outweighed its probative value. Accordingly it should have been excluded.
20. It was further submitted that the judge was wrong to reject a submission of no case to answer when the hearsay evidence was unsatisfactory, so that little or no weight should have been attached to it and the case should have been stopped.
21. The final submission was that the verdicts were perverse, because the judge had failed to give weight to the prejudice caused by the admission of the hearsay evidence. Since the appellant had given evidence in support of his account that he had not assaulted the complainant or damaged the property, this should have played a greater part in the assessment of the evidence.
22. When the appellant's account was set against the complainant's evidence, it was said to be inconceivable that a proper application of the burden and standard of proof could have resulted in the court being sure of guilt.
23. I have considered the principles underlying the res gestae rule as set out by Lord Ackner in R v Andrews (1987) 84 Cr App R 382, at pages 391 to 392, where Lord Ackner set out five principles or considerations to be applied by a trial judge. They are well-known and I do not need to set them out in detail here. I have also considered the decisions of this court in Barnaby v DPP [2015] EWHC 232 (Admin) and Ibrahim v CPS [2016] EWHC 1750 (Admin). Each of those decisions postdates the decision in this case. Each is, of course, concerned with its own particular facts.
24. I begin by reminding myself that the primary question in a res gestae case, identified by Lord Ackner, is whether the possibility of concoction or distortion can be disregarded. The Case Stated clearly shows that the judge considered this issue, referring, as he did, to the relevant passage in Archbold and the decision in Andrews. Paragraph 3 of the case shows that the judge focused carefully on the complainant's demeanour and the content of the 999 call and bodycam footage in examining the question of concoction or distortion. There is an analysis of the complainant's state of mind and a description of the way in which she behaved, both with the 999 operator and the police officers who attended whilst that 999 call was coming to an end. Of note is not only that the complainant sounded extremely distressed but that she found it difficult to speak coherently to the operator and again, had to be calmed down in her initial dealings with the officers before they could take an account from her.
25. Those were matters upon which the judge was entitled to rely and from which he could draw appropriate inferences, having received submissions as to circumstances which might suggest that concoction or distortion could not be disregarded. The judge heard those countervailing submissions and he had a knowledge of other evidence in the case, including the appellant's account in interview, which contained denials of responsibility posing an alternative scenario.
26. An important factor is the question of delay. It seems clear that there had been some delay between the incident itself and the reports made to the 999 officer and then the attending officers. There were conflicting accounts as to the sequence of events by which the complainant came to be outside her house before returning to make the call. But it was common ground that there had been some delay. The mere fact of delay is plainly a relevant factor for consideration but is not necessarily determinative of the issue before us.
27. In Ratten v R [1972] AC 378, Lord Wilberforce at 391, having said that since facts differ so greatly it was impossible to lay down any precise general rule, continued:

"It is difficult to imagine a case where there is no evidence at all of connection between statement and principal event other than the statement itself, but whether this is sufficiently shown must be a matter for the trial judge."

In Andrews, Lord Ackner's third point was in these terms:

"In order for the statement to be sufficiently 'spontaneous' it must be so closely associated with the event which has excited the statement, that it can fairly be stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism of the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading."

Lord Ackner's fourth point continues:

"Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion... The judge must be satisfied that the circumstances were such that having regard to special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or disadvantage of the accused."

28. The Case Stated makes clear that the judge had those passages in mind and that he had considered the question of delay. Notwithstanding "a slightly greater delay than is perhaps typical" he was satisfied that the relevant test was met. I note that in the recent decision in Ibrahim, where there had been a delay of about 1.5 hours between the incident and the report, this court upheld the admission of the evidence. At paragraph 26 Cranston J commented that whilst the time between the event and the statement is obviously a factor, it is to be considered along with the other circumstances of the case.
29. It seems to me that of the arguments put forward by the appellant in relation to the possibility of concoction or distortion, that the question of delay was the most significant. I am unimpressed as to the point about vagueness of complaint as to the damage. One would not expect a complainant in a distressed state to deal with the matter in forensic detail. The matters raised by the appellant in interview, posing an alternative scenario, were of secondary importance at the admissibility stage, and the fact that an officer had posed questions at the end of the process to obtain a more coherent account overlooks the facts that by then the complainant had already made her allegations against the appellant in the 999 call.
30. I would therefore hold that the judge was entitled to find the evidence admissible. I have already mentioned the fact that the court has seen and heard the relevant materials and I see no reason, having done so, to differ from the judge's assessment of this complainant's condition.
31. This brings me to the closely linked argument that nonetheless the judge should have excluded the evidence pursuant to his powers under section 78. True it is that admission of the evidence meant that the complainant could not be cross-examined on her account. There was, however, by reason of the finding of admissibility, which was a primary finding, that a possibility of concoction or distortion could be excluded.
32. The evidence of the complainant did not stand alone. Her account was supported by the evidence of the officers as to her demeanour and the evidence of some injuries sustained. Additionally evidence relating to tobacco found at the scene provided additional support, as did the bodycam footage of damage done at the premises. That supporting evidence was an important consideration in looking at the fairness of admitting the res gestae evidence.
33. Another important consideration related to the complainant's non attendance at court. The judge clearly had in mind Lord Ackner's observations at page 302 of Andrews, deprecating any attempt to use res gestae as a device to avoid calling the maker of the statement so as to prevent the defence cross-examining. The judge had heard the evidence of PC Pickford as to the complainant's attitude to attending court and was satisfied that the Crown was justified in not seeking to call the witness. The evidence was that she was terrified at the prospect of going to the court and of having to re-live the incident through giving evidence.
34. In this context the question of special measures is perhaps not as significant as was submitted to us. Firstly, this was not a section 116(2)(e) application where special measures are specifically mentioned. Secondly, and perhaps more cogently, the submission here in relation to special measures did not address the specific reason found by the judge for the witness's unwillingness to attend, namely her fear of re-living the experience at the heart of this case. Special measures, which might have given reassurance in relation to being in the presence of the accused, could not address this witness's concerns in the same way.
35. In Barnaby, at paragraph 34, and Ibrahim, at paragraphs 28 and 29, the court focused on whether prosecution was seeking to resort to unfair tactics in the context of domestic violence cases, in considering whether it was appropriate to admit res gestae evidence. It is plain that appropriate regard for the well-being of a witness in the domestic violence context may be a powerful indicator of a responsible attitude by a prosecutor. It may well mean that the prohibited improper motive for not calling a witness does not arise. In my view, the further point made as to the asserted reversal of the burden of proof is not a good one. I consider overall that there was sufficient material for the judge to come to the conclusions which he did on the section 78 issue.
36. Although the judge did not specifically allude to the considerations set out in section 114(2) of the 2003 Act, I am satisfied that the Case Stated shows that he took sufficient account of relevant factors in considering the overall fairness of the admission of the evidence. For these reasons I would reject the submissions made in relation to section 78.
37. The last two questions posed by the case can be dealt with much more briefly. The assertion that the submission of no case to answer should have been allowed proceeds on the basis of asserted inconsistencies in the complainant's account and a lack of detail as to how particular injuries or damage had been caused. I do not find this to be a convincing line of argument. A person making allegations in a traumatised and emotional state is unlikely to condescend to the sort of degree of detail which was suggested.
38. Added submissions, based on the difficulty faced by a defendant in challenging hearsay statements and reliance on matters raised by this appellant in his interview, were matters more properly appropriate for consideration at the conclusion of the evidence.
39. The question for the judge was whether there was sufficient evidence for the case to proceed. I consider that the judge was correct in his approach at paragraph 9 of the Case Stated and would reject any submission to the contrary.
40. Finally, the issue is raised as to whether the verdict was perverse. By that stage the judge had seen and heard the appellant give evidence and, for reasons which he gave, found that important aspects of this account were not credible, and that overall the appellant's account was outweighed by the totality of the evidence adduced by the Crown.
41. The judge plainly considered both sides of the matter and the arguments propounded on behalf of the appellant. He was entitled, having reminded himself of the fact that the complainant had not been cross-examined, nonetheless to conclude that he was sure as to the truth of the allegations. I reject the submission that the verdict should be regarded as perverse. These were verdicts which, in my judgment, were properly open to the judge on the evidence as it had developed before him.
42. I would therefore dismiss this appeal and answer each of the four questions posed for the opinion of this court in the affirmative.
43. MR JUSTICE WILKIE: I agree.
44. MR HEPTONSTALL: My Lords, there is an application for the costs of the respondent. May I hand forward a schedule.
45. LORD JUSTICE TREACY: Yes please. Has Mr Maguire seen a copy?
46. MR HEPTONSTALL: He has my Lord and I e-mailed it to him yesterday.
47. LORD JUSTICE TREACY: Thank you. (Pause) Any comment?
48. MR MAGUIRE: No.
49. LORD JUSTICE TREACY: The sum claimed seems to us to be entirely reasonable. We will make an order in that sum, that is £1,113.20 pence against this appellant. We will say however, given his present circumstances, that order is not to be enforced without the leave of the court. We will also make an order in respect of legal aid costs for detailed assessment of those costs incurred on behalf of the appellant.