Brett C [2019] EWCA Crim 602
The appellant appealed against conviction for 13 counts of sexual activity with a child. The appeal raised two points, the first the application of the hearsay provisions and the second, the circumstances in which a jury note may give rise to a decision to discharge them from returning verdicts.
The complainants were his two step-daughters G & C, after providing an ABE interview G committed suicide. She left a suicide note which was to figure in the trial, part of it read “I can’t do this any more, the stress from the current situation is too much to handle” and “make sure that bastard rotts (sic) in hell for what he has done to me and C”.
The defence submitted the ABE interview and note amounted to hearsay and should not be admitted, although G was dead and her evidence potentially admissible under s116(2)(a) her death was caused by the person in support of whose case it was sought to give the statement in evidence, and was therefore inadmissible under s116(5)(a). It was also argued that the ABE evidence did not meet the test in s114 and should, in any event, be excluded under s78 of PACE. Similar argument was made in respect of the suicide note.
Although the Recorder expressed some doubts, he assumed that s116(5) applied in the circumstances. He concluded that the words of the note “the current situation is too much to handle” showed that G’s decision to take her life was not brought about by the prospect of giving evidence but by reason of all the events “surrounding and flowing from her disclosure of the appellant’s offending.” Having considered the application of s114 and s78 PACE and applied the staged approach in Riat he concluded the evidence should be admitted.
Held: the argument in relation to s116(5) fails as a matter of statutory interpretation. S116(2)(a) identified the person whose evidence is relied upon as ‘the relevant person’. S116(5)(a) refers to ‘person in support of whose case’ is sought to give the statement in evidence. Such a person is not described as the relevant person, the subsection applies to a party in the trial. The position may be different under s116(2)(c) but so far as s116(2)(a) is concerned, the person referred to in s116(5) will be the defendant or someone acting on his or her behalf. In any event the Recorder was entitled to find that G did not kill herself to avoid giving evidence.
As to the suicide note it is clear the Recorder properly considered the risk of unreliability of the evidence and the extent to which it could be tested and assessed. He concluded in respect of the ABE and the note that their admission would not have such an adverse effect on the fairness of the proceedings that they should be excluded. The Court of Appeal would only interfere if the decision reached was outside the band of legitimate decisions available. Some judges may have admitted the ABE and not the note but that was not a reason for interfering with the decision.
In her evidence the appellant’s wife referenced a text message that said, “we’ve been here before and it almost broke the family”. After they retired the jury wrote a note asking what was meant by that. An investigation in their absence found that there had been an allegation of sexual assault made against the appellant previously by a colleague but that no further action had been taken by the police. The defence applied to discharge the jury and the application was refused, the Recorder saying that it could be dealt with by way of a firm direction to the jury. He clearly carefully weighed the relevant considerations and made a decision that was plainly open to him, in light of the prompt direction it did not result in unfairness.
The appeal was dismissed.