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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Musone v R. [2007] EWCA Crim 1237 (23 May 2007) URL: https://www.bailii.org/ew/cases/EWCA/Crim/2007/1237.html Cite as: [2007] 1 WLR 2467, [2007] 2 Cr App R 29, [2007] 2 Cr App Rep 29, [2007] Crim LR 972, [2007] WLR 2467, (2007) 171 JP 425, [2007] EWCA Crim 1237 |
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COURT OF APPEAL (CRIMINAL DIVISION)
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE UNDERHILL
and
HIS HONOUR JUDGE STEWART QC
____________________
Ibrahim Musone |
Appellant |
|
- and - |
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The Crown |
Respondent |
____________________
Mr D Farrer QC for the Respondent
Hearing date : 26th April 2007
____________________
Crown Copyright ©
Lord Justice Moses :
Background
The Facts
Ground 1: Dying declaration of Reid to a fellow prisoner, called as a witness
"(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if -
(a) oral evidence given in the proceedings by the person who made the statement would be admissible as evidence of that matter.
(2) The conditions are –
(a) that the relevant person is dead."
Ground 2: Evidence of dying declaration from a prisoner who refused to give evidence
"…saw Bushman come out…told him 'don't do that' and
'Bushman – knife in coat pocket (track suit)'."
The questionnaire continues by noting that Patterson said he went to Reid in his cell and:-
"…saw him get blood everywhere. I asked him to come out. Reid came out and went across and collapsed."
The questionnaire asked whether Patterson had gone to the area of the wing where Reid was lying on the floor injured and noted the following reply:-
"Yes, I stayed with him and heard him 'I've been stabbed'. Bushman done it'"
"…knife? No knowledge."
"…carrying in his left hand a knife, brown-handled, size of a biro, a lock knife, heading towards Bushman's cell on the ground floor. Putting the knife in his left tracksuit pocket."
"This is a true record of what I have said."
"(1) In criminal proceedings a statement not made in oral evidence in the proceedings is admissible as evidence of any matter stated if, but only if –
(d) the court is satisfied that it is in the interests of justice for to be admissible.
(2) In deciding whether a statement not made in oral evidence should be admitted under subsection (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 paragraph (a);
(c) how important the matter or evidence mentioned in 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."
"these are all matters which go to weight, and can all be canvassed in the presence of the jury, and when considering the reliability, the jury are entitled to take into account for a prisoner to say anything at all to the police (and this isn't just a matter of common sense…there has been a great deal of evidence about this as well) is a major step…a jury would be entitled to consider what possible reason or incentive there could be on Mr Patterson's part to invent an untruthful story in these circumstances. That's just a matter for them to consider and weigh. It's what juries are for."
"A hearsay statement is not admissible to prove the fact that an earlier hearsay statement was made unless –
(c) the court is satisfied that the value of the evidence in question, taking into account how reliable the statements appear to be, is so high that the interests of justice require the later statement to be admissible for that purpose."
Ground 3: Admissibility of allegations made by a co-defendant not called to give evidence
"Indeed your letter (apparently a letter from the appellant) was a great comfort to me and I hope this will be for you. As you explained to me your meeting with Bushy (a nickname for Chaudry) I must say it was the complete opposite to what you have told me. And like I said I knew, you knew, everyone knew that it was Bushy's knife. Also the fact that I had only seen it on a few occasions when Bushy showed me. On the particular day when this incident happened I had not seen it, or knew the whereabouts of it. Not only that, but if you had given me the knife as Bushy states, I am sure that I would have remembered but like I said in my statement that you may not have remembered but it was me who you told to rid the jacket. But Bushy wants me to say that I came back with the knife. I don't understand why Bushy wants me to say that I came back with Ibraheem even if I was to lie for him they will know that I'm being, because of the DNA evidence…also I would like to bring to light that look at the false accusation that Bushy made to the police saying that the knife belongs to Musone, now I realise that he will do anything necessary to get himself out of the dirtiness that he has put everyone in…"
The second letter, dated 3 March 2006, recorded an argument which arose because Syed had refused to write and sign a statement saying that he had given Chaudry the knife.
"If a party proposing to tender evidence fails to comply with a prescribed requirement applicable to it –
(a) the evidence is not admissible except with the court's leave;
(b) where leave is given the court or jury may draw such inferences from the failures as appear proper;
(c) the failure may be taken into account by the court in considering the exercise of its powers with respect to costs."
Rule 34.7 of the 2005 Rules reads:-
"The court may –
(a) dispense with the requirement to give notice of hearsay evidence;
(b) allow notice to be given in a different form, or orally; or
(c) shorten a time limit or extend it (even after it has expired)."
Ground 4: Admission of evidence relating to Chaudry's bad character
The Judge's Ruling under section 101(e)
"it has substantial probative value in relation to an important matter in issue between the defendant and a co-defendant,"
"Important matter" is defined as:-
"a matter of substantial importance in the context of the case as a whole;" (section 112(1)).
"Probative value" must be read in accordance with section 109 (see section 112(1)) which provides:-
"(1) Subject to subsection 2 a reference in this chapter to the relevance or probative value of evidence is a reference to its relevance or probative value on the assumption that it is true.
(2) In assessing the relevance or probative value of an item of evidence for any purpose of this Chapter, the court need not assume that the evidence is true if it appears, on the basis of any material before the court (including any evidence it decides to hear on the matter), that no court or jury could reasonably find it to be true."
"it appears…that the admission of the evidence would have such an adverse affect on the unfairness of the proceedings that the court ought not to admit it."
Once evidence of a defendant's bad character is admissible under section 101(1)(e) the section confers no express power on a court to exclude such evidence on grounds of unfairness, let alone imposing any obligation to do so. Nor is there any power under section 78(1) of the Police and Criminal Evidence Act 1984 to exclude the evidence since it is not evidence on which the prosecution proposes to rely.
Conclusion: Section 101
Conclusion: Impact of 2005 Rules
"In considering the exercise of its powers with respect to costs the court may take into account any failure by a party to comply with the requirement imposed by virtue of subsection 2, and not dispensed with by virtue of subsection 3."
"Nothing in this section prejudices the generality of any enactment conferring power to make rules of court; and no particular provision of this section prejudices any general provision of it."
"Any power to make…criminal procedure rules is to be exercised with a view to securing that –
(a) the criminal justice system is accessible, fair and efficient…"
In furtherance of that objective, Rule 1.1 provides:-
"(1) The overriding objective of this new code is that criminal cases be dealt with justly.
(2) Dealing with a criminal justly includes -
(c) recognising the rights of a defendant, particularly those under article 6 of the European Convention on Human Rights."
Rule 1.2(1) provides:-
"Each participant, in the conduct of each case, must –
(a) conduct the case in accordance with the overriding objective."
The court is required to further the overriding objective in interpreting any rule (see 1.3).