this Webinar looks at recent decisions with regard to evidence in domestic abuse cases, particularly where the complainant has not given evidence the complainant has been absent or the complainant has given potentially contradictory evidence. There are three statutory provisions we want to look at Section 118 of the Criminal Justice Act 2003 raised just I. So that's things very often adduced things that have been overheard or captured on body worn camera from the complainant. So I complain it's not in court, but somebody else is giving evidence of what they heard around the time of the allegation. Sexual 119 deals with previous inconsistent statements, for example, where the complainant has given a description of the assault to the police but now on the day of trial wants to back away from it and deny the version of events in the statement generally exonerating the defendant and 6 120 is a little known section, but it allows a party, according a witness, to drag that witness up to proof by referring to the witness statement and the witness statement, potentially taking the place of oral evidence in certain situations. If you prosecute. It's ideal with reluctant witnesses or with those. His memory is generally genuinely short due to the stress of going in the witness box. If you take a couple of minutes to read the slides of section 118 119 on 120 then it will remind you of those provisions. Section 120 because it is obscure might be new to you. So let's go to that one Sexual 120 got a variety of uses. A witness could be allowed to point to what they said in their witness statement to rebut a suggestion of recent fabrication on where they do that, the contents of the written statement become admissible to prove what they could otherwise have said in aural evidence. A statement could be used under section 120 in a variety of ways. The net effect be the witness's memory can be refreshed on again, where the witness could have given all real evidence, then the parts of the statement that assist improving part or all of the offense. It could be relied upon being extracted from that statement as opposed to aural evidence being given. It can also be used where the witness effectively can't recall the incident well enough to testify. There are some limitations on the use of Section 120. The statement. It can't be used if it's been given in response, for example, to a threat or a promise so taken example from real life. The police say to the wife, If you don't give me a statement that I'm going to take your Children into care, then what the wife has said has been extracted by threats in that situation. And section 120 wouldn't come to rescue the prosecution if they were struggling to have the wife testifying because she couldn't recollect matters well enough. So take a couple of minutes just to familiarize yourself with those three sections. And then let's have a look at specimen directions. Quite often, these various statutory provisions could become confusing If you're used to the old law on here, say you're still walking around thinking of the old law from time to time, and that gets in the way of interpreting and arguing the new law. So a handy tool to use is the Crown Court compendium. You could see the link there on what it will do for you if you're opening a case in front of the Magistrates, or perhaps your furry, newly qualified and you're opening a case in front of a jury, if you read the specimen directions, it allows you to translate the law into very simple concepts to express to a court. The whole purpose of directions is to make it easy for judges to explain the law when they come to do their summing up to Juries. If you're defending, then when you want to address the weight of evidence, you can use these directions to put what weight ought to be given to that evidence in context for the mansions strikes. You can even give them copies of the specimen directions so that they can retire with them and remind themselves of what you said. But the other thing that the companion would do is if you're having an argument over admissibility or wait, it will allow you when you have a bit of brain fade in court, on your thinking, on your feet, to understand, in very clear terms what the purposes of the provisions are on, what they mean because instead of torture statute, you're looking at a layman's explanation. So let's have a look at a recent decision of Griffiths. Gracious started Life is an appeal by way of case stated by a defendant. It's an everyday scenario, a domestic abuse trial. The wife was retracted, but she's come to call on. She has gone in the witness box on. She has said a few things about the incident. The defense here, like so many domestic abuse cases, it's self defense. We've now reached the point in the trial where the wife won't answer any more questions in chief on absolutely refuses to answer any in cross exam. What she did say in evidence was that we'd both done wrong that nights. The course, of course, had the original Section nine statement in that she said that she'd been punched in the head quite a few times on. She had also kicked in the defendant and bitten him as result of being attacked. She said that one of the Children had picked up a baseball bat, presumably to come and rescue the mother, but she taking the baseball bat from the child because she didn't want him getting involved well. The defendant said that he'd been attacked first, presumably that he had been kicked and bitten first, and he said that she had used the baseball bat to attack him. So we've got a general idea of what's gone on on the some similarities. But each party has a different perspective on who did worlds well. When the wife made the retraction statement, she confirmed the contents of her initial statement were true. She simply said she didn't want to go through with going to court because she was worried that her husband would go to prison and then should be left with the Children without a father. So again, that's a fairly standard set of events. Well, she's not now willing to answer any questions. The prosecutors got to do something or he's got to abandon the case. So what does he do? Well, he applies to have treated as hostile under Section three of the criminal procedure at 18 65. Essentially, she's 20. Thwart the prosecution case. But the defense can use the hostile witness application as well in the right circumstances. So don't think it's all one way traffic for the prosecution because of Mrs Griffis demeanor. The court accede to the application to treat her hostile, and this now means the prosecutor can cross examine her so he could get her to identify her witness statement. And then he could challenger as a means of trying to bring her up to proof. And that's what he attempted to do. But she was made of stern stuff on. She refused to come up right. He gave up the defense advocate, then tried to cross examine her. But she wouldn't answer his questions. Yes, she could have been dealt with for contempt, that the court weren't minded to go into that arena of battle. So both advocates gave up. There was a little bit more evidence to give, and then it came to the end of the prosecution case. And so the defendant made an application girl brave. There was no evidence that the crime of a soul had Bean committed because the wife hadn't come up to prove the worst evidence of injuries. But is the high court would say, intercourse. Those were equivocal on those in themselves, couldn't disprove self defense on they couldn't prove the offensive assault, either. That didn't succeed defense counsel made an application to stay, arguing that, as had been deprived of the opportunity of cross examining that Mrs Griffiths, because she simply wouldn't answer questions on the court wouldn't compel her. He couldn't put his case, and that meant the trial was unfair. When ruling on the case, the High Court judge said at Paragraph seven, that Mr Evans submission was that the defense was unduly prejudiced by the refusal of the key witness to Smit. To cross examination, he was unable to test what she said to the police or the reasons why she retracted her statements. Andi, that, he said, inherently deprived his client of receiving a fair trial defense was left with nowhere to turn on. That was an invidious and unfair position to find one sell food, what the prosecutor had done, and if you prosecute, you want to do. This was when she went in the witness box. He got Mrs Griffiths to agree that she had made the two statements on to confirm the truth. Mrs. Justice Andrews, in delivering the judgment, held that the law was the same as in the crown and felt a Magistrates court, ex party ever him and Mo. At that he could have a fair trial. He could challenge the weight of Mrs Griffiths evidence. Such lessons have Bean because it was now contained in those two witness statements, which were admissible under section 119 previous inconsistent statements inconsistent with what little she had said at the trial on. And he could challenge using her demeanor to demonstrates that, in fact, although the evidence might be admissible, it was worthless and there was insufficient to convince the court. So they were sure, of course, it was open to the defendant at this stage to go in the witness box and give evidence of self defense. It may have been very difficult had he done that for the prosecution to rebut on make the Court satisfy so that he was, should. They were sure that he wasn't acting in self defense, but he didn't do that, and you'll see that that caused him problems. Mrs. Justice Andrews also suggested that another remedy in that situation, open to the defense would have been an application under Section 78 to exclude what the wife had said on her statements. It didn't happen in this case, but be alive if you're defending to the fact that it might be a remedy. Well, one of the grounds of appeal before Mrs Justice Andrews was that the court should have acceded to the halftime submission. But she took the view that the court had heard and seen from Mrs Griffiths Andi as her statements have been adduced under section 119 previous inconsistent statements following her being roiled with hostile there WAAS evidence before the court and therefore it was correct not to accede to halftime submission so hard Time submissions will always fail where there's a prime of Facey case. So having been unsuccessful despite strenuous endeavors, it's now reached the stage of the trial where Mr Griffiths could give evidence, but he doesn't on the difficulty set out at paragraph 20 1 of the judgment is that, in essence, they found applying a Facey case. He doesn't now go in the witness box and give evidence that might rebut that. And so it follows, logically that there's sufficient evidence to convict. Now that won't always be the case. There may be situations where without the defendant being examined and cross examined, there isn't enough evidence to make the court satisfied so that there, sure. But in this situation, the court had heard nothing to rebut what was contained in those witness statements. So was it open to the court to convince on a power of 24? Mrs. Justice Andrew said that it waas. She said that they'd heard the evidence of Miss Smith and in fact, that was Mrs Griffiths proper name. And she said that it was a decision that was reasonably open to them in the circumstances. The observation she made in the witness box that we both done wrong that day for was a long way short of an admission that she was the aggressor. Hence were self defense wasn't going to be proven without him going in the witness box. It was consistent with what she said to the police in her first statement, and then a paragraph 25. Even if she had gone in the witness box and given a completely conflicting account of what had happened that would have formed no basis for a halftime submission either, unless it was manifestly obvious that she was so completely unreliable that no weight whatsoever could be given to her evidence we suggested hundreds, then looks at Morgan Morgan is a case where the witness never turned up a court. But there have been many cases, often of domestic violence, in which key prosecution witnesses giving evidence at trial and turned hostile on basic Negri to everything that defense counsel is put to them or having initially identified the defendant, is the person who's injured them. A Senate trial. It wasn't the defendant at all. It was somebody else, for example, an intruder or that they injured themselves accidentally, or they can't remember who it waas well can't identify them in such cases. Carrying on a paragraph 26. It's a job for the tribunal fact to decide whether the first account is truthful. Whether the second conflicting account is true for or whether they can't tell which account is truthful, they must ultimately decide whether any of the evidence of that witnesses reliable or not. That's essentially a decision for the find as a fact be that a jury or justices and providing all relevant considerations are taken into account. The decision as to the reliability of a witness is we're not one that can easily be in Pune, so the court having heard the contradictory evidence, it's for the court to decide what weight to a touch and whether they're satisfied so that they're sure that the defendant is skilled. Teoh, if you're prosecuting, you want to say to the court Well, witnesses reliable notwithstanding the contradictory accounts you'll want to accept. The witness statement is the truth. The document that was created around the time of the incident. If you're defending, you're going to want to say that this lady has given two different versions of events and you can't be sure. Therefore, which version of events is true and in the circumstances you should acquit so tips. What are we going to do if we find ourselves in this situation? But Royal, if you prosecute the best advice is the moment the witness has been identified and sworn. You get them toe, identify the witness statements that they've made before they got the chance to go hostile providing, of course, the retraction statement confirms the events in the first statement of True. So get that'll confirmed to lay the groundwork. If the witness doesn't go hostile, fine. But if they do go hostile, you've banked that point and then in the position to argue along the Griffiths lines. If the witness does go hostile than you can cross, examine the witness statements or capable of becoming admissible as a result of your cross examination. If you're defending on, the witness hasn't come up to prove at this stage, be careful about cross examining them because they may well come up to proof inadvertently as a result of cross examining in these situations. Do think whether or not you should be cross examining at all on where the witness gives a different version today to that given in the original statement. Then the court couldn't have a look at the original statement, and they couldn't decide to admit it, and they can decide to adopt it under section 119 wherever you gotta struggling Witness. Don't forget Section 139 of the C J 2003 Memory. Refreshing. And don't forget 620. You might be able to drink the witness up to proof what other solutions might be. Well, if the witness is plainly in fear and this could be a defense witness in some places in Section 116 1 e of the 2003 act is easy to use. Either. The court can deduce from what they've seen of the witness that they're in fear, and that's where they're not carrying on giving evidence. Or let's say you've got the witness in the witness room. The witness service tell you that the witnesses absolutely terrified. I won't come into court. You can then call the person from the witness service. You could examine them on oath that could be cross examined, and you can lay your grounds for the in fear application. That way, in case of emergency, the Section 814 1 D here say, And if you're going to deploy one of these remedies, then you're going to want to address the court on weight. And again, that's where those clever specimen directions come in. So if the evidence has been admitted, if you're prosecuting, you want to persuade the court that the weight is such that they're entitled to convict. If you're defending, you want to persuade them the weight of it is simply not sufficient for them to be sure. So what about the practical consequences then, if you're defending well, can you demonstrate the witness isn't in fact, hostile. They're just perhaps forgetful or a bit. Does the or, frankly, a bit think, because if they're not rolled across hostile at this stage, there can be no cross examination by the prosecutor, and that might prevent them being holed up to proof in this manner. Let's imagine the evidence has gone in. Your objections were in vain. All resistance was useless. Well, you convention on section 78 to exclude the evidence. Let's say you find yourself in the position that the hapless counseling Griffiths was in your thrown the kitchen sink at it. But is there come down to closing speeches and they're going to go off from reach a verdict in a minute. Use the specimen directions to address the court on weight and stress that they are the special in directions, and they therefore have some clout and respectability. If your client didn't testify, then you're going to be in some difficulty demolishing the prosecution case. But you can still challenge the way to bits and have a look again and remind yourself or paragraph 20 warn of the judgment in Griffiths. Concentrate on accepting in some situations that there may have been a prime of facing case, but it doesn't follow automatically that there being a primer Facey case, the defendant is guilty. Remember the burden and standard of proof? Well, a few minutes ago, we mentioned Morgan. That was a raise, just I case, and it looks at the admissibility on weight and here raised just I evidence of being admitted. You don't need to make a hearsay application because Part 20 says you don't need to, and this may arise on the hoof. The remedy of the court agrees that it's raised jest. I and it's therefore admitted, is to challenge it and try to excluded under Section 78. Um, well, Griffiths says about Morgan is, of course, this court may bear in mind that each case will turn on its own. Peculiar facts and the specific facts of another case cannot afford much, if any, guidance on the in the current case, it's the principles to be derived from authorities that a helpful, however, Morgan serves a general illustration of the point that it doesn't necessarily or inevitably follow, from an inability to cross examine the complainant that the defendant will not get a fair trial, even where they're the only protagonist. So you're not going to argue whichever side you on that you must follow Griffiths on the factual basis. Griffiths and Morgan simply provide a demonstration of how the prince support could be applied. Every trial is different. Couple of other matters. There's always a risk of running self defense in this type of case, following Lamma, Letty and Royce on the case called Trevor Clarke. The risk is if the defendant is alleging an unprovoked attack, he's imputing the character of the witness, and that's just triggered gate by G. If he's got previous convictions that air close to the knuckle they're about to go in, you might trigger Gateway J. Or indeed, Gateway offers well by what you put on a pet form or Petee ph form. Do you have a look? But the legislation section 106. You'll see that attacking someday, basically from caution onwards, is capable of imputing character, you say, turning now to the topic of raised jest. I we know that it's admissible per se. We know we don't need to hear, say application. Either party can use it. If you're defending them, they will be surrounding material in what's admitted by way of raised. Just I like the body cam put it. That helps you have a think about what might help you have a thing. What might help you make submissions about weight as well. You might go to argue it out under Section 78. We're going to put your efforts into your closing speech. If you're looking for cases on Rose, just I they're split on your slide into two. There's the old pre 2003 at case law Andrews, which may well be approached differently today because in 1987 it was very rare that domestic abuse was prosecuted. And the interesting case of Harris, where a complainant speaks to three friends before she's persuaded to phone the police and the court, felt that the risk of her evidence being distorted or concocted as a result of those multiple conversations was too great to allow the Rays just try to be admitted Post 2003 act. You've got wills, Barnaby, IBRA, him and Morgan. We looked at Morgan just a minute ago, the last three or all indications that the accord are going to be fairly relaxed about admitting raise jest I, despite the fact there isn't a complainant in these cases to cross examine. But we're was is a bit different, although we're what hasn't been looked at by the high court since it was decided, and it certainly hasn't been looked at by any other courts higher than that. But we'll says it can't be a matter appropriate is a match of routine without proper inquiry on and on. The first listed hearing to proceed to such an application toe admit critical evidence by way of rays just started. Lord Justice Irvine says that that's a lazy approach. So what? It suggests that if you want to rely on raise, just start, you're gonna have to make enquiries to find out why the witness isn't here today to be cross examined a witness as a civic duty to attend court and indeed can be compelled, Irwin says. You can't simply leap into deploying raise just started. You need to furnish an explanation for the witness's absence, and that will generally need to be a convincing explanation because the detriment to the defendant is he can't cross examine so the witness's evidence can't be tested. The witness isn't giving evidence on oath. Where the evidence is simply adduced is here. So and there's no opportunity to look at the demeanor of the witness, Mr Justice Collins. I did that for many reasons, not only for the question of conviction. It was a case talking about wills in which the presence of the complainant was clearly essential if there was no good reason why she should not attend, if she was concerned for her own safety measures could be taken to protect her. In other words, screens or remote link. It's just concerned about confronting the appellant in court. Became measures could be taken to ensure that she could give her evidence out of sight, although obviously in their hearing equally well must bear in mind that there were measures that could be taken to protect her. If that was necessary. Equally if it transpired that there was a good reason for her to fear to give evidence than that would be an important factor could influence the justices to decide it was an appropriate case for raise just I as a means of progressing the prosecution case. Regrettably, as I say no enquiries were made in my judgment that failure is by itself fatal to the decision made to admit the rays. Just I evidence. So how are we going to use always case law. Case law often tells us a verdict in the lower court was correct or incorrect and then goes on to give the reasons. That doesn't necessarily mean that the same situation will be replicated in your trial has already described. It's about the prince, supporters of the decision making and adopting those principles to formulate your legal argument to either prevent your opponent doing something or to give you the authority to persuade the court to permit you to do something. So it'll always be what the quarter appeal caused fact specific and that will also apply if you're looking at court of appeal decisions. The critical thing here is if you're not going to get to challenge a witness, if he is saying is going to be relied upon, you've lost the argument on admissibility by this stage, but you can still win the argument on the weight of the evidence on whether or not a party has discharged the burden of proof if any, upon it. Next. Having listened to this presentation, there's a set of 12 questions accompanying the webinar that you can use to test yourself. You're not passing an exam. You're just stretching your brain to absorb these principles, digesting the knowledge and laying the groundwork so that when this happens to you in real life in court, you know where to go to find the answer.
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