Pashmfouroush & Anor, R v

A trial judge may control the extent of cross-examination, but should ordinarily permit relevant questions that test a witness’s account by reference to documentary material. An erroneous restriction will not render a conviction unsafe where the jury received the material evidence and there is no realistic possibility of a different verdict.

Under Criminal Justice Act 2003 section 120(3), a document used to refresh memory does not become admissible merely because it is referred to in cross-examination. The common law governs whether it may be received in evidence. A procedural error in admitting a witness statement or permitting re-examination will not require intervention unless it could realistically have affected the jury’s assessment or verdict.

The appellants, who had sub-let a flat to the complainant, were convicted at Liverpool Crown Court after a jury trial arising from a violent disturbance when they attended the flat to change its locks. The first appellant was convicted of assault occasioning actual bodily harm. The second appellant was convicted of assault by beating and affray.

They appealed against conviction. They challenged the restriction of cross-examination about tenancy correspondence, the admission and use on re-examination of part of a witness statement, and the refusal to give a specific direction concerning the absence of medical evidence said to support an alleged miscarriage. The first appellant also renewed an application for leave to appeal against sentence.

1. The appeals against conviction were dismissed. The court held that the Recorder should have allowed further cross-examination of the complainant by reference to recorded-delivery receipts. The questions were permissible, whether directed to an issue in the case or to credit. However, the jury had the letters and receipts, and had heard both sides’ evidence about them. The restriction therefore could not have made a significant difference to its assessment of the evidence or to the safety of the convictions.

2. The Recorder erred in treating section 120(3) of the Criminal Justice Act 2003 as a basis for receiving the whole of Miss Anders’s witness statement in evidence. The statement had not been used to refresh her memory. The appropriate route for an inconsistent statement was section 119. Further, section 120(3) concerns the evidential effect of a memory-refreshing document once properly received; it does not itself determine when the document may be admitted. Re-examination on uncanvassed parts of the statement should not have occurred.

3. Those errors did not make the convictions unsafe. The evidence of the assaults, including the evidence of injury, was sufficiently strong that there was no realistic possibility the jury would have reached a materially different conclusion without the impugned re-examination. The court also observed that the Crown might have used section 139 to refresh the witness’s memory at the outset, although that was not the procedure adopted.

4. The Recorder was entitled to refuse a specific direction about the absence of medical evidence concerning the alleged miscarriage. Her clear general directions on the burden of proof and the need to avoid speculation were sufficient. A specific direction risked giving an immaterial issue undue prominence. She was also entitled to reject the proposed late formal admission about the defence’s decision not to instruct a doctor.

5. The renewed application for leave to appeal against sentence was refused. Although academic because the sentence had been served, the twelve-month sentence was well within the appropriate range, given the aggravating features identified by the Recorder and the absence of a guilty plea.

• Court of Appeal (Criminal Division) The appellants’ appeals against conviction were dismissed. The first appellant’s renewed application for leave to appeal against sentence was refused.

• Liverpool Crown Court Following a jury trial before Miss Recorder Penna, the first appellant was convicted of assault occasioning actual bodily harm and sentenced to 12 months’ imprisonment. The second appellant was convicted of assault by beating and affray and made subject to a compensation order.