Musone v R.

Where hearsay is tendered in the interests of justice, the trial judge must personally assess the apparent reliability of its maker. That issue cannot be left solely to the jury. A late hearsay application may properly be refused where notice requirements have been deliberately breached and the resulting unfairness cannot be cured.

Evidence satisfying section 101(1)(e) of the Criminal Justice Act 2003 cannot be excluded under that section, or by a free-standing appeal to article 6 fairness. However, the criminal procedure rules may exceptionally justify exclusion where a party deliberately ambushes a co-defendant and thereby manipulates the trial process.

The appellant and a co-defendant were convicted of murdering a fellow prisoner at Northampton Crown Court. The prosecution case required proof that the appellant had stabbed the victim; it did not rely on joint enterprise as an alternative route to convict him.

On appeal, the appellant challenged the admission of two accounts of the dying victim’s identification of him, the refusal to admit letters written by a third defendant, and the exclusion of evidence that the co-defendant had allegedly confessed to an earlier murder. The central issues concerned hearsay, bad-character evidence in a cut-throat defence, and the effect of late procedural applications.

1. Appeal dismissed. The judge was entitled to admit the first prisoner’s evidence of the victim’s identification under section 116 of the Criminal Justice Act 2003. The statutory condition of the maker’s death was met. The alleged weaknesses in the witness’s evidence did not make admission so unfair that exclusion under section 78(1) of the Police and Criminal Evidence Act 1984 was required.

2. The second prisoner’s own observations were admissible under section 114(1)(d). The judge was entitled to find them probative and important. However, section 114(2)(e) required the judge to assess the maker’s apparent reliability at the admissibility stage. It was not a sufficient answer that reliability could be tested before the jury. Despite that error in reasoning, the discrepancies did not require exclusion. The victim’s identification, relayed by that prisoner, was also admissible under section 121(1)(c), because its value and apparent reliability were sufficiently high to make admission necessary in the interests of justice.

3. The refusal to admit the third defendant’s late letters was within the range of reasonable decisions. The notice regime under section 132(5) and Part 34 of the Criminal Procedure Rules 2005 protects against substantive, not merely technical, unfairness. The co-defendant could not fairly investigate the letters or their circumstances at that late stage.

4. The alleged prior confession by the co-defendant met the section 101(1)(e) threshold. If true, it had substantial probative value on the important issue of who stabbed the victim. The judge had to assume its truth unless section 109(2) applied. The judge erred in treating article 6 as conferring a free-standing power to exclude evidence already admissible under section 101(1)(e).

5. Nevertheless, Part 35 and Part 1 of the Criminal Procedure Rules 2005, read with the overriding objective, empowered the court to refuse the evidence. Exclusion of substantially probative evidence for procedural breach will be rare. It was justified here because the appellant had deliberately withheld the allegation to ambush his co-defendant, and the evidence was improbable although capable of belief. Discharging the jury was not an appropriate cure.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction: [2007] EWCA Crim 1237.

• Northampton Crown Court: Convicted the appellant of murder on 6 April 2006.