T, R. v

An out-of-court statement is not hearsay where it is tendered to prove that it was made, rather than the truth of its factual assertions. It may therefore be admissible as original evidence where its receipt could have affected the hearer’s state of mind or subsequent account. Its relevance and the inferences to be drawn from it remain matters for the jury, provided they are properly directed on its limited use.

The appellant was convicted at the Central Criminal Court of murder following the fatal stabbing of Jermaine Thompson during mob violence. The knife used belonged to the appellant. His defence was that he had given it to Jermaine Dinnell before any disturbance and without reason to anticipate its use.

The prosecution contended that the appellant had used the knife or had handed it to another participant knowing it would or might be used to kill or cause really serious injury. At trial, the judge admitted a letter from Tyrone Tassell, found at the appellant’s flat, as evidence potentially bearing on the appellant’s state of mind when he made his initial police statement.

On appeal, the appellant challenged that ruling as hearsay and unfair. He also complained that the jury might have been misled about the status of murder proceedings against Dinnell and Tassell.

1. Appeal dismissed. The procedural complaint did not affect the safety of the verdict. The jury knew that Dinnell had been a suspect. The Crown’s decision not to proceed against Tassell for murder reflected insufficient evidence to prove his guilt, not an acceptance of his innocence. In any event, the prosecution case against the appellant did not depend on identifying which participant wielded the knife.

2. The Tassell letter was admissible. Applying the distinction stated in Subramaniam v Public Prosecutor [1956] 1 WLR 956, a statement is hearsay only when tendered to establish the truth of what it asserts. The letter was tendered as real evidence: it showed the relationship between the appellant and Tassell and could have affected the appellant’s state of mind when deciding what to say to the police.

3. The prosecution did not rely on the letter as an instruction to blame Dinnell, nor on the truth of its contents. It was entitled to contend that the letter may have alerted the appellant to the discovery and likely forensic examination of his knife, and to rumours identifying Dinnell. Those matters could bear on whether the appellant’s initial account was true or an attempt to shift blame.

4. The judge correctly left the letter’s meaning and its possible effect on the appellant to the jury. The jury were directed that the prosecution’s interpretation was only a possible interpretation and that they must determine the facts. There was no unfairness in admitting the letter or in the manner in which it was put to the jury.

5. The remaining evidence provided a strong case. If the jury rejected the appellant’s revised account of an innocent pre-disturbance transfer of the knife, the inference was overwhelming that any transfer to Dinnell was for use as a weapon in the violence.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2007] EWCA Crim 1250.

• Central Criminal Court: on 2 November 2006, Judge Paget QC convicted the appellant of murder. On 1 December 2006, the appellant was ordered to be detained during Her Majesty’s Pleasure with a minimum term of ten years, less time spent in custody.