Pulley, R. v

Under section 114(2) of the Criminal Justice Act 2003, the admissibility of hearsay from an unavailable witness requires a realistic assessment of the maker’s reliability alongside the other statutory factors. Serious inconsistencies and lies do not favour admission merely because they may assist the defence. That approach would improperly favour an apparently unreliable statement over a reliable one.

Where a statement is central to the prosecution case, serious doubts about its reliability may make a fair trial impossible if the maker cannot be cross-examined. The absence of cross-examination may then render the conviction unsafe, notwithstanding that some statutory factors favour admission. An appellate court may exercise its own discretion where an erroneous approach may have influenced the trial judge’s ruling.

The appellant was convicted at Swansea Crown Court of inflicting grievous bodily harm contrary to section 20 of the Offences Against the Person Act 1861. The prosecution alleged that he injured his wife’s hand with a machete. He maintained that she accidentally trapped her fingers in a door.

The complainant died before trial from unrelated causes. The judge admitted three statements in which she alleged an assault. The statements were important evidence on the central issue, but there was evidence capable of casting doubt on their accuracy, including inconsistent accounts, her intoxication, the forensic evidence, and the appellant’s account.

By leave of the single judge, the appellant appealed against conviction. The central question was whether admission of the deceased complainant’s statements deprived him of a fair trial.

1. Appeal allowed. The conviction was unsafe because admission of the deceased complainant’s statements deprived the appellant of a fair trial. The verdict was quashed and the appellant was discharged.

2. Section 114(2) of the Criminal Justice Act 2003 required the judge to assess, among other matters, the apparent reliability of the statement maker. The trial judge’s view that inconsistencies and lies were an asset to the defence, and therefore required no further exploration, was legally wrong. It could not justify admitting an apparently unreliable statement merely because the defence could rely on its defects. That error might have influenced the ruling, so the court exercised its own discretion.

3. R v Imad Al-Khawaja [2005] EWCA Crim 2697 and R v Cole and Keet [2007] EWCA Crim 1924 showed that Article 6 does not impose an absolute bar on prosecution hearsay where a witness has died. Fairness depends on the facts and the statutory factors. In those cases, the hearsay statements fitted a coherent body of other evidence that substantially supported their accuracy.

4. This case was materially different. Although the medical evidence was consistent with the allegation, much of the remaining evidence gave rise to serious doubts about the accuracy of the complainant’s account. Those doubts concerned matters on which cross-examination would have been substantial and important. The court applied the reliability principle stated in R v Sellick [2005] EWCA Crim 651.

5. Some section 114(2) factors favoured admission and others were neutral. However, the complainant’s death made cross-examination impossible. Given the serious doubts as to reliability and the centrality of her statements, there could not be a fair trial.

• Court of Appeal (Criminal Division): Allowed the appeal against conviction, quashed the verdict, and discharged the appellant: [2008] EWCA Crim 260.
• Crown Court at Swansea: On 6 July 2007, convicted the appellant of inflicting grievous bodily harm. On 15 August 2007, imposed an extended sentence of five years under section 227 of the Criminal Justice Act 2003.