Nelson, R. v

A finding that a witness refuses to give evidence through fear under section 116(2)(e) of the Criminal Justice Act 2003 requires a properly informed assessment of the witness’s reasons. Material information which may affect that assessment must be put before the judge, and a suitable enquiry may be necessary where fear is mixed with other causes of refusal.

An irregular admission of hearsay does not itself make a conviction unsafe. The appellate court must assess the evidence as a whole, including whether the hearsay was sole or decisive, the strength of independent evidence, the disclosure available to challenge the witness’s credibility, and the practical effect of the lost opportunity for cross-examination.

The appellant had been convicted at trial of the double murder of Danso and Police Constable Dunne by shooting in 1993. The Crown case included substantial circumstantial and witness evidence connecting him with the murders and the firearms later recovered near his home.

A witness, Sandra Frances, had made a statement linking the recovery of the firearms to members of the appellant’s family. At trial she refused to take an oath or affirmation. The trial judge found that fear was the predominant reason for her refusal and admitted her statement as hearsay under the Criminal Justice Act 2003.

The appellant contended that the judge lacked material information about the witness’s medical concerns and missed hospital appointment, and that her statement should not have been admitted. The central issue was whether the resulting irregularity rendered the convictions unsafe.

1. Appeal dismissed. The court held that the trial judge’s ruling that Frances refused to give evidence through fear was undermined by an irregularity. The judge had not been told of her possible serious illness or the missed hospital appointment, both of which might have affected her conduct and the assessment of her reasons for refusing.

2. The court considered that she should preferably have been given an opportunity to speak privately to a neutral person who could ascertain why she was refusing. Fear and resentment were both present. Had the judge been fully informed, his conclusion that fear predominated might not have been open to criticism; but the court could not know whether he would have reached the same conclusion.

3. The court therefore assessed the safety of the convictions. Frances’s statement was neither the sole nor the decisive evidence. The discovery of the murder weapons, and the connection between their packaging and the appellant’s home, did not depend on her evidence. Her account reinforced that evidence but did not create the connection.

4. The defence had disclosure of the records of its dealings with Frances, including inconsistencies in her account and material relevant to her credibility. The appellant neither gave evidence nor called those close to him who could have refuted her account. Although the inability to question a hearsay witness in person is a real disadvantage, it did not render these convictions unsafe. The appeal was accordingly dismissed.

• Court of Appeal (Criminal Division) dismissed the appellant’s appeal against his convictions for double murder.
• Trial court convicted the appellant in January 2006 after admitting the statement of Sandra Frances as hearsay.