Greene, R. v

Where a deceased witness’s statement is admitted, the trial judge has discretion to tailor the jury direction to the circumstances. A clear warning that the evidence is disputed, that the witness could not be cross-examined, and that caution is required may suffice.

Where a witness has been treated as hostile, the jury should, save in exceptional cases, be cautioned about varied accounts when assessing the weight of that evidence. The warning need not refer to hostility. An omission will not render a conviction unsafe if, viewed against the evidence as a whole, it had no real significance.

The appellant was convicted at Manchester Crown Court of three fraud offences arising from circular trading within the Ravelle Group. The Crown alleged that he knowingly assisted the use of false invoices and cheques to obtain invoice-discounting finance. He denied knowledge or participation.

On appeal against conviction, he challenged the judge’s directions concerning the read statement of a deceased witness, the decision to permit the Crown to treat Suhail Uddin as hostile during re-examination, and the absence of a specific caution about Uddin’s evidence. The central issue was whether those rulings or directions made the convictions unsafe.

1. Appeal dismissed. The court was satisfied that the convictions were safe. Although the judge should have given a further caution about Uddin’s varied accounts, that omission had no real significance in the context of the substantial evidence against the appellant.

2. The judge’s directions about the deceased witness, Mangles, were adequate. The judge had warned that Mangles’s evidence was disputed, had been read because he had died, and required careful scrutiny. The direction was properly tailored to the case. Grant v The Queen [2006] 2 WLR 835 and Hardwick [2001] EWCA Crim 369 confirmed that no fixed formula governed the warning. The evidence did not fall within a specially problematic category, such as identification or alibi evidence.

3. The judge was entitled to permit the Crown to treat Uddin as hostile under section 3 of the Criminal Procedure Act 1865. Uddin had given a materially different account of the appellant’s explanation for the financial difficulties from that in his earlier statement. The application could properly be made in re-examination, and the trial judge was best placed to assess whether the witness had proved adverse. Under section 119 of the Criminal Justice Act 2003, Uddin’s admitted earlier inconsistent statement was capable of being evidence of its truth.

4. The court accepted the guidance in Ugorji [1999] 9 Archbold News at page 3 and Middleton. Once a witness has been treated as hostile, a tailored warning will ordinarily be required. Here the jury should have been told to approach Uddin’s evidence cautiously because his accounts had varied, despite his eventual return to his earlier account. The judge’s direction that discrepancies went only to weight did not supply that caution, but the error did not affect safety.

• Court of Appeal (Criminal Division) Dismissed the appellant’s appeal against conviction.
• Crown Court at Manchester In 2008, convicted the appellant by a majority of three fraud counts after a jury trial.