Farmbrough, R. v

Evidence of prior violence towards the deceased may be admitted as bad-character evidence where it explains the relationship central to the alleged offence and corrects a false impression of an entirely non-violent relationship. The court must exercise caution where the evidence concerns unproved allegations rather than convictions, but narrowly focused evidence need not make the trial unfair or unduly complex.

Hearsay from a deceased maker may be admitted if the statutory conditions are met and the trial judge has considered its cogency, importance, circumstances and reliability. A jury direction is adequate where it makes clear that such evidence is background only and cannot itself prove the charged offence.

The applicant was convicted at Norwich Crown Court of murdering his 19-year-old son by a single stab wound. The prosecution alleged that he inflicted the wound after an argument. The defence maintained that the wound was self-inflicted, deliberately or accidentally.

The trial judge admitted evidence of the deceased's earlier complaint that the applicant had assaulted him, together with evidence from the deceased's great aunt. The applicant renewed his application for leave to appeal after the single judge refused it. He challenged the admission of the evidence as bad character and hearsay, and contended that the jury directions and other aspects of the summing-up rendered the verdict unsafe.

1. The renewed application for leave to appeal against conviction was dismissed. The issue at trial was not confined to whether the applicant used the knife. Evidence concerning the prior relationship between the applicant and deceased was capable of explaining the alleged killing and of correcting the applicant's asserted impression that the relationship had never involved violence.

2. The court agreed with the single judge that the evidence was plainly admissible through the important-explanatory-evidence and false-impression gateways in section 101(1)(c) and (f) of the Criminal Justice Act 2003. It was unnecessary to resolve the more doubtful reliance on section 101(1)(d). The caution identified in McKenzie [2008] EWCA Crim 758 did not prevent admission: the allegations were confined in scope and did not make the trial unnecessarily complex or unfair.

3. The deceased's statements were prima facie admissible under section 116(2)(a) because he was dead, subject to the discretion under section 78 of the Police and Criminal Evidence Act 1984. Applying the approach in R v Z [2009] 1 Cr.App.R 34, the court held that the trial judge had adequately considered probative value, importance, the circumstances of the statements and their apparent reliability. He was not required to state a separate conclusion on every statutory consideration. The later withdrawal did not renounce the allegation of violence, and there was no realistic prospect that the ruling was erroneous.

4. The jury direction sufficiently confined the use of the evidence. It required the jury first to decide whether the allegations were true, stated that prior conduct was only background, and made clear that it did not prove either murder or manslaughter. The remaining criticisms of the summing-up could not, individually or cumulatively, render the verdict unsafe.

• Court of Appeal (Criminal Division): The applicant renewed his application for leave to appeal against conviction following refusal by the single judge. The court dismissed the application: [2009] EWCA Crim 2579.
• Crown Court at Norwich: On 16 October 2008, the applicant was convicted of murder.