Toussaint-Collins, R v

An out-of-court statement is not hearsay when tendered to prove that it was communicated to the defendant and thereby may have affected the defendant’s state of mind, rather than to prove the truth of its contents. If it is hearsay, its probative value and the interests of justice may justify admission under section 114 of the Criminal Justice Act 2003.

A weak or qualified identification need not be withdrawn from the jury where independent evidence is capable of supporting its accuracy. A properly conducted identification procedure is required where a witness expresses an ability to identify a suspect, or there is a reasonable chance that the witness can do so.

The appellant was convicted of murder at the Central Criminal Court on 2 August 2007. The prosecution case depended principally on a teenage eyewitness’s identification of him as the masked passenger in a car associated with the shooting.

The prosecution relied also on letters said to show a revenge motive and on cell-site evidence. On appeal, the appellant challenged the admission of the letters and identification evidence, the rejection of a submission of no case to answer, and the witness’s anonymity direction. The central question was whether the conviction was safe.

1. Appeal dismissed. The conviction was safe. The judge was entitled to leave the identification evidence to the jury, which had received a full and fair summing-up.
2. The letter sent to the appellant was not used to prove that its author’s assertions were true. It was used to prove that the author had made the statements to the appellant and so could have affected the appellant’s state of mind. It was therefore direct evidence rather than hearsay. Alternatively, it would properly have been admitted in the interests of justice under section 114(1)(b) of the Criminal Justice Act 2003. Its substantial probative value lay in its capacity to show a motive and to support the eyewitness identification. The factors in section 114(2) would also have favoured admission.
3. The appellant’s own letter was relevant because it showed that he knew the deceased associate, whose death was said to motivate the killing. Its probative value outweighed the prejudice arising from its having been written in prison. Its late admission caused no unfairness because it was the appellant’s own letter.
4. The eyewitness’s opportunity for observation was short and restricted by a balaclava, and her identification had weaknesses. Those matters affected weight, not admissibility or the sufficiency of the evidence. The letters and cell-site evidence were capable of providing independent support. A jury could therefore safely assess whether it was sure of the identification.
5. There was no breach of Code D. Paragraph 3.12 required an identification procedure where a witness expressed an ability to identify a suspect or there was a reasonable chance of identification. The officer was also entitled to consider the VIPER procedure useful. A section 78 application under the Police and Criminal Evidence Act 1984 would inevitably have failed.
6. Having reviewed the anonymity direction in light of Mayer and Others [2008] EWCA Crim 1418, the court held that the direction remained justified and did not undermine the safety of the conviction.

• Court of Appeal (Criminal Division): The appeal against conviction was dismissed in [2009] EWCA Crim 316.
• Central Criminal Court: The appellant was convicted of murder before the Recorder of London and a jury on 2 August 2007.