Abdzahra, R. v

Hearsay evidence may be admitted under section 116(2)(e) of the Criminal Justice Act 2003 where the court is sure that a witness’s failure to give oral evidence results from fear. The relevant time is when the witness was due to give evidence, but earlier evidence of genuine fear may be highly relevant to the inference of the witness’s state of mind at that later time. The court may draw that inference from the cumulative effect of direct evidence, surrounding circumstances and unexplained coincidences. Where those findings support the admission of the evidence, and independent evidence supports the witness’s account, a conviction founded upon it will not be arguably unsafe.

The applicant was convicted at the Crown Court at Isleworth, by a majority of 10 to 2, of affray arising from an incident involving his former partner. He was acquitted of kidnapping and false imprisonment.

The complainant did not give oral evidence. Her account was read to the jury after the trial judge admitted it as hearsay under section 116(2)(e) of the Criminal Justice Act 2003. The judge found that she was absent through fear, having regard to police evidence of her fear, her withdrawal statements, and the timing of travel to Morocco and changes to her return arrangements.

After a single judge refused permission, the applicant renewed his application for an extension of time and leave to appeal against conviction. The issue was whether the inferences supporting the hearsay ruling were speculative and whether the affray conviction was arguably unsafe.

1. The renewed application for an extension of time and leave to appeal against conviction was refused. The affray verdict was not arguably unsafe.

2. The trial judge was entitled to admit the complainant’s account under section 116(2)(e) of the Criminal Justice Act 2003. The evidence established to the requisite standard that she did not give oral evidence through fear.

3. The court endorsed the factors relied upon by the single judge: the complainant’s immediate physical distress and account of threats; her later genuine fear and anxiety about reprisals; her report that she had been warned off; and her withdrawal statement, which did not retract her allegation that the applicant had caused damage.

4. The coincidence between the application for a witness summons, the complainant’s departure for Morocco, the adjournment of the trial, and the alteration of her return date entitled the judge to infer communication by the applicant, or someone acting for him, with the complainant or her family. That was an evidential inference, not speculation.

5. Fear must be assessed when the witness was due to testify. However, evidence that the complainant had plainly been terrified at an earlier date was highly relevant when inferring her state of mind at the material time. Her written account also received significant support from a neighbour and evidence concerning the condition of damaged items in the flat. The jury were therefore entitled to convict of affray.

• Court of Appeal (Criminal Division) — Refused the renewed application for an extension of time and leave to appeal against conviction: [2011] EWCA Crim 2664.
• Crown Court at Isleworth — On 27 October 2010, convicted the applicant of affray by a majority verdict and acquitted him of kidnapping and false imprisonment.