Saunders v R

A spontaneous accusation made while the maker is emotionally overpowered by the event may be admitted as res gestae under section 118(1) of the Criminal Justice Act 2003. Its credibility will ordinarily be a matter for the jury, subject to the trial judge’s statutory discretion to exclude unfair evidence.

Hearsay may also be admitted in the interests of justice where a witness gives evidence but, through fear, is said to give a false or incomplete account. The court must construe that gateway cautiously, assess the statutory reliability and fairness factors, and ensure that the witness can be challenged. An appellate court will not interfere where the trial judge was entitled to find those requirements satisfied.

The appellant was convicted at the Central Criminal Court of the murder of Moses Devall and sentenced to life imprisonment with a 20-year minimum term. He appealed against conviction only.

The sole ground concerned hearsay which provided the only significant identification evidence. During a telephone call immediately after being stabbed, the deceased was alleged to have identified the appellant. Two witnesses also alleged that Jane Buckley had said that she saw the stabbing, although she later denied both witnessing it and making those statements.

The trial judge admitted the telephone accusation as res gestae under the Criminal Justice Act 2003. He admitted the Buckley hearsay in the interests of justice, on condition that Buckley was called and could be cross-examined. The issue was whether those rulings were erroneous because the hearsay was unreliable.

1. Appeal dismissed. The Recorder made no error in admitting either category of hearsay evidence, and the ground of appeal was not made out.
2. The deceased’s alleged telephone accusation was plainly capable of admission under the preserved res gestae rule in section 118(1) of the Criminal Justice Act 2003, as restated in Ratten v The Queen [1972] AC 378. Admission under that rule was not subject to sections 118(2) or 116. The judge nevertheless retained an exclusionary discretion under section 126 of the 2003 Act and section 78 of the Police and Criminal Evidence Act 1984. He was entitled to refuse exclusion because the surrounding circumstances and the alleged delay in reporting the accusation could be fully explored before the jury.
3. Section 114(1)(d) was to be construed cautiously and narrowly, consistently with R v Z [2009] EWCA Crim 20. It could nevertheless permit evidence of an earlier statement where the relevant witness was willing to attend but, through fear, was alleged to be unwilling to give a truthful or complete account. Such a case was outside section 116(2)(e), but that did not bar reliance on section 114(1)(d).
4. The Recorder considered the mandatory section 114(2) factors. He was entitled to find sufficient reliability in the makers and circumstances of the alleged Buckley statements. His condition that Buckley be called provided the safeguards of challenge and enabled the jury to assess all the evidence.
5. After the prosecution case, no submission of no case to answer was made. The timing evidence and the evidence about Buckley’s movements entitled the jury to reject her denial that she witnessed the stabbing and to treat one or more hearsay statements as reliable. There was no complaint about the summing-up. The court therefore had no basis to disturb the verdict.

• Court of Appeal (Criminal Division) — by [2012] EWCA Crim 1185, dismissed the appeal against conviction.
• Central Criminal Court — convicted the appellant of murder on 14 July 2011 and imposed life imprisonment with a 20-year minimum term.