Stoutt v The Queen

Where hearsay evidence is admitted, the jury should be reminded that the absent source cannot be seen or cross-examined. The judge should explain both the risk that the evidence has been misreported and the risk that the absent witness was mistaken or untruthful. In identification cases, the judge should identify material potential weaknesses and fairly direct the jury on evidence bearing on their significance. A failure to give adequate directions may nevertheless be overcome on appeal where no miscarriage of justice occurred.

The appellant was convicted of murder in the British Virgin Islands. The prosecution case relied substantially on hearsay statements by the deceased identifying the appellant as the person involved in earlier threats and as the assailant in the fatal shooting. The appellant denied the killing and relied principally on an eyewitness who identified another gunman.

The trial judge gave directions on identification and hearsay, but did not adequately explain the disadvantages of hearsay or the significance of differences between the deceased’s accounts. She also gave potentially misleading directions concerning a statement adopted by the deceased’s brother. The Court of Appeal dismissed the appeal, treating the brother’s evidence as inadmissible hearsay. The central issues before the Board were whether the directions involved material irregularities and, if so, whether the conviction was unsafe.

1. Appeal dismissed. The Board advised that the appeal against conviction should be dismissed. Under section 37 of the West Indies Associated States Supreme Court Act (Virgin Islands), the issue was whether, notwithstanding the irregularities, no miscarriage of justice had actually occurred.
2. The jury should have been told that hearsay involves two distinct risks: the absent witness’s words may have been inaccurately reported, or the witness may have been mistaken or untruthful. The significance of those risks varies with the evidence, but the jury must be directed to consider them. The directions concerning the deceased’s evidence were deficient in those respects.
3. The judge also failed to explain that the deceased’s brother had adopted his earlier statement. That statement formed part of his evidence for the jury’s consideration. A general direction that previous out-of-court statements were not evidence therefore risked misleading the jury when applied to that witness.
4. The brother’s evidence was hearsay but was admissible under sections 67-74 of the Evidence Act 2006, and in particular section 71(5). The Court of Appeal’s contrary reasoning was mistaken. The Board did not need to decide whether section 71(2)(b) also applied.
5. In an identification case, the judge should identify potential weaknesses in identification and hearsay evidence where the evidence requires it. If weaknesses relied on by the defence are identified, the judge should normally remind the jury of all evidence relevant to assessing their significance. The judge need not make a second speech for the defence. The identification direction required by R v Turnbull [1977] QB 224 had been given, and no specific reference to every other matter raised by the appellant was required.
6. Although the irregularities were material, the hearsay evidence was unusually strong. The deceased’s verified witness statement, the contemporaneous 999 call, Inspector Howe’s evidence and independent evidence, including the appellant’s admissions and the jeep evidence, supported the identification. If the jury rejected the eyewitness account of another gunman, there was little plausible possibility that the deceased had identified an innocent person who was nevertheless present and had admitted an altercation with him.
7. Provocation could have been left to the jury despite the appellant’s failure to give evidence, because there was evidence capable of supporting an inference that the deceased had wounded him. However, there was no evidence of loss of self-control, and the 999 recording was inconsistent with that conclusion.
8. The Board was satisfied that the irregularities could not have caused the jury to convict when it would otherwise have acquitted. There was therefore no miscarriage of justice.

• Privy Council: The Board concluded that the trial directions contained two material irregularities, but dismissed the appeal because no miscarriage of justice had occurred.
• Court of Appeal of the British Virgin Islands: The appeal was dismissed. The Court of Appeal correctly identified the deficiency concerning the deceased’s brother, but wrongly treated that evidence as inadmissible hearsay.