Zawadzka v R

Hearsay from a deceased witness may properly be admitted under Criminal Justice Act 2003, section 116(2)(a), where it is relevant and the jury receive clear warnings about its reliability and the absence of cross-examination. Evidence of a defendant’s previous conviction may be admitted under section 101(1)(g) when the defendant makes a substantial accusation against another person, but its permitted use must be carefully directed.

Fresh evidence must be capable of affording a ground for allowing the appeal. Evidence which merely reinforces a possible alternative account, without undermining a powerful circumstantial case, does not render a conviction unsafe. A failure to give an ideal jury direction will not suffice unless it calls the safety of the conviction into question.

The appellant was convicted of murder at the Crown Court at Isleworth on 15 July 2014. The prosecution case was circumstantial. It included DNA and blood evidence, possession and use of the deceased’s property, telephone evidence, and conduct said to conceal the death.

On appeal, the appellant challenged the admission and direction concerning hearsay statements by the deceased. She also challenged the admission and direction concerning a Polish theft conviction after she accused her brother of the murder. Finally, she relied on fresh cell-site evidence which showed that a telephone call made using the deceased’s SIM card could not have been made from the location where the appellant was then present.

The central issue was whether any of those matters, separately or cumulatively, rendered the conviction unsafe.

1. Appeal dismissed. The conviction was safe. The circumstantial case against the appellant was overwhelmingly strong, and none of the grounds, alone or together, undermined it.

2. The deceased’s statements that she feared the appellant, and statements concerning unauthorised use of bank cards, were relevant hearsay admissible under section 116(2)(a) of the Criminal Justice Act 2003. The trial judge had properly warned the jury to assess whether the recipient accurately and truthfully reported the statements, and to recognise that the deceased could not be cross-examined. Any animosity by the deceased’s sisters towards the appellant was for the jury to assess. The evidence concerning jealousy was peripheral and adequately covered by the same warnings.

3. The Polish theft conviction was capable of admission through section 101(1)(g) of the Criminal Justice Act 2003, because the appellant was effectively accusing her brother of murder. Its admission was not wrong in principle and did not create unfairness requiring exclusion. The judge should, however, have directed the jury under section 74(3) of the Police and Criminal Evidence Act 1984 that the appellant could rebut the presumption arising from the conviction by proving, on the balance of probabilities, that she had not committed the theft. If rebutted, it should have been ignored; if not, it could bear only on credibility. That omission did not affect safety.

4. It would have been preferable to provide the bad-character direction in writing. Some directions, such as self-defence and diminished responsibility, will usually require written form. But there was no general free-standing ground of appeal based on the absence of written directions, and this issue was neither sufficiently technical nor sufficiently important to affect the verdict.

5. The fresh cell-site evidence was capable of belief and would have been admissible. Nevertheless, applying section 23(2) of the Criminal Appeal Act 1968, it could not afford a ground for allowing the appeal. It did not show that the appellant could not be guilty. At most, it reinforced the possibility that her brother or his partner made the call as part of a common attempt with the appellant to conceal the murder.

• Court of Appeal (Criminal Division): Appeal against conviction dismissed: [2016] EWCA Crim 1712.
• Crown Court at Isleworth: The appellant was convicted of murder before Her Honour Judge Zoe Smith and a jury on 15 July 2014.