Wall, R. v

Statements made by a deceased complainant are admissible under the statutory hearsay gateway for an unavailable witness. The separate interests-of-justice gateway is unnecessary. The court must nevertheless consider fairness, including the statutory considerations relevant to admission and exclusion.

Where the evidence permits competing mechanisms of fatal injury, causation is ordinarily a jury issue. A judge may leave the issue to the jury where the evidence, taken as a whole, could support the prosecution case. A summing-up is sufficient if it clearly requires the jury to be sure that the defendant caused the death and fairly identifies the defence alternative.

The applicant was convicted of murdering his partner at Winchester Crown Court and sentenced to life imprisonment. He renewed an application for leave to appeal after the single judge had refused leave.

He challenged the admission of statements made by the deceased after she left their flat, the refusal of a submission of no case to answer on causation, and the adequacy of the summing-up. The central issue was whether the evidence allowed the jury to be sure that injuries inflicted by the applicant, rather than a later fall, caused the fatal subdural haematoma.

1. The renewed application for leave to appeal was refused. None of the three grounds disclosed an arguable appeal against conviction.

2. The deceased’s statements were admissible without reliance on the interests-of-justice gateway in section 114(1)(d) of the Criminal Justice Act 2003. As a deceased witness, her statements fell within section 114(1)(a), read with section 116(2)(a). The relevant remaining question was fairness. Although the trial judge had taken an unnecessarily elaborate route, his conclusion was correct. The statements formed material evidence of what had occurred. Their possible weaknesses, including the deceased’s intoxication, distress and injuries, were matters for the jury. The defence could challenge them through the applicant’s evidence. They were also not the sole or decisive evidence against him.

3. The judge was entitled to reject the submission of no case to answer. The pathologist’s evidence left open both a blow and a fall as possible mechanisms for the fatal injury. However, the evidence as a whole could support the conclusion that a relevant fall or violent contact occurred in the flat, including contact with a door, rather than in the street. The suggested opportunity for an unobserved street fall was limited. Causation was therefore properly left to the jury.

4. The summing-up gave adequate and fair directions. It identified causation as a central issue, required the jury to be sure that the applicant caused the fatal injury, and accurately put the defence contention that the deceased might have fallen after leaving the flat. No further specific direction was required.

The court also observed that, had a later street fall occurred while the deceased was escaping the violence and seeking help, it might not in law have provided a defence because the events in the flat could still have been a substantial cause. That point had not been advanced by the Crown and was not a basis for the decision.

• Court of Appeal (Criminal Division): renewed application for leave to appeal against conviction refused: [2019] EWCA Crim 190.
• Crown Court at Winchester: the applicant was convicted of murder on 31 August 2017 and sentenced to life imprisonment.
• Single judge: refused leave to appeal on the original grounds.