By Paul Taylor QC
Fair trial – cross-examination – witness refused to continue – abuse of process application
RT and Stuchfield
 EWCA Crim 155
This appeal raised an issue about whether the trial judge was entitled to continue a trial in circumstances where a prosecution witness, aged 16 years, who had been diagnosed with ADHD, who had given evidence in chief and who had been cross-examined in part on behalf of one appellant, became distressed and refused to continue to give evidence.
RT, a 15 year old child who was 14 years old at the time of the trial and S, a 20 year old man who was 19 years old at the time of the trial were convicted of conspiracy to commit robbery. The prosecution relied on evidence from Ms F in relation to the appellants’ conversation in McDonalds and the fact that they were discussing their plan to commit a robbery.
There was a late application for special measures for Ms F because she was aged 16 years at the time of the trial and had been diagnosed with ADHD, although there was no medical evidence available at the start of the trial, and there were ongoing investigations into whether she had autism.
Despite a grounds rule hearing, at one point in F’s cross-examination by S’s counsel she was asked: “Are you going to continue to lie whilst giving your evidence to the court?” The judge intervened saying that was not an appropriate question and the witness said “I wanna go home”. Thereafter every effort was made to persuade Ms F to continue with her evidence but she refused to continue her evidence. The efforts continued and Ms F was given time to consider her position but she refused to return to Court. This meant that the cross examination on behalf of S had not been completed and the cross examination on behalf of RT could not be carried out.
An agreed fact was also set out that Ms F had refused to return to court, even though the judge had told her that the questions would be limited to 20 minutes and the type of questions would be closely monitored.
The judge was asked to stop the trial and discharge the jury. The Judge ruled that despite the fact that the witness Ms F did not wish to continue her evidence, it would not be unfair to either appellant to continue with the trial. An application was then made to stay proceedings as an abuse of process. The judge gave a ruling rejecting the application.
The Judge gave written directions which he read out on how to deal with Ms F’s evidence. The Judge noted that Ms F had left Court and refused to return after an inappropriate question. He noted that counsel had not been able to put part of their case. The judge said Ms F’s evidence “therefore has limitations as it has not been thoroughly tested. You do not know what she would have said had her evidence been further tested…
The CA stated that:
- The defendant has a fundamental right under the criminal law to a fair trial. The right of a legal representative to ask questions of witnesses giving evidence against the defendant is one way in which a fair trial is delivered but limitations have long been recognised to the right to question, for example the hearsay statements of dying witnesses cannot, for obvious reasons, be questioned. In some cases the effect of not being able to cross examine a witness who has become ill and unable to continue has meant that a fair trial becomes impossible. In other cases it has proved possible to continue the trial and ensure that it is fair.
- When considering whether a fair trial is possible when a witness’s evidence has been cut short a judge will have regard to the extent to which the defence has been put and explored with the witness, whether previous inconsistent statements can be put into agreed facts, and whether there is other relevant evidence,
The appeal was dismissed:
“In our judgment the trial judge was entitled to continue the trial of RT and Mr Stuchfield even though Ms F was not available for the whole of the cross examination on behalf of Mr Stuchfield and there was no cross examination on behalf of RT. This was because the trial remained fair for both RT and Mr Stuchfield in the particular circumstances of this case.”
These circumstances included:
- The facts that first the jury had seen Ms F give evidence and be cross examined at least in part;
- There was some unfortunate questioning of Ms F which explained her refusal to stay for the whole of the cross examination, although we make it clear that the trial judge found that this questioning was not carried out deliberately to provoke the witness, and counsel for RT did not have the opportunity to carry out any questioning.
- There was material which was admitted, including the Facebook messages, which enabled the jury to make a fair assessment of the credibility and reliability of Ms F’s evidence.
- Ms F’s evidence could be assessed in the context of the other evidence which included: DNA evidence against RT; evidence about earlier social media conversations about a plan to commit a robbery; CCTV evidence showing the movements of RT and Mr Stuchfield; and Mr Stuchfield’s letter sent after the offence.
- The judge gave proper directions to the jury identifying the limitations of Ms F’s evidence.
“We are also satisfied that there was no abuse of process in continuing the trial in the circumstances set out above. This was because the trial process enabled the appellants to deal with the effect of the absence of Ms F. We can see no basis for saying that the conviction of either RT or Mr Stuchfield was unsafe.”
The question of whether a defendant has had a fair trial in such circumstances will always be case specific and depend on the issues at trial, the point at which the witness refused to continue, and the ability of the trial process to address the resulting imbalance.
It is respectfully submitted that unless the defendant made an informed tactical decision to instruct counsel to cross-examine the witness in an inappropriate way, counsel’s error in this regard should not be held against D when evaluating whether he could / did have a fair trial.
Fresh evidence – diminished responsibility – investigated but not run at trial – new psychiatric report prepared for appeal
 EWCA Crim 270
The appeal was founded on fresh evidence – primarily expert psychiatric evidence – to the effect that a defence of diminished responsibility was available. Such a defence had been considered before the trial, but not pursued because of an adverse expert report.
F fatally stabbed LV in the street. The two were complete strangers to each other. F was indisputably experiencing a psychotic episode at the time; he had voluntarily ingested huge quantities of alcohol and cocaine. The sole defence at trial to murder was lack of the necessary intent. F gave evidence. He was convicted.
The appeal raised two principal questions. First, should this proposed fresh evidence be admitted at all – the defence had been investigated pre-trial? Second, is the proposed fresh evidence, even if otherwise admissible, such that the conviction is to be adjudged unsafe? The issues raised also involved consideration of some of the vexed questions that can arise where a killing occurs in the context of a combination of voluntary intoxication and mental health issues on the part of the killer.
F had a history of alcohol and cocaine abuse, but had never suffered from an addiction to intoxicants sufficient to amount to a disease or recognised medical condition. He had suffered from depression, anxiety and paranoia.
In preparing for trial, Dr. Isaac, “a very experienced consultant psychiatrist, was instructed.” On the basis of the expert’s report and additional correspondence and comments on further material “this evidence would not establish a defence of diminished responsibility on the balance of probabilities. No further psychiatric report was obtained from any other psychiatrist. In such circumstances, the legal team for the defence were not in a position to advance such a defence at trial.
Post conviction a new psychiatric expert was instructed, Dr. Philip Joseph. In Dr Joseph’s opinion, a defence of diminished responsibility was available. “…I am of the opinion that despite probable intoxication with cocaine and to a lesser extent alcohol at the time of the killing, the defendant was suffering from an acute transient psychotic episode, independent of drug and alcohol abuse, which substantially impaired his mental responsibility for the killing. I conclude therefore that he has a defence to murder of manslaughter on the grounds of diminished responsibility.”
Dr Blackwood, instructed by the Crown on this appeal, in essence shared the ultimate view of Dr Isaac.
The CACD rejected the appeal on two bases:
- It was not in the interests of justice to admit the fresh evidence;
- In any event, “we consider that the proposed fresh evidence does not in any event afford a viable defence of diminished responsibility which a jury, properly directed, could accept on the balance of probabilities.”
[This summary considers the first basis only]:
The Court of Appeal considered the admission of fresh evidence on appeal under section 23 Criminal Appeal Act 1968 at paras 50- 64. These paragraphs contain important statements of principle and they have been set out in some detail:
- “One core principle relating to the good administration of justice is the need for finality in litigation. It is ordinarily the obligation of a party to advance his whole case at trial: and an appeal cannot simply be treated as a means of having a second go. There may be some exceptions to this general approach: but that remains the general approach. Were it otherwise, the whole trial process would stand to be subverted.
- In the present case, there is no question of any legal oversight or legal error at trial. On the contrary, the issue of diminished responsibility was fully examined; the opinion of a reputable psychiatrist obtained; and the legal view that, in the light of that opinion, a defence of diminished responsibility could not be made out was correct. It was correct because it is well-established that there must be appropriate evidence adduced to support such a defence: and self-evidently the opinion of Dr Isaac, so far from supporting it, rebutted such a defence.
- So ultimately what we now have is one expert (Dr Joseph) taking a different view, instructed after trial, from that of another expert (Dr Isaac), instructed before trial. Moreover, their views were expressed on essentially the same material.
- Dr. Joseph agreed with the proposition put to him by Mr Glasgow that having had access to the same information the two had reached different conclusions. He also in terms accepted that the opinion of Dr Isaac (as also the opinion of Dr Blackwood) was an opinion that could reasonably be held by a responsible expert psychiatrist.
- Mr Pownall observed that had, in response to the initial approach, Dr Joseph provided his written report before trial then a defence of diminished responsibility would have been available in this case to be deployed before the jury. But that sort of consideration cannot, of itself, displace the ordinary approach required to be taken by the courts in assessing applications to adduce fresh evidence. Besides, in the present case the family have proved to have been in a position, following conviction, to raise funds privately to commission a report from Dr Joseph. If there was dissatisfaction or dismay at the time with the conclusion of Dr Isaac before trial then it was open to them at that time to raise funds to seek to commission a further report at that stage: and doubtless an adjournment, if needed, would have been granted for that purpose. But it is not, in our opinion, acceptable to wait upon the outcome of the trial: and then, and only then, when the defence of lack of intent was disproved and the appellant convicted, seek to resurrect a defence of diminished responsibility by commissioning a fresh psychiatric report from a different psychiatrist. We do not say that by way of criticism of anybody for not obtaining a further report before trial. But it is an answer to Mr Pownall’s point.
- Whilst all such cases ultimately are fact specific, numerous authorities illustrate the rigorous approach which is generally taken by the courts in a context such as the present.
- Thus in Erskine and Williams  EWCA Crim 1425,  2 Cr. App. R 29 it was emphasised, following a lengthy review of the authorities, that it would be exceptional to permit a defence to be advanced or fresh evidence adduced on appeal when it could and should have been advanced at trial: otherwise the trial process is subverted.
- This general approach was followed and endorsed in Evans  EWCA Crim 2243,  Crim. L R 491.
- In Challen  EWCA Crim 916 it was emphasised that there were unusual circumstances, whereby the court was prepared to admit fresh psychiatric evidence.
- This is not a case where a potential defence of diminished responsibility was overlooked. This is not a case where the instructed expert, of acknowledged expertise, has overlooked or misunderstood relevant information or did not have access to relevant information. This is not a case where the expert failed diligently to examine the relevant materials or failed to reach a proper conclusion reasonably open to him. This is not a case where important new facts or materials or other developments have emerged since trial. In truth, this case is, in its fundamentals, a case where, following conviction, an attempt has been made to instruct a new expert with a view to securing – as has happened – an opinion on diminished responsibility different from that of the previous expert instructed before trial. It is, bluntly, expert shopping.
- A defence of diminished responsibility is not, in itself, inconsistent with a defence of lack of intent. But the defence of lack of intent in the present case was essentially founded on the great quantities of alcohol and cocaine said to have been ingested: whereas such evidence would potentially tell against (even if not of itself necessarily demolishing) a defence of diminished responsibility.
The major obstacle in this case appeared to be the fact that both pre-trial and post trial psychiatrists considered the same material but reached different conclusions. The CACD may have been willing to take a more generous approach if the first expert had not seen important material because of an oversight, unavailability at the time, or because the material came into being post trial. [See Jamie Petrolini  EWCA Crim 2055 where the CACD admitted fresh evidence based on the many years of clinical observations post trial.]
So far as finality in litigation is concerned, it is respectfully submitted that this should not play a significant role in determining whether it is in the interests of justice to admit fresh evidence. The ultimate test is whether the conviction is unsafe, and if the fresh evidence demonstrates that it is, it is difficult to justify a refusal to admit it on the basis that it is an attempt to have a second go. If the Court concludes that the fresh evidence shows that there has been a miscarriage of justice, it is of little comfort to the appellant if the Court upholds the conviction on the need for finality. Indeed, the CACD has quashed convictions despite finding that the appellant lied at trial, or sought to tactically subvert the trial; but such cases are all decided on the facts, and no general principle can be discerned other than that the CACD will on occasion quash such convictions despite the need for “finality”.
By Farrhat Arshad
Non-defendant’s bad character – s. 100 CJA 2003; credibility; sex offences
R v Murphy
 EWCA Crim 137
At his trial for rape, M had called as a witness of fact his friend, KM. The trial judge allowed KM’s convictions for sex offences to go before the jury, pursuant to the Prosecution application via s 100(1)(b) CJA 2003. The Prosecution argued that the evidence of KM’s previous sexual offences would enable the jury to weigh his previous convictions in deciding why he might lie on behalf of a friend accused of such offences. The Defence argued that being a convicted sex offender did not mean that he was more likely to give untruthful evidence.
Appeal dismissed. The CACD applied the two questions set out in R v Brewster  1 WLR 601: (1) Whether creditworthiness is a matter in issue which is of substantial importance in the context of the case as a whole - a significant hurdle. (2) Whether the bad character relied upon is of substantial probative value in relation to that issue. As per Brewster: whether convictions have persuasive value on the issue of creditworthiness will depend principally on the nature, number and age of the convictions but it is not necessary for the convictions to demonstrate any tendency towards dishonesty or untruthfulness. The question is whether a fair-minded tribunal would regard them as affecting the worth of the witness's evidence. On the particular facts of this case, the credibility of the evidence given on each side was of crucial significance and it was open to the trial judge to conclude that the witness’s previous convictions had substantial probative value.
Admissibility of interview as hearsay evidence against co-defendant - s114(1)(d) CJA 2003; s119 CJA 2003; jury directions
R v Van Huong Nguyen
 EWCA Crim 140
N was convicted of two counts of kidnapping, one count of carrying an imitation firearm with criminal intent and two counts of false imprisonment. At N’s trial the trial judge allowed the interview of the co-defendant, T, to be used as evidence against N, pursuant to s 114(1)(d) CJA 2003. The judge himself raised the issue, only after the legal directions and counsel’s speeches had been given (and before the evidence was summed up). In the event, the judge did not give the jury any specific direction about the use they could make of the interview or any sort of warning about it but told the jury that T’s interview could be used as evidence as to what had happened inside the house where the false imprisonment was said to have taken place. The judge also allowed the interview in as a previous inconsistent statement under s 119 CJA 2003 as evidence against the co-defendant.
The CACD dismissed the appeal. In relation to the s 114(1)(d) CJA 2003 gateway, putting aside the lateness of the application, the judge had properly assessed the various factors under s 114(2). As for the lateness of the application, what mattered was the extent to which the lateness of the application can be said to have caused irremediable prejudice to the appellant. The CACD considered that whilst there was some prejudice to the appellant from the lateness of the application, this was not sufficiently serious to warrant refusal of the application under s 114(1)(d). The judge should have given the jury directions about how they should approach the evidence but the failure to do so did not render these convictions unsafe.
In relation to s 119 CJA 2003: the judge was wrong to admit T’s interview as a previous inconsistent statement admissible as evidence against another defendant via s 119. Under s 119 the previous inconsistent statement was admissible only against the person making the statement as evidence of the truth of its contents.
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