Martin Edward Morgan v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lord Justice Treacy,Mr Justice Wilkie |
| Judgment Date | 06 December 2016 |
| Neutral Citation | [2016] EWHC 3414 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO/203/2016 |
| Date | 06 December 2016 |
[2016] EWHC 3414 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Manchester Civil and Family Justice Centre
1 Bridge Street West
Manchester
Greater Manchester
M60 9DJ
Lord Justice Treacy
Mr Justice Wilkie
CO/203/2016
Mr Maguire appeared on behalf of the Claimant
Mr Heptonstall appeared on behalf of the Defendant
This appellant appeals by way of Case Stated against the decisions of District Judge Prowse, sitting at Manchester and Salford Magistrates' Court, whilst trying allegations of assault by beating and criminal damage on 4th December 2014. The primary decision challenged relates to the admission of two pieces of evidence under the res gestae principle, pursuant to section 118(1) of the Criminal Justice Act 2003, which preserved certain common law categories of admissibility.
This was a case involving alleged domestic violence. The evidence admitted was (a) a 999 tape of the call made by the complainant, Sarah Cassidy, and (b) bodycam footage captured by a police officer who attended the scene in response to Ms Cassidy's 999 call. The court has seen and heard those materials.
Having admitted the evidence and refused a submission that it should be excluded, pursuant to section 78 of the Police and Criminal Evidence Act 1984, the judge rejected a submission of no case to answer. Having heard evidence from the appellant the judge found both allegations proved.
All of these various matters are the subject of challenge in this appeal.
The Case Stated is set out in succinct form as follows:
"1. On 4 December 2014 I tried and convicted the appellant Martin Edmond Morgan of assaulting Sarah Cassidy ('the complainant') by beating her on 2 0ctober 14, contrary to S.39 of the Criminal Justice Act 1988, and also of damaging her property on the same date, contrary to S.1 of the Criminal Damage Act 1971.
2. The appellant's application for this court to state a case relates to four aspects of that hearing:
a. Whether I was right to admit into evidence pursuant to S. l88.4 of the Criminal Justice Act 2003 (res gestae) the 999 call made by the complainant to the police and her statements to the attending police officers recorded on the bodycam of one of those officers.
b. Whether I was right to refuse to exclude that evidence pursuant to S.78 of the Police and Criminal Evidence Act 1984.
C. Whether I was right to reject a submission of no case to answer at the conclusion of the Crown's case.
d. Whether my findings of fact on conclusion of the evidence were perverse.
It is therefore necessary for me to summarise the evidence relevant to those four aspects, pursuant to Part 64.3(4)(d) of the Criminal Procedure Rules 2013.
3. In the 999 call the complainant sounds extremely distressed. She is finding it difficult to speak coherently and the operator has to repeat back what she has said for confirmation that she has been heard correctly. She says that the appellant has left but she is terrified that he will return and the operator continues to speak to her, reassuring her that police officers are attending, until those officers arrive. She admits the officers, and the bodycam footage overlaps the ending of the 999 call. On that footage the complainant can be both seen and heard to be distressed and distraught and the officers had to get her to calm down before they could take a completely coherent account from her. The complainant had initially run out of the property and hidden outside so that there was a slightly greater delay than is perhaps typical when the issue of res gestae is to be considered.
4. The Crown contended that this evidence fell within that provision and the defence contended that it did not, relying inter alia upon that time delay. I considered the applicable law, helpfully summarised at paragraph 11–78 in Archbold Criminal Pleading, Evidence and Practice 2015, and in particular R v Andrews (D) [1987] AC 281, and concluded that I could be satisfied that the complainant was so emotionally overpowered by the event that I could disregard the possibility of concoction or distortion. Notwithstanding the slight delay in time I was of the opinion that her demeanour was such that her mind was still dominated by the events she was describing. I therefore admitted that evidence.
5. The Crown had applied for a witness summons in respect of the complainant but she had not attended at court, and it was not intended that a warrant would be applied for or an adjournment sought, which is the reason for the defence application to exclude the evidence from the 999 call and the bodycam footage, pursuant to S.78 of the Police and Criminal Evidence Act 1984. I heard the evidence of PC Pickford, the warrant officer who served the witness summons. He stated that when he spoke to the complainant she was upset, burst into tears, was shaking, and saying she did not want to go to court to 'go through it' and that she was terrified at the thought of having to relive the incident. The officer had had previous experience of serving witness summonses and thought that she was very genuine.
6. The defence contended that if the complainant was not available to be cross-examined the defendant could not have a fair trial. I therefore considered the application of S.78, and in particular the relevant law summarised in paragraphs 15–401 et seq of Archbold, took into account the general proposition that proceeding upon hearsay evidence alone should be very much the exception and also the dictum of Lord Ackner in Andrews that the use of this doctrine as an attempt to avoid calling the maker of the statement when available is to be deprecated.
7. In the statements which the complainant made she not only described being assaulted by the defendant, which included him forcing tobacco into her mouth, but also the damage which lie had caused. The damage was captured by the bodycam and also the presence of a hammer in the bath which was relevant to the issue of damage, as was tobacco in circumstances potentially corroborative of the complainant's account. There was also visual evidence of some injury to the complainant. The nature and extent of the damage was not in contention and additionally came from statements of police officers. I was of the opinion that the reason for the Crown not seeking to compel the complainant's attendance was principled and not an attempt to avoid calling a witness whose credibility was, from the Crown's perspective, questionable. Furthermore, there was evidence potentially corroborative of the complainant's account which was admissible independently of the hearsay evidence. In those circumstances I found that it was possible for the defendant to have a fair trial as he could give his own account of what he said occurred and that the inability to cross-examine the complainant could properly be taken into account in terms of the weight which I gave to the hearsay evidence.
8. At the conclusion of the Crown's evidence the defence submitted that there was no case to answer. I was asked to consider that while there was photographic evidence of injury to the complainant's eye and her knee the complainant's hearsay evidence was silent as to how that had occurred. The complainant had stated that the defendant had banged her head on the wall and the defence submitted that that evidence was not consistent with the photographs. I was asked in addition to those specific points to bear in mind the question of weight generally to be given to the hearsay evidence when it had not been possible to test this in cross-examination.
9. In approaching this decision I asked myself the hypothetical question whether, properly applying R v Galbraith 73 Cr App R 124 (as summarised at paragraph 4–364 of Archbold), I should withdraw the case from the jury were I sitting with one. I was of the opinion that those inconsistencies related to the weight to be given to the complainant's hearsay evidence, taken together with the visual evidence, and taking account of the absence of cross-examination, and did not so discredit the Crown's case that the matter should not proceed. The points raised were quintessentially issues of fact and weight, to be determined by the tribunal of fact.
10. The Crown's evidence in summary was the complainant's hearsay statements that she had been assaulted by the defendant and that he had caused all of the damage which was observed by the attending police officers and the injuries which they recorded and photographed.
11. The defendant gave evidence. He stated that his relationship with the complainant had been difficult and that they had separated but reconciled several times. He described her as jealous to the point of being paranoid that he was in sexual relationships with other women. She had been violent with him in the past and had also caused damage to her own property when angry. There had been an argument earlier during the evening in question and he had gone out to avoid confrontation, returning later, but the argument had recommenced to the point where he had said he had had enough and was going home. He said that the complainant then became frantic, threw things at him, and assaulted him. Regarding substantial damage caused to the bathroom door the complainant had caused that herself by slamming it and a hole in a panel had been caused by her throwing a bowling ball at him. He could not account for the presence of a hammer in the bath other than suggesting that the complainant herself had put it there. He denied any assault upon the complainant and said that the tobacco which the police officers...
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