The Queen v Y

Factual and Procedural Background

This case concerns a murder trial in which the Defendant was tried alone. The Crown sought to admit hearsay evidence under section 114(1)(d) of the Criminal Justice Act 2003, consisting of a confession made by another individual (referred to as Man X) who had pleaded guilty and whose confession implicated the Defendant. The trial Judge ruled that section 114(1)(d) did not apply to hearsay statements contained in confessions of another person and therefore refused to consider the Crown's application on its merits. The Crown seeks to bring an interlocutory appeal under section 58 of the Criminal Justice Act 2003 against this ruling.

The background facts, as presented by the Crown, involve a street fight between youths resulting in the death of the deceased. The deceased was confronted twice by two youths; during the second confrontation, the Defendant allegedly attacked the deceased with a cosh and called upon Man X, who stabbed the deceased fatally. Man X pleaded guilty to murder, accepting he was the second assailant. Prior to his arrest, Man X allegedly admitted to a girlfriend that he had killed someone and implicated the Defendant in the second conversation. The Defendant denies being present at the scene. The Crown applied to admit the girlfriend’s statement and written bases of plea under section 114(1)(d), though it later abandoned the application regarding the written bases of plea due to inaccuracies.

The interlocutory appeal concerns two legal issues arising from the Judge’s ruling denying the application to admit the hearsay evidence.

Legal Issues Presented

1. Whether an interlocutory appeal under section 58 of the Criminal Justice Act 2003 can be brought against a ruling on the admissibility of evidence ("the appeal jurisdiction issue").
2. Whether section 114(1)(d) of the Criminal Justice Act 2003 is capable of applying to allow admission of hearsay material contained in a confession by another person, or whether it is excluded by section 118(1), paragraph 5 ("the s 114/118 issue").

Arguments of the Parties

Appellant's (Crown's) Arguments

• The Crown contends that an interlocutory appeal under section 58 is available for rulings on admissibility of evidence, provided the Crown agrees to the conditions in section 58(8), including acquittal if the appeal fails.
• The Crown argues that section 114(1)(d) provides a residual discretion to admit hearsay evidence in the interests of justice, including hearsay contained in confessions by non-defendants, consistent with the Law Commission's recommendations.
• The Crown abandoned the application to admit the written bases of plea due to errors discovered in the documents.

Respondent's (Defendant's) Arguments

• The Defendant submits that no interlocutory appeal lies under section 58 for rulings on evidence admissibility, which fall under sections 62-67 not yet in force.
• It is argued that section 114(1)(d) cannot be used to admit hearsay contained in a confession by another person due to the preservation of common law rules by section 118(1), paragraph 5, which limit confessions to being admissible only against the maker.
• The Defendant contends that section 114(1)(d) only permits admission of hearsay admissions against interest by the maker, not accusations against others, and that it should only apply when the defendant seeks admission to avoid wrongful conviction, not when the Crown seeks to prove its case.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first addressed whether an interlocutory appeal under section 58 could be brought against a ruling on the admissibility of evidence. It concluded that such rulings can fall within section 58(1) if the Crown agrees to the condition in section 58(8) that the Defendant must be acquitted if the appeal fails. The court rejected the Defendant's argument that evidentiary rulings fall exclusively within the not-yet-commenced sections 62-67. The statutory language and parliamentary intent support that evidentiary rulings may be appealed under section 58 where the Crown provides the requisite undertakings. The court granted leave to appeal accordingly.

On the substantive legal issue, the court examined the interplay between sections 114(1)(d) and 118(1), paragraph 5. Section 114(1)(d) provides a residual discretion to admit hearsay evidence if it is in the interests of justice, while section 118 preserves certain common law exceptions, including those relating to confessions. The Defendant argued that section 118(1)(5) excludes the use of section 114(1)(d) to admit hearsay contained in confessions of others.

The court rejected this argument, emphasizing that section 114(1)(d) and section 118 address admissibility rules rather than inadmissibility. The statute’s wording and the Law Commission’s report demonstrate that section 114(1)(d) was intended as a safety valve to admit hearsay evidence, including confessional hearsay by non-defendants, where the interests of justice require it. The court explained that the common law rule limiting confessions to their maker is superseded by the statutory discretion under section 114(1)(d), subject to a rigorous interests of justice test.

The court further considered two alternative submissions by the Defendant: (i) that section 114(1)(d) only permits admission of admissions against interest by the maker, not accusations against others, and (ii) that the provision only permits admission at the defendant’s instance, not the Crown’s. Both were rejected on statutory construction and policy grounds. The statute applies generally, without distinction as to the party seeking admission.

The court stressed that while section 114(1)(d) is available to all parties, the interests of justice test is stringent. Factors such as the reliability of the maker, the nature of the statement (admission vs accusation), the ability to challenge the evidence, and the potential prejudice to the defendant must be carefully weighed. The court noted that routine admission of such hearsay is not envisaged and that the discretion must be exercised with great caution.

The court also highlighted the importance of considering whether oral evidence can be obtained instead of hearsay, and the potential for prejudice if the hearsay cannot be properly challenged. It underscored that the trial judge must apply the statutory factors holistically and judge whether admitting the hearsay is genuinely in the interests of justice.

Holding and Implications

The court ALLOWED THE APPEAL and reversed the trial Judge’s ruling that section 114(1)(d) could not apply to hearsay contained in a confession by another person due to section 118(1), paragraph 5. The matter was remitted for the trial Judge to consider the merits of the Crown’s application under section 114(1)(d) with full regard to the statutory interests of justice test.

The trial of the Defendant may be resumed as the jury had not been discharged. The court’s decision clarifies that the residual discretion under section 114(1)(d) is available to admit hearsay evidence contained in confessions of non-defendants, subject to careful judicial assessment. However, no new precedent was set regarding the ultimate admissibility of such evidence, which remains a matter for the trial Judge’s discretion on the facts.