REGINA v Murphy

Factual and Procedural Background

On 8 August 2013, in the Crown Court at Caernarfon, following a trial before HHJ Merfyn Hughes QC and a jury, the Appellant was convicted of one count of rape (Count 5), two counts of sexual activity with a child (Counts 1 and 2), and one count of sexual assault of a child under 13 (Count 3). The complainants were anonymized by initials: VT for Count 5, MR for Counts 1 and 2, and GW for Count 3. The Appellant was acquitted of Count 4, assault by penetration, involving WM, his then mother-in-law. On the same day, the Appellant was sentenced to a total of seven years' imprisonment, combining concurrent and consecutive sentences for the various counts.

The Appellant appealed against conviction with leave granted on one ground concerning the admission of a hearsay statement from an absent witness, Thomas Bowler, under section 116(2)(d) of the Criminal Justice Act 2003. A further ground referred to the full court concerned the refusal to admit evidence about MR's background, including self-harming, substance use, and prior police cautions. A third ground relating to MR's conduct during the trial was refused leave and not pursued.

The offences involving MR and GW were reported shortly after the Appellant's arrest for the rape of VT. The defence contended that WM had encouraged false allegations by MR and GW. The appeal primarily addresses the conviction for rape (Count 5) and the evidential issues surrounding the absent witness's statement and the background evidence about MR.

Legal Issues Presented

1. Whether the prosecution had taken all reasonably practicable steps to find the absent witness, Thomas Bowler, to justify admitting his hearsay statement under section 116(2)(d) of the Criminal Justice Act 2003.
2. Whether the trial judge erred in refusing to exclude the hearsay evidence under the discretion in section 78 of the Police and Criminal Evidence Act 1984.
3. Whether the trial judge erred in refusing to admit evidence concerning MR's background and prior conduct, including self-harming, substance use, and police cautions, on the basis of bad character evidence rules.

Arguments of the Parties

Appellant's Arguments

• The judge erred in admitting Thomas Bowler's statement because the prosecution had not taken sufficient steps to secure his attendance, given that he was traceable and had a contact number.
• The prosecution's efforts were left too late, with contact only made one working day before trial and inadequate attempts to execute the arrest warrant promptly.
• The judge failed to exercise discretion properly under section 78 to exclude the hearsay evidence, which was untested and went to a crucial issue.
• The refusal to admit MR's background evidence, including her history of self-harming, substance abuse, and police cautions, deprived the jury of a full picture relevant to her credibility and motive, thereby causing unfairness.

Prosecution's Arguments

• The prosecution had done all that was reasonably practicable to find Thomas Bowler, including serving a witness summons, telephonic contact, and police attendance at his address.
• The judge properly exercised discretion under section 78, balancing the probative value and prejudice of the evidence, and gave appropriate jury directions about the untested nature of the statement.
• The background evidence about MR was largely irrelevant to the core issues, did not tend to show dishonesty, and would have risked distracting the jury or overwhelming the trial with collateral matters.

Table of Precedents Cited

Court's Reasoning and Analysis

The court first examined whether the prosecution had taken all reasonably practicable steps to find the absent witness, Thomas Bowler, to justify admitting his hearsay statement under section 116(2)(d). The court acknowledged that although best practice might have required earlier contact, the prosecution served a witness summons on the first day of trial, made telephonic contact, and police attended his address. The witness absconded and gave inconsistent reasons for non-attendance. The court held that the trial judge was entitled to find that the prosecution had done what was reasonably practicable in the circumstances and that the witness could not be found.

Regarding the discretion under section 78 to exclude the hearsay evidence, the court noted the judge's balancing of factors, including the statement's importance, the appellant's ability to respond by giving evidence, and the jury directions explaining the untested nature of the statement. The court concluded the judge did not err in admitting the statement.

On the issue of background evidence about MR, the court applied the high statutory threshold for admitting bad character evidence of a non-defendant under section 100(1)(b) and considered the guidance from the Dizaei case. The court found that much of the background material was indeed bad character evidence but failed the threshold for substantial probative value and importance in the context of the case as a whole. The judge was entitled to exclude it to prevent distracting the jury with collateral issues and satellite litigation. The court also accepted that the material did not tend to show dishonesty or undermine MR's credibility sufficiently to warrant admission. The court agreed that the judge's refusal to admit the evidence did not result in an unfairly incomplete picture for the jury.

The court further observed that the judge gave the appellant a full good character direction, balancing the evidence appropriately. The appeal was dismissed on all grounds.

Holding and Implications

The court DISMISSED the appeal against conviction.

The holding confirms that the admission of hearsay evidence from an absent witness under section 116(2)(d) of the Criminal Justice Act 2003 requires a factual determination by the trial judge that all reasonably practicable steps have been taken to find the witness. The discretion under section 78 to exclude such evidence must be exercised judiciously, with appropriate jury directions. The decision also underscores the high threshold for admitting bad character evidence of non-defendants and the importance of avoiding undue distraction or satellite litigation in criminal trials.

No new precedent was established; the decision affirms established principles concerning hearsay evidence, witness attendance, and bad character evidence in criminal proceedings.