Jonathan Akinsanya recently represented AA at the Crown Court, instructed by Emmanuel Amadi of McQueens Solicitors and assisted in legal research by Simon Ossai (mini pupillage), in a case involving an allegation of attempted murder.
The prosecution alleged that AA attended the complainant's flat and stabbed him multiple times, causing serious injuries which led the complainant to jump from a first-floor balcony to escape.
The defence case was fundamentally different. AA maintained that the complainant produced a knife during an argument and attacked him. A struggle followed, during which AA disarmed the complainant. The defence contended that any injuries sustained by the complainant occurred during that struggle and in circumstances of lawful self-defence.
The case centred on a significant hearsay application under the Criminal Justice Act 2003. Three eyewitnesses gave accounts to attending officers but refused to provide formal statements. The complainant participated in a video-recorded interview (VRI) before leaving the jurisdiction without informing the police. He later provided a series of inconsistent and misleading explanations about his whereabouts and his intention to return to give evidence.
The prosecution sought to adduce both the complainant's VRI and the eyewitness accounts through the hearsay provisions. However, following submissions by the defence the judge proposed the issue of witness summonses and a voir dire to determine admissibility, the prosecution withdrew its applications to rely on the eyewitness evidence. Although the defence accepted that the statutory gateway under s.116(2)(c) and/or s.116(2)(d) had been established, it opposed admission of the complainant's VRI on fairness grounds. It was submitted that, following the withdrawal of the eyewitness evidence, the complainant's account had effectively become the only direct evidence addressing the central issues in the case: who produced the knife and whether AA acted in lawful self-defence. The defence further relied upon significant credibility concerns, the complainant's deliberate withdrawal of cooperation, and the fact that, unlike a witness statement, the VRI contained no declaration of truth. Had the evidence been admitted, there would have been no opportunity to establish whether the complainant continued to stand by the account he had given, nor any opportunity for the defence to challenge him through cross-examination.
While there was evidence capable of supporting aspects of the complainant's account, much of it was equally consistent with the defence case. Importantly, the evidence which would have provided the strongest support for the complainant's reliability, namely the eyewitness evidence, was no longer being relied upon by the prosecution.
The defence successfully opposed the application with a detailed skeleton argument and oral submissions. The trial judge accepted that the statutory hearsay gateway was established but concluded that the prejudice arising from the inability to cross-examine the complainant was substantial. The judge noted that the complainant's VRI had effectively become the sole evidence on the central issues in dispute and recognised that the resulting prejudice was a direct consequence of the complainant's deliberate decision to withdraw his cooperation from the prosecution. Exercising the court's discretion under the Criminal Justice Act 2003, the judge excluded the complainant's video-recorded interview. The prosecution offered no evidence and a verdict of not guilty was entered.
An interesting illustration of the distinction between admissibility and fairness. Establishing a statutory hearsay gateway does not end the enquiry; the court must still be satisfied that the evidence can be tested fairly and assessed in the particular circumstances of the case.
Jonathan was instructed by Emmanuel Amadi of McQueens solicitors.
