Ref: A00-300995 Case No. 871626 Macpherson II
Volume X, Pages 79-86, Tuesday 27th June, 1989
(In the presence of the jury)
MR. BECKMAN: My Lord, that is our totality of witnesses today.
MR. JUSTICE MACPHERSON: You will finish the evidence on
Thursday?
MR. BECKMAN: Yes, my Lord.
MR. JUSTICE MACPHERSON: Ladies and gentlemen, you can leave now.
There is one matter we have to discuss. Would you be back
on Thurday morning ready to start at 10.30.
(The jury left the court)
Submission: calling evidence in rebuttal
MR. BECKMAN: Could the ushers make sure the jury do not go for a
moment? I know the application my learned friend wishes to
make and I would prefer it to be made in the presence of the
jury. The law used to be the defence had the right to have
the jury in; it is no longer a right. The judge will listen
to the application and make up his mind. I know what the
application is and ask it be made in the presence of the
jury.
MR. JUSTICE MACPHERSON: No, I reject that application. You
have made the application.
MR. TEMPLE: Yes, would your Lordship be invited to the legal
basis ---
MR. JUSTICE MACPHERSON: It is just a question of whether I
should allow evidence in rebuttal.
MR. TEMPLE: Matters go a little bit further.
MR. JUSTICE MACPHERSON: I cannot see that it can be argued; it
is irrelevant.
MR. TEMPLE: I think not. The position is the Crown is not in a
position to call witnesses and the legislation is sometimes
not too easy to appreciate at first glance. In those
circumstances may I invite you to Section 23 to Section 26 of
the Criminal Justice Act 1988, and your Lordship will find
that conveniently set out at page 16 in the Supplement to
Archbold.
Might I please invite you to Section 23 on which I base
the application. It reads: "As far as sub (a) to sub-section
4" - we are not concerned with that, that is related to
Section 76 of the Police and Criminal Evidence Act 1984,
touching upon confessions, so that is wholly irrelevant.
Paragraph 2(a) Schedule 2 Criminal Appeal Act 1968 - again
that is touching upon evidential provisions with which we are
not concerned, with records, so it is subject to these
matters.
"A statement made by a person from a document" -
clearly, say the Crown, a witness statement is a document -
"shall be admissible in criminal proceedings
as evidence of any fact of which oral evidence
by him would be admissible if (i) the
requirements of one of the paragraphs of
sub-section 2 below are satisfied or (ii) the
requirements of sub-section 3 below are
satisfied."
My Lord, may I say straight away I shall found this
application on sub-section 2 which reads:
"The requirement mentioned in sub-section 1(1)
above are (a) that the person who made the
statement is dead or by reason of his bodily
or mental condition unfit to attend as a
(b) that (i) the person who made the statement
is outside the United Kingdom; and (ii) it is
not reasonably practicable to secure his
attendance."
Pausing there, the Crown say that both Cypriot witnesses
are at present outside the United Kingdom and in all the
circumstances touching upon this trial, it is not reasonably
practicable to secure their attendance. My Lord, that
really is the formal ground of the application, but matters
do not stop there because your Lordship has to then embark
upon a further two stages. The first stage ---
MR. JUSTICE MACPHERSON: That only deals with admissibility.
MR. TEMPLE: That is more than admissibility. My Lord, may I
now invite you to Section 25 for the purpose of making the
submission clear. In shorthand, Section 25 gives the Court
discretion and you will see that set out. Section 25 begins:
"If, having regard to the circumstances the
Crown Court on a trial on indictment is of
the opinion that in the interests of justice
a statement which is admissible by virtue of
Section 23 or 24 above nevertheless ought not
to be admitted, it may direct that the statement
shall not be admitted."
Then it goes on:
"Without prejudice to the generality of
subsection 1 above, it shall be the duty of
the Court to have regard (a) to the nature
and source of the document containing the
statement and to whether or not, having
regard to its nature and source and to any
other circumstances that appear to the Court
to be relevant, it is likely that the document
is authentic; (b) to the extent to which the
statement appears to supply evidence which
would otherwise not be readily available;
(c) to the relevance of the evidence that it
appears to supply to any issue which is likely
to have to be determined in the proceedings;
and (d) to any risk, having regard in particular
to whether it is likely to be possible to
controvert the statement if the person making
it does not attend to give oral evidence in
the proceedings, that its admission or exclusions
will result in unfairness in the proceedings,
that its admission or exclusion will result in
unfairness to the accused or, if there is more
than one, to any of them."
That is really the first hurdle which has to be surmounted,
and there is a final and important provision in Section 26.
Section 26 is supplementary to 23, 24 and 25. What it does
is to pull in an additional set of circumstances which your
Lordship may well consider are applicable to the witness
statements as are produced in circumstances pertaining to
this particular trial. Section 26 reads:
"Where a statement which is admissible in
criminal proceedings by virtue of Section 23
or 24 above appears to the Court to be
prepared, otherwise than in accordance with
Section 29 below -"
Pausing there that is letters of request -
"or order under paragraph 6 Schedule 13
of this Act -"
Pausing there, courts martial -
"or under section 30 or 31 below".
Again pausing, Section 30 (inaudible) for juries in fraud
trials, so all these provisos are not relevant for the
present argument and the section will effectively read:
"Where the statement is admissible under
section 23 for the purpose of pending or
contemplated proceedings."
I merely invite you to consider the purport of these words
because it may be argued that these proceedings are not
pending, neither are they contemplated: they are in being and
it may well be that the second limb is applicable, namely of
criminal investigation. Clearly criminal investigation
does not arise because someone has been charged or indeed
indicted.
It then goes on to lay down a further set of circum-
stances which the Court must consider and the section goes
on:
"A statement shall not be given in evidence
in any criminal proceedings without leave of
the Court and the Court shall not give leave
unless it is of the opinion that the statement
ought to be admitted in the interests of
justice, and in considering whether its
admission would be in the interests of justice
it shall be the duty of the Court to have
regard (i) to the contents of the statement;
(ii) to any risk, having regard in particular
to whether it is likely to be possible to
controvert the statement if the person making
the statement does not attend to give oral
evidence in the proceedings, or if there is
more than one of them, any one of them, and
finally to any other circumstances which
appear to the Court to be relevant."
Really one can summarise it quite shortly: admissible under
Section 23 at your Lordship's discretion but leave ought to
be given on the following factual basis.
My Lord, I am now facing the argument which is put
forward. Says Mr. Beckman, "I know it will have (inaudible)
the factual basis". The Crown have had and never did have
any prior intimation of the assertion as given by the
defendant in the course of cross-examination that he, the
defendant, had been told in terms that the demand documents
had arrived in Cyprus. That is a very important assertion
for the jury to consider because it goes very much to the
defendant's state of mind, which the jury may find crucial in
determining guilt or innocence when he has sent the second
set of demand documents to the Cypriot High Commission on
7th April.
The Crown for their part say that put in that position
it would be against a fair display of justice, it would be
against the notion of justice that the jury should not have
before them statements which go in direct terms to contradict
the defendant's assertion, and true it is that the defendant
in those circumstances would not have an opportunity to
cross-examine. On the other hand, your Lordship not only
has ample discretion to deal with the matter, but it can be
dealt with in practical terms by making it abundantly clear
to the jury that the statements have not been subject to
cross-examination and in the circumstances have to be taken
and assessed with particular care by the jury.
My Lord, finally, as the Court will be well aware,
Sections 23 to 26 are really redrafted, amending and
incorporating a wholly new law on this subject and, therefore
an investigation into previous authorities in my submission
is not going to assist your Lordship very much, other than I
do feel it my duty to just indicate to the Court that there
have been cases in the recent past where applications under
the analagous provisions have been rejected by the Court
where it can be said that the evidence in question is really
crucial to a finding of guilt by the jury.
Put another way, the circumstances I have in mind are,
for instance, a statement by a man who would say in terms
that an alleged IRA gang member was seen to be in possession
of various explosives within the United Kingdom in
circumstances of a man charged with handling and conspiracy
to cause explosions and the Crown's case is virtually
dependent on such evidence. Justice would normally dictate
that (inaudible). I feel at least your Lordship should know
that way in which the exercise of his discretion has been
misused in such circumstances.
MR. JUSTICE MACPHERSON: Why is it not reasonable to get these
two people here? How long does it take to fly from Cyprus?
MR. TEMPLE: The problem is one is at present on Embassy business
outside Cyprus and he is very difficult to - one of them I
have been reminded, Iacovou, has stopped over in this country
for all of ten minutes on his way to America and it will not
be possible to get him before the Court for at least a week.
MR. JUSTICE MACPHERSON: It is simply their own physical
arrangements.
MR. TEMPLE: Michaelides is not available until Monday. In all
the circumstances, the Crown, if I may say so again, are very
aware of the communication from the Court with regard to
putting the facts of the matters in this case and keeping
them in its true perspective. That is my application.
MR. JUSTICE MACPHERSON: I am grateful to Mrs. Jessell and
Mr. Temple for the industry with which they have researched
this matter. It does not seem to me that the 1988 Act truly
applies to a statement of this kind in rebuttal. I am
doubtful whether it can be truly said that it is not
reasonably practicable to secure the attendance of these
witnesses. In any event, I doubt that the importance of the
evidence balances against the risk that the jury might fix
upon this lie, if it is one, to the exclusion of their
consideration of this man's true state of mind, based upon
his evidence and the other evidence which has been given. In
so far as I can define the defence in this case it is that he
was not in a condition to form the necessary intention and
not of a state of mind to be able to commit the crime either
in respect of blackmail or the deception about which we have
heard.
It seems to me that there may be a risk of fixing the
jury's mind on what might be a fortuitous lie and balance
their (inaudible).
I reject the application that the evidence be given in
rebuttal.
MR. BECKMAN: May I say this: I would have no objection to the
statement - so you know I appreciate it is in your Lordship's
jurisdiction, I would have no objection to the statement of
Iacovou going in.
MR. JUSTICE MACPHERSON: You can discuss that and if it is agreed
that Iacovou's evidence should go in it can go in, but I
will not give leave for the statement to go in, so I will
leave that to you. I do not want anyone later on in another
court saying that it was not advanced.
MR. BECKMAN: It is on record.
MR. JUSTICE MACPHERSON: If you wish to agree to put it in you
may.
(The trial was adjourned until Thursday, 29th June, 1989)
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