Tough call

Cases abound on bad character and hearsay, but an interesting example of the potential interplay between them '“ not to mention a handy authority for defenceadvocates '“ arose in R v Chrysostomou [2010] EWCA Crim 1403.

The prosecution case was that on the evening of 2 June 2009 the appellant had been aggressive to the complainant by telephone and then arrived at her house, kicked the door and stood at her bedroom window while brandishing a BB gun. His case was that she owed him a significant amount of money, and, having pleaded guilty to criminal damage and section 2 harassment, he denied causing fear of violence (with the BB gun or otherwise). Nonetheless, the appellant was unanimously convicted of possessing an imitation firearm with intent to cause fear of violence and section 4 harassment.

The issues on appeal related to the trial judge's decision to allow the prosecution to adduce four text messages that were found on the appellant's telephone when it was analysed by the police. These were from someone known in the appellant's address book as 'John', and there had been no attempt by the police to trace the sender. The four text messages gave the impression that theappellant was someone who 'John' believed would sell him drugs. The appellant accepted being a class A drugs user, but it had never been suggested that he was a dealer (the texts coming to light after his interview) nor was it part of the prosecution case based on the complainant's allegations '“ she did not claim that he was a drug dealer.

The prosecution first sought to adduce these text messages after the complainant was cross-examined (following a successful application by the defence) to the effect that she was a drug user '“ this being relevant to the appellant's version of events. The judge refused the prosecution application at that stage, but indicated that he would reconsider if the appellant attacked the complainant's character in his own evidence. This he did, in as much as he gave details of how the complainant had bought drugs from a man called Dylan who had been introduced to her by the appellant and he had seen her going to the lavatory to take drugs on the evening in question. Following further legal argument, the prosecution were allowed to adduce the text messages at that stage. The arguments raised by the defence at trial were, in essence, those advanced on appeal. In giving the leading judgment, Aikens LJ identified four issues.

Hearsay

First, were the text messages hearsay? Before the Criminal Justice Act 2003 came into force, the answer would have been yes. They were not adduced to prove the matters stated within them, but to prove by reason of an 'implied assertion' that the defendant was dealing in drugs. In R v Kearley [1992] 2 AC 228, the House of Lords had held that the hearsay rule applied to implied as well as express assertions (in circumstances that would have been on point in this case as well). However, it had already been observed in R v Singh [2006] EWCA Crim 660 that because the CJA 2003 had abolished all common law hearsay rules except those expressly preserved, the decision in Kearly no longer applied. The definition of hearsay that can be extrapolated from sections 114 and 115 excludes implied assertions, and they are therefore no longer hearsay for the purposes of admissibility.

Bad character evidence

Second, were the text messages admissible as bad character evidence under the gateways in section 101(1)(f) and (g)? Of course, the appellant had attacked the complainant's character in suggesting that she was a drug user. Under this section, however, the court sensibly held that the defendant had not given a misleading impression by stating that he was not a drug dealer as there was no evidence to suggest that he was other than the very evidence which the prosecution sought to introduce. It was not their case that he was a drug dealer, and his background, save for the text messages, did not support the contention.

Unsafe conviction

Therefore, the third question was whether the judge should have excluded the texts pursuant to section 101(3) or section 78 PACE 1984 because of the adverse effect on the fairness of the proceedings. Greater protection is provided by section 101(3) '“ which applies only to gateways (d) and (g). It was held that the judge was wrong to permit the texts to be admitted because the basis was too 'flimsy'. In short, the prosecution had no specific purpose for the evidence and in his summing up the judge struggled to find its relevance.

The fourth issue was therefore whether the conviction was unsafe; the court concluded that it was.

It can be argued that the search for relevance is pure gateway (d) stuff, but the court had already held that the evidence was admissible through gateway (g) and was considering the application of section 101(3). The exercise of that discretion is a balancing exercise, and where evidence lacks any significant probative value '“ even to credibility '“ then a significant prejudice is bound to mean that there will be an adverse effect on the fairness of the proceedings. Furthermore, it might be that the court already sensed unfairness in the fact that the appellant was being labelled a drug dealer wholly on the basis of what until April 2005 would have been inadmissible hearsay.

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