R v Gibbons (Dean)

R v Gibbons (Dean)

Court of Appeal (Criminal Division)

10 July 2008

Case Analysis

Where Reported

[2008] EWCA Crim 1574; (2009) 173 J.P. 260; [2009] Crim. L.R. 197; Official Transcript

Case Digest

Subject: Criminal evidence

Keywords: Hostile witnesses; Recognition; Jury directions; Previous inconsistent statements; Prosecution witnesses

Summary: A judge had been entitled to declare a witness hostile and to leave his evidence to the jury.

Abstract: The appellant (G) appealed against his convictions of aggravated burglary, robbery and possessing a handgun with intent to cause fear of violence.

The Crown’s case was that G, along with a number of other men, had broken into a flat, threatened the occupants (P and W) with guns, and had taken a number of items including P’s car. The following day, P and W named G as having been one of the men who had broken in, and P identified three co-accused at a formal identification procedure. At trial, G declined to give evidence but P and W were cross-examined on the basis that G had not been present during the incident. P had clearly been reluctant to attend the trial and his evidence was such that the judge had acceded to the Crown’s application that he be declared hostile. His evidence was that he had known G for about a year and had recognised him as one of the men who had broken in. W’s evidence was also that she had recognised G, he being the father of her child. While G was convicted, his three co-accused were acquitted.

G submitted that while the judge had been right to allow P to be declared hostile, he ought, exercising the caution prescribed by the Criminal Justice Act 2003 s.119, to have ruled that no reasonable jury properly directed could rely on his evidence.

Appeal dismissed. In deciding that P could be declared hostile, the judge had not relied on s.119. That section came into play principally when a witness maintained that the contents of a prior statement were not true, and it permitted the jury to rely on the prior statement. One of the reasons for its introduction was to deal with the issue of witnesses who were too frightened to admit that their original statement was true. The jury was entitled to look at all the circumstances and to decide that in fact the contents of the statement were true and that the witness’s denial of the contents could be disregarded. Moreover, G had failed to show that that the judge’s decision was one that no reasonable judge could have reached. There was evidence from two witnesses on which a reasonable jury properly directed could convict. While the jury was not convinced about P’s evidence in so far as it concerned the three co-defendants, in the case of G it had not only P’s evidence but also that of W.

Judge: Hooper LJ; Cox J; Judge Stokes QC

Counsel: For the appellant: J Swain For the Crown: S Wild