A person who is responsible for the absence of a witness upon whose hearsay evidence he wishes to rely should not be allowed to benefit from the fact that the witness is unavailable to give evidence in person if he brought that situation about deliberately.

R was convicted of murder and sentenced to life imprisonment after assaulting a man at his home. A witness (T) was interviewed by the police. Three days after the victim's death T received a threatening text message from R. T was re-interviewed a month later and gave the police a full account. By the time of the trial T was believed to have left the country. The prosecution served notice of their intention to apply under s.116 of the Criminal Justice Act 2003 to adduce in evidence a transcript of what T had said in interview in order to establish R's presence at the scene. R then admitted to being at the scene and the prosecution’s application to adduce T's record was therefore dropped. R applied to adduce T's interview record himself but the judge dismissed the application on the basis that he was satisfied that by sending the text message R had frightened T and had caused him to leave the country in order to avoid being called as a witness at the trial.

R appealed on the basis that the judge's ruling was wrong because the evidence could not support the judge's finding that T's unavailability was caused by his text message and that, even if that it had been the cause, or one of the causes, of T's absence, it had not been sent in order to prevent T from giving oral evidence in the proceedings, since there were no relevant proceedings in existence at the time it was sent.

The High Court held that it was likely that T was motivated in part by fear of R and in part by a more general inability to face up to the prospect of giving evidence in open court. It was sufficient for the purposes of s.116(5) of the Criminal Justice Act that the action of the party seeking to adduce the hearsay evidence was an effective cause, albeit not the only cause, of the witness's absence, since to hold otherwise would significantly undermine the policy of the legislation. The only question of importance is whether the acts were done in order to prevent the attendance of the witness at the proceedings.

The evidence before the judge was well capable of supporting such a finding. The judge was entitled to find that the text message was sent for the purpose of preventing T's attendance at the proceedings and its effect persisted up to and beyond the time that T left the country. The judge was right to hold the statements made by T to the police in interview were not admissible in support of R's case. The appeal was dismissed.

This case shows that an appellant cannot seek to rely on hearsay evidence in circumstances where the witness’ absence at the hearing was caused, at least in part, by the appellant’s actions