DPP v Jones

2 Keith Baker, another resident at the Regal, was a prosecution witness at the trial. By notice dated 30 November 2017, the prosecution indicated their intention to adduce hearsay evidence, namely a representation made by Mr Lowry to Mr Baker shortly before he died, that "Earl got in and got me" ("the representation").

3 The prosecution sought to rely on the representation as evidence of the identity of the person who inflicted the fatal stab wound. At the time of preliminary argument,[1] the defence did not dispute that the accused was at the Regal at the relevant time, but disputed that the accused was the person who inflicted the stab wound.

4 In the course of preliminary argument before the jury was empanelled, the defence opposed the admission of the representation as an exception to the hearsay rule. Alternatively, the defence sought to have the representation excluded under s 137 of the Evidence Act 2008 ("the Act").

5 On 9 February 2018, I ruled that the representation was admissible. I indicated that I would publish my reasons later; these are those reasons.

6 By virtue of s 59 of the Act, the statement was inadmissible unless it fell within one of the exceptions to the hearsay rule.

7 The prosecution sought to admit the evidence under the exception in s 65 of the Act. Mr Lowry, the maker of the statement, was clearly not available to give evidence, for the purposes of s 65(1). The prosecution relied upon the exceptions in ss 65(2)(b) and (c), which exclude the application of the hearsay rule to evidence of a previous representation if the representation:

(b) was made when or shortly after the asserted fact occurred and in circumstances that make it unlikely that the representation is a fabrication; or

(c) was made in circumstances that make it highly probable that the representation is reliable.

8 The proposed prosecution evidence as to the circumstances in which the representation was made was as follows. CCTV cameras recorded the accused jumping the locked front gate of the Regal at 4.46 am. Keith Baker recognised the accused and let him in through the front door of the building. Both men went upstairs. CCTV footage shows the accused entering Mr Lowry's room at 4.47 am. Shortly thereafter, Mr Baker went to Mr Lowry's room where he saw the accused and Mr Lowry speaking amicably. Mr Baker asked them for a cigarette. After a brief discussion, Mr Baker left and returned to his own room.

9 About five to ten minutes after Mr Baker had returned to his room, he heard someone making a groaning sound and repeatedly calling his name. Mr Baker called Mr Lowry's mobile phone, which was answered by a man whose voice he did not recognise. Mr Baker asked what was going on down there, and the man said, "I've just done Steph, he's fucked and you're next."

10 Mr Baker went to Mr Lowry's room and knocked on the locked door. After checking that Mr Baker was alone, Mr Lowry let him into the room. Mr Lowry was sitting next to the door, covered in blood; there was also a considerable amount of blood around the room. Mr Lowry was alone in the room. Mr Baker asked what had happened. Mr Lowry replied "Earl got in and got me."

11 As far as s 65(b) was concerned, the defence conceded that the representation was made shortly after the asserted fact occurred. The only argument was as to whether the circumstances made it unlikely that the representation was a fabrication.

12 The defence suggested that the following circumstances raised the possibility of fabrication:

(a) Mr Lowry was possibly affected by an array of drugs (methadone, methamphetamine and amphetamine) when he made the representation;

(b) Mr Lowry was seriously injured when he made the representation; and

(c) Mr Lowry had previously been seen conversing with Mr Jones, with no suggestion that the latter had "got in".

13 Whilst it was true that those drugs were found in Mr Lowry's body at the autopsy, there was no evidence that suggested he might have been affected by them in a way that would raise the possibility of fabrication.

14 The fact that Mr Lowry was seriously injured would not ordinarily be thought to raise the possibility of fabrication. The representation falls into the category of what were referred to at common law as "dying declarations". The general approach taken at common law to dying declarations was to presume that a person, speaking on the brink of death, would be likely to tell the truth. Although the admissibility of the representation is governed by the Act, that general approach seems equally apposite here.

15 The final matter raised by the defence seems to be a matter that goes to the reliability of the representation, rather than looking at the circumstances in which it was made. Even if reliability was relevant, the words "got in" are not technical words; they do not necessarily convey the sense that the accused broke into, or forced his way into, the room (as defence counsel asserted). That is to say, I would not be persuaded that the representation was unreliable, even if that were a relevant matter for me to consider.

16 When Mr Baker discovered his friend and neighbour, Mr Lowry, bleeding profusely on the floor of his blood-covered room, he asked him, unsurprisingly, what had happened. The representation was a direct, natural and unambiguous response to Mr Baker's question. I was satisfied that it was unlikely that Mr Lowry, seriously injured and responding to a query from a friend, would fabricate these words.

17 For those reasons, the representation was admissible under s 65(2)(b). It was not necessary to consider whether it might also be admissible under s 65(2)(c).

Application to exclude under s 137

18 Section 137 of the Act requires a court to refuse to admit evidence adduced by the prosecution if the probative value of that evidence is outweighed by the danger of unfair prejudice to the accused.

19 The defence submitted that the probative value of the representation was minimal, and its admission would occasion an unfair prejudice that could not be cured by jury direction.

20 Although the accused had conceded presence at the Regal at the time when Mr Lowry was stabbed, he had not admitted to being the person who stabbed Mr Lowry. Accordingly, the identity of the killer was very much in dispute.

21 The representation was only one piece of the circumstantial case as to identity. The prosecution also proposed to lead evidence from Mr Baker that he had let the accused into the building, and seen him in Mr Lowry's room talking with him. CCTV footage would show that a person resembling the accused was the only person other than Mr Baker who had entered or exited Mr Lowry's room through the doorway into the hall, during the relevant period.

22 The defence argued that because no alternative suspect had been suggested, nor any positive defence been advanced, the words "Earl got in and got me" had negligible probative value, because of the other evidence that the accused was the other person in the room at the relevant time. I did not accept that submission. I was satisfied that the representation was highly probative as to the identity of the person who stabbed Mr Lowry, in circumstances where identity was disputed.

23 The next matter to consider was whether there was any risk of unfair prejudice to the accused. The defence argued that there was a danger that the jury might rely on the representation to infer murderous intent.

24 The defence argued that the words "got in and got me" suggested that the accused had deliberately broken into Mr Lowry's room, and attacked him with an intention to kill or cause him really serious injury.

25 The defence argued that there was a dearth of evidence as to intent. In those circumstances, it was said that the jury might give the representation too much weight, use it to "fill in the gaps" in the evidence, and draw a speculative inference of murderous intention.

26 The prosecution expressly disavowed any reliance on the representation as evidence of murderous intent.

27 In fact, there was no dearth of evidence as to intent, as the defence suggested. The prosecution case on intent was based primarily on the size of the knife (which was later recovered), and the number and nature of all of the injuries inflicted on Mr Lowry, including the fatal stab wound. The prosecution case did not contain a large gap, which the jury might impermissibly have sought to fill with the representation.

28 The jury would be considering the words "Earl got in and got me" in the light of the other evidence. The CCTV footage and Mr Baker's other evidence would clearly establish that Mr Baker let the accused into the building, and followed him upstairs to Mr Lowry's room, where an apparently amicable conversation took place. That other evidence would clearly negate any possible suggestion that the accused had somehow broken, or forced his way, into Mr Lowry's room with violent intent.

29 Furthermore, the words "got me" are everyday words; they are not particularly colourful or descriptive, nor do they assert that the accused murdered Mr Lowry. On their face, they only purport to describe in a very general way what "Earl" did, not his state of mind at the time he did it.

30 If there was any risk that the jury might think that the representation was relevant to intent, that risk would be capable of being cured by simple jury direction. Whether or not such a direction would be needed could be discussed after the completion of the evidence and closing submissions.

31 Given that the evidence had high probative value, and the risk of unfair prejudice was very low, I refused the application for exclusion under s 137.

[1] The defence position as to the accused's presence at the Regal changed several times before and during the trial.