ABSTRACT
He sought also to get some support from the words in section 26(ii) ‘if the person making it does not attend to give oral evidence’. For my part, I cannot see how that assists him. If anything, I should have thought it was against him. Those words ‘does not attend to give oral evidence’ do not appear in section 23. What is said there is ‘does not give oral evidence through fear or because he is kept out of the way’. Those words are clearly disjunctive. It is one or the other. In the present case the question is: did this witness give oral evidence? I cannot accept the submission that she must literally utter not one word, that she must stand there completely mute in order that section 26 can have any effect. In my judgment, what it means is that she must not have given evidence of significant relevance to the case. Mr Hillen, appearing for the prosecution before us drew our attention to definitions of ‘evidence’ in two very well-known textbooks. Cross on Evidence (7th edn, 1990) at p 42 defines testimony as ‘the statement of a witness in court offered as evidence of the truth of that which is stated’. Phipson on Evidence (14th edn) at para 1-03 says: ‘In a real sense evidence is that which may be placed before the court in order that it may decide the issue of fact.’ Those definitions are saying in another and perhaps more elegant way what I am saying, namely that before there is oral evidence in the context of this section, there must be evidence of significant relevance to the case. Looking back at this young woman’s deposition, I note in particular these phrases: ‘I do not remember where I was on Friday 1st May 1992 ...’. ‘I do not know who that is in the photos. I have no comment as to whether I have any injuries like that or have had any injuries like that ...’. ‘I do not have to say nothing. Again no comment as to why I don’t want to tell the court why I have ever had injuries like that ...’. ‘I do not now live at 65 Cranford Road, Ashford. I do not know if I was there on the 28th June ...’. ‘I cannot remember what happened. It was a long time ago.’ In my judgment, she clearly gave no evidence of significant relevance to the case. Put another way, in no real sense did the evidence which she placed before the court go to decide the issues of fact in the case. Accordingly, I for my part would reject Mr French’s first submission. His second submission turns upon the words ‘through fear’. He submits in effect that either the witness has actually to say, ‘I am not giving evidence through fear’, or there has to be evidence from a witness, presumably a police officer, to say that he has seen the witness outside the court and has concluded that she was in fear. This ties in with his argument that the section is to cover those who will not come into court; and since the witness has not come into the court, it is perfectly permissible, he submits, for a police officer to say, ‘I have seen her outside and she was shaking with fear’. I cannot for my part understand how that is better evidence than a magistrate seeing the witness and forming her own view that the witness is shaking with fear. I see nothing in the section which requires that the witness herself should say, ‘I am not giving evidence through fear’. I have already recounted the affidavit of the magistrate which makes it clear that in this case she formed a clear view that the reason why the witness was not giving oral evidence was because she was fearful of doing so. Mr French points out that the criminal standards of proof must be applied. He is right about that. It is apparent from the affidavit of the magistrate she appreciated that, and she made it clear that she was sure that the witness was not giving evidence as a result of fear.
