R v Karl Joseph Huzcavitch

LORD JUSTICE FOXTON: On 30 January 2025 in the Crown Court at Leeds before His Honour Judge Simon Phillips KC, the applicant (then aged 35) was convicted of count 2, an offence of causing grievous bodily harm with intent, contrary to section 18 of the Offences Against the Person Act 1861.

His application for an extension of time of 48 days for applying for leave to appeal has been referred to the full court by the single judge.

The complainant in this case was Mr Lee Keightley. He lived in Leeds in the same block of flats as the applicant. The applicant and the complainant were known to each other and were said to be friends.

In late August 2022, it was the prosecution case that the applicant became angry with the complainant and subjected him to violence on two separate occasions, both incidents taking place in the complainant’s flat.

The prosecution case was that during the first incident the applicant became angry over some lost cannabis, and that he threatened the complainant with a Stanley knife. This formed count 1 of the indictment, of which the applicant was acquitted.

The second incident took place while the applicant and the complainant were watching television. A third person, referred to as “Andy”, was also present. The prosecution case was that Andy said something to the applicant which wound him up, with the applicant then going on to assault the complainant by repeatedly punching him to his upper body.

To prove its case, the prosecution relied on the following:

The applicant was interviewed under caution. He denied threatening the complainant with a knife or assaulting him and suggested that the injuries may have been sustained by the complainant falling. Regarding count 1, the defence case was that the applicant had not threatened the complainant with a knife. Regarding count 2, the defence case was that the applicant had not assaulted the complainant.

At the PTPH on 2 August 2024 the applicant applied to dismiss the charges and the prosecution applied to adduce the complainant’s evidence as hearsay evidence. His Honour Judge Khan KC ruled that there was a case to answer and that the complainant’s statement should be admitted as hearsay.

The trial commenced late in the day on 28 January 2025. On the second day of what was a very short trial, the defence applied to admit evidence of non-defendant bad character or matters going to the complainant’s credibility under sections 124 and 119 of the Criminal Justice Act 2003. These included:

HHJ Phillips K.C. granted the application to adduce (i) and (v), which were in due course incorporated into agreed facts (in circumstances we will come to consider). However, he refused the applications in respect of the other matters.

Agreed fact (i) had been taken from the police occurrence report and referred to an entry made in that report by PC Cheng. This was supplemented by a further agreed fact as follows:

“This comment was made by PC Cheng in the context of a key investigation summary within the occurrence report. There is no information as to the source of this comment and whether it came from meeting the complainant or previous police files”.

At the conclusion of the Crown case there was no application to the court to revisit the decision to allow hearsay evidence to be adduced under section 125, nor did the court of its own motion come to that conclusion.

The applicant gave evidence in relation to the two charges. He said that the complainant had issues with another male called ‘JP’, who would stay at the complainant’s flat. He said the complainant had issues with alcohol and would drink heavily most nights and that he had seen the complainant fall over when drunk. He denied both assaults. In relation to the first count, he denied becoming angry and denied threatening the complainant with a knife. Regarding the second count, he said he had not become angry, had not punched the complainant at all and was not responsible for the injuries. He said he was shocked by the allegations.

As we have stated, the jury found the applicant not guilty of count 1 but guilty of count 2. The applicant now seeks leave to appeal against his conviction on three grounds:

We can take the correct approach to the admission of hearsay from the recent statement of this court in R v BOB [2024] EWCA Crim 1494, [31]:

“The statutory framework provided for hearsay evidence by the 2003 Act can usefully be considered in these successive steps:

1.

Is the court satisfied that the prosecution has adduced all relevant evidence, and disclosed all relevant unused material to enable the court to assess the extent to which the hearsay evidence is demonstrably reliable and, if not, the extent to which it can be safely assessed and tested? If not, should the court simply refuse the application or do the interests of justice require directions for a proper disclosure process?

2.

Is there a specific statutory justification (or ‘gateway’) permitting the admission of hearsay evidence (sections 116-118)?

3.

What material is there which can help to test or assess the hearsay? This may be undermining evidence admitted under section 124, or other inconsistent evidence and it may also be independent dovetailing or supporting evidence. The court is required to make a judgment on the basis of all the evidence, having regard to the issues in the case and the importance of the hearsay to those issues.

4.

Is there a specific ‘interests of justice’ test at the admissibility stage?

5.

If there is no other justification or gateway, should the evidence nevertheless be considered for admission on the grounds that admission is, despite the difficulties, in the interests of justice (section 114(1)(d))?

6.

Even if admissible, ought the evidence to be ruled inadmissible (section 78 of the Police and Criminal Evidence Act 1984 (PACE) and/or section 126 of the 2003 Act)?

7.

If the evidence is admitted, then should the case subsequently be stopped under section 125? This safeguard should be considered in all cases where it applies, at the initiative of the court if the parties do not raise it. It will generally be best determined at the conclusion of all the evidence. This is reinforced by the fact that this is the stage when the judge is likely to have drafted legal directions and to be consulting counsel about them. In a case of this kind, where the prosecution seeks to prove an important and disputed fact by relying on hearsay, the judge is required to give a careful and tailored direction to assist the jury in deciding whether they can safely rely on the hearsay or not. Its sufficiency will be relevant to the safety of any resulting conviction and it will be helpful for the judge to have regard to it when carrying out the assessment required by section 125.”

In deciding to admit the hearsay evidence, His Honour Judge Khan KC held that there “are a number of safeguards within the statutory framework to help ensure that the hearsay admitted under the Criminal Justice Act 2003 does not jeopardise a fair trial” and concluded that “the Crown have demonstrated that the evidence has the potential to be safely reliable.”

We are satisfied that HHJ Khan KC was entitled to conclude that the complainant’s evidence met the test for the admission of hearsay evidence:

Further, we are satisfied the applicant was able effectively to challenge the content and reliability of the statement:

Indeed, we note that while the applicant relies on the material disclosed by the prosecution to challenge the reliability of the complainant’s evidence at the admissibility stage, that submission itself lends strong support to the view that the applicant was in a position at trial effectively to challenge the reliability of the complainant’s evidence. In this regard, the observations in R v BOB [7] are in point:

“If the existence of material undermining the credibility of the maker of the statement or a previous inconsistent statement by that person were invariably a reason for excluding the statement section 124 would not be necessary.”

The applicant also asserts that the evidence of Mr Keightley ought to have been excluded because he was an alcoholic and because of the comments he had made in relation to his bank card. As to the former, we note there was no evidence the complainant was under the influence of alcohol at the time of the incident or the time of making his statement. Further, the applicant was able to place evidence before the jury of the complainant’s history of alcoholism from his medical records, was able to give evidence himself on those matters and was able to refer to agreed fact (i).

We will address the issue relating to the bank card when addressing ground 2. We note at this point that there was a dispute at trial as to whether the complainant had made a false statement about the bank card. As we will explain, in the event the applicant’s initial request that material relating to the bank card should be admitted to impeach the reliability of the hearsay statement was not in the event pursued, and for good reason. That of itself is fatal to the suggestion that the bank card issue should have led HHJ Khan KC to refuse to admit the hearsay statement in the first place. We are not persuaded that that was a matter that made it inappropriate for the hearsay evidence to be admitted.

For these reasons, we are satisfied that the complainant’s statement was properly admitted by His Honour Judge Khan KC as hearsay evidence.

Ground 2 covers two separate complaints.

The first concerns the trial judge’s comments in relation to the proposed agreed fact that the complainant had been described as an alcoholic both prior to and at the time of the alleged offences. References in the applicant’s medical records to alcoholism had most recently appeared in 2018, four years before the incidents. There was also a contemporaneous statement by the complainant to PC Quantrill that he was no longer drinking at the time of the offence. However, in his occurrence report, PC Cheng had recorded a statement that the complainant was an alcoholic, it being unclear what the source of that statement was, and in particular whether it was taken from a record of some kind dealing with the position at some earlier point in time.

When the agreed facts were drafted, the fact that the complainant had been described as an alcoholic in PC Cheng’s occurrence report formed proposed agreed fact No 24. As originally drafted, the fact referred to how the complainant had been described, but did not give the source of the description. The judge accepted that the issue of alcoholism was a potentially relevant matter, and also referred to the possibility of the prosecution adducing the evidence of the medical records and of PC Quantrill as to what he had been told by the complainant. The judge doubted that this would be contentious. Prosecution counsel suggested that counsel could put their heads together and come up with something “down the middle”.

There is a disagreement as to what happened next, and unfortunately there is no transcript before the court of this part of the proceedings. Ms Smith suggested that, in effect, the judge dictated the addition to the draft agreed fact which added the qualification as to the absence of any evidence as to the source of what PC Cheng had recorded. For our part, we would be surprised if the judge had directed that fact to be put before the jury in agreed form. But in the event it is accepted that what was agreed and not agreed was ultimately a matter for the applicant to decide, and that if the applicant had not been willing to agree the fact in that form, the fact would not have gone before the jury as an agreed fact.

The judge was clearly entitled to comment on the proposed agreed facts and to make suggestions, and in particular to point to other material which would have provided context for PC Cheng’s statement. If he was unwilling to agree any qualification to what was stated in the occurrence report, it would have been open to the applicant to require PC Cheng to be called so that he could be cross-examined. No doubt the prosecution would then have sought to adduce the other evidence to which the judge had referred. In the event, we fully understand why matters proceeded in the way they did, which came very close to the “middle” way that prosecution counsel had predicted could be agreed. But we are not persuaded that there can be any criticism of the judge, or that there was somehow a direction which required the defence to agree something they were not ultimately willing to agree. We are satisfied therefore that there is nothing in this first aspect of ground 2.

The second complaint under ground 2 concerns the application to adduce evidence that the complainant had stated that the applicant had stolen his bank card, but then made what was said to be a contradictory statement to DC McHale.

The suggestion that the complainant had made a false accusation of theft was taken from the complainant’s unedited statement which states:

“Every Thursday I receive £115 in benefits into my bank account. I believe Karl has taken this card. He knows I get this money every Thursday. Due to not having my bank card I have not been able to put any electric on at my address resulting in me being without electric for a week and a half. I have not been able to buy any food for myself either. This bank card is a Barclays Bank card.”

The unedited statement of Mr Slaughter stated that the complainant had said that the applicant had stolen the bank card. The bank card was in the applicant’s possession at the time of arrest. No charge was brought in relation to it because the complainant told DC McHale later that day that the applicant had permission to use the bank card, because both their benefits were paid into the complainant’s bank account, but that the applicant’s entitlement to use the bank card was limited to withdrawing his own benefits.

Not surprisingly, the applicant’s counsel wished both the complainant and Mr Slaughter’s statements to be edited to take out references to the bank card and this was done. We would note that there was certainly a possible interpretation of this material that, whilst the applicant was entitled to have the bank card for a specific purpose, he had held onto it, even though the complainant’s money was due in, thereby depriving the complainant of the money necessary to buy food and electricity.

It was in that context that the trial judge observed that the fact that the applicant had permission to use the bank card for a specified purpose was not inconsistent with the suggestion that he had stolen it. The judge noted that the allegations that the bank card had been stolen had been edited out of the complainant’s statement at the applicant’s request, and referred to the potentially damaging effect for the applicant if the jury was told that that allegation had been made. The prosecution for its part indicated that it disputed that the statements were inconsistent, and said that if the material was to go in under section 124 or in response to the hearsay evidence, it would potentially bring in other material as well.

When the judge suggested to defence counsel that the applicant could not cherry-pick those parts of the complainant’s statement which went in, counsel stated:

“I accept that ... It may well be that, in fact, upon reflection, the issue of the bank card is simply not relevant and it does risk leading to satellite litigation”.

We are satisfied that when taking this decision in the course of the trial, defence counsel adopted exactly the right course. There was a choice between this material going in, which would have allowed defence counsel to make a submission of an alleged inconsistent statement. However, the inconsistency was disputed by the prosecution and testing and resolving the issue of whether there was an inconsistency would have involved material which was unhelpful for the applicant going before the jury. In those circumstances we are satisfied that defence counsel took the prudent course of not pursuing the application to adduce that material. In any event we see no basis upon which the judge can be criticised for not, of his own motion, requiring that material to be placed before the jury, contrary to the wishes of the applicant’s own counsel. We therefore see no basis for this part of ground 2 either. Nor are we persuaded that the absence of this evidence could have had any impact on the safety of the applicant’s conviction.

The final ground of appeal is that the trial judge’s summing up inadequately addressed the weakness of the hearsay evidence. In particular, it is said that the judge did not specifically refer to the matters raised by the defence under section 124.

In his summing up the judge did remind the jury that the evidence of both Lee Keightley and Patrick Slaughter had not been given under oath and they had not been cross-examined. He said:

“When you are deciding whether or not to rely on what Lee Keightley said in his statement, you should also take into account what you know about Lee Keightley, including the information about him that is contained in the agreed facts”.

Whilst we accept that it might have been preferable for the jury to be taken to the agreed facts at that point, we agree with the prosecution that this passage did identify for the jury the specific matters said to render the evidence unreliable. This was a very short trial indeed, of the order of just over one-and-a-half days. The judge gave the standard inconsistencies direction, and a direction in relation to circumstantial evidence. When giving the latter direction, he reminded the jury that the defence had pointed to other circumstances which were said to show that the hearsay evidence was unreliable.

We note that the judge provided the written legal directions to counsel in advance. Both counsel considered them and no objection was raised by the defence. Further, it was clear that the alleged inconsistencies in the complainant’s account and the matters said to undermine the reliability of the hearsay evidence, formed a, and indeed we think the, major plank of the defendant’s closing submissions. Given the shortness of the trial, we are not persuaded that there is any reason here to doubt the safety of the conviction simply because the judge did not repeat again matters which the jury had heard so recently. Accordingly, we refuse leave in relation to ground 3 as well.

In circumstances in which we are not satisfied that the test for leave to appeal is met, it is not necessary to address the issue of whether an extension of time is appropriate. We should say however that had we been satisfied that any of the grounds had merit we would have been willing to grant the extension of time to advance them.