ISSUE 54 EWJ web - Journal - Page 23
Commenting on the Failure of the Defence
to Call Potentially Relevant Witnesses:
R v Watson [2023] EWCA Crim 960
by Paul Patterson – 16 February 2024
Commenting on the failure of the defence to call potentially relevant witnesses:
R v Watson [2023] EWCA Crim 960
remembering at all times where the burden and standard of
proof lies.”
A recent case and its lessons for defence
practitioners
1. Is it permissible for the prosecution, or judge, to
comment on the failure of the defence to call a witness
who may be able to support the defence case? R v
Watson (Roshane) [2023] EWCA Crim 960.
6. The judge repeated that the jury were not to speculate during his route to verdict. When prosecution
counsel made his closing speech, he commented on
Watson’s failure to give evidence and/or his failure to
call certain witnesses. This was raised by counsel for
Watson as an issue and therefore the Judge prevailed
upon the prosecution to correct his position. The
prosecution said: "can I be perfectly clear, please, that nothing I have said or raised about any defendant not calling any
witnesses to support his or her case undermines or was ever intended to undermine His Honour's clear and unambiguous
written directions as to where the burden of proof lies. From beginning to and we bear it, and we bear it now."
Facts
2. The appellant appealed against his conviction of
murder, possession of a firearm with intent to endanger life and perverting the course of justice, for
which he was sentenced to life imprisonment with a
specified minimum term of 32 years.
3. On 29 July 2020, the appellant was one of two men
(Man A and Man B) that exited an Audi motor car on
a road in Edmonton and approached the victim’s car.
Man A fired 2 shots fatally injuring the victim. The
issue in the case was identification in which the prosecution relied on CCTV evidence, telephone attribution, contact and cell site evidence. The stripping of
the Audi after the incident was circumstantial evidence
and made up the charge of perverting the course of
justice. Clothing from a music video recorded on the
19 June 2020 as well as Body Worn Video of a stop
and search from 9 July 2020 matched a still from the
CCTV of Man A who the prosecution said was Watson
getting out of the Audi on 29 July 2020.
Appeal
7. The single judge granted permission to appeal
against conviction on the ground that: “The judge
failed to give the jury a direction to correct extensive
and impermissible prosecution closing comments as
to the appellant’s failure to call witnesses in support of
his defence caused incurable prejudice to his case.”
This was then expanded to two grounds (paraphrased):
a. The comments had transferred the burden of proof
onto the defendant.
b. Section 35(2) of the Criminal Justice and Public
Order Act 1994 does not give a direction on a defendant’s failure to call a witness for good reason.
4. Watson’s defence was that the clothes were commonplace, and the phone was not in his possession at
the time of the shooting. On that basis, the prosecution’s evidence against him was so weak and tenuous
that it did not call for an answer from him and no adverse inference should be drawn. However, one of
Watson’s co-accused presented an alibi defence; that
Watson was seen by X, Y and Z in company with others at a party. This was not challenged by Watson, and
no alibi notice had been served by Watson, and there
was no legal impediment to calling witnesses to substantiate his claim. This prompted a note from the
jury asking whether they would hear evidence from
X, Y and Z.
8. The Court dismissed the appeal. Watson’s submissions invited the Court to ignore clear precedent.
There was no per curiam decision prohibiting appropriate comment on the failure of a defendant to call
witnesses.
Comment on failure to call a witness: review of
authorities
9. The Court of Appeal reviewed the following
authorities: (Wheeler [1967] 1 W.L.R. 1531, Gallagher
[1974] 1 W.L.R. 1204, Wright [2000] Crim. L.R. 510,
Yousefi (Parviz) [2020] EWCA Crim 791, Shakeel Khan
[2001] EWCA Crim 486 (itself reviewing other authorities), Martinez-Tobon [1994] 1 W.L.R. 388, Cowan
[1996] Q.B. 373, Sparrow [1973] 2 Q.B. 99 and, on
stare decisis in the Court, Simpson [2003] EWCA Crim
1499; [2004] Q.B. 118).
5. After discussion with counsel, the judge directed the
jury in the following terms: “You know the answer to that
question now, because the evidence has closed. Let me give you
this direction, and I hope in the clearest possible terms. Members of the jury, you must not-and I stress those words-must
not speculate as to why these persons have not been called by
either side. You must not speculate as to what they might have
said had they been called to give evidence, and you must try
this case only on the evidence you have received in this trial,
EXPERT WITNESS JOURNAL
10. The authorities differ in their interpretation based
on the circumstances of the case. In Wheeler [1967], a
trial in which neither prosecution nor defence called
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APRIL 2024