JA, Re Application for Judicial Review

A witness statement not made in oral evidence in the proceedings, the admissibility of which is not agreed by the parties, irrespective of its content, must come within one of the four categories in article 18 (1) (a)-(d) of the Criminal Justice (Evidence) (Northern Ireland) Order 1984 to be admitted. It constitutes hearsay and the procedure in Rule 149AS of the Magistrates' Courts Rules (Northern Ireland) 1984 must be followed and a determination made under it.

In so far as the magistrate's ruling was based on a finding that the documents were not hearsay, it failed to take account of Rule 149AS(1), defining evidence to be adduced on one of the grounds set out in article 18 of the Criminal Justice (Evidence) (Northern Ireland) Order 2004 as "hearsay evidence". The evidence here was sought to be introduced under article 18 (1) (b) of the 2004 Order, being evidence made admissible by any rule of law preserved by article 22 of the Order.

The magistrate stated in his affidavit that the statements formed part of the res gestae. It was submitted that this was an error of law as they did not concern a statement of mind contemporaneous to a relevant event, did not concern statements made to or heard by a witness and did not concern the witness's present state of mind, but rather an anticipated state of mind.

The magistrate failed to give reasons in open court for his decision or to enter the reasons in the Order Book, contrary to article 8(5) of the Criminal Evidence (Northern Ireland) Order 1999.

As to whether the expressions of a desire not to give evidence through fear were res gestae statements.