Background
Christopher Berntsen was charged with driving while the proportion of cannabis in his blood exceeded the statutory limit. The prosecution alleged that a forensic custody nurse, Ms Jambaya, examined him and advised PC John that his condition might be due to a drug, satisfying a statutory prerequisite for requiring a blood or urine specimen under section 7(3)(c) of the Road Traffic Act 1988.
Shortly before trial, Ms Jambaya travelled to Zimbabwe following an unexpected death in her family. The district judge refused to admit her statement under section 116(2)(c) of the Criminal Justice Act 2003 because the prosecution had not investigated whether she could delay her departure, return early, or testify remotely. The judge also ruled that PC John’s evidence about the advice she gave him was inadmissible hearsay. The prosecution offered no evidence, and Berntsen was acquitted. The Director of Public Prosecutions appealed by way of case stated.
The Court’s Holding
The Divisional Court allowed the appeal on both questions. It held that the district judge had wrongly focused exclusively on the prosecution’s limited inquiries rather than considering all factors relevant to reasonable practicability, including the importance of the nurse’s evidence, any prejudice caused by her absence, the expense and inconvenience of bringing her back from Zimbabwe, the family bereavement, and the short time available. Arranging testimony from Zimbabwe also required international and practical steps that could not reasonably have been completed before trial. On the evidence, it was not reasonably practicable to secure her attendance, so her statement qualified for admission under section 116(2)(c).
The Court further held that PC John’s evidence was not hearsay when offered to prove that the nurse had advised him that Berntsen’s condition might be due to a drug. Section 7(3)(c) requires proof that the constable received such advice; it does not require proof that the nurse’s opinion was correct or reasonable. PC John’s testimony was therefore direct evidence that the communication occurred, not evidence tendered to prove the truth of the opinion communicated.
The Court set aside the acquittal and remitted the case to the Magistrates’ Court for trial. It emphasized that the prosecution remained free to call Ms Jambaya and expressed no view on the ultimate merits of the charge.
Key Takeaways
- Whether attendance is “reasonably practicable” under section 116(2)(c) requires a contextual assessment, not merely an inquiry into whether every possible step to secure attendance was attempted.
- Evidence of an out-of-court statement is not hearsay when offered only to prove that the statement was made, rather than to prove the truth of its contents.
- For section 7(3)(c) of the Road Traffic Act 1988, the relevant condition is that the constable received the required professional advice; the statute does not require the advice to be correct or reasonable.
Why It Matters
The judgment clarifies how courts should evaluate witness unavailability when an overseas absence arises shortly before trial. A prosecution’s failure to explore every possible arrangement is relevant but not necessarily decisive; courts must also assess proportionality, timing, prejudice, expense, and the reason for the absence.
It also draws an important boundary around the hearsay rule. Where a statute makes the fact of receiving advice legally operative, a recipient may testify directly that the advice was given without using the statement to establish the truth of the underlying opinion.