There was no violation of the right to cross-examination when the Court of Appeal permitted the reading of the police statement and written evidence

A man was indicted with domestic violence against his spouse.
In police interviews, the aggrieved person had described the criminal acts. She appeared at the appeal hearing in the Court of Appeal but exercised her right, as the accused’s spouse, not to testify.

The Court of Appeal allowed the reading of the aggrieved person's police statement and medical records, which included accounts of what she had said about the incidents of violence. The question before the Supreme Court was whether this constituted a procedural error by violating the right of the person indicted to cross-examine witnesses.

The Supreme Court stated that if a witness does not appear at trial or refuses to testify, the witness's police statement can only be read aloud after applying the criteria of the so-called Al-Khawaja test, which is based on case law from the European Court of Human Rights.

Furthermore, the Supreme Court took as its basis that if a written piece of evidence reproduces a third party’s statement as second-hand information, this does not normally give rise to a right to cross-examine that third party. For example, if a doctor includes in a medical record the account of a witness who has not testified in court, any right to cross-examination in connection with the use of the record as evidence would apply to the doctor, not the witness.

In its individual assessment, the Supreme Court concluded that the reading of the statements did not violate the right to cross-examination.

The judgment clarifies when a police statement may be read aloud if a witness fails to appear at the main hearing or refuses to testify. It also clarifies the question of when written evidence containing an account of what the witness has told others, may be read aloud in court.

Read the judgment from the Supreme Court (Norwegian only) (PDF)

Areas of law: Criminal procedure, human rights

Key paragraphs: 39, 40 og 59

Justices: Falkanger, Bergh, Thyness, Hellerslia, Poulsen