The Court of Appeal's decision to allow the reading of a police statement and written evidence did not violate the right to cross-examination

A man was indicted for domestic violence towards his spouse. The aggrieved party had described the criminal acts in police interviews. 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 party'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 held that if a written piece of evidence contains a third party’s account presented as hearsay, this does not normally trigger a right to cross-examine that third party. For example, if a doctor in a medical record conveys the account of a witness who has not given evidence in court, any right to cross-examination arising from 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 (PDF)

Areas of law: Criminal procedure, human rights

Key paragraphs: 39, 40 and 59

Justices: Falkanger, Bergh, Thyness, Hellerslia, Poulsen