Jersey Unreported Judgments

 [2003]JRC211

ROYAL COURT

(Samedi Division)

18^th November, 2003

The Attorney General

-v-

Antonio Romano Capuano

Assize trial on not guilty plea to one count of affray.  At the end of the Crown's case, an application by Defence Counsel that there was no case to answer.

A.J. Belhomme, Crown Advocate.

Advocate D. Cadin for the Defendant.

JUDGMENT

THE BAILIFF:

1.        Counsel for the defendant has made a submission, in the absence of the jury, that there is no case to answer by the defendant.  The well-known test that I have to apply is set out in paragraph 4 - 293 of Archbold (2003) in these terms,

"A submission of no case should be allowed when there is no evidence upon which, if the evidence adduced were accepted, a reasonable jury properly directed could convict.  In such a case a directed verdict must be taken from the jury".

2.        What then is an affray in Jersey law?  In earlier editions of Archbold the offence is defined as fighting by two or more persons to the terror of Her Majesty's subjects.  Since the late 1960s the offence has been subject to considerable judicial development in England.  The editors of Archbold draw upon a judgment of the Court of Appeal in England in the R -v- Taylor and conclude that the elements of affray now are:

(i)        Fighting by one or more persons or a display of force by one or more persons without actual violence;

(ii)       in such a manner that reasonable people might be frightened or intimidated.

3.        The learned editors draw attention to the need to read this definition in the light of observations made by Lord Hailsham when the case reached the House of Lords under the name of Taylor -v- DPP.  One observation of Lord Hailsham is worthy of particular note in the context of this case. 

"The extent to which the display of force without actual violence constitutes the offence of affray even where the element of terror is present is still not wholly clear.  It seems that the brandishing of a fearful weapon does constitute the offence and has always done so although in most cases where this is done by an individual, a charge under the Prevention of Crime Act (1953) would now seem preferable.  From the older authorities it seems plain enough that mere words unaccompanied by the brandishing of a weapon or actual violence are not enough.  But all sorts of things are arguably a display of force.  I am anxious that nothing in this case should be construed as necessarily implying that anything less than an unlawful participation in a violent breach of the peace will be enough to satisfy the requirement".

4.        The Crown asserts that it is the continuing series of events at the building site that constitutes the affray but the reality, as it seems to me, is that the series of events must be broken down into two parts, namely (1) the conduct of the accused in using abusive language whilst asking for a job, giving an aggressive display while pretending to fight, and kicking Mr Matthews on the backside;  and (2) the pointing of a replica BB gun at Mr Matthews and Mr Gomes from the car at a later stage, some 5 or so minutes later.

5.        In relation to the first part, while I accept that there is some evidence of fighting, in the sense that the accused was abusive and aggressive, there is no evidence that anyone was placed in terror by the conduct of the accused at that stage.

6.        It is the second part of the series of events upon which the prosecution case must stand or fall.  Counsel for the accused concedes that Mr Matthews was terrified by the pointing of the replica gun.  The only remaining question is whether the pointing of the replica gun is capable of amounting to the brandishing of a fearful weapon. 

7.        Counsel for the accused has submitted that the background against which these submissions should be viewed is not one which would ordinarily or obviously be thought to constitute an affray.  There was no mêlée, there was no violent fighting or violent breach of the peace involving the throwing of glasses or billiard balls around a room.  I agree, and it seems to me that I should be careful before accepting that the common law offence of affray can be regarded as sufficiently elastic to embrace any threat by an individual which causes someone else to be frightened.

8.        The English authorities speak of a "fearful weapon".  (Lord Hailsham in Taylor -v- DPP): "an offensive weapon", (Lord Read in the same case), and "a dangerous and unusual weapon" (Lord Parker in Scarrow -v- R).  This toy gun was not an offensive weapon.  It had been seen by the police in the defendant's custody at an earlier stage and left with him.  It was bought as a present for a 13 year-old boy.  It can lawfully be bought without any control in shops in St Helier.  I do not think that it could fairly be characterised as "fearful" or "dangerous and unusual".  It is a toy which can propel small pellets of plastic for a few feet.  In my judgment it is not capable of being regarded as the kind of weapon which, if brandished, can lead to the commission of an affray.  There is undoubtedly evidence of assaults and possibly grave and criminal assaults, and of a breach of the peace but in my judgment there is no evidence that the offence of affray alleged against the defendant has been committed. 

9.        I therefore uphold the submission that there is no case to answer.

[The foreman entered a directed verdict of 'not guilty'.]

10.      [To the accused]  The Court discharges you from the charge of affray, the jury having found you not guilty for the reason which you have heard.  You will be remanded for sentencing on the two counts to which you have pleaded guilty on 3^rd December at 2:30 in the afternoon.  You will be remanded, so far as this Court is concerned, on your undertaking to appear for sentence at that time, that is to say you will be at liberty pending your appearance for sentence on 3^rd December.  You will remain, however, in custody at the instance of the Magistrate for your appearance before the Magistrate on 24^th November on another charge and what happens then will obviously be a matter for the Magistrate.  Do you understand? 

Authorities

Taylor -v- DPP [1973] 2 All ER 1108; [1973] AC 964.

Scarrow, Brown & Attlesey [1968] Court of Appeal (Cr. Div.) 591.

Summers, Burns & Bond [1972] Court of Appeal (Cr. Div.) 604.

Archbold (2003 Edition): p.p. 2409-16: para 4-293.

Archbold (42^nd Edition: 1985).

Smith [1997] 1 Cr. App. R. 14.

A.G. -v- Shewan (4^th February, 1999) Jersey Unreported; [1999/22].

Shewan -v- A.G. (16^th July, 1999) Jersey Unreported; [1999/129].

Button -v- DPP [1966] AC 591.

R. -v- Malashev (14^th February, 1997) [No. 96/02279/x4] Court of Appeal (Cr. Div.).

Russell on Crime (12^th Edition) (1961).