[2004]JRC019A
royal court
(Samedi Division)
28th January 2004
Before: |
F.C. Hamon, Esq., O.B.E., Commissioner, sitting alone. |
Between |
Nicholas George Gosselin |
Plaintiff |
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And |
Capital Properties Limited (trading as All Sports) |
Defendant |
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Directions hearing: whether Magistrate's Judgment in criminal proceedings, previous statements and transcript of evidence in the Magistrate's Court is evidence that should be viewed by the Jurats in the Royal Court in relation to a subsequent civil action for damages.
Advocate C.J. Scholefield for the Plaintiff.
Advocate N.M. Santos-Costa Defendant.
judgment
the COMMISSONER:
1. This interesting point of law came before me on a Summons for Directions. It occupied most of the afternoon set aside for the Summons.
2. Mr Gosselin, the Plaintiff in the civil action, which is to be heard by me and two Jurats, was accused of having committed a grave and criminal assault on the person of Stephen Michael Wallace on the 20th December, 1999 at the licensed premises, "All Sports". As the Defendant in the criminal action, he was also charged with being disorderly on the licensed premises in contravention of Article 83 of the Licensing (Jersey) Law 1974. He pleaded guilty to that charge. He was not charged with being drunk and disorderly. A further charge of resisting a police officer in the execution of his duty was not proceeded with. The prosecution offered no evidence. This was apparent after a CCTV recording had been examined by the Court.
3. The learned Relief Magistrate, Mr T.C. Sowden, QC, a former Solicitor General for Jersey, made a finding of fact and dismissed the grave and criminal assault charge, awarding costs to the defendant. The judgment is scathing of the treatment meted out to Mr Gosselin by the doorman and made a finding of fact that Mr Gosselin did not appear to be either drunk or disorderly when the film taken by the CCTV cameras outside the premises was watched by the Court.
4. The Relief Magistrate expressed surprise that none of the three CCTV cameras on the first floor of All Sports recorded any part of the violence which had allegedly occurred. At some time Mr Gosselin received what the Relief Magistrate described as "life threatening" injuries.
5. The question that I am asked to resolve is whether the Relief Magistrate's judgment, previous statements and the transcript of evidence in the Magistrate's Court, is evidence that should be viewed by the Jurats in the Royal Court in relation to a civil action by Mr Gosselin against the company trading as "All Sports".
6. Advocate Santos Costa for the defendant company argues strongly that such evidence should be excluded. Advocate Scholefield for Mr Gosselin equally strongly argues that it should be included.
7. Advocate Santos Costa outlined the facts as he understood them. Apparently there is an allegation that Mr Gosselin at some stage head-butted Mr Wallace, the doorman. Though nothing shows on the Company's three first floor CCTV cameras of any relevance, the Court will be shown all the CCTV footage outside "All Sports" on the evening of the 20th December and will hear witnesses.
8. Both counsel referred to Hollington -v- F Hewthorn and Company Limited CA (1943) 2 All ER 35. It is trite law to say that anything sought to be admitted in evidence must be of sufficient relevance to be admitted. Facts in issue must normally be proved by evidence. Hollington -v- Hewthorn established that evidence of a conviction is generally irrelevant. It must be recalled that on the facts of a case, the plaintiff in a civil action for negligence on the part of the defendant driver, (the driver of the plaintiff's car having died after the action was brought) sought to give evidence of the conviction of the defendant driver for careless driving and of a statement made by the deceased driver of the plaintiff's car to a police officer. In the judgment of the Court of Appeal, Goddard LJ said:
"In truth, the conviction is only proof that another court considered that the defendant was guilty of careless driving. Even were it proved that it was the accident that led to the prosecution, the conviction proves no more than what has just been stated. The court which has to try the claim for damages knows nothing of the evidence that was before the criminal court. It cannot know what arguments were addressed to it, or what influenced the court in arriving at its decision. Moreover, the issue in the criminal proceedings is not identical with that raised in the claim for damages. Assume that evidence is called to prove that the defendant did collide with the plaintiff, that has only an evidential value on the issue whether the defendant, by driving carelessly, caused damage to the plaintiff. To link up or identify the careless driving with the accident, it would be necessary in most cases, probably in all, to call substantially the same evidence before the court trying the claim for personal injuries, and so proof of the conviction by itself would amount to no more than proof that the criminal court came to the conclusion that the defendant was guilty. It is admitted that the conviction is in no sense an estoppel, but only evidence to which the court or a jury can attach such weight as they think proper, but it is obvious that once the defendant challenges the propriety of the conviction the court, on the subsequent trial, would have to retry the criminal case to find out what weight ought to be attached to the result. It frequently happens that a bystander has a complete and full view of an accident. It is beyond question that, while he may inform the court of everything that he saw, he may not express any opinion on whether either or both of the parties were negligent. The reason commonly assigned is that this is the precise question the court has to decide, but, in truth, it is because his opinion is not relevant. Any fact that he can prove is relevant, but his opinion is not. The well recognised exception in the case of scientific or expert witnesses depends on considerations which, for present purposes, are immaterial. So, on the trial of the issue in the civil court, the opinion of the criminal court is equally irrelevant."
9. Advocate Scholefield argued strongly that despite the fact that the civil action is between Mr Gosselin and the Company owning "All Sports" that is a mere technicality because the witnesses and the parties will apparently be identical to those that appeared in the Magistrate's Court. There is some force in that argument but does it alter the basic rule? I think not. I say that in the context of Hollington -v- Hewthorn which is often treated as an authority for the proposition that (excluding the recognised exceptions to the rule) a judgment in personam in civil proceedings is not admissible in later proceedings between strangers or between a party to the original proceedings and a stranger to establish the truth of the findings in the earlier action. In any event the standard of proof is quite different in criminal and civil proceedings. The judgment of the learned Relief Magistrate was not a conviction. It was an acquittal on the facts before the Court and on a charge of grave and criminal assault.
10. In Howaz -v- Thomas Cook Group Ltd (27th October, 2000) QBD Keene J said this in the course of his judgment:
"I conclude therefore that the principles adumbrated in Hollington -v- Hewthorn remain applicable in cases where none of the statutory or common law exceptions operate. Those principles prevent the findings made in earlier civil cases from being used subsequently as evidence of the facts found. They do not in themselves operate as a bar to the findings being put by way of cross examination as to credit, subject to the controls of the court,..."
11. This in my view must be so, for the judgments (and Hollington -v- Hewthorn was dealing essentially with a conviction) are in essence expressions of opinion and as such they are inadmissible. The only Jersey case which counsel have been able to identify is Corby -v- Lewis and Le Main (1982) JJ157. The Court in that case dealt with the criticisms of Hollington -v- Hewthorn and certain judgments by Lord Denning (who appeared as counsel in Hollington -v- Hewthorn) and in particular to the case of McIlkenny -v- Chief Constable of the West Midlands (1980) QB 293 at 319. This case turned on the question of issue estoppel and in that case Lord Denning MR said this: (the extract is at page 164 of Corby -v- Lewis and Le Main (1982) JJ157:
"Beyond doubt, Hollington -v- Hewthorn was wrongly decided. It was done in ignorance of previous authorities. It was done per incuriam. If it were necessary to depart from it today, I would do so without hesitation. But it is unnecessary. It has been replaced by section 11 of the Civil Evidence Act 1968: and it is to that section that we must turn for the modern law".
12. The Criminal Evidence Act does not apply in this jurisdiction. Surprisingly, the Civil Evidence (Jersey) Law 2003, registered by the Royal Court on 21st March, 2003 (having been sanctioned by the Privy Council on the 27th February, 2003) has not yet come into force and I decline to consider the provisions until such times as the States, by Act, make an appointed day for it.
13. In the context of McIikenny -v- Chief Constable of the West Midlands the important decision of State of Qatar -v- Al Thani [1999]JLR118 has been noted; where the Court said at 126:
"We qualify the proposition"
(that the doctrine of stare decisis as expounded in the English Courts is not part of the law of Jersey)
"only because, in our judgment, it is open to the Royal Court, as it would be to a Scottish court to decline to follow a decision which has been invalidated by subsequent legislation or some such compelling change of circumstance".
14. Despite that, and despite the powerful arguments of Advocate Scholefield, I can see no compelling reason to allow the Relief Magistrate's judgment on the acquittal, the previous statements of the parties and their witness, nor the transcript of evidence in the Magistrate's Court to be before the Jurats in this civil action.
15. I would say this, if any witness departs materially from anything said on oath in the Magistrate's Court then an application can, in my view, be made in the absence of the Jurats for that recorded evidence to be put to the witness in cross-examination.
Authorities
Phipson on Evidence (15th Edition): paras 38-14, 38-75 to 38-81; 38-86 to 38-88.
Hollington -v- F. Hewthorn & Co. Ltd. (1943) 2 All ER 35.
R -v- D; R -v- J (1996) QB 283.
Hawaz -v- Thomas Cook Group Ltd (27th October, 2000) QBD.
Hunter -v- Chief Constable of Eest Midlands Police and Ors (on appeal from McIlkenny -v- Chief Constable of the West Midlands (1980) QB 293). [1982] AC 529.
Corby -v- Lewis and Le Main (1982) JJ 157.
Jersey Law Commission Consultation Paper: The best evidence in civil proceedings (Consultation Paper No. 3: 3rd October, 1999).
Civil Evidence (Jersey) Law 2003.
State of Qatar -v- Al Thani [1999]JLR118.