Jersey Unreported Judgments

[2010]JRC102

ROYAL COURT

(Samedi Division)

27^th May 2010

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

The Attorney General

-v-

James Angwenyi

M. St. J. O'Connell, Esq., Crown Advocate.

Advocate I. C. Jones for the Defendant.

JUDGMENT

THE commissioner:

1.        In the course of the trial of the defendant I rejected with brief reasons an application by the prosecution for a statement given by the defendant to the police to be admitted into evidence.  I indicated that I would give fuller reasons in a written judgment which I now do.  Whilst there are arguments as to whether the defence are correct to describe the statement as "a caution statement", I will, for convenience refer to it as such. 

2.        The defendant was being tried for the offence of rape for which he was subsequently acquitted.  In brief terms, the prosecution case was that the defendant (aged 30) met the complainant (aged 18) at Snow Hill and that they walked together via Park Stores and the Howard Davis Park to his room in the staff quarters at the Hotel Ambassadeur, where it is alleged that he raped her. 

3.        On arrest, the defendant gave "no comment" answers to questions put to him by the police, but through his legal advisers, submitted to the police a prepared caution statement.  In that statement, the defendant admitted that sexual intercourse had taken place, but that it had been consensual.  Apart from the admission that sexual intercourse took place, the caution statement was largely concerned with the issue of consent. 

4.        In the period leading up to the trial, the prosecution took the view that the real issue in the case was whether the complainant had consented to sexual intercourse.  Accordingly, it regarded the caution statement as entirely self-serving on that issue. 

5.        The prosecution's position is set out in an e-mail from Advocate Harrison of Applebys (acting for the prosecution) to Advocate Jones (acting for the defence) of 26^th April, 2010, as follows:-

"I write further to your email dated 15 April, 2010, concerning Mr Angwenyi's caution statement.

The Crown's view is that the caution statement is inadmissible and should not go before the jury.

The issue of admissibility of voluntary statements made to the police was considered in R-v-Pearce (1979) 69 Cr.App.R.365 (a scanned copy of which I have attached to this email for your convenience).  In that case the Court of Appeal set out the following principles:-

1 -       A statement which contains an admission is always admissible as a declaration against interest and is evidence of the facts admitted.  With this exception a statement made by an accused person is never evidence of the facts in the statements.

2 - (a)  A statement that is not an admission is admissible to show the attitude of the accused at the time he made it;

(b)       A statement that is not in itself an admission is admissible if it is made in the same conte4xt as an admission, whether in the course of an interview or in the form of a voluntary statement.  It would be unfair only to admit statements against interest whilst excluding part of the same interview or interviews; and

(c)       the prosecution may wish to draw attention to inconsistent denials.

3.        Although in practice most statements are given in evidence even when they are largely self-serving, there may be rare occasions when an accused produces a carefully prepared written statement to the police, with a view to it being made part of the prosecution evidence.  The trial judge would plainly exclude such a statement as inadmissible.

The Crown's view is that Mr Angwenyi's statement does not fall within either principle 1 or 2(a), (b) or (c) and even it if did it clearly falls within the 3^rd principle and is therefore inadmissible in any event."

6.        By e-mail of 4^th May, 2010, Mr Jones indicated to the prosecution that having reflected on matters, the defendant would not be making any of the proposed formal admissions (for the purposes of Article 3 of the Criminal Justice (Evidence and Procedure) (Jersey) Law 1998, from which it followed that there would be no admission that sexual intercourse had taken place.  By e-mail dated 5^th May, 2010, Mr Jones expressed the view that the caution statement was admissible and did form part of the prosecution case, to which Mr Harrison responded as follows:-

"The Crown's position in respect of the so called 'caution statement' is clear:  It is inadmissible as a matter of law.  We have provided you with clear authority in support of our position.  You have provided no authority in support of your contention that it is admissible, either:-

(i) in its own right;

(ii) because it was referred to in the third interview; or

(iii) because it was exhibited by DC Hare.

It is the Crown's position that none of these factors are capable of curing the fact that the statement is inadmissible.  If the defence attempt to tender the statement in evidence the Crown will object to its admissibility on the basis set out in my email dated 26/4/10. 

In any event it appears that the defence position is that the statement forms part of the prosecution case, and should be put before the jury by the prosecution.  We do not agree.  The Crown has discretion as to how it puts its case and as to what evidence to tender in support of its case.  If the defence are of the view that the Crown in exercising its discretion contrary to principle by refusing to tender the statement then the defence is entitled to make an application to the Commissioner to that effect and the Commissioner will no doubt make whatever order he considers appropriate. 

The admissions were not otiose.  The Practice direction in respect of Plea and Directions Hearings in Criminal Matters states the following: "Particular attention will be given to ensuring that the trial before the jury/Jurats concentrates on the real issues in dispute.  Thus counsel will be expected to have considered carefully which matters can be dealt with by way of admissions and which witness statements can be read."  The real issue in dispute in this case is whether intercourse was consensual or not.  It is the Crown's view that if uncontroversial facts can be agreed and admitted then they should be admitted irrespective of whether witnesses giving live evidence are likely to repeat those facts.  If the Commissioner and jury know that certain matters are admitted then they need not waste time and effort determining whether they are persuaded by the evidence in respect of those matters." 

7.        At the trial, the defendant elected not to give evidence, a position he had apparently made clear from  the outset, relying on his undoubted right to require the prosecution to prove its case, that is the whole of its case, including whether sexual intercourse had taken place.  In his cross-examination of the complainant, Mr Jones probed her evidence, drawing out what he said were inconsistencies in her testimony on the one hand and her statement to the police on the other and testing how certain she was on the issue of penetration. 

8.        No questions were put by Mr Jones to the complainant about lack of consent which Mr O'Connell conceded was readily understandable, in that Mr Jones' questioning was aimed at undermining/testing the complainant's evidence concerning penile penetration.  It would have been conceptually challenging for him to have argued that there was insufficient evidence to prove penile penetration had occurred and subsequently to have argued that the victim consented to the intercourse.  

9.        Following completion of the complainant's evidence, the prosecution made an application to adduce the caution statement.  Mr O'Connell's position is summarised in an e-mail he sent on the same day to Mr Jones as follows:-

"You and I have spoken about this.  Your position is that the prosecution has manoeuvred the defence into a position where the statement has been excluded and not relied upon by the prosecution.  Accordingly the defence has decided to run its case in the way it has and you say that it is now not fair for the goal posts to be shifted and for the statement to go in. 

If that is your position then I regret to say I do not accept it and I am certain that it is misconceived.  I say this for the following reasons:-

(i) I have always been at pains to stress that the defence is free to make whatever applications it wishes to in relation to this statement and generally.  I have merely shared with you in a clear and frank way what our prosecution position is.  You are certainly not bound to accept our views and clearly you do not. 

(ii) As recently as last evening, prior to the start of the trial, I stressed that you could make whatever applications you wished.  You did not need such a confirmation from me because you know full well that this is your client's entitlement.  It follows that it is not right or proper to assert that the prosecution has manoeuvred the defence into any particular position.  With respect, that is nonsense. 

(iii) The prosecution has run its case in a consistent and unchanging manner.  It is the moving goal posts of the defence case which has resulted in a review by us of how to deal with this statement.  Only because you have run the defence case in a particular way that was selected by the defence has it now become right and fair to introduce the statement.  

I do not think that I can make my position any clearer than I have.  I have done my best to be clear and open.  I put you on express notice in my email of last evening, prior to the start of the trial, that if the defence chose to change tack then there may be circumstances in which the statement would need to be admitted in evidence.  In my opinion the change of tack that has been seen today is an event which now justifies an application to adduce evidence of the statement.  I fully expect you to oppose this but you now at least have the advantage of seeing my reasoning, even if you disagree with it." 

10.      In his submission to me Mr O'Connell said the prosecution had taken the position prior to trial, that as the defendant had indicated that he was not going to give evidence, it was not fair that he should have the benefit of a self-serving statement upon which he could not be tested under cross-examination.  The prosecution had made it clear that it had reserved its rights in relation to the statement and the defendant must now take the consequences. 

11.      Mr Jones resisted the application.  The prosecution had made it clear that the statement was inadmissible and not part of the prosecution's case and noting the lack of any medical evidence supporting the prosecution's case, the defence had elected to defend the prosecution case by putting the whole of that case to proof, including the issue of whether sexual intercourse had taken place.  No positive defence was put forward and the defendant maintained his decision not to give evidence.  For the statement to be admitted now would irretrievably damage the position of the defendant before the jury.  The complainant would have to be recalled and cross-examined again on a different basis, namely that sexual intercourse had in fact taken place, but with consent. 

Decision

12.       The prosecution's characterisation of the statement as self-serving was correct in so far as the issue of consent was concerned, but that characterisation assumed that sexual intercourse was admitted. In R-v-Garrod (1997) Crim LR 445, the English Court of Appeal stated that where a statement contained an admission of fact which was significant to any issue in the case, meaning capable of adding some degree of weight to the prosecution case on an issue which was relevant to guilt, the statement must be regarded as "mixed".  In Weston-v-DPP (1997) 1 Cr App R 474, DC, it was held that whether a statement was mixed or not, was not determined by the purpose for which the prosecution sought to use it but upon examination of the statement itself. 

13.      In fact, the caution statement is a "mixed statement" because it contains the important admission by the defendant that sexual intercourse had taken place, that being one of the ingredients of the offence.  As a mixed statement, it was clearly admissible as part of the prosecution case, and this on the authority referred to in Mr Harrison's e-mail of 26^th April, 2010, (which can be found at Archbold 2010 edition, paragraph 15-404).  The following passage from Archbold 2010 edition, paragraph 15-402 gives guidance as to how mixed statements should be dealt with:-

"Their Lordships, in both Sharp and Aziz, specifically approved the following passage in the judgment of Lord Lane C.J. in R-V-Duncan, 73 Cr.App.R.359 at 365:-

"Where a 'mixed' statement is under consideration by the jury in a case where the defendant has not given evidence, it seems to us that the simplest, and therefore, the method most likely to produce a just result, is for the jury to be told that the whole statement, both the incriminating parts and the excuses or explanations, must be considered by them in deciding where the truth lies.  It is..... not helpful to try to explain to the jury that the exculpatory parts of the statement are something less than evidence of the facts they state.  Equally, where appropriate, as it usually will be, the judge may, and should, point out that the incriminating parts are likely to be true (otherwise why say them?), whereas the excuses do not have the same weight.  Nor is there any reason why, again where appropriate, the judge should not comment in relation to the exculpatory remarks upon the election of the accused not to give evidence." 

14.      Thus the whole statement would go before the jury, but it would have been open to me, as the trial judge, to point out to the jury that the self-serving element in relation to consent had not been tested by cross-examination. 

15.      As a matter of first principle, I took the view that it is for the prosecution to prove its case and to decide what evidence it wishes to adduce for that purpose.  The defendant is entitled to put the prosecution to proof on the case it presents, as made clear in the standard direction given to the jury when a defendant elects not to give evidence.  Sexual intercourse was one of the elements of the offence that the prosecution had to prove, and the statement was admissible for that purpose.  The prosecution decided to proceed without the statement, relying on the evidence of the complainant and other evidence not relevant for me to summarise for the purposes of this judgment.  The defence conducted itself accordingly and it would be unfair on the defendant and prejudicial to his position before the jury to now allow the prosecution to adduce that statement mid trial because the defence had with some success (it would appear) tested the strength of the complainant's evidence in cross examination.  I therefore rejected the application.   

Authorities

Criminal Justice (Evidence and Procedure) (Jersey) Law 1998.

R-v-Garrod (1997) Crim LR 445.

Weston-v-DPP (1997) 1 Cr App R 474.

Archbold 2010 edition.