Jersey Unreported Judgments

Magistrate's Court Appeal - appeal against conviction and sentence.

[2013]JRC014

Royal Court

(Samedi)

22 January 2013

Before     :

W. J. Bailhache, Q.C., Deputy Bailiff, and Jurats Clapham and Olsen.

Philip Graham

-v-

The Attorney General

Magistrate's Court Appeal - conviction and sentence appeal.

The Appellant appeared in person.

Crown Advocate R. C. P. Pedley for the Attorney General.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On 26^th October 2012 the Appellant was convicted before the Assistant Magistrate of a single charge of grave and criminal assault on Mr Jonathan Pollard.  The matter was then adjourned for background reports to be prepared, and on 23^rd November the Appellant was sentenced to 150 hours community service, the Court indicating that nine months' imprisonment was the sentence which otherwise would have been imposed, together with a compensation order in the total sum of £1,305, payable at the rate of £100 a week as a minimum, with a default sentence broken down as to six weeks' imprisonment for failure to pay the £1,000 awarded in respect of injuries to the complainant, and 21 days' imprisonment in respect of the award of £305 compensation for damage to the complainant's spectacles.  The Appellant appeals against both conviction and sentence. 

2.        The appeal against conviction is entered on the basis that two prosecution witnesses were not available for cross examination; some of the evidence admitted was hearsay, and the evidence of injury was inconclusive.

3.        The evidence before the Assistant Magistrate was as follows.  Dr. Jonathan Pollard, who is a dentist, was walking his dog on 7^th February 2012 at approximately 8.30 a.m. along a footpath above Le Mourier Valley.  He was speaking over a mobile telephone to a member of a choir of which he is the conductor.  The dog, which was ahead of him, jumped up in the air and yelped, and Dr. Pollard then saw the Appellant walking along the path towards him.  He knew the Appellant because the Appellant had been doing work at his house, in respect of which there had been some dispute and there was at that time pending before the Petty Debts Court a claim by the Appellant against Dr. Pollard seeking judgment for monies claimed to be outstanding.  Dr. Pollard said that he moved to the left to allow the Appellant to pass but the Appellant came up to him and said "Where's my fucking cheque?.  I want my money.  Put that cheque in the post now."  According to Dr. Pollard, the Appellant came very close up to him and knocked him on the side of the face.  He then started punching Dr. Pollard in the ribs with his right hand very forcibly, the victim being punched between six and 12 times.  Dr. Pollard said that he asked the Appellant to stop and said there was no need for this.  Eventually he got round the Appellant, who then came running after him, and just as he turned round to say, "Look Phil just stop it.  Just leave it alone.  Just stop it" the Appellant kicked Dr. Pollard in the groin.  He described it as a full blown kick which fortunately landed slightly above the testis.  Dr. Pollard did not fall over.  He was still on the phone to Mrs Morin, the member of the choir to whom he had been speaking, who asked if he was all right.  She asked whether she should call an ambulance for him and he said that was not necessary.  He indicated he was going to call the Police, and he did so.  Later that morning a police officer attended at his property and took a witness statement from him. 

4.        Dr. Pollard said he suffered a laceration to his left cheek, some bruising to the left cheek and pain in his left ribs which he was told was either a fractured or badly bruised rib.  He said in addition that his glasses were broken, as a result of which he needed a replacement pair. He told the Assistant Magistrate that he was limited as to what he could do following the assault and had to postpone some of his cases.  The doctor signed him off for a week. 

5.        Mrs Morin, to whom he was speaking over the telephone, also gave evidence to the Assistant Magistrate.  She confirmed that she was talking over the telephone with Mr Pollard on the occasion in question, at about 8.50 a.m., and while doing so she heard a voice in the background saying, "Where's my money? Where's my fucking money?" and then she heard Dr. Pollard saying, "Phil don't do that, please that's totally unnecessary".  She heard scuffling noises which she could not quite work out.  She asked Dr. Pollard whether he was all right and he later resumed the conversation and asked whether she heard what had taken place.  She said she had and he said he had been hit.  She asked him if he wanted her to call the Police, but he said he would do so. 

6.        The Defendant himself gave evidence.  He said that there was a conversation with Dr. Pollard which started when he told Dr. Pollard that he should have his dog on a lead.  The Appellant denied punching Dr. Pollard repeatedly around the ribs, and denied kicking him in the groin.  He agreed that he might have pushed Dr. Pollard out of the way.  He thought Dr. Pollard was exaggerating his injuries.  He could not understand why Mrs Morin claimed to hear what she heard, because the telephone was in Dr. Pollard's pocket - the Appellant did not see it there but it must have been in his pocket.  The account which the Appellant gave the Assistant Magistrate was very similar to the account which he gave the Police when he was interviewed by PC Bail.  Unfortunately that interview did not take place until Wednesday 22^nd February at 9.24 a.m., some two weeks after the alleged assault.

7.        Mrs Morin's evidence was the subject of objection from the Appellant who complained that it was hearsay.  The relevant legal tests were put to him by the Assistant Magistrate and on that basis, he submitted that Mrs Morin's evidence was inadmissible.  The Assistant Magistrate decided that the evidence was admissible under the res gestae rule.  The conversation between Dr. Pollard and Mrs Morin was almost immediately contemporaneous with the alleged offence, indeed almost part of it.  It was in the Assistant Magistrate's view very unlikely that Dr. Pollard had time to think about or concoct the evidence and it was therefore admissible. 

8.        The question as to the admissibility of evidence under the res gestae rule has recently been considered by the Bailiff in the case of AG -v- Nimmo [2012] JRC 101.  In that case, the Bailiff noted that the res gestae principles had been summarised in the case of Shewan -v- AG [2006] JLR 79 at paragraph 23, where Nutting J.A. cited with approval the speech of Lord Ackner in R. -v- Andrews [1987] AC 281, as follows:-

"1.      The primary question which the judge must ask himself is-can the possibility of concoction or distortion be disregarded?

2.        To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.

3.        In order for the statement to be sufficiently 'spontaneous' it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. The fact that the statement was made in answer to a question is but one factor to consider under this heading.

 4.       Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion . . . The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused."

9.        In our judgment the Assistant Magistrate correctly addressed the res gestae test in considering the admissibility of the evidence of Mrs Morin.  She considered that it would be extraordinary for Dr. Pollard to have put his telephone in his pocket so that the Appellant could not see it.  She accepted that Dr. Pollard said what he did in the heat of the moment and that what he said to Mrs Morin immediately after the event was part of the evidence in the case and therefore admissible under the res gestae rule.  Both Mrs Morin and Dr. Pollard's evidence that Dr. Pollard was the one who would call the police is supported by the fact that he did in fact call the police on a 999 call shortly after the incident took place.  In the circumstances, we consider that the evidence was rightly admitted under the res gestae rule, and the allegation on appeal that hearsay evidence was wrongly admitted is therefore rejected. 

10.      The Appellant's complaint that prosecution witnesses were not available for cross-examination referred to two witnesses in particular - one was PC Guelpa and the other was the evidence of Dr. Kennea.  As far as PC Guelpa is concerned, the argument for the admission of some evidence from him centered upon whether or not Dr. Pollard's glasses were noted by PC Guelpa at the time of his taking the witness statement as being broken.  If PC Guelpa did not note that the glasses were broken, that went to the issue of Dr. Pollard's credibility.  The straightforward answer to this is that one does not know what PC Guelpa might have said.  The Appellant agrees that he did not ask PC Guelpa to be made available as a witness - actually for a false reason, because he thought PC Bail had taken the statement from Dr. Pollard and not PC Guelpa - and in the circumstances the failure to make PC Guelpa available for cross-examination can hardly be laid at the door of the prosecution. 

11.      As to Dr. Kennea, whom the Appellant had been expecting to give evidence below, we were advised that the doctor was in the precincts of the Royal Court and able to give evidence to us if we wished to hear from her.  We decided that we should do so, and that the Appellant should have the opportunity of cross-examining her on her evidence.  Dr. Kennea confirmed that she had examined Dr. Pollard on the afternoon of 5^th February.  She had noted both wet and dry blood on his face, which she thought indicated recent injury and which was consistent with blunt trauma to the area.  She said that she would not have written down "wet/dry blood" if she had not seen it.  Equally, if she had seen the wound scabbing, she would have documented that. 

12.      She told us that the injuries which she had identified were consistent with the explanation which Dr. Pollard gave, although she agreed that they might have been consistent with other causes too.  She said it was unlikely that Dr. Pollard could have cut his face shaving; and although she did not document the matter, she nonetheless did remember that on examining Dr. Pollard, she noted that his glasses were broken. 

13.      Dr. Kennea said there was no visible bruising but there was visible swelling.  We found her to be a careful and convincing witnesses, whose evidence we accepted. 

14.      The Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949 provides as follows at Article 20(3):-

"On any appeal under Article 17, the Royal Court may by order confirm, reverse or vary the decision of the Magistrate's Court, or may remit the matter with its opinion thereon to the Magistrate's Court, or may make such other order in the matter as it thinks just, and may by such order exercise any power which the Magistrate's Court might have exercised, and any order so made shall have the like effect and may be enforced in like manner as if it had been made by the Magistrate's Court."    

15.      Article 17 does not itself give any indication as to the basis upon which an appeal from the decision of the Magistrate should be approached by the Royal Court.  Nonetheless it is clear that if there has been some procedural defect before the Magistrate which is of sufficient significance, the Royal Court will interfere with the decision below; and it is also quite clear that the Court occasionally directs that witnesses are heard before the Royal Court in relation to the appeal, as indeed we have done.  Similarly, where there is an issue of law where the Royal Court is of the view that the Magistrate went wrong in a material way, the Court will invariably interfere with the decision below.  Where there is simply a complaint about the evidence that was given, the Court's approach has been said on many occasions to be that as set out in Rushton -v- Attorney General [Royal Court October 16^th 1989 Unreported] where the Court said:-

"The Court of course has on many occasions said that its duty in looking at an appeal on conviction from the Magistrate below is to examine the transcripts to see if there is evidence on which the Magistrate concerned could properly have come to the decision he did.  If there was that evidence, then even though the Court might not necessarily have come to the same decision, the Court does not lightly interfere with it.  The Court has to be satisfied that there was insufficient evidence of the Magistrate to have come to the decision he did, or that he drew the wrong conclusions and inferences from the evidence before him."

16.      We mention this background because an appeal to the Royal Court is not in the same terms as an appeal under Article 26 of the Court of Appeal (Jersey) Law 1961 where the appeal is taken from the Royal Court to the Court of Appeal.  The language of the statute in that case is as follows:-

"(1)     Subject to the following provisions of this Part, on any appeal against conviction, the Court of Appeal shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law or that, on any ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal: 

Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."

17.      It is clear therefore that the Royal Court's approach to appeals from a decision of the Magistrate has historically been that it will not lightly interfere with a decision on the facts where the transcripts reveal that there was evidence on which the Magistrate could properly have come to the conclusion which he or she did. That approach is taken to give appropriate recognition to the principle that the Magistrate is in a better position than the Royal Court because he or she has had the advantage of seeing the witnesses give their evidence. 

18.      Nonetheless, it is to be recalled that the terms of the statute give the Royal Court a wide discretion on appeal.  In our judgment, there will occasionally be cases where the Court is simply uncomfortable with what has taken place below.  In England, the changes which were introduced by the Criminal Appeal Act 1968 removed the similar language as is in the Court of Appeal (Jersey) Law 1961 and instead permitted the Court of Appeal to allow an appeal against conviction if the Court considered the decision below was under all the circumstances of the case unsafe or unsatisfactory, as well as setting aside the decision on a ground of law or where there was a material irregularity in the trial.  When this was considered in R -v- Cooper [1969] 1 AER 32, the Court said this at page 33:-

"[The shift to unsafe and unsatisfactory] means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done.  This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the Court experiences it."    

19.      There has from time to time been both judicial and academic criticism of the expression "lurking doubt", but the Court of Appeal in England has continued to refer to this test from time to time - see R -v- Litchfield [1998] Crim. LR 507, and in R -v- Benton and Joseph [2000] 7 Archbold News 2 Ct - Mac, it was said that the "lurking doubt" test and an alternative formulation advanced in R -v Wellington [1991] Crim. LR 543 CA ("whether we feel a reasoned and substantial unease about the finding of guilt") are both acceptable and come to the same thing "was the conviction safe". 

20.      We consider that the tests as set out in AG -v- Rushton (supra) will, absent any other considerations, be sufficient in most cases to lead to an appeal being refused where there was evidence upon which the Magistrate could reasonably reach the conclusion he or she did.  However the qualification in the Rushton case, that the Court would not lightly intervene where those were the facts, is an important qualification because it chimes with the lurking doubt/sense of unease approach which has been advanced from time to time in the English Courts on an admittedly different statutory test. 

21.      We have had a sense of unease in the instant case, which arises from a number of different aspects of what happened in the Magistrate's Court. 

22.      Mr Graham presented the appeal himself, as indeed he had represented himself before the Assistant Magistrate.  He impressed us by the restraint with which the appeal was presented.  In our view, he made two good points.  First of all, the Court cannot understand why, the police having received a complaint and taken a witness statement on the morning of 5^th February, no approach was made to the Appellant until 22^nd February.  This was a simple matter and the Appellant should have been asked about the incident much more quickly.  The delay meant that he could not be expected to recall the events of two weeks before with the same clarity as Dr. Pollard and could not challenge that evidence effectively.   

23.      The second matter which troubled us was that despite Advocate Pedley's submissions that matters do arise at trial which no-one could have anticipated, such as whether or not the spectacles of Dr. Pollard were broken, this was a matter which could and should have been anticipated.  The breaking of the spectacles was capable of being an important part of the prosecution case, and certainly was a relevant matter for the purposes of a compensation order.  Investigation of this point at the time of trial might have been helpful to the Appellant. 

24.      This takes us onto a question of process.  The Appellant was unrepresented before the Assistant Magistrate.  This was very unfortunate.  The case cried out for the Appellant to have legal representation, given that it was effectively one person's word against another as to what took place, the only other evidence being the mark on Dr. Pollard's cheek, the evidence of Mrs Morin and the broken spectacles - and there was an ample basis for a probing investigation of that other evidence by proper cross-examination.  There is no doubt that the Assistant Magistrate did all she could in the absence of a lawyer representing the Appellant to ensure that he was aware of what legal points might be taken, but that is not the same thing as ensuring that he had representation of his own for the purposes of cross-examining material witnesses. 

25.      Furthermore there were clearly submissions to be made as to whether this allegation of assault felt into the class of being a grave and criminal assault, if the allegation were proved, or whether it should more properly have been regarded as a common assault.  Advocate Baglin, who was handling the matter for the prosecution in the Magistrates Court, touched on this in his opening, and there is a reference to the issues involved in identifying a grave and criminal assault in the concluding remarks of the Assistant Magistrate to which we will turn later.  However there is not much by way of submission on the part of Mr Graham on this point, and there were submissions that could have been made, had an advocate been instructed. 

26.      In this case, it is unclear whether the Appellant applied for legal aid, or if he did, whether it was available under the Legal Aid guidelines.  He told us that he has an irregular source of income, depending upon what work is available in his business.  He lives with his partner who has her own business which she is in the course of selling.  They own jointly a house in which there is a substantial equity, although the property is subject to a registered charge of £250,000.   There are no other substantial capital assets as far as we are aware.  We understand the position may have been that the Appellant was anxious about obtaining a legal aid certificate because it would have resulted, pursuant to the legal aid guidelines, in a substantial bill being received and the results would almost certainly have been the necessary disposal of the jointly owned property, assuming an advocate had been appointed. 

27.      Even if the Bâtonnier were prepared to issue a certificate in these circumstances, it is also plain to see that a defendant might be inhibited from applying for legal aid, the natural consequences being that his spouse or partner would be driven to realising his or her share of a jointly owned property in order to liberate the defendant's share to enable the defendant to pay his bill.  The Court understands this would be an important practical disincentive, and is troubled by it. 

28.      We have to say that we think the lack of representation in the Court below was unfortunate. This was a serious charge of grave and criminal assault, which could have resulted in the Appellant losing his liberty for a considerable period of time. It was wrong that he should have been unrepresented before the Magistrate unless that should have been his deliberate choice. The reasons for that lack of representation are not established though we note the Appellant's assertion that the lack of representation resulted in one form or another from the fact of his partial ownership of his home.  Furthermore the outcome in this particular case was in our judgment affected in more than one respect by the lack of legal representation, notwithstanding the efforts made by the Assistant Magistrate to assist the Appellant with procedural advice and to highlight objections in law he might make.

29.      In our judgment in this case, there is no doubt that there was evidence upon which the Assistant Magistrate could reasonably have convicted the Appellant of an assault.  We are doubtful as to whether this evidence was sufficient however to take the assault into the category of a grave and criminal assault.  The absence of a lawyer representing the Appellant might well have been critical to that outcome. 

30.      The Assistant Magistrate accepted the evidence of the complainant Dr. Pollard of repeated blows; a blow to the face followed by repeated blows to the ribs and a kick to the groin.  She indicated that this was accompanied by a demand for money against the background of a pending case in the Petty Debts Court, and these features rendered the assault a grave and criminal assault.  In our judgment, this was not a demand for money by menaces.  It is unsurprising when times were hard and the Appellant considered - rightly or wrongly, upon which we pass no comment - that he had been cheated out of money lawfully due to him, that he should then raise the question of the outstanding bill when he happens to come across his debtor walking his dog.  We do not know whether the rib injury suffered was serious or not, and the delay in apprehending the Appellant between 5^th February and 22^nd February was such that it was not at that point reasonably possible for the Appellant to challenge the medical evidence that was provided.  Given that the Assistant Magistrate saw the witnesses she was in a better position to assess their credibility than we are on the transcripts.  Nonetheless we think there was a reasonable basis for concluding that this was in reality a common assault and not a grave and criminal assault.  The absence of legal representation is such that we are left with serious misgivings as to whether a conviction for grave and criminal assault was fair and in those circumstances we have no option but to set the conviction for grave and criminal assault aside. 

31.      We then considered what we should do as a result of the conclusions just adumbrated.  In our judgment the Assistant Magistrate was entitled to accept the evidence which she did, particularly in the light of the conversation which Mrs Morin had heard over the telephone.  In the circumstances we allowed the appeal to the extent of substituting a conviction for common assault for that of grave and criminal assault.  Given that the appeal against conviction has succeeded to this extent, we have then had to consider the question of sentence and we think it would be right to substitute a sentence of 90 hours' community service.  The period of imprisonment which would have been imposed, had we not imposed community service, would be three months' imprisonment.  

32.      It is apparent that the Appellant does not have the means currently to pay the compensation order.  We are not satisfied it is appropriate in those circumstances to make a compensation order and accordingly we allow the appeal against the imposition of that order.  It is set aside.  The fact of doing so of course does not inhibit such civil process as may be contemplated by any relevant party.  

33.      Accordingly, the appeal succeeds to the extent set out above. 

Authorities

AG -v- Nimmo [2012] JRC 101.

Shewan -v- AG [2006] JLR 79.

R. -v- Andrews [1987] AC 281.

Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949.

Rushton -v- AG (October 16th 1989 Unreported).

Court of Appeal (Jersey) Law 1961.

Criminal Appeal Act 1968.

R -v- Cooper [1969] 1 AER 32.

R -v- Litchfield [1998] Crim. LR 507.

R -v- Benton and Joseph [2000] 7 Archbold News 2 Ct - Mac.

R -v Wellington [1991] Crim. LR 543 CA.