Jersey Unreported Judgments

Hearing (Criminal) - admissibility of evidence.

[2015]JRC004B

Royal Court

(Samedi)

9 January 2015

The Attorney General

-v-

Brandon Jules Emile Dubois

Tamara Nadine Dubois

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

Advocate H. J. Heath for Brandon Dubois.

JUDGMENT

THE commissioner:

1.        Brandon Dubois ("the defendant") is due to stand trial with his co-accused, his sister Tamara Dubois, for one count of grave and criminal assault alleged to have taken place outside the Mayfair Hotel in the early hours of 8^th April, 2014. 

2.        The Crown intends to adduce CCTV evidence of the defendant in the period leading up to the alleged assault, namely:-

(i)        Timed from 01:55:15 - 01:55:54 inside the Havana Club which shows him to be intoxicated and (although there is no sound) aggressive.  Advocate Pedley for the Crown submits that his aggressive demeanour will be corroborated by the evidence of the manager of the Havana Club, who says in his statement that the defendant was very drunk and abusive and threatened him on the way out.  The identity of the defendant in this recording is confirmed by the defence. 

(ii)       Timed from 1:58 - 2:04 in Bath street, just outside the entrance to the Havana Club.  Again this shows the defendant as intoxicated, at one point falling on to the street and rolling about on the surface.  The identity of the defendant in this recording is confirmed by the defence. 

(iii)      Timed from 2:25:04 - 02:35:38 in Beresford Street, looking east to what was West Centre.  This recording is taken from some considerable distance and it is not accepted by the defence that the defendant can be reliably identified.  It shows what the prosecution say is the defendant falling on to the street and then becoming involved in a series of what appear to be scuffles or fights. 

(iv)      At the General Hospital, two hours after the alleged assault.  This shows the defendant on the hospital bed, again intoxicated and aggressive in his demeanour.  He also makes comments which appear to be racist and homophobic.  He gives an explanation as to what happened that evening, namely that his girlfriend was knocked out and he intervened to defend her.  This account is apparently consistent with what he said to the police in his interview. 

3.        Advocate Heath for the defendant has helpfully prepared a written description of what each of the four recordings show and I have had those recordings played to me. 

4.        The CCTV recordings taken prior to the alleged assault are relevant, submits Advocate Pedley, because they show the demeanour of the defendant in the period leading up to the assault namely that he was intoxicated and aggressive - in Advocate Pedley's words "spoiling for a fight" - which was consistent with the evidence that will be given by the night porter who according to his statement will describe the defendant as very drunk and saying "I have been fighting already - I'll fight with you if you want".  It will also be alleged by the complainant that the defendant said to him "you've big.  I don't care, I'll fight with you".  All of this will, say the Crown, negate the defendant's suggestion that he was not the aggressor. 

5.        Advocate Pedley further submitted that this CCTV evidence was relevant to show that the defendant was present outside the Mayfair at the time of the alleged assault.  It wasn't clear to me how CCTV evidence of being at other parts of St Helier (last seen not moving in the direction of the Mayfair) would assist much in that respect. In any event it would not appear that there is any dispute that the defendant was at the scene of the alleged assault outside the Mayfair Hotel as he has pleaded guilty to conduct likely to cause a breach of the peace on that occasion. 

6.        It was also relevant, said Advocate Pedley, because outside the Mayfair the defendant's shirt was seen to be torn and the CCTV recording from Beresford Street showed an altercation during which his shirt might have been torn.  

7.        Advocate Heath, for the defendant, says that the recordings prior to the alleged assault are unclear and irrelevant, being more prejudicial than probative.  It would not be in dispute that the defendant was intoxicated (and this will be offered as an admission) but it will be disputed that he was spoiling for a fight. 

The legal test

8.        Advocate Pedley says that the defendant's conduct as shown on the CCTV recordings before the alleged assault do not suggest that he has previously committed other criminal offences and are not evidence therefore of bad character, for which the test would be whether its prejudicial effect outweighs its probative value, which is the test suggested by Advocate Heath (see Glover v AG [2008] JLR Note 30).  It is more appropriate, says Advocate Pedley, to consider the matter under Article 76 of the Police Procedures and Criminal Evidence (Jersey) Law 2003, namely whether the admission of this evidence would so adversely affect the fairness of the proceedings that the Court ought not to admit it. 

9.        As the Court of Appeal made clear in U v AG [2012] 1 JLR 349 at paragraph 41, what is required is that the evidence passes the threshold test for relevance.  If it is not relevant, then it is not admissible.  If it is relevant, then it is admissible, but subject to the trial judge's discretion to exclude it under Article 76.  Without further discussion with counsel, I do not see any difference between applying the test of whether the evidence would so adversely affect the fairness of the proceedings that the Court ought not to admit it and whether its prejudicial effect outweighs its probative value - it seems to me that they amount to the same thing.  It would adversely affect the fairness of the proceedings if the prosecution adduced evidence the prejudicial effect of which outweighed its probative value. 

10.      As the Court of Appeal went on to say at paragraph 41:-

"Background evidence, on the other hand, has a far less dramatic but no less important claim to be received.  It is admitted in order to put the jury in the general picture about the characters involved in the action and the run-up to the alleged offence. It may or may not involve prior offences; if it does so this is because the account would be, as Purchas LJ says [in R v Pettman (May 2nd, 1985, unreported) 'incomplete or incoherent' without them.  It is not so much that it would be an affront to common sense to exclude the evidence, rather that it is helpful to have it and difficult for the jury to do their job if events are viewed in total isolation from their history."

Decision

11.      The demeanour of the defendant in the period leading up to the alleged assault is relevant, both to show that he was, on the Crown's case, intoxicated and aggressive and to rebut the suggestion that he was acting in defence of his girlfriend.  It is therefore admissible unless I exercise my discretion under Article 76 to exclude it. 

12.      I see nothing unfair to the defendant in evidence of his demeanour in the period leading up to the alleged assault being admitted.  It is of course prejudicial to the defendant, as all relevant probative evidence tends to be, but its probative effect outweighs that prejudice. 

13.      I will not, therefore, exclude the CCTV recordings of the defendant in the Havana Club and in Bath Street.  The position is different when it comes to Beresford Street.  Here, the camera is some considerable distance away and, unless the identity of the defendant in a constantly moving mêlée of people is agreed frame by frame, it is simply not possible to reliably identify him and what he may be doing.  This evidence will distract the jury from their task in an unhelpful way.  I will, therefore, exercise my power under Article 76 to exclude the CCTV recording in Beresford Street. 

14.      Turning to the CCTV recording taken in the hospital some two hours after the alleged assault, this seems to me to be of much more questionable relevance.  Yes, it still shows the defendant to be intoxicated, but his apparent aggression may be attributable to any number of intervening factors.  The defendant's explanation as to what happened is apparently consistent with what he said in his interview with the police (it would be more relevant to the Crown's case if it was inconsistent), but its prejudicial effect is greatly enhanced by his apparently racist and homophobic comments.  I am also concerned at the cumulative effect of repeated evidence of his intoxication upon the jury who will have evidence of his intoxication at the Havana Club, in Bath Street and inside and outside the Mayfair Hotel.  I accept this evidence is, marginally, relevant and therefore admissible, but I conclude that its prejudicial effect outweighs its probative value and I will therefore exclude it, pursuant to Article 76.  

Authorities

Glover v AG [2008] JLR Note 30.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

U v AG [2012] 1 JLR 349.