Jersey Unreported Judgments

Hearing (Criminal) - application by the defendant to exclude statements made by the complainant.

[2016]JRC023

Royal Court

(Samedi)

25 January 2016

Before     :

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

The Attorney General

-v-

B

C. M. M. Yates, Esq., Crown Advocate.

Advocate E. L. Wakeling for the Defendant.

JUDGMENT

THE commissioner:

1.        The defendant is due to stand trial before the jury accused of two counts of grave and criminal assault (Counts 1 and 3) and one count of sodomy (Count 2). 

2.        The Crown will be relying, principally, upon the evidence of the defendant's wife, the complainant, and her employers Mr and Mrs C and I have been provided with statements. 

3.        Counsel have agreed that elements of those statements should not be adduced by the Crown because they constitute hearsay, but the defendant applies to exclude statements made by the complainant as to the history of violence within their relationship over nine years of marriage, namely the following:-

"(a)      He pulls my hair, slaps me in general and kicks me.  He usually kicks me in the stomach, but it could be anywhere, he could find any bit on my body.

(b)       "The first time he assaulted me [in Madeira] - he put the palm of his hand on my eye and pushed me backwards, making me fall on top of the sofa.  After this he left the house.  I was left with a right black eye for 2 or 3 weeks."

(c)       "[B subjected her to various sexual indignities] ...At the start, I thought this behaviour was normal, but later realised it wasn't.  He made me feel abused and worthless.  I think that in B's (illegible) I was only good for this and nothing else."

(d)       "Other times if anyone made any comment about me it was reason enough for him to hit me.  He said he had already told me before about some of my actions or about not speaking to other people.  Anything was reason enough.  Usually I wouldn't say anything because I knew what I would get.  He would kick me in the stomach, kick my legs, my back where (illegible).  He also ended up hitting my head against the wall, and would bite me, always in places where it was difficult to see.  B wouldn't hit me in the face, so there wouldn't be any marks."

(e)       "B was always criticising my work, and would say I trusted customers too much.  B would always go to the café in the morning before work, after work and when he picked me up.   If he ever saw me speaking to a customer, he would just look at me, as if to say he was watching me.  On these days I knew I was going to get [illegible (although the Crown contends the word is Portuguese slang for "beating")] when I arrived at home,"

(f)        "B always hit me for the same reasons, because there was something he didn't like.  B saw me as a sexual instrument, never as a wife, he never gave me any affection or attention."

4.        Advocate Wakeling, for the defendant, submitted that these allegations of historic violence represent alleged misconduct by the defendant on occasions other than those charged and should be excluded on the basis that it is bad character evidence and the defendant has not lost his shield. 

5.        The defendant also seeks to exclude the following passages from the statements of Mr and Mrs C:-

"(a)      There were times when I saw B argue with D in front of everyone, which would make her cry and scared in front of everyone.  If she was late finishing work that would be enough for him to start an argument for no reason, because he was always drunk." (Mrs C's Statement - paragraph 7).

"(b)      D went home with B but not long after I got home, D was on the phone to my wife and I had to go quickly and collect D from Robert's Garage at Springfield because B had hit her.  I took D home and she was talking to my wife but B rang her and said if she didn't come home she would never see her daughter again, so she left and went home to him" (Mr C's Statement - paragraph 13).

6.        Advocate Wakeling argues that these paragraphs from their statements should be excluded on the basis that they go to general propensity. 

7.        Advocate Yates contended that this is a case where background allegations should be put to the jury in order to make the case complete and comprehensible, notwithstanding that those background allegations include evidence which may establish that the defendant is guilty of offences for which he is not charged. 

8.        Counsel have referred me to the Court of Appeal decision in U v AG [2012] (1) JLR 349, relevant extracts from the current and 2003 edition of Archbold, (the latter showing the position under English law prior to the introduction of the Criminal Justice Act 2003), relevant extracts from Blackstones 1998, R v Fulcher [1995] 2 Cr App R 1251 and R v Bond [1906] 2 KB 389. 

9.        The guiding principle is set out in a judgment of Nutting JA in U v AG at paragraphs 39-41 as follows:-

"39     The seminal exposition of the admissibility of background evidence of such a kind derives from the judgment of Purchas, L.J in the case of R v Pettman (12):

'Where it is necessary to place before the jury evidence of part of a continual background or history relevant to the offence charged in the indictment, and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence with which the accused is not charged is not of itself a ground for excluding the evidence'.

40       The inclusion of such evidence is sometimes said to originate from the justification of including evidence of motive, for example, in cases of murder.  Although it is never necessary for the prosecution to prove motive as an ingredient of that offence, it is nonetheless often permissible for the prosecution to prove the existence of animosity between the accused and the deceased.  Lord Atkinson in R v Ball (6) said ([1911] AC at 58):

'Surely in an ordinary prosecution for murder you can prove previous acts or words of the accused to shew he entertained feelings of enmity towards the deceased, and that is evidence not merely of the malicious mind with which he killed the deceased, but the fact that he killed him.  You can give in evidence the enmity of the accused towards the deceased to prove that the accused took the deceased's life.  Evidence of motive necessarily goes to prove the fact of the homicide by the accused, as well as his 'malice aforethought', inasmuch as it is more probably that men are killed by those who have some motive for killing them than by those who have not.'

41       But in truth all that is required is that such evidence passes the threshold test for relevant, and, although background or historical evidence may include evidence of similar fact, it is important to distinguish evidence of background from similar fact evidence because of the higher test of admissibility invariably accorded to the latter.  Professor Birch pointed out the distinction in his Commentary on R v Stevens ([1995] Criminal Law Review at 651):

'Similar fact evidence is employed as evidenced which tends strongly to prove a particular fact (identity, intent, causal connection or whatever) which could be proved by other means but which the prosecution has chosen to establish by reference to other misconduct of the accused.  As such, the evidence may need to be possessed of a high degree of probative value in order to buy its ticket to admissibility, for it involves 'dragging up' material which is by definition prejudicial and which might have been left out.  Thus it has been said that such evidence should be admitted in circumstances where it would be an 'affront to common sense' to exclude it (per Lord Cross in Director of Public Prosecutions v Boardman [1975] A.C.421 at p.456).  Background evidence, on the other hand, has a far less dramatic but no less important claim to be received. D 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, L.J. 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.'

10.      He went on to say at paragraphs 44 and 45:-

"44     Examples of cases where background evidence has been held to be admissible include, as indicated above, R. v. Sidhu, where evidence of the participation by the appellant in a film supporting terrorist activity was admissible to show that the appellant had Semtex in his possession for an unlawful purpose.  In R. v. Fulcher, evidence of previous non-accidental injuries to the deceased, the appellant's baby son, was held to be admissible to show a history of violent conduct towards the baby as well as to rebut any suggestion that the fatal blow was accidental.  In R. v. M(9), evidence of sexual behaviour by other members of a family towards each other was held to be admissible in order to establish the context in which a brother charged with raping his younger sister felt no inhibition in doing so, secure in the knowledge that she would not seek the protection of her parents and in which, by the same token, the sister, once raped, was afraid to make any complaint to her family.

45       In R. v. Phillips (13), the Court of Appeal ruled that evidence of the relationship between the appellant and his wife was admissible at his trial for murdering her.  Dyson, L.J., (as he then was) said ([2003] 2 Cr. App. R.35 at para. 29):

'We do not propose to conduct an exhaustive analysis of all the authorities to which we were referred.  To a great extent, they turn on their own facts.  The essential question in every case is whether the evidence passes the test of relevance.  If it is relevant then it is admissible unless, in the exercise of its discretion, the court decides that fairness requires it to be excluded."

11.      Advocate Wakeling submits that it would be perfectly possible for the Crown to adduce evidence of the grave and criminal assaults as isolated acts of alleged violence, without going into the history of the relationship between the defendant and the complainant.  On the Crown's case, the background of violence between the defendant and the complainant permeates all of the actions of the complainant, including the way she brought the matter to the attention of the police, and her account would be incomprehensible without understanding the nature of that relationship.  It would technically be very difficult for her to give an account without going into that background.  

12.      In his interview with the police, which will be before the jury, the defendant states that he had become "a little jealous" when his wife spoke to other people but that he loved her and denied any physical attacks upon her.  If he chooses to give evidence, it is reasonable to suppose that he will make statements to similar effect before the jury.  That being the case, the Crown must be entitled to ask that the jury be given what it says is the full picture, namely that these are not isolated incidents out of character, but arose out of a relationship marked by violence brought about by excessive jealousy. 

13.      In my view, it would be wholly unrealistic to expect the complainant to give her account of the incidents which are the subject of the charges without going into the background of their relationship.  It seems to me that when dealing with allegations of violence conducted between people in a relationship and within the privacy of their home, it will almost always be necessary for the jury to be given the full picture as to the nature of that relationship.  It will, of course, be for the jury to decide whose evidence as to the nature of that relationship is to be believed. 

14.      Matters have moved on to this extent that the defendant does now admit in relation to Count 3 that he hit the complainant on the arm and leg with his boot, but he denies subsequently biting her arm and finger.  It is currently proposed, subject to further discussion between counsel and approval by the Court, to divide Count 3 into two counts, on the basis that the defendant will plead guilty to the first part of the alleged assault with the boot, but not the second part, namely the biting. 

15.      In relation to the allegation of sodomy, Advocate Wakeling said that the defendant's case was that they had "an ordinary sex life" and she agreed in discussion with me that the Crown must be able to counter that with the evidence of the complainant that they did not - in other words, the Crown must be able to put what it alleges is the full picture in relation to this aspect of their relationship before the jury. 

16.      Advocate Wakeling complained of the unfairness of the defendant being placed with unparticularised historical incidents of alleged violence, which put him at a disadvantage in trying to rebut them.  They should, she said, be the subject of separate charges or not referred to at all. 

17.      Advocate Yates said those incidents, which had been sufficiently particularized to form the basis of a charge, had been charged.  Furthermore, the complainant's allegations as to the violent nature of their relationship come from the complainant herself, not from other witnesses, save to the extent that Mr and Mrs C corroborate the same. 

18.      I conclude that the evidence to which the defence object is relevant in that firstly it shows the history of the relationship between the defendant and the complainant without the totality of which the account placed before the jury would be incomplete or incomprehensible and secondly, it rebuts the suggestion of the defendant that he loved his wife and had never physically assaulted her and that they had a normal sex life. 

19.      There is an element of unfairness in a defendant having to counter allegations about his relationship with his wife going back some years, but this background is relevant and its admission does not so adversely affect the fairness of the proceedings that I ought to exclude it under Article 76 of the Police Procedures and Criminal Evidence (Jersey) Law 2003. 

20.      The application to exclude is therefore dismissed. 

21.      I do have a concern as to the admissibility of the statement of Mr C to which the defence take objection and as set out above, on the different ground that it appears to be entirely hearsay.  Advocate Yates said he was alert to this; clearly Mr C cannot give evidence of what his wife told him from her telephone conversations with the complainant.  I note that neither his wife nor the complainant refer to this incident in their statements in any event. 

Authorities

U v AG [2012] (1) JLR 349.

Criminal Justice Act 2003.

Archbold Criminal Pleading, and Evidence Practice 2003.

Blackstones 1998.

R v Fulcher [1995] 2 Cr App R 1251.

R v Bond [1906] 2 KB 389.

Police Procedures and Criminal Evidence (Jersey) Law 2003.