Jersey Unreported Judgments

Grave and Criminal assaults - reasons for not permitting the admission of evidence relating to the previous assaults.

[2018]JRC120

Royal Court

(Samedi)

5 July 2018

The Attorney General

-v-

John Sebastian Nicolle

R. C. P. Pedley, Esq., Crown Advocate.

Advocate S. E. A. Dale for the Defendant.

DECISION

THE DEPUTY BAILIFF:

1.       This is a decision on the Crown’s application to admit evidence relating to the defendant’s prior behaviour on the ground that it is similar fact evidence; for the purposes of rebutting potential defences; and also that it is necessary background information. 

2.       It is not necessary to set out the details of the case against the defendant who is charged with committing two grave and criminal assaults but the following is a sufficient summary. It is taken from the Crown’s skeleton argument:-

(i)       The defendant and the complainant in this case, met for the first time at the Shelter in 2017. They both had long-standing issues with alcohol dependency. In addition the defendant has a history of substance misuse, including heroin, and a significant criminal record. In July of that year they entered into a relationship. 

(ii)      On 25^thOctober, 2017, the defendant and the complainant were at the defendant’s flat drinking alcohol with another woman named Miss A who had herself previously been in a relationship with the defendant. 

(iii)     It is alleged that the defendant began to say derogatory things about the complainant to Miss A and then began to assault the complainant. Allegedly he punched her in her face, head and arms and also sought to choke her. The complainant left and stayed at Miss A’s flat that night. 

(iv)     The following day the complainant walked to the defendant’s flat and he apologised to her and they reconciled. The complainant wished to go to the hospital and in the light of the reconciliation and to avoid any concern about the defendant being arrested they concocted a story that the complainant got drunk, fell over, passed out and woke with her injuries. She attended the hospital for treatment on 27^thOctober, 2017. 

(v)      The defendant and complainant saw each other over the next few days and on 29^thOctober Miss A again came to the defendant’s flat. They all drank alcohol. It is alleged that the defendant began to shout and threw a drink at the complainant’s face, grabbed her and punched her with his right hand to her mouth and rib area and pulled her hair. 

(vi)     The complainant left the defendant’s flat and bumped into an acquaintance who advised her to go to the hospital. She did so and on the medical records it indicates that she said that she had been assaulted some 25 minutes previously but did not wish to name her assailant. The police became involved. A medical examination carried out by a force medical examiner identified a significant number of injuries on the complainant but, pertinently, noted that while difficult to accurately age bruises, those to the complainant’s left cheek, upper lip and inner aspects of the upper and lower lip had different appearances to the remainder of the significant bruising seen in that they were brighter and had more defined edges. It is the case for the Crown that this indicates that the injuries were sustained on two different occasions and fits with the account of the complainant. 

(vii)    In interview the defendant confirms that the complainant had been at his flat and confirmed the detail of their relationship. He admits verbal abuse but says the complainant had left uninjured but returned the next day with black eyes and injury to her nose. He suggested that it was he who persuaded her to go to the hospital. 

(viii)   With regard to the second alleged assault the defendant confirmed that the complainant was at his flat but denies any assault. He denies there was any assault or argument and simply said the complainant had become upset and left. He did not see how she could have sustained any further physical injury whilst with him and Miss A. 

3.       The Crown argues that the allegations against the defendant are strikingly similar to previous behaviours as recorded by the police since 2009. The Crown applies to adduce certain evidence in relation to Miss A and another person, Miss B because reports of the behaviour of the defendant to these two individuals have, so the Crown submits, the greatest degrees of similarity. Furthermore they had resulted in convictions. It is apparent, so the Crown submit that the defendant stayed in contact with Miss A and with Miss B after he had committed the assaults upon them for which he was subsequently convicted. 

4.       The Crown bases its assertion that these events are similar for four reasons:

(i)       The defendant forms a relationship with a vulnerable female who has issues with drink or drugs;

(ii)      When intoxicated the defendant becomes verbally abusive towards the female;

(iii)     When intoxicated the defendant can also be violent towards the female which involves punches, kicks, biting and strangulation; and

(iv)     Following such assaults the defendant apologises, the couple reconcile and the relationship continues at least for a time. 

The Law

Previous Convictions

5.       It is clear that in general terms the fact that a conviction has been recorded against the defendant in a case is not admissible in criminal proceedings against him unless it can be introduced by reason of the manner in which the defence is conducted. 

6.       InStyles -v- Attorney General[2006] JLR 210 the Court of Appeal, at paragraph 23, said this:-

“Under the common law of Jersey, a conviction is not admissible in criminal proceedings and there is no statutory exception relevant to this case. The admissions were sought under Article 3(1) of the Criminal Justice (Evidence and Procedure) (Jersey) Law 1998. This provision only applies to “any fact of which oral evidence may be given in any criminal proceedings.” The fact of the Belgium conviction, and the associated punishment and appeal, were not facts of which oral evidence could lawfully have been given. We record that at no time as the Crown sought to argue to the contrary. The prosecution ought not to have sought to have these facts admitted. … It would appear from the transcript of the directions hearing that the minds of those involved in addressing the question of admissibility of the Belgium evidence was so focussed on the similar facts aspect that they simply did not advert to this aspect, the facts of the conviction, etc. being mistakenly treated as within the scope of the similar facts application.”  

Similar Fact Evidence 

7.       The law with regard to similar fact evidence has been considered by the Court on many occasions. InH-v-Attorney General[2013] (1) JLR 210 the test was described in the following way:-

“The test for the introduction of similar fact evidence was two-fold:

(a) whether the evidence had probative value, i.e. whether it was relevant to an issue before the court, for example to prove an element of the offence or rebut a defence that was open to the accused; and

(b) whether, in the exercise of his discretion, balancing the probative value of the evidence against its prejudicial effect, the judge considered that, in all the circumstances of the case, it would be in the interests of justice to admit it.”

8.       InDPP-v-P[1991] 2 AC 447 (a leading English authority on similar fact) the English Court of Appeal held that to be admissible the probative force of the evidence must exceed its prejudicial effect. As the court said (at pages 460 and 461):-

“From all that was said by the house inReg -v- BoardmanI would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused intended to show that he was guilty of another crime. Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed and the authorities provide illustrations of that…. But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle. Hume on Crimes, 3rd Ed (1844) Vol. 2 p.3384 said long ago:-

“The aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deponing to the same facts.”

Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved.  Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree.”

9.       It is well understood that all such evidence will be prejudicial in nature. InStyles(above) the court said:-

“(1) On an application to adduce evidence of similar fact, the court should first consider whether or not the evidence was logically probative and, if so, secondly, balance that probative value against the prejudiced to the accused. The Belgian evidence was undoubtedly relevant to whether, in the present case, the drugs had been dropped from an aircraft piloted by Styles. Although there were some differences, e.g. the drugs were not the same type and had been packaged differently, to be admissible the facts had merely to be similar, not identical. The Royal Court had correctly held that the material facts were very similar and that the similarities were unimportant. Secondly, whilst the evidence was highly prejudicial to Styles, that was outweighed by its probative value and it had therefore been properly admitted. Indeed, similar fact evidence would inevitably be prejudicial to an accused, often highly prejudicial. 

Although it was not necessary for the Crown to have identified a “signature” or special feature of the evidence, as it was not the only evidence of substance against Styles, if it had been necessary the similarities would have been so striking as to have satisfied that requirement…

(2) Furthermore, the similar fact evidence was not inadmissible merely because it showed propensity on the part of Styles to have committed the present offence. Similar fact evidence would not necessarily be rejected because it showed propensity to commit the offence charged. Whilst the evidence might have been inadmissible on this basis if numerous other offenders were known to have imported drugs by dropping them from the aircraft, the charge in fact involved sophisticated skills possessed by relatively few people and there appear to have been no previous cases of drugs being imported into Jersey in this manner”.

10.     InU -v- Attorney General[2012] (1) JLR 349 at paragraph 12 the Court of Appeal said of the test for introduction of similar fact evidence that it had two stages:-

“… The first is a hard edged question of relevance, at which stage the question is whether the material has any probative value. The second stage involves a discretionary exercise to determine whether the evidence should, in all the circumstances of the case, be admitted.”

11.     In considering the first stage the judgment went on to say, at paragraph 13:-

“It is well established that similar fact evidence and is admissible if it is relevant to an issue before the Court e.g. because it tends to prove one of the elements of the alleged offence, or to rebut a defence which would otherwise be open to the accused…The question of coincidence lies at the heart of the analysis. Evidence is likely to be admissible if an attempt to explain it away by coincidence will be a front to common sense, will be against all probabilities, or would only be accepted as an explanation by “an ultra-cautious jury”…”

12.     The Court went on, at paragraph 14, to say:-

“14. It is worth emphasising that, in order to admit similar fact evidence, it is not necessary for the prosecution to wait until a specific defence has been set up. It is sufficient if the defence is reasonably available…”

Background Information

13.     The test for the admissibility of background information is also referred to inU -v- Attorney General(above). At paragraph 41 of the judgment, the Court said:-

“[Background evidence] … 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 … “incomplete or incoherent” without them. It is not so much that it would be a front to common sense to exclude the evidence, rather than 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.”

14.     It is useful to refer, for the sake of completeness, to Article 76(1) of thePolice Procedures and Criminal Evidence (Jersey) Law 2003which states:-

“(1) Subject to paragraph (2) in any proceedings a court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would so adversely affect the fairness of the proceedings that the court ought not to admit it.”

15.     To complete the evidentiary picture in this matter, it is important in my view to make reference to what the defendant has said in his Question and Answer interviews. 

16.     In the second Question and Answer interview with the defendant, conducted on 30^thOctober, 2017, there is the following exchange (at page 17 of 24):-

“377…So like I said, her statement is very consistent with your account apart from, everything apart from how she got the injuries is consistent. So is there any reason you’re saying how can you, how can you tell me that what she’s saying isn’t true, but everything else in the statement is true?

JN - Well I’m not, I’m just saying it, it did [indistinct] she, she’s being quite vindictive and she’s being vindictive again. 

377 - So it’s malicious, yeah?

JN - I think so, yeah.”

17.     At page 22 of 24, the following exchange occurs:-

“377 - Errr, now she’s alleging that she was punched in the mouth yesterday by you and now the FME is saying that she has got an injury consistent with being punched in the mouth.

JN - Hmmm

377 - How can you account for that?

JN - I can only say [indistinct] as spiteful as she’s being … she’s obviously walked to you because that looks like a brand new thing and we weren’t hitting each other last night. We weren’t pushing each other. I pushed her towards the door and said, “just go” after putting the drink in her face. And I’d go in the hallway and no-one had … just, she’s twisting all the story round, which is the same story to a point, you know what I mean?”

18.     And then later in that page there is the following:-

“JN - Right, no, no, took … well you asked me how do I think it is …

377 - Yeah

JN - … well [indistinct] she punched herself in the face. If you are being that nasty to put someone away and put someone down, and again …

377 - She punched herself in the face?

JN - well like yeah. Yeah. Yeah. Coz I’m telling you at the time she left mine to the time you’ve come round to get me or come, when I got nicked, must have been what? 10 minutes, 12 minutes, tops 15 minutes, it wasn’t long anyway”.

19.     At page 10 of 24 there is the following exchange:-

“377 - you know, you’ve got into, like, the details that she came back to yours in the morning, just like you said, she’s saying she had sunglasses on, you’re saying she had sunglasses on. Obviously the only difference is how she got those black and blue injuries as she describes.

JN - Yeah, yeah. And if you’re frightened for your life and this and that, then why is it, why … and you’re educated and you’re this and you’re that, and I’m so nasty and I’m so this and I’m so that, why would you come back? Why when I take you to the hospital even the next day…”

Conclusion

20.     As I have indicated above the Crown relies on certain features of the alleged behaviour of the defendant to the complainant and those in connection with Miss A and Miss B. 

21.     The first is that the defendant forms relationships with vulnerable women who have issues with drink or drugs. Secondly, when intoxicated, the defendant becomes verbally abusive towards the woman in question; when intoxicated he can become violent and that involves punches, kicks, bites and strangulation. Following those assaults, the couple reconcile and the relationship continues thereafter. 

22.     It does not seem to me that the fact the defendant forms relationships with vulnerable women in the way described by the Crown is particularly probative. Indeed it is perhaps not surprising that this is the case given that the defendant himself has a history of alcohol dependency and abuse of alcohol and drugs and this is the environment in which he lives. He will, it is to be supposed, have met many such women. 

23.     Similarly, it does not appear to me that the fact that the defendant becomes verbally abusive towards a woman when in drink is particularly unusual or significant. In the experience of the Court it is all too commonplace that in a drunken relationship there is verbal abuse. That feature does not appear to me, therefore, to be especially probative. 

24.     The fact that the intoxication gives rise to violence is also hardly an unusual feature and equally is not substantively probative. The fact of strangulation, which apparently is common to the assault against Miss A and the instant allegations, is a less usual feature which has some probative value.

25.     Lastly, the fact that the defendant apologises following the assaults, in circumstances of domestic violence, is often a general feature of these kinds of cases, as is, sadly, the reconciliation and resumption of the relationship. I cannot think that this is a particularly probative feature. 

26.     In summary, in considering the issue of similar fact, individually or collectively there is not to my mind a great deal of probative force in the features identified by the Crown. Undoubtedly, however, there would be a significant prejudicial effect were they to be admitted.

27.     There remains, however, the question of the rebuttable of a defence open to the accused. I cannot ignore the Question and Answer interview sections set out above and the fact that the defendant says “why would you come back”in suggesting he did not carry out the assault on the complainant and in alleging that the complainant is both malicious and manufactures evidence. 

28.     However in my view, the simple inclusion of the foreshadowing of potential lines of defence in the Question and Answer interviews do not of themselves mean that that defence has been asserted. They are merely evidence of what the accused said when interviewed. If the accused does not give evidence and, indeed, no argument is made based on the contents of the Question and Answer interviews then it will be open to the Crown in closing to make observations on the unsupported contents of the Question and Answer interviews and indeed it is likely that that would also form part of a direction given to the jury. 

29.     If, however, in conducting the defence the evidence of the complainant was challenged in the way foreshadowed as a possibility within the Question and Answer interviews or the defendant, in giving evidence himself, or through counsel, seeks to assert that he is not the kind of person who would carry out such an assault it must then it seems to me be open to the Crown to seek the leave of the trial judge to admit the facts of the defendant’s convictions and, possibly, the circumstances surrounding those convictions. He would have put his character in issue. This will bring the matter within the parameters of Article 2(6) of theLoi (1908) au Sujet des Témoins et Informateurs. 

30.     That, it seems to me, is the most appropriate way of proceeding. 

31.     To my mind the probative value of the facts of the relationship between the defendant and Miss A and Miss B are insufficiently strong to outweigh the prejudicial effect of admitting it. The fact that it may go some way to rebut a potential defence does not in my view make it appropriate to admit it at this point although that is a matter that can be kept under very careful review in the light of the conduct by the defence of the case before the jury. 

32.     Similarly, it does not seem to me that the jury needs to be aware of the circumstances in order to discharge their duty. Accordingly it does not seem to me that this information is admissible by way of background information either. 

33.     For those reasons at this stage I do not permit the admission of evidence relating to the previous assaults on either Miss A or Miss B.

Authorities

Styles -v- Attorney General[2006] JLR 210

H-v-Attorney General[2013] (1) JLR 210

DPP-v-P [1991] 2 AC 447.

U -v- Attorney General[2012] (1) JLR 349.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Loi (1908) au Sujet des Témoins et Informateurs.