Jersey Unreported Judgments

Hearing (Criminal) - application to adduce evidence.

[2019]JRC221A

Royal Court

(Samedi)

6 November 2019

Before     :

T. J. Le Cocq, Esq., Bailiff, sitting alone.

The Attorney General

-v-

Daniel Charles Cornish

J. C. Gollop, Esq., Crown Advocate for the Attorney General

Advocate J. Heywood for the Defendant.

JUDGMENT

THE BAILIFF:

1.        On 6^th November, 2019, I gave leave to the prosecution in the above proceedings to adduce evidence of three previous convictions of the Defendant under the bad character provisions in the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the Law").  This was the first such application under those provisions which came into effect on 31^st October, 2019, and I indicated that I would give reasons subsequently.  These in brief are those reasons. 

2.        The Defendant was charged with two counts.  The first was illegal entry with intent and the second was a common assault upon a woman with whom he had an "on and off" relationship (the Complainant).  

3.        The Crown's case can be very briefly stated for these purposes.  It was alleged that the Defendant had illegally entered the Complainant's ground floor flat by climbing in through the kitchen window against her will with the intention of committing an assault upon her.  It was further alleged that whilst in the flat he committed such an assault. 

4.        The Defendant and the Complainant have a long history between them.  They have been in a relationship for nearly 12 years and have a child who does not reside with the Complainant.  Their relationship appears to be a volatile one and, as I have indicated above, is characterised as being an "on and off" relationship.  

5.        The incident which gave rise to the charges occurred in the early evening on 30^th March, 2019.  The Defendant and the Complainant were not co-habiting at that time although the Defendant had spent the night at the Complainant's flat on 29^th March.  The following day they had done various domestic things together and then spent a period in the afternoon drinking together at the Complainant's flat, having consumed approximately four cans of strong lager each. 

6.        An argument took place between them as a result of which the Defendant left and went to sit in his car parked nearby because he was unable to drive and to enable the Complainant to "cool off".  Approximately an hour and a half later he returned to the flat.  The Complainant did not give him access to the front door and spoke to him through the kitchen window which was ajar.  It was admitted that he entered the flat through the open window and that he was not invited to do so.  He denied, however, that he had any intention to assault the Complainant and he further denied that he did in fact assault her in any way when he entered the flat. 

7.        The prosecution sought to adduce the fact that the Defendant had five previous convictions, namely illegal entry and common assault, breach of a restraining order, grave and criminal assault, common assault, and another conviction for common assault taking place between March 2010 and October 2017.  All but the penultimate common assault charge related to the Complainant in this case.  The sole common assault charge that did not relate to the Complainant related to a male member of the public. 

8.        The Crown sought to adduce the bad character of the Defendant under the propensity provisions of the Law.  The ability to adduce evidence of a Defendant's bad character is provided for in Part 9A of the Law.  The application was made to adduce this evidence under Article 82F of the Law which is in the following terms in so far as is relevant:-

"Matter in issue between the defendant and the prosecution

(1)       Subject to paragraph (2), evidence of a defendant's bad character is admissible if it is relevant to an important matter in issue between the defendant and the prosecution which includes -

(a)       the question whether the defendant has a propensity to commit offences of the kind with which he or she is charged, except where the defendant having such a propensity makes it no more likely that he or she is guilty of the offence; or

(b)       he question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant's case is untruthful in any respect.

(2)       Only prosecution evidence is admissible under this Article.

(3)       Where paragraph (1)(a) applies, a defendant's propensity to commit offences of the kind with which he or she is charged may (without prejudice to any other way of doing so) be established by evidence that the defendant has been convicted of -

(a)       an offence of the same description as the one with which he or she is charged; or

(b)       an offence is of a similar nature or type as the one with which he or she is charged.

(4)       Paragraph (3) does not apply in the case of a particular defendant if the court is satisfied that, by reason of the length of time since the conviction or for any other reason, it would be unjust for it to apply in his or her case.

(5)       For the purposes of paragraph (3)(a), 2 offences are of the same description as each other if the statement of the offence in a summons under Article 14 of the Criminal Procedure Law or Article 9 of the Magistrate's Court (Miscellaneous Provisions) (Jersey) Law 1949, or indictment (within the meaning of Article 1(1) of the Criminal Procedure Law), would, in each case, be in the same terms."

9.        The Crown put before me the case of Regina v Hanson and others (2005) EWCA Crim 824, (Court of Appeal Criminal Division) which dealt with sections 98 to 113 of the Criminal Justice Act 2003 which is relevant, so are as in, similar terms to the Law. 

10.      The following extracts appear to me to be of interest:-

"4.      The starting point should be for judges and practitioners to bear in mind that Parliament's purpose in the legislation, as we devine it from the terms of the Act, was to assist in the evidence based conviction of the guilty, without putting those who are not guilty at risk of conviction by prejudice.  It is accordingly to be hoped that prosecution applications to adduce such evidence will not be made routinely, simply because a defendant has previous convictions, but will be based on the particular circumstances of each case.

...

6.        The present applications are concerned only with the Crown wishing to rely upon evidence of previous convictions rather than other evidence of bad character.  By section 103(1) matters in issue for the purpose of section 101(1) (d) include:

'(a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence;

(d)       the question whether the defendant has a propensity to be untruthful, except where it is not suggested the defendant's case is untruthful in any respect'

...

7.        Where propensity to commit the offence is relied upon there are thus essentially three questions to be considered:

1.        Does the history of conviction(s) establish a propensity to commit offences of the kind charged?

2.        Does that propensity make it more likely that the defendant committed the offence charged?

3.        Is it unjust to rely on the conviction(s) of the same description or category; and, in any event, will the proceedings be unfair if they are admitted?

....

9.        There is no minimum number of events necessary to demonstrate such a propensity.  The fewer the number of convictions the weaker is likely to be the evidence of propensity.  A single previous conviction for an offence of the same description or category will often not show propensity.  But it may do so where, for example, it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged (compare DPP v P [1991] 2 AC 447 at 460E to 461A).  Child sexual abuse or fire setting are comparatively clear examples of such unusual behaviour but we attempt no exhaustive list.  Circumstances demonstrating probative force are not confined to those sharing striking similarity.  So, a single conviction for shoplifting, will not, without more, be admissible to show propensity to steal.  But if the modus operandi has significant features shared by the offence charged it may show propensity.

10.      ...For example, theft and assault occasioning actual bodily harm may each embrace a wide spectrum of conduct.  This does not however mean that what used to be referred as striking similarity must be shown before convictions become admissible.  The judge may also take into consideration the respective gravity of the past and present offences.  He or she must always consider the strength of the prosecution case.  If there is no or very little other evidence against a defendant, it is unlikely to be just to admit his previous convictions, whatever they are.

11.      In principle, if there is a substantial gap between the dates of commission and of conviction for earlier offences, we would regard the date of commission as generally being of more significance than the date of conviction when assessing admissibility.  Old convictions, with no special feature shared with the offence charged, are likely seriously to affect the fairness of proceedings adversely, unless, despite their age, it can properly be said that they show a continuing propensity.

12.      It will often be necessary, before determining admissibility and even when considering offences of the same description or category, to examine each individual conviction rather than merely to look at the name of the offence or at the defendant's record as a whole.  The sentence passed will not normally be probative or admissible at the behest of the Crown, though it may be at the behest of the defence.  Where past events are disputed the judge must take care not to permit the trial unreasonably to be diverted into an investigation of matters not charged on the indictment.

...

17.      In cases of the kind we are considering, it is the Crown which begins the process of applying to adduce evidence of bad character.  It must specify the relevant gateways....  We would expect the relevant circumstances of previous convictions generally to be capable of agreement, and that, subject to the trial judge's ruling as to admissibility, they will be put before the jury by way of admission.  Even where the circumstances are genuinely in dispute, we would expect the minimum indisputable facts to be thus admitted.  It will be very rare indeed for it to be necessary for the judge to hear evidence before ruling on admissibility under this Act.

18.      Our final general observation is that, in any case in which evidence of bad character is admitted to show propensity, whether to commit offences or to be untruthful the judge in summing-up should warn the jury clearly against placing undue reliance on previous convictions.  Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant.  In particular, the jury should be directed; that they should not conclude that the defendant is guilty or untruthful merely because he has these convictions.  That, although the convictions may show a propensity, this does not mean that he has committed this offence or been untruthful in this case; that whether they in fact show a propensity is for them to decide; that they must take into account what the defendant has said about his previous convictions; and that, although they are entitled, if they find propensity as shown, to take this into account when determining guilt, propensity is only one relevant factor and they must assess its significance in the light of all the other evidence in the case.  We do not purport to frame a specimen direction but the Judicial Studies Board may wish to consider these observations in relation to their helpful specimen direction No 24 on bad character."

11.      It seemed to me to be clear that the convictions against the Defendant for offences involving either illegal entry or assault against the Complainant, with whom, as I have said, he is in a relationship of sorts, were directly relevant to the issue of propensity to commit offences of the nature of those with which he is currently charged.  A review of the general description of the circumstances in which those previous convictions came into existence also persuaded me that it was appropriate to admit them under the Article 82F propensity gateway. 

12.      I do not, however, think it is appropriate to admit the convictions relating to violence against a third party member of the public or a breach of a restraining order.  In the former case, I do not think in these circumstances the fact that any individual might get into a physical altercation with a member of the public is necessarily indicative of the fact that he might have a propensity to assault a woman with whom he was in a relationship.  Similarly, the breach of the restraining order, although it did relate to the Complainant, was in the circumstances so I am told by the defence, where he had feared that the Complainant, who had threatened to commit suicide, might need help.  I am not, of course in a position to say whether that submission is accurate but in the circumstances I do not think it would assist the conduct of the trial were a matter disputed to that extent to be placed before the jury. 

13.      Accordingly I refused to allow the Crown to adduce evidence of the breach of the restraining order or the assault against a member of the public under the propensity provisions in Article 82F but agreed the other three previous convictions should be so admitted. 

14.      I endorse the observations of the Court in Hanson (above) at paragraph 17 of the judgment.  Once previous convictions are held to be admissible under the relevant gateway the new relevant facts of the previous convictions should generally be capable of being placed before the jury in written admissions. 

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003

Regina v Hanson and others (2005) EWCA Crim 824, (Court of Appeal Criminal Division)