Jersey Unreported Judgments

Grave and criminal assault - drugs - bad character evidence applications

[2021]JRC022

Royal Court

(Samedi)

25 January 2021

Before     :

J. A. Clyde-Smith O.B.E., Commissioner sitting alone

The Attorney General

-v-

Aaron Peter Le Gros

S. C. Thomas Esq., Crown Advocate.

Advocate D. C. Robinson for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        I have before me two contested applications for the admission of bad character evidence in relation to the Defendant and the Complainant

Prosecution case

2.        The defendant is due to stand trial on an Indictment comprising two counts, the first being grave and criminal assault alleged to have been committed upon the Complainant and the second being for the possession of cocaine.

3.        The prosecution case taken from the case summary is that the Complainant and his girlfriend, ("the girlfriend") went to the Defendant's home at between 10.00 and 10.30 p.m. on the 20^th September 2019.  They had been drinking beforehand and the girlfriend was drunk.  She had previously been in a relationship with the Defendant.

4.        On the table in the living room was a small bag of white powder that the Complainant and the girlfriend both thought contained cocaine.  The Complainant will say he was concerned about the Defendant and the girlfriend and decided to take the bag of cocaine and leave, so that the Defendant "couldn't use it or get her to do any."  Pretending to get up to go to the toilet he then ran out of the property, chased by the Defendant.  In a nearby car park, he was assaulted by the Defendant, who held him in a headlock with such pressure that he was gasping for air and rendered unconscious. 

5.        An independent witness, heard shouting and screaming and looking outside, saw one male on the floor while the other was "kicking the shit out of him".  She heard him say "Where is my cocaine?  Where's my fucking drugs? What have you done with them?"  She heard kicking and thud noises followed by moaning sounds from the male on the floor and she called the police.  In her call, she said it was pitch black but described the attacker as wearing a black and white chequered top and had dark hair.  When the police attended, they found the Complainant in a foetal position on the floor in the car park where the alleged assault had taken place.  He was initially unresponsive, but when he came round, he explained that he had been with his girlfriend at the Defendant's house, who appeared to want to "fuck her", so he took the cocaine and ran out of the property.  He said the Defendant had chased him and strangled him until he passed out. 

6.        The Defendant was located and when asked why he was in the area, he replied "She wanted to find her boyfriend who had assaulted me.  I chased him because he stole my wallet, I ran down, I've got his wallet and passport, his passport's in my back pocket". The officer could not see any injuries on the Defendant.  He denied possessing cocaine, but a bag containing white powder (later identified as cocaine) was found inside the Defendant's top shirt pocket.  When the officer removed the package, the Defendant said "Argh, you motherfucker".  He was arrested for being in possession of a controlled substance.

Defence case

7.        In his defence case statement, the Defendant reiterated his allegation that the Complainant grabbed his wallet and phone and ran from the Defendant's home.  He says it was the Complainant who assaulted him in the car park, and he was acting in self-defence.  However, relevant to this application he said this at paragraphs 19-25:

"19.     The Complainant was acting strangely, and the Defendant believes this is because he had taken drugs and/or was jealous that the Defendant was talking to his girlfriend.

20.      During the course of the evening, the Defendant was playing chess in the living room of his home.  The Defendant accepts that one of his friends was smoking cannabis.

21.      the Complainant took out a small bag of white powder from his pocket and placed it on the table in the living room.  On enquiry, the Complainant told the Defendant that the white powder was cocaine and asked him if he wanted a line.

22.      The Defendant was not comfortable with the drug misuse in his home and wanted to bring this to an end.  The final straw was the production of cocaine by the Complainant.  The Defendant asked his friend not to use cannabis in his home and he asked the Complainant, the girlfriend and Mr X to leave.  At that time the girlfriend was sat on the floor in the living room trying to roll a joint.

24.      The girlfriend did not want to leave.  The Complainant would not leave because he wanted to say with the girlfriend.  Mr X was encouraging his friends to leave.  The Defendant went to the toilet and, on his return to the living room, saw the Complainant snorting a line of cocaine from the dining table.

25.      The Defendant took the bag of cocaine from the table and put it in his shirt pocket to prevent the Complainant from taking anymore.  He again asked the Complainant to leave.  The Complainant became angry with the Defendant for taking his cocaine but asked to use the toilet before leaving.  The Defendant thinks the Complainant may have soiled himself as a result of taking the cocaine.  When the Complainant returned to the living room, he grabbed the Defendant's wallet and phone, and ran from the Defendant's home."

Key issue

8.        I agree with Crown Advocate Thomas that it is plain from the foregoing that the key issue for the jury at trial will be to determine who the cocaine belonged to.  The solution to that will assist in determining firstly whether the Defendant is guilty of Count 2, namely the possession of cocaine, and secondly, whether the Defendant had a motive to chase and attack the Complainant for stealing his cocaine and whether he was the person who the independent witness heard asking for his cocaine.

Prosecution application

9.        There are three types of bad character evidence that are in issue.

10.      When the Defendant's home was searched, the police found a small quantity of anabolic steroids, namely testosterone, boldenone, trenbolone, nandrolone and stanozolol.  These are Class C controlled drugs and the Defendant pleaded guilty to their possession on 7^th August 2020 ("the Steroid Convictions").

11.      The Defendant has a conviction on 17^th March 2015 for producing a controlled drug, namely cannabis, and for the possession of utensils.  The facts appear to be that he had installed hydroponic equipment in his loft for the purpose of cultivating cannabis and nine cannabis plants were found to be growing there.  The street value of the cannabis seized was estimated at between £2,592 and £15,480.  He denied and was not charged with supplying cannabis which he said he had grown for his personal use and for medicinal purposes.  He was sentenced to community service ("the Production Conviction").

12.      The Defendant also has a previous conviction in 2018 for malicious damage and in 2012 for affray, neither of which are the subject of the prosecution application.

13.      In her statement of 25^th November 2019, the girlfriend says this:

"I am aware [the Defendant] uses drugs and in fact the first time I used MDMA crystals was with him, and it was the night we had the one night stand.  The drugs were taken at a friend of [the Defendant's] house and they were just being used collectively within the group"

14.      Describing the night concerned as "excessive", she has no recollection at all of anything that took place, apart from seeing what she thought was cocaine on the table, although she doesn't recall seeing anyone actually doing any drugs.

15.      The prosecution seek to admit, and the defence to exclude, the Steroid Convictions, the Production Conviction and the evidence of the girlfriend as to the Defendant's previous drug use under two gateways which overlap to some extent, namely Article 82F of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("PPCE"), as relevant to an important matter in issue between the Defendant and the prosecution and Article 82I of PPCE, as evidence to correct a false impression given by the Defendant in his defence case statement that he disapproved of controlled drugs, and in particular Class A drugs, being used in his property.

16.      I was referred to the review of the principles involved in relation to Article 82F as set out in the case of AG v Murphy [2019] JRC 233, which in turn referred to the guidance given in the case of R v Hanson [2005] EWCA Crim 824.

17.      Article 82F provides as follows:

"82F   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 of 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)              the 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."

18.      Under Article 82F(4) evidence of propensity should not be admitted 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 case.

19.      Article 82E(2) and (3) provide that:

"(2)     The court must not admit evidence under Article 82F ...... if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it.

(3)       On an application to exclude evidence under paragraph (2) the court must haver regard, in particular, to the length of time between the matters to which that evidence relates and the matters which form the subject of the offence charged."

20.      Article 82I provides as follows:

"82I     Evidence to correct a false impression

(1)       Evidence of a defendant's bad character is admissible if it is evidence to correct a false impression given by the defendant.

(2)       The defendant gives a false impression if he is responsible for the making of an express or implied assertion which is apt to give the court or jury a false or misleading impression about the defendant.

(3)       Evidence to correct such an impression is evidence which has probative value in correcting it.

(4)       Only prosecution evidence is admissible under this Article and provided it goes no further than is necessary to correct the false impression."

21.      There is no express exclusionary provision under Article 82I but of course I retain a general discretion to exclude evidence under Article 76 of the PPCE.

22.      I am not prepared to admit the Steroid Convictions under either gateway.  Whilst they are controlled drugs, they are drugs of a quite different kind used, as I understand it, for body building and not for recreation.  In terms of Article 82F their possession is not relevant to whether the Defendant has a propensity to possess cocaine, a Class A recreational drug.

23.      In terms of Article 82I, evidence of the Defendant's possession of these steroids has little or no probative value in correcting the impression given by him that he disapproves of the use of recreational drugs, and in particular Class A drugs, in his house.  Crown Advocate Thomas says they indicate a relaxed attitude to the possession of controlled drugs generally, but in my view, there is a marked distinction between the use of (albeit illicit) steroids for body building and the use of recreational drugs, such as cocaine.  The admission of these convictions would simply be prejudicial.

24.      Turning to the Production Conviction, Article 82E(3) and Article 82F(4) require me to have regard to the length of time between those offences and the current charge.  As pointed out in Murphy, at paragraph 25, (by reference to Hanson,) regard here should be had to the date of the commission of the offence, namely 2013.  The Court also said this in Murphy at paragraphs 21-22 and paragraph 26:

"21.    There is no minimum number of events necessary to establish propensity.  A single previous conviction for an offence of the same description or similar nature or type will often not show propensity, but it may do so where it shows a tendency to unusual behaviour or where its circumstances demonstrate probative force in relation to the offence charged.  Circumstances demonstrating probative force are not confined to those sharing striking similarity.  If the modus operandi has significant features shared by the offence charged it may show propensity.

22.      When considering what is just under Article 82F(4), and the fairness of the proceedings under Article 83E(2), the judge may inter alia take into consideration the degree of similarity between the previous conviction and the offences charged.  This does not however mean that what used to be referred to as striking similarity must be shown before convictions become admissible.

...

26.      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."

25.      These production offences were committed seven years ago and, in my view, share no special features with the current possession charge.  The cultivation of cannabis in his loft in 2013 does not show a propensity to possess cocaine in his house seven years later.  I will not, therefore, admit the Production Conviction under Article 82F.  Nor am I persuaded that under Article 82I this evidence has probative value in correcting the impression given by the Defendant seven years later that he disapproves of the use of recreational drugs, and in particular Class A drugs, in his house.

26.      The evidence of the girlfriend is, however, different in that she says the Defendant was a recreational user of another Class A drug, namely MDMA recently, namely in the early part of 2019.  Whilst the Defendant has no conviction in respect of this alleged use of MDMA, it is reprehensible conduct and therefore bad character for the purposes of Article 82A(1) and Article 82C. 

27.      In my view, this evidence, the truth of which will be a matter for the jury, is evidence of propensity admissible under Article 82F.  I agree with Advocate Thomas that her evidence goes further, because it links the Defendant with the "line of MDMA found on the table in his flat quite separately from the cocaine in the bag" and suggests that a variety of drugs was being used in his home at the time of the gathering there on 20^th September 2019.

28.      In his defence case statement, the Defendant does give the impression that he did not approve of the use of recreational drugs, in particular Class A drugs, in his home, and the evidence of the girlfriend is also therefore admissible under Article 82I, as evidence of probative value in correcting that impression.

29.      Advocate Robinson was concerned at the girlfriend's motivation for making this allegation, which the Defendant disputes, in her statement in view of the events that had happened between her and the Defendant in early 2019, but that will be a matter for cross examination at the trial and it will be for the jury to decide what weight should be given to it.  Advocate Robinson was also concerned that its admission would create satellite litigation, with the focus of the jury being drawn away from the real issues before them.  Furthermore, he was concerned that if admitted, the jury will inevitably conclude that the cocaine was his.

30.      Advocate Thomas saw no danger in the girlfriend's evidence creating satellite litigation adversely affecting the fairness of the proceedings and did not agree that its admission would inevitably lead to a jury, properly directed, to convict the Defendant on the possession charge.  In my view, this evidence will not have such an adverse effect on the fairness of the proceedings that it ought not to be admitted either under Article 82E(2) or Article 76 of the PPCE.  Fairness in criminal proceedings means fairness to both the prosecution and the defence and it would not be fair for the Defendant to deny that the cocaine actually found in his pocket was his and to give the impression that he disapproves of the use of Class A drugs in his home, when the prosecution has evidence that he has a propensity to use Class A drugs.

31.      I did consider whether, with the admission of the girlfriend's evidence, evidence of the Production Conviction should also be admitted as showing a pattern of conduct establishing propensity making it more likely that the Defendant committed the possession charge under Count 2.  In my view, the Production Conviction cannot be said to be part of such a pattern, partly because it shares no special features with the possession charge and partly because it took place seven years ago.

32.      Accordingly, I will admit the evidence of the girlfriend under the gateways of Article 82F and Article 82I of PPCE.

Defendant's application

33.      The Complainant was cautioned before the St Helier Parish Hall on 9^th November 2015 for possession of a small quantity of cannabis.  Advocate Robinson applies for this caution, which constitutes bad character, to be admitted under Article 82J, both as explanatory evidence and as showing a propensity on the part of the Complainant to use controlled drugs for recreational purposes.

34.      Article 82J(1) is in these terms:

"82J    Non-defendant's bad character

(1)       In criminal proceedings evidence of the bad character of a person other than the defendant is admissible if and only if -

(a)              it is important explanatory evidence;

(b)              it has substantial probative value in relation to a matter which-

(i)            is a matter in issue in the proceedings, and

(ii)           is of substantial importance in the context of the case as a whole; or

(c)              all parties to the proceedings agree to the evidence being admissible."

35.      Article 82J(2)  provides that evidence is important explanatory evidence if the jury would find it impossible or difficult, properly, to understand other evidence in the case and its value for understanding other evidence is substantial.  Article 82J(3) sets out a number of matters to which the Court must have regard when assessing the probative value of evidence for the purposes of paragraph (1)(b). 

36.      Advocate Thomas found it difficult to see how this application to adduce this caution is consistent with the defence application to exclude the evidence of the Defendant's own more significant drug related offending, but he said that taken in isolation, possession of such a small quantity of cannabis does not satisfy the high degree of probative value required on the issue of who the cannabis belonged to.  Equally, he said the jury would be able to decide the issues in the case without knowing that the Complainant was in possession of £4 worth of cannabis five years earlier.

37.      However, Advocate Thomas recognised that if his application succeeded, then in the interests of fairness, the Crown would agree to the admission of this caution.  If the Crown's application failed, then further argument would be required.

38.      The Crown's application has succeeded in part only, and Advocate Thomas must inform me whether he requires further argument or whether the Crown will agree to the admission of this caution.

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003.

AG v Murphy [2019] JRC 233. 

R v Hanson [2005] EWCA Crim 824.