Jersey Unreported Judgments

Grave and Criminal assault.

[2021]JRC099

Royal Court

(Samedi)

8 April 2021

The Attorney General

-v-

Philip Steven Goguelin

Crown Advocate C. Hall for the Crown

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE commissioner:

1.        The Defendant is charged with two separate counts of grave and criminal assault, alleged to have been committed against different ex-female partners of his.

2.        The Crown and the defence have agreed a set of admissions which have already been put before the jury.  Amongst those admissions is a reference to two convictions of the defendant for grave and criminal assault against the same female ex-partner victim in a domestic setting and a breach of a restraining order in relation to the later offending. 

3.        No application has been made formally to the court for admission of bad character evidence in order that the propensity gateway can be used under Article 82F of the Police Procedures and Criminal Evidence (Jersey) Law 2003, although the Crown did apparently give notice to the defence of its intention to do so.  Instead, Advocate Hall relies now upon the fact that the evidence is admissible because it is agreed and thus Article 82E applies.  The result is that the Defendant's bad character is before the jury, and the court's function under Article 82E(2), not to admit evidence under Article 82F if 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, is effectively by-passed.  Having secured agreement from Advocate Gollop for the Defendant that the evidence of the convictions be admitted, the Crown now wish to rely on the alleged propensity of the Defendant to commit offences of grave and criminal assault against female ex-partners. 

4.        I cannot say that the evidence is not admissible because Article 82E seems to state clearly that it is.  Once the evidence is in, clearly some directions to the jury will be necessary as to how it should be treated, and I will in due course give those directions.  I recognise that this is a relatively new statute and there is not much by way of authority as to how the Crown should proceed.  I have to say however that this does not seem to me to be the right way for taking the matter forward. 

5.        The approach which the Crown has taken was touched upon briefly in AG v Nicolle [2019] JRC 230.  In that case, the defence did not oppose an application actually made under Article 82F but at paragraph 15 of his judgment, Sir Michael Birt, Commissioner, said this:

"15.  Finally, I should add that Advocate Binnie has not opposed this application and indeed it might have been possible to consider admitting the bad character evidence under Article 82E(1)(a) which provides

"In criminal proceedings evidence of the defendant's bad character is admissible if but only if

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

16.      However, I have thought it preferable that at this early stage following the introduction of the legislation on bad character, to consider whether the evidence is properly admissible under the propensity gateway, which is the gateway upon which the prosecution relied, and whether it would be fair to admit such evidence.  It is for that reason that I have given this short judgment explaining why I have allowed the evidence in on the basis of the propensity gateway."

6.        I respectfully entirely endorse those comments. The result of proceeding as the Crown has means that I have not been able to consider the three questions referred to as the essential questions in R v Hanson [2005] EWCA Crim 824 namely:

"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?"

7.        Without having heard detailed argument, I do not think it is appropriate to set down definite rules but I have noted the comments of the English Court of Appeal in AG [2018] EWCA Crim 1393 that all bad character applications should be made in writing and a ruling giving reasons, which can be brief, always given.  This seems to me to be very much the preferred approach and it is one which should be taken in early pre-trial hearings so that any difficulties can then be identified and resolved. 

8.        It would be unfair to Advocate Hall not to recognise that some of the fault for the present position lies with me.  I could have refused to allow the admissions to go before the jury in their present form, albeit they were presented to me only shortly before the trial commenced.  I have to say that given agreement that the convictions should go in, my running assumption was that a propensity direction would be given, and I was relaxed about that.  If a formal bad character application had been made, I would have answered the first two questions above in the affirmative and the third question in the negative.  I am satisfied on the evidence that the material does tend to show a propensity on the part of the defendant to assault women who are his ex-partners, and that is supported by the fact that two further instances are alleged against him in this very Indictment.  Indeed, Advocate Gollop confirmed to me that he did not think he could oppose any bad character application of the kind required. 

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003. 

AG v Nicolle [2019] JRC 230. 

R v Hanson [2005] EWCA Crim 824. 

AG [2018] EWCA Crim 1393.