Jersey Unreported Judgments

Grave and criminal assault - rulings during the trial

[2022]JRC220

Royal Court

(Samedi)

18 October 2022

The Attorney General

-v-

Magno Raimundo Gaspar Reis

Ms L. B. Hallam, Crown Advocate.

Advocate A. E. Binnie for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        I gave two rulings during the trial by jury of the Defendant and now give my reasons for making those rulings. 

The admissibility of certain passages in the Defendant's first and second police interviews

2.        I should say at the outset, as I told counsel when this matter was raised on the morning of the first day of the trial, that this was an issue that should have been resolved well in advance of trial.  One of the principal purposes of plea and directions hearings is to resolve issues of admissibility and the like well before trial, so as to prevent the trial being derailed.  In the event this was an issue that could be resolved swiftly, and the jury were only slightly delayed.  However, it is essential that pre-trial matters be dealt with pre-trial, this includes all issues of admissibility, including applications to exclude evidence and applications in relation to hearsay and bad character. 

3.        In this case, the Crown served the evidence upon which it relied on 10^th March 2022, including transcripts of the three police interviews of the Defendant.  The Crown did not suggest at that stage that any of that material - which comprised only a handful of witness statements and three interviews - was not admissible. 

4.        The Defendant was indicted on 8^th April 2022 and the plea and directions hearing took place on 27^th April 2022.  The relevant section in relation to admissibility at Section 6 of the plea and directions form indicated that neither the prosecution nor defence intended to make an application to exclude any evidence. 

5.        The Crown, as ordered at the plea and direction hearing, subsequently provided a summary of all three interviews.  These summaries did not include various extracts from the transcripts that the Crown had served in March and the defence replied to the Crown on 19^th August 2022, providing a synopsis of the interviews containing all material that they wish to include.  This synopsis was unacceptable to the Crown, and at that stage the Crown should have made an application to the Court for a ruling.  In fact, the parties were unable to agree two of the three interview summaries to go to the jury and failed to list the case before the trial judge in the weeks approaching the trial - leaving the matter to be resolved on the first day of the trial.  Both advocates accepted that this was inappropriate, and the Crown Advocate rightly accepted that the Crown should have been more proactive, identified the issue earlier, and sought a ruling from the Court. 

6.        Although the application before me was presented as a defence application to adduce certain parts of the Defendant's interview, in my view, as the material in question formed part of the prosecution case when it was served until, some months later, it was not included in summaries of interview produced by the Crown, this was in reality an application by the Crown to exclude evidence which, owing to the lateness of the application, I would have, in the exercise of my discretion, refused. 

7.        I now turn to the substance of the application.  To understand the context, I first summarise the Crown's case.  The Crown said that at 3am on 27^th September 2021 the Defendant committed a grave and criminal assault upon the complainant by punching him once in the face/head, with sufficient force that the complainant fell to the ground where he lay until the police arrived shortly thereafter and was conveyed by ambulance to the hospital.  The assault occurred in a public place, namely Minden Place.  The complainant sustained, on the Crown's case, a fractured skull in consequence of the assault.  The Defendant claimed to have no recollection of the event owing to consumption of alcohol and said denied causing the injury and, at trial, evidence was also given which allowed the Defendant to argue that he was or may have been acting in self-defence or in defence of another, in, if he did, punching the complainant. 

8.        Of those who were present at the scene of the incident and gave evidence, only the Defendant's former girlfriend saw the Defendant punch the complainant.  Accordingly, it was an important plank of the prosecution case that three days later, at approximately 7pm on Thursday 30^th September 2022, that the Defendant, during a telephone call with the complainant's brother, whom he knew, admitted fighting with the complainant and seeing him fall to the ground after he had hit him.  The Defendant was arrested the following morning, 1^st October 2022, and in the two interviews that took place that day, the Defendant said that a telephone call had taken place between him and the complainant's brother, that he had made no admissions during it, but that during the call the complainant's brother had been very aggressive to him and had, inter alia, threatened to beat him, put him in hospital and kill him.  Indeed, on any view, the complainant's brother had, after the call, attended the Defendant's home on 30^th September 2021 and caused a disturbance and had to be moved on by the police. 

9.        The Crown argued that the contents of the Defendant's account in interview amounted to the adducing of non-defendant bad character evidence and accordingly the defence required leave to adduce such evidence.  Pursuant to Article 82A of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the Law"), 'bad character' is to be construed in accordance with Article 82C of the Law.  Article 82C says that evidence of a person's bad character is:

"Evidence of, or of a disposition towards, misconduct on his or her part, other than evidence which -

(a)       has to do with the alleged facts of the offence with which the defendant is charged...."

10.      'Misconduct' is defined in Article 82A as 'the commission of an offence or other reprehensible behaviour'.  For the purposes of any applications made under the Law, pursuant to Article 82(B) it is necessary to proceed on the footing that the relevant evidence is true.

11.      Accordingly, the threats made by the complainant's brother, assuming the Defendant's account is true, amount to reprehensible behaviour and thereby misconduct.

12.      If the evidence is indeed evidence of 'bad character' then the test for the admission of such evidence is contained in Article 82J of the Law:

"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.

(2)     For the purposes of paragraph (1)(a) evidence is important explanatory evidence if -

(a)     without it, the court or jury would find it impossible or difficult, properly to understand other evidence in the case; and

(b)     its value for understanding the case as a whole is substantial.

(3)     In assessing the probative value of evidence for the purposes of paragraph (1)(b) the court must have regard to the following factors (and to any others it considers relevant) -

(a)     the nature and number of the events, or other things, to which the evidence relates;

(b)     when those events or things are alleged to have happened or existed;

(c)     where -

(i)      the evidence is evidence of a person's misconduct, and

(ii)      it is suggested that the evidence has probative value by reason of similarity between that misconduct and other alleged misconduct, the nature and extent of the similarities and the dissimilarities between each of the alleged instances of misconduct; and

(d)     where -

(i)      the evidence is evidence of a person's misconduct,

(ii)      it is suggested that that person is also responsible for the misconduct charged, and

(iii)     the identity of the person responsible for the misconduct charged is disputed,

the extent to which the evidence shows or tends to show that the same person was responsible each time.

(4)     Except where paragraph (1)(c) applies, evidence of the bad character of a person other than the defendant must not be given without leave of the court."

13.      The proper approach to admission of such evidence was considered by the Court in the case of AG v PMB [2021] JRC 335, particularly at paragraph 30 to 35 inclusive.

14.      However, the defence contend that what the Defendant said in interview about the telephone call that took place the evening before was not in fact bad character evidence at all as it is evidence that 'has to do with the alleged facts of the offence with which the Defendant is charged'.

15.      My attention was drawn to the decision of the English Court of Appeal in R v Tracey McNeill [2007] EWCA Crim 2927, where the judgment of the Court was given by Rix LJ.  In that case, the appellant was convicted of making threats to kill on the footing that he made threats to a neighbour on the evening of 28^th November 2005.  The Crown successfully adduced evidence regarding an incident that had taken place at the local authority Housing Office two days later on 30^th November 2005 when the appellant came to the office and threatened to burn the neighbour's flat down, declaring 'They'll come out in body bags'.  The Crown persuaded the judge at first instance that the evidence was admissible, not as bad character evidence but as facts directly relevant to the alleged offence and the judge accepted the evidence was evidence to do with the alleged facts of the offence and accordingly within the provisions of the English equivalent to Article 82C(a).

16.      This was contested by the appellant on appeal.  He said the evidence was not within the relevant section of the English statute and in any event should have been excluded under, inter alia, Section 78 of the English Act which for these purposes is equivalent to Article 76 of the Law.

17.      Rix LJ said:

"13.  In support of his submission that this evidence lay outside the exception to section 98(a), he contended that it was evidence of a separate offence, on a separate occasion, in a different location, made to a different person. He suggested that, if such evidence was to be admitted at all, then a separate charge of threats to kill should have been laid in relation to that separate occasion on 30th September. He subsequently accepted that that last submission might have some difficulties given that there was no ready likelihood of there being an intent to put Miss Cooper in fear of a threat to her life by reference to what was said about the appellant's intentions towards her neighbour, Mr Clements. Mr Mackinnon resiled from his suggestion that a separate offence of threat to kill could have been laid in relation to the event of 30th September. Nevertheless, he said it was a separate occasion and therefore could not come within the words of section 98(a), however broad the prima facie content of those words might appear to be. He directed our attention to the text of paragraph 13-6 of Archbold, where those words are discussed as relating to conduct which is a precondition of some other offence, like a disqualification from driving in relation to an offence of driving whilst disqualified, or as relating to a conspiracy or joint enterprise allegations, cases where other offending conduct, or bad character conduct, is a necessary and inherent part of some offence charged.

In our judgment, however, the words of the statute "has to deal with" are words of prima facie broad application, albeit constituting a phrase that has to be construed in the overall context of the bad character provisions of the 2003 Act. Thus the breadth of the words are clearly limited by the context for instance of section 101(1)(c)'s reference to important explanatory evidence, and gateway (d)'s more general reference to important matter in issue, which taken together with section 103 relates to propensity and previous convictions. In our judgment, it would be a sufficient working model of these words if one said that they either clearly encompass evidence relating to the alleged facts of an offence which would have been admissible under the common law outside the context of bad character or propensity, even before the Act, or alternatively as embracing anything directly relevant to the offence charged, provided at any rate they were reasonably contemporaneous with and closely associated with its alleged facts (see for instance the reference to R v Machado noted towards the end of Archbold 13 - 6)."

18.      The Court of Appeal went on to hold that the judge was right to regard the material as evidence falling within the equivalent to Article 82C(a) and that it did not fall to be excluded under Section 78.

19.      The defence contend that it would be unfair for the Crown to cherry pick what evidence the jury hear in relation to the call.  The Crown sought to admit the evidence of the call as tantamount to a confession and it was only right and proper in the circumstances that the Defendant be able to give his account of that call during his evidence and his police interview.  I agree.  Further, as the defence contend, the Defendant's account as to the conduct of the complainant during the call gives a rationale for the Defendant terminating the call and blocking him which the defence should be entitled to explore.

20.      Accordingly, I agree that in the circumstances this evidence does have "to do with the alleged facts of the offence" and accordingly is not bad character evidence and, in any event, is admissible.  It was not suggested that I consider excluding the evidence under Article 76 or at all, and there would be no basis for me to do so.  I emphasise that decisions such as this are heavily fact specific and if, in fact, the call contained for example, on the Defendant's case, assertions revealing previous convictions of the Defendant, the complainant or third parties then it may have been necessary to exclude such evidence.  However, in the context of the facts in this case, there is no basis upon which to exclude the evidence, which is relevant and admissible.

Application to introduce evidence of non-defendant bad character

21.      The second application was made on the second day of the trial and purportedly arose from the evidence given by the Defendant's former girlfriend to which I have referred above.  In her witness statement, made on 1^st October 2021, the witness had said that the complainant, who was not part of the group consisting of the Defendant, the witness and others, had "got involved".  She does not say what the complainant did and referred to another of her friends being pushed - but not, it appears, by the complainant.  She said "at the same moment this was happening [the Defendant] punched [the complainant] ... I did not see for sure how [the Defendant] threw the punch, as there were many people in between.  What I saw was that [the complainant] fell straight to the ground and we were worried". 

22.      In evidence, the witness said "I did not know [the complainant] at the time.  [The complainant] was going to separate one of the members of our group from another ... [the complainant] was just going to separate two people.  [The Defendant] saw [the complainant] separating the members of the groups [the Defendant] thought [the complainant] was going to hit a member of our group, so he punched [the complainant]... [The complainant] fell on the floor".  As a consequence of this evidence, which was not foreshadowed by the witness statements, it was necessary for the jury to be given a direction in relation to self-defence/defence of another in the summing up. 

23.      However, the defence made an application to introduce evidence, which they had been in possession of for some time and which had been served by the Crown as unused material, of an alleged assault committed by the complainant in a public place in St Helier on 3^rd May 2021 at approximately 2am which had not resulted in criminal proceedings. 

24.      The defence contended that as a consequence of the evidence of the Defendant's former girlfriend, as summarised above, this evidence was now admissible as bad character evidence relevant to the complainant's propensity for violent behaviour which was now an issue in the proceedings and of substantial importance in the context of the case as a whole, on the footing if the complainant had a propensity for violence and the jury "might find that he is more likely to have behaved violently on 27^th September 2021". 

25.      Defence counsel said that in the event of such evidence being admitted, she would not be making an application to have the complainant recalled so that these matters could be put to him.  Although the evidence disclosed by the log was ostensibly evidence of bad character, the contents of the log were in some sense equivocal and there is a reference to the complainant no longer wishing to make a complaint and apologising for his actions.  It would not have been fair to admit the evidence without recalling the complainant and giving him an opportunity to deal with this evidence.  More fundamentally though, non-defendant bad character evidence is only admissible (see the extract from the Law cited above) if, inter alia, it is substantial probative value in relation to a matter which is a matter in issue in the proceedings. 

26.      Notwithstanding the evidence given by the Defendant's former girlfriend, the complainant's "propensity for violent behaviour" had not become an issue in the proceedings.  There was no evidence from any source that the complainant acted violently at any stage.  The evidence was that he had tried to separate two people who it appeared had been arguing or were pushing and shoving each other.  None of the witnesses had suggested that the complainant acted violently at any stage, nor was it put to him that he had, and it was not suggested that the evidence given by the Defendant's former girlfriend should result in the complainant being recalled for the purpose of further questioning in relation to any violent behaviour that he may have perpetrated at the time of the incident as there was no evidence of any such behaviour, and the defence was not in receipt of any instructions to the effect that the complainant was guilty of any such behaviour. 

27.      Evidence of the complainant's previous bad character would not have assisted the jury in relation to the Defendant's state of mind.  The Defendant and the complainant were not known to each other prior to the incident giving rise to the prosecution.  The statutory bar for admission of non-defendant bad character is a relatively high one, and the evidence of this previous incident was, in my view, of little or no relevance and accordingly, of little or no probative value, having regard to the matters in issue in the proceedings. 

28.      Accordingly, I refused the defence application to adduce this material

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003. 

AG v PMB [2021] JRC 335. 

R v Tracey McNeill [2007] EWCA Crim 2927.