Jersey Unreported Judgments

Newton Hearing - procedure

[2023]JRC252

Royal Court

(Samedi)

14 December 2023

Before     :

R. J. MacRae, Esq., Deputy Bailiff, sitting alone.

The Attorney General

-v-

Wayne Christopher Metcalfe

Crown Advocate C. L. G. Carvalho for the Attorney General

Advocate D. S. Steenson for the Defendant

JUDGMENT

THE DEPUTY BAILIFF:

Introduction

Newton hearings - procedure

1.        The Defendant pleaded guilty to grave and criminal assault on a basis that was rejected by the Crown.  The case was thereafter listed for a Newton hearing with the Crown identifying four issues which required determination by the Jurats. 

2.        At any such hearing, it is for the Crown to prove the issues identified to the usual standard - accordingly, the Jurats need to be sure that the prosecution's version of events is correct and, in a case where separate issues had been identified for their determination, must consider the evidence for and against the Defendant on each issue separately.

3.        An issue that arose in the Newton hearing in this case was whether or not the Court is entitled to entertain a submission of no case to answer or an equivalent submission.

4.        Archbold is silent on this issue which, perhaps, is unsurprising because Newton hearings in England and Wales are determined by a judge sitting on their own.  The Crown submitted that the Court could not entertain such a submission.

5.        On any view, such a submission could not be entertained strictly in accordance with the principles set out in Galbraith [1981] 73 Cr App R,124, which has been adopted in criminal trials in Jersey.  This is because the first limb of Galbraith deals with circumstances where there is "no evidence of the crime alleged has been committed by the defendant".  Such considerations cannot arise in a Newton hearing - the defendant has already been convicted by his or her plea. 

6.        Accordingly any submissions, if they are to be received by the Court, must be on the footing that they are made in accordance with the principles in the second limb of Galbraith, namely where the judge concludes "that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict on it", with the test by transposition to these circumstances being "where the judge concludes that the prosecution evidence, taken at its highest, is such that Jurats properly directed could not properly be satisfied so that they are sure on one or more of the issues that they are to determine".  If this test is met, it is the duty of the judge to stop the case.

7.        Accordingly, the key issue is whether there is sufficient evidence on which a reasonable body of Jurats could convict.  I note from Archbold, paragraph 4.364, that the Court needs to consider whether the "state of the evidence called by the prosecution, taken as a whole is so unsatisfactory, contradictory or so transparently unreliable, that no jury [for which read "Jurats"] properly directed could convict [for which read "be sure of the prosecution's version of events"]".

8.        In the circumstances and bearing in mind that submissions of no case to answer can generally be made in both civil and criminal trials, I saw no reason why a similar principle should not apply to a Newton hearing and on that footing I permitted the defence to make the application and ultimately withdrew one of the four issues from the Jurats, on the footing that on that issue the evidence called by the prosecution was so unsatisfactory that no Jurats properly directed could be sure of the allegation made.

9.        The three remaining issues were left for the Jurats and determined by them (although I was required to exercise my casting vote on one issue) after the Defendant had given evidence. 

10.     The second issue that arose during the hearing was in respect of character evidence.

11.     It was necessary for me to deal with two applications in relation to character during the hearing.  The first related to the complainant's character and the second to the Defendant's.

The complainant's character

12.     On the Crown's case, this was an incident of domestic violence at the end of a short, intimate relationship between the complainant and the Defendant.  However, notwithstanding the Defendant's plea of guilty on a limited basis, the Defendant disputed the most serious allegations of violence against him, in particular the assertion that he grabbed and squeezed the complainant's neck, grabbed her head and smacked it against the wall in her sitting room approximately seven times, and thereafter punched her in the chest.

13.     The defence said that the complainant was the aggressor and instigated the violence between the parties when she had been drinking for a number of hours - which, on any view, she had.

14.     The defence obtained the particulars of various of the complainant's previous convictions in the form of a number of police reports which they said individually and collectively showed that:

(i)        The complainant had a propensity to become aggressive when in drink;

(ii)       Often she would forget what she had done in drink, including acts of violence;

These matters were said to support the Defendant's account as to how she had behaved on this occasion.

15.     In respect of her failure to recall what had happened when she became involved in violent incidents when drunk, the defence relied in particular on the fact that on the evening in question she had no memory of the Defendant leaving her home and thereafter her telephoning him on numerous occasions and asking him to return to the premises which, on any view of the evidence, is something which had, in fact, occurred. 

16.     The Crown opposed the admission of this material on the footing that the convictions were recorded too long ago and were irrelevant.  The Crown warned that admission of all or any of the convictions of the complainant would lead to an application to cross-examine the Defendant on a number of his previous convictions.

17.     The defence applied to admit four previous convictions of the complainant, each of which involved her consuming alcohol and committing offences of assault.  For example, the last two convictions for assault on a police officer in 2017 involved the complainant, when very drunk, attempting to enter a nightclub and then when she was arrested for being drunk and disorderly, assaulting two police officers.  In interview, she said that she could not recall going to the nightclub or her interaction with the police and when shown body worn footage was disgusted when considering what she had done.

18.     The test for admission of such material was considered in the decision of Attorney General v PMB [2021] JRC 335 as follows:

"26.    It is necessary to consider the provisions of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the 2003 Law") as introduced by way of amendment under the provisions of the Law before considering the evidence in this case which the defence seek to adduce.  At the outset it is important to note that the test for admissibility of evidence of a defendant's bad character is quite different for the test for admission of a non-defendant's bad character.  The former is considered at Article 82E of the 2003 Law and the articles referred to within that Article; the latter is provided for at Article 82J.

27.      It is fair to note that the circumstances in which a defendant's bad character may be admitted as evidence are wider in scope than the circumstances in which the character of a non-defendant may be admitted.  Archbold says in relation to the equivalent provisions in the English legislation (Archbold 2021 edition at 13-23):

"It appears from the Law Commission's Report that the section was mainly intended to regulate the use of bad character evidence to undermine the credibility of witnesses, whether by calling evidence or by cross-examination.  The previous law was criticised because it permitted the credibility of witnesses to be too readily attacked, with witnesses sometimes needlessly humiliated by questioning on discreditable incidents long ago which had little real bearing on their credibility and [the English provision] was intended to limit this.  The underlying train of thought was as follows.  [The English provision] will admit evidence of bad character only where this has "important probative value in relation to a matter which is in issue in the proceedings and is of substantial importance in the context of the case as a whole."  Where the subject of a witness's testimony satisfies this test, his credibility (or otherwise) will be important to the "probative value" of his evidence, and hence evidence bearing on his credibility will be impossible.  But if the witness's testimony is only of peripheral importance, or if the bad character evidence does not seriously undermine his credibility, it will not be admissible." 

28.      As the relevant provision in the Jersey legislation is identical (although differently ordered) from the provision in the English statute then it is appropriate to have regard to what is said in Archbold and also appropriate to have regard to English case law, although the same is not binding upon this Court.

29.      The relevant part of Article 82J provides:

"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)        ...

(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

..."     

30.      After much debate about the extent to which bad character evidence in respect of a non-defendant witness is admissible, particularly where the issue is the credibility of the witness and where the convictions are not merely convictions for dishonesty, the current approach which prevails in England and Wales was settled by the English Court of Appeal in R -v- Brewster and Cromwell [2010] 2 Cr App R 20.  In that case the defendants were convicted of kidnapping, the complainant alleging that she had been kidnaped by the defendants.  Her creditworthiness was a matter in issue in the proceedings and the defence unsuccessfully applied to cross-examine her upon her previous convictions for burglary, theft, and manslaughter, all of which she had admitted.  The alleged kidnapping took place in early 2009 and the offences committed by the complainant occurred over the previous nine years.  Of particular concern to the defence was the conviction for manslaughter, owing to the circumstances in which that offence was committed.  That offence took place approximately five years prior to the alleged kidnapping.  At paragraph 21 of the judgment of the Court of Appeal Pitchford, LJ, giving the judgment of the court said:

"22.    It seems to us that the trial judge's task will be to evaluate the evidence of bad character which it is proposed to admit for the purpose of deciding whether it is reasonably capable of assisting a fair-minded jury to reach a view whether the witness's evidence is, or is not, worthy of belief. Only then can it properly be said that the evidence is of substantial probative value on the issue of creditworthiness. In reaching this view, with respect to the court in S (Andrew) , we agree with the observations of Hughes L.J. in Stephenson . It does not seem to us that the words "substantial probative value", in their s.100(1)(b) , context require the applicant to establish that the bad character relied on amounts to proof of a lack of credibility of the witness when credibility is an issue of substantial importance, or that the convictions demonstrate a tendency towards untruthfulness. The question is whether the evidence of previous convictions, or bad behaviour, is sufficiently persuasive to be worthy of consideration by a fair-minded tribunal upon the issue of the witness's creditworthiness. When the evidence is reasonably capable of giving assistance to the jury in the way we have described, it should not be assumed that the jury is not capable of forming an intelligent judgment whether it in fact bears on the present credibility of the witness and, therefore, upon the decision whether the witness is telling the truth. Jurors can, with suitable assistance from the judge, safely be left to make a proper evaluation of such evidence just as they are when considering issues of credibility and propensity arising from a defendant's bad character."

31.      The court went on to set out what the approach of the trial judge should be under the equivalent to Article 82J(1)(b):

"23.    The first question for the trial judge under s.100(1)(b) is whether creditworthiness is a matter in issue which is of substantial importance in the context of the case as a whole. This is a significant hurdle. Just because a witness has convictions does not mean that the opposing party is entitled to attack the witness' credibility. If it is shown that creditworthiness is an issue of substantial importance, the second question is whether the bad character relied upon is of substantial probative value in relation to that issue. Whether convictions have persuasive value on the issue of creditworthiness will, it seems to us, depend principally on the nature, number and age, of the convictions. However, we do not consider that the conviction must, in order to qualify for admission in evidence, demonstrate any tendency towards dishonesty or untruthfulness. The question is whether a fair-minded tribunal would regard them as affecting the worth of the witness' evidence."

32.      Applying these principles to the facts of the case before it, the Court of Appeal considered the trial judge's exercise of judgment on the probative value of the complainant's convictions noting that it was particularly, but not exclusively, concerned with the conviction for manslaughter.  The Court said "we take the view that each of these convictions is relevant in the wider sense as going to a fair-minded jury's proper assessment of the standing of the witness.  We do not suggest that a comparatively old conviction for shoplifting or burglary would alone fall into this category in the context of the present case.  However, the appellants are entitled to assert that cumulatively they convey a more complete picture of the status of the witness than otherwise would be available."  Accordingly, the court concluded that the judge had erred in his decision to exclude the convictions from the jury's consideration.  The Court observed at the end of paragraph 24 of its judgment:

"Once it is decided that they are of substantial probative value in relation to an issue of substantial importance in the context of the case as a whole, there is no residual discretion except in the exercise of case management to refuse the admission of the evidence. Such discretion as there is will be exercised, for example, in the manner of presentation of the evidence to the jury, and the restriction of cross-examination to relevant matters."

33.      The Court of Appeal in its conclusion noted that the effect of the admission of the complainant's previous convictions would have led to the "inevitable consequence" of the admission of the criminal records of the appellants under the relevant provisions of the 2003 Act.

34.      A useful gloss to the decision of the Court of Appeal is contained in Archbold at 13-24:

"In deciding whether a witness's criminal record satisfies this test, important factors are the staleness or otherwise of the convictions and the gravity of the offences.  Where the convictions are old and the offence is not particularly serious, permission to cross-examine about them is likely to be refused."

35.      Archbold goes on to refer to the case of Garnham [2008] EWCA Crim 266 where the Court of Appeal endorsed the refusal of the trial judge to permit cross-examination of a rape complainant about her record for theft and other offences of dishonesty, the most recent of which was five years before.  The Crown drew my attention to the case of Regina -v- Smith [2014] EWCR Crim 960 where the Court of Appeal considered an appeal against conviction arising from the judge's ruling on the admission of bad character evidence of a prosecution witness.  The judge had declined to admit into evidence the witness's three convictions for theft and shoplifting from 2003 and 2004 (the offence occurred in 2012).  The judge held that these were "minor convictions for dishonesty" years ago which, although potentially relevant to credit, were not of substantial probative value.  The Court of Appeal declined to interfere with the decision of the trial judge and referred to the extract from Brewster where the Court of Appeal had said "whether convictions have persuasive value on the issue of credit worthiness will, it seems to us, depend principally on the nature, number and age of the convictions.""

19.     Applying those principles to this case, first the creditworthiness of the complainant is a matter in issue which is of substantial importance in the context of the case as a whole.

20.     As to the second issue, is the bad character relied upon of substantial probative issue in relation to that issue or, in other words, would a fair-minded tribunal regard them as affecting the worth of the witness' evidence?  In my view, they would, and on that basis I admitted three of the four previous convictions and a brief description of the underlying facts, so that the complainant could be cross-examined upon these matters. 

21.     This duly occurred and led to the Crown's subsequent application to admit certain of the Defendant's previous convictions.

The Defendant's character

22.     The Defendant had a substantial list of previous convictions, with 90 court appearances representing over 130 offences.

23.     The Crown sought to adduce 37 of those previous convictions and a correspondingly greater number of offences.  The Crown sought to adduce most of the Defendant's convictions for violence, dishonesty and public order matters.  The Crown argued, rightly, that there had been an attack on the character of the principal Crown witness and accordingly this opened the gateway under Article 82G of the Law.  Article 82G provides:

"(1)     Evidence of a defendant's bad character is admissible if the defendant has made an attack on another person's character.

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

(3)       A defendant makes an attack on another person's character if -

(a)        he or she adduces evidence attacking the other person's character;

(b)        he or she (or any legal representative appointed to cross-examine a witness in the defendant's interests) asks questions in cross examination that are intended to elicit such evidence, or are likely to do so; or

(c)        evidence is given of an imputation about the other person made by the defendant -

(i)         on being questioned under caution, before charge, about the offence with which he or she is charged, or

(ii)        on being charged with the offence or officially informed that he or she might be prosecuted for it.

(4)       In paragraph (3)(a) "evidence attacking the other person's character" means evidence to the effect that the other person -

(a)        has committed an offence (whether a different offence from the one with which the defendant is charged or the same one); or

(b)        has behaved, or is disposed to behave, in a reprehensible way.

(5)       In paragraph (3)(c), "imputation about the other person" means an assertion to that effect."

24.     The admissibility of the Defendant's bad character in these circumstances is subject to the Court's exclusionary discretion under Article 82E(2) and (3) which provides:

"(2)     The court must not admit evidence under Article 82F or Article 82G 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 have 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."

25.     I gave my ruling (with reasons reserved) in relation to these matters by reference to these two statutory provisions and sight of the Royal Court decision in AG v Withe [2023] JRC 125.

26.     For the purpose of providing reasons for my decision, I have now had the opportunity to consider the relevant passages in Archbold.  The evidence of previous convictions, as the Crown properly stated, goes to the Defendant's credibility.  At paragraph 13-66 Archbold says:

"It is universally accepted that the purpose of gateway (g)...is to enable it to be shown that the defendant's word is not worthy of belief as Moses, LJ said in Hearne [2009] EWCA Crim 103...adopting the earlier words of Lord Lane LCJ in Powell (1986) 82 Cr App 165:

"...it is only fair that the jury should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked"."

27.     It seems that in these circumstances the Court is entitled to let in all of a defendant's previous convictions.

28.     Nonetheless, Archbold goes on to say "In the context of gateway (g), much turns in practice on the willingness or otherwise of the trial judge to invoke [Article 82E(3)] and exclude the evidence of the defendant's bad character on the ground that admitting it would make the trial unfair".

29.     Archbold says "However, case law gives no encouragement to judges to exclude the evidence on the ground that the volume or the nature of the defendant's criminal record might damage them in the eyes of the jury.  In Clarke, the Court of Appeal upheld the judge's refusal to exclude the defendant's atrocious record...at his trial for sex offences...".

30.     In Clarke, the English Court of Appeal held that the judge, when considering the English equivalent to gateway 82G, was considering a test of admissibility much less restrictive than that under the equivalent to Article 82F.  A judge when considering this gateway could admit evidence which tended in a general sense to damage the character of a defendant in order to allow the jury to assess the respective merits of the accounts given by the complainant and the defendant.  It was not unreasonable to admit the whole of the defendant's character.  In that case, the defendant was charged with sexual offences against his step-daughter and her sister, and the judge admitted his convictions going back over 20 years including for taking a conveyance with authority, having an offensive weapon, robbery, having an imitation firearm with intent to commit an indictable offence, theft of a vehicle, assault occasioning actual bodily harm, carrying a firearm with intent to commit an indictable offence and possessing an imitation firearm without a certificate.  His appeal against conviction was dismissed.

31.     The commentary on this decision in the Criminal Law Review says "The court's judgment in the present case further entrenches the rather indiscriminate approach that has been taken to the reception of bad character evidence through gateway (g)". 

32.     The Court of Appeal held at paragraph 29 of the judgment that there was an extended line of authority which establishes that where a defendant makes an attack on the character of a complainant "all convictions are potentially relevant to assist the jury to assess the character of the accused and it is not necessary, or at least not generally so, for detailed facts about the nature and circumstances of those convictions to be put before the jury that is only likely to be required where it is necessary to demonstrate a propensity for untruthfulness in paragraph (g) cases".

33.     At paragraph 30, the Court of Appeal in Clarke continued:

"The rationale for adopting this wider principle was succinctly expressed by the Vice-President, Hughes LJ, in the case of Singh [2007] EWCA Crim 2140, where he said that the rationale for the gateway is:

"...the obverse of the reason why a defendant is entitled to plead his own good character in support of his claim that he should be believed.  The reason why he is entitled to do that is because ordinary human experience is that people of proven respectability and good character are, other things being equal, more worthy of belief than those who are not.  Conversely, persons of bad character may of course tell the truth and often do, but it is ordinary human experience that their word may be worth less than that of those who have led exemplary lives"."

34.     The commentary in the Criminal Law Review says, having regard to this comment "Like so many of the generalisations concerning human behaviour that have underpinned the development of the law of evidence, its empirical validity may be questionable".  The Court of Appeal in Clarke continued:

"31.    In Singh itself the defendant was alleged to have robbed the complainant.  He alleged that the complainant was on hard drugs, and that in fact it was an unidentified third party who had been responsible for the offence.  The defendant had a record for such offences as assault and criminal damage.  He submitted that it would not assist the jury to have that evidence before the jury; it did not go specifically to dishonesty.  The court rejected that submission, Hughes LJ observing that the information would assist the jury to judge the complainant's credibility against that of the accused."

32.      There have been a number of other cases where this court has adopted the same approach to s 101(1)(g)cases, including George [2006] EWCA Crim 1652; Bahanda [2007] EWCA Crim 2929, and the case of Lamaletie and Royce [2008] EWCA Crim 314.  In Lamatelie two Defendants were tried for inflicting grievous bodily harm on a taxi driver.  They said that he had attacked them and they were merely seeking to protect themselves.  The prosecution sought to have their bad character put before the jury.  They had numerous convictions for violence.  The court held that the evidence was admissible.  In fact, the judge in that case directed the jury to the fact that the evidence of bad character went not to propensity, but only to the question of their credibility. (In fact the jury could it seems have relied on the evidence for propensity too since once evidence is admitted, it can be used for any purpose to which it is relevant: see R v Highton [2005] EWCA Crim 1985; [2006] 1 Cr App R 7.) The significance of the case here is that the fact that the convictions did not fall within the Hanson category, if I can so describe it, did not prevent the material being adduced before the jury."

35.     Clarke also considered the judge's failure to exclude the evidence under the exclusionary discretion, which is in identical terms to the Jersey statute.  It was said that as some of the convictions related to events committed over 20 years before the offences then they ought to have been excluded.  The Court of Appeal said:

"39.    In this case, the jury already knew about the first offence. That was relatively recent. In our judgment, it was perfectly proper for the judge to consider that, given the fundamental nature of this attack on the Complainant RH, the jury were entitled to know the whole of this Appellant's character. We can see that where the only offences are historic offences there may well be circumstances where the court will take the view that it is not fair to rely upon them as fairly reflecting the Defendant's character as it is at the time of trial. In those circumstances it might be unfair to admit it.

40.      Again, if these old convictions demonstrate a propensity to commit the offence and are sought to be adduced for the purpose of going to general credit, then it may be highly prejudicial and unfair to admit them. But that was not the position here. In our judgment, the judge was entitled to allow the jury to see the full range of the Defendant's offending, in particular given that the admitted drugs offence - a recent one - was already before the jury. We suspect that, save perhaps for the robbery count, these historic convictions would in any event have been of little moment as far as the jury were concerned.

41.      We have to ask ourselves, as we have indicated, whether it was Wednesbury unreasonable for the judge to act as he did. We think he applied the proper principles and came to a judgment he was perfectly entitled to reach."

36.     Accordingly, all the defendant's previous convictions are prima facie admissible subject to the Court's exclusionary discretion under Article 82E(2) having regard to the matters in particular under 82E(3).

37.     When exercising my discretion under Article 82E I was concerned that, notwithstanding what is said in Archbold, to leave the convictions to the Jurats (and for these purposes I treated them as indistinguishable from a jury) would be wholly disproportionate owing to the extent of the Defendant's criminal record.  In any event, the Crown were not seeking to admit the whole of the Defendant's record, but 37 particular convictions for, as I have said, violence, dishonesty and public order.

38.     Consequently, I decided it was proper to exclude any court appearances from when the Defendant was under the age of 18 and perhaps - having regard to the authorities to which I have referred - adopting an over-generous but to my mind justified approach, excluded all the convictions for public order offences, offence of dishonesty and an assault conviction where the penalty imposed was a conditional discharge (presumably indicative of the court's view of the seriousness of the matter) on the footing that such matters would have such an adverse effect on the fairness of the proceedings that the Court ought not to admit them.

39.     Accordingly, I admitted the following 9 convictions only, namely the Defendant's convictions for assault occasioning actual bodily harm in 1992, common assault in 1996, assault occasioning actual bodily harm in 1997, common assault in 2009, battery in 2010, common assault in 2012, common assault in 2016, assault in 2019 and battery in 2019.  The Jurats were directed that those convictions went to the Defendant's credibility; that they had to decide whether or not those convictions assisted them when considering whether or not he had told them the truth, but that they could not find the allegations against him proved simply because of his previous convictions.

40.     The admission of the Defendant's bad character under Article 82G and the Court's exclusionary power under Article 82E(2) is doubtless a matter that will arise for consideration again, and when that occurs the Court should be furnished with all the relevant authorities in order for a more detailed review of the same.  That is not criticism of counsel in this case as the character issues arose late owing to the Defence obtaining the details of the Complainant's previous court appearances shortly before the hearing.  It is generally preferable for these matters to be dealt with prior to trial.

Authorities

Galbraith [1981] 73 Cr App R,124.

AG v PMB [2021] JRC 335.

AG v Withe [2023] JRC 125.

Criminal Law Review.

Archbold.