Domestic abuse - Defence submission to refuse certain particulars in
Count 2
[2024]JRC231
Royal Court
(Samedi)
16 October 2024
Before :
|
Sir Michael Birt, Esq., Commissioner
|
The Attorney General
-v-
N
Ms C. Hall, Crown Advocate.
Advocate O. A. Blakeley for the Defendant.
JUDGMENT
THE COMMISSIONER:
1.
Advocate
Blakeley has made a submission that I should refuse to allow certain
particulars of Count 2 to go to the Jurats on the basis of the test in Galbraith
(1981) 73 Cr. App. R.124, CA . It
is unusual because normally that is applied to an entire count, but I accept
that it can be applied also to particulars; if there is for example, no
evidence to support an individual particular it would be right for the judge to
strike out that particular, because otherwise there is a danger of conviction
based upon something in respect of which there is no evidence. So I accept the underlying thrust of
what Advocate Blakeley says, namely that I can strike out particulars if I am
satisfied that the Galbraith test is met in relation to those
particulars.
2.
I remind
myself of the Galbraith test which is helpfully set out in Archbold 2023
at 4-364
"(1) If there is no evidence
that the crime alleged has been committed by the defendant there is no
difficulty - the judge will stop the case.
(2) The difficulty arises where there is some evidence but it is of a
tenuous character, for example, because of inherent weakness or vagueness or
because it is inconsistent with other evidence. (a) 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, it is his duty, on a
submission being made, to stop the case. (b) Where however the prosecution
evidence is such that its strength or weakness depends on the view to be taken
of a witness's reliability, or other matters which are generally speaking
within the province of the jury and where on one possible view of the facts
there is evidence on which the jury could properly come to the conclusion that the
defendant is guilty, then the judge should allow the matter to be tried by the jury."
3.
Advocate
Blakeley has made his submission in relation to two of the particulars in Count
2. The first one is (a) that the
Defendant "attempted to slam a door on [the Complainant]". It became clear during discussions
yesterday that there was no evidence from the Complainant that the door had
actually struck her. It appears
this morning that it is the case that in his interview the Defendant said there
was some contact between the door and the Complainant although in a very
different context, as he says it was her seeking to close the door on him. Be that as it may, the case put forward
by the Prosecution on the basis of the Complainant's evidence is that
there was no contact. It is
therefore one of those assaults where a Complainant is put in fear that
violence is about to be used towards her and that is a well
established alternative aspect of assault.
4.
What
Advocate Blakeley says is that, on that basis, there is no evidence that she
was put in fear that she was about to be struck by the door. I do not accept that submission. The wording that she uses for example in
the footage of PC Welsby is "he tried to slam the door on me". It seems to me that it is perfectly
possible for the Jurats to conclude from that that she was put in fear that the
door was about to come into contact with her because he was slamming it on her.
So I regard what she says as
capable, it will be a matter for the Jurats, of satisfying the element of
assault, namely that the Complainant is put in fear of physical contact as part
of the assault. I reject Advocate Blakeley's submission in respect of the
first particular.
5.
Advocate
Blakeley then makes a second submission in relation to the fourth particular
which is itemised now as "grabbed and held [the Complainant] by the
neck". He submits that
the only evidence of this is from the Defendant in his interview, where it is
quite clear he is saying that this is in the context of self defence because
she was attacking him and at times, his hands came into contact with her neck
as part of his defending himself.
6.
In my
judgment that is to ignore what the Complainant says; for example when talking
to PC Bastable she says, "he dragged me to the ground and strangled
me". Similarly in
relation to PC Welsby she says, "he dragged me to the floor and
he's like held me down by the throat".
7.
In my
judgment that is again a matter for the Jurats. They could properly take the view that
her evidence is quite inconsistent with any idea of him grabbing her throat in
self-defence. The use of the word
strangle is not really consistent with that. This will be a matter for the Jurats but
I do not consider at present either that there is no evidence in relation to
particular 4 or that it is so unreliable and tenuous that I should withdraw this
particular from the Jurats.
8.
For those
reasons I reject the submissions.
Authorities
Galbraith (1981) 73 Cr. App. R.124,
CA.
Archbold Criminal Pleading, Evidence
and Practice 2023