Hearing (Criminal) - application to adduce evidence.
[2019]JRC221A
Royal Court
(Samedi)
6 November 2019
|
Before :
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T. J. Le Cocq, Esq., Bailiff, sitting alone.
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The Attorney General
-v-
Daniel Charles Cornish
J. C. Gollop, Esq., Crown Advocate for the Attorney
General
Advocate J. Heywood for the Defendant.
JUDGMENT
THE BAILIFF:
1.
On 6th
November, 2019, I gave leave to the prosecution in the above proceedings to
adduce evidence of three previous convictions of the Defendant under the bad
character provisions in the Police Procedures and Criminal Evidence (Jersey)
Law 2003 ("the Law"). This was the first such application under
those provisions which came into effect on 31st October, 2019, and I
indicated that I would give reasons subsequently. These in brief are those reasons.
2.
The
Defendant was charged with two counts.
The first was illegal entry with intent and the second was a common
assault upon a woman with whom he had an "on
and off" relationship (the Complainant).
3.
The
Crown's case can be very briefly stated for these purposes. It was alleged that the Defendant had
illegally entered the Complainant's ground floor flat by climbing in
through the kitchen window against her will with the intention of committing an
assault upon her. It was further alleged
that whilst in the flat he committed such an assault.
4.
The
Defendant and the Complainant have a long history between them. They have been in a relationship for
nearly 12 years and have a child who does not reside with the Complainant. Their relationship appears to be a
volatile one and, as I have indicated above, is characterised as being an "on and off" relationship.
5.
The
incident which gave rise to the charges occurred in the early evening on 30th
March, 2019. The Defendant and the
Complainant were not co-habiting at that time although the Defendant had spent
the night at the Complainant's flat on 29th March. The following day they had done various
domestic things together and then spent a period in the afternoon drinking
together at the Complainant's flat, having consumed approximately four
cans of strong lager each.
6.
An
argument took place between them as a result of which the Defendant left and
went to sit in his car parked nearby because he was unable to drive and to
enable the Complainant to "cool
off". Approximately an
hour and a half later he returned to the flat. The Complainant did not give him access
to the front door and spoke to him through the kitchen window which was
ajar. It was admitted that he
entered the flat through the open window and that he was not invited to do so. He denied, however, that he had any
intention to assault the Complainant and he further denied that he did in fact
assault her in any way when he entered the flat.
7.
The
prosecution sought to adduce the fact that the Defendant had five previous
convictions, namely illegal entry and common assault, breach of a restraining
order, grave and criminal assault, common assault, and another conviction for
common assault taking place between March 2010 and October 2017. All but the penultimate common assault
charge related to the Complainant in this case. The sole common assault charge that did
not relate to the Complainant related to a male member of the public.
8.
The Crown
sought to adduce the bad character of the Defendant under the propensity
provisions of the Law. The ability
to adduce evidence of a Defendant's bad character is provided for in Part
9A of the Law. The application was
made to adduce this evidence under Article 82F of the Law which is in the
following terms in so far as is relevant:-
"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 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) he
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.
(3) Where
paragraph (1)(a) applies, a defendant's propensity to commit offences of
the kind with which he or she is charged may (without prejudice to any other
way of doing so) be established by evidence that the defendant has been
convicted of -
(a) an
offence of the same description as the one with which he or she is charged; or
(b) an
offence is of a similar nature or type as the one with which he or she is
charged.
(4) Paragraph
(3) does not apply in the case of a particular defendant 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 or her case.
(5) For
the purposes of paragraph (3)(a), 2 offences are of the same description as
each other if the statement of the offence in a summons under Article 14 of the
Criminal Procedure Law or Article 9 of the Magistrate's Court
(Miscellaneous Provisions) (Jersey) Law 1949, or indictment (within the meaning
of Article 1(1) of the Criminal Procedure Law), would, in each case, be in the
same terms."
9.
The Crown
put before me the case of Regina v Hanson and others (2005) EWCA Crim 824, (Court of Appeal Criminal Division) which dealt with sections 98 to 113 of
the Criminal Justice Act 2003 which is relevant, so are as in, similar terms to
the Law.
10. The following extracts appear to me to be of interest:-
"4. The starting point should be for
judges and practitioners to bear in mind that Parliament's purpose in the
legislation, as we devine it from the terms of the Act, was to assist in the
evidence based conviction of the guilty, without putting those who are not
guilty at risk of conviction by prejudice.
It is accordingly to be hoped that prosecution applications to adduce
such evidence will not be made routinely, simply because a defendant has
previous convictions, but will be based on the particular circumstances of each
case.
...
6. The
present applications are concerned only with the Crown wishing to rely upon
evidence of previous convictions rather than other evidence of bad
character. By section 103(1)
matters in issue for the purpose of section 101(1) (d) include:
'(a) the question whether the
defendant has a propensity to commit offences of the kind with which he is
charged, except where his having such a propensity makes it no more likely that
he is guilty of the offence;
(d) the
question whether the defendant has a propensity to be untruthful, except where
it is not suggested the defendant's case is untruthful in any
respect'
...
7. Where
propensity to commit the offence is relied upon there are thus essentially
three questions to be considered:
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?
....
9. There
is no minimum number of events necessary to demonstrate such a propensity. The fewer the number of convictions the
weaker is likely to be the evidence of propensity. A single previous conviction for an
offence of the same description or category will often not show
propensity. But it may do so where,
for example, it shows a tendency to unusual behaviour or where its
circumstances demonstrate probative force in relation to the offence charged
(compare DPP v P [1991] 2 AC 447 at 460E to 461A). Child sexual abuse or fire setting are
comparatively clear examples of such unusual behaviour but we attempt no
exhaustive list. Circumstances
demonstrating probative force are not confined to those sharing striking
similarity. So, a single conviction
for shoplifting, will not, without more, be admissible to show propensity to
steal. But if the modus operandi
has significant features shared by the offence charged it may show propensity.
10. ...For
example, theft and assault occasioning actual bodily harm may each embrace a
wide spectrum of conduct. This does
not however mean that what used to be referred as striking similarity must be
shown before convictions become admissible. The judge may also take into
consideration the respective gravity of the past and present offences. He or she must always consider the
strength of the prosecution case.
If there is no or very little other evidence against a defendant, it is
unlikely to be just to admit his previous convictions, whatever they are.
11. In
principle, if there is a substantial gap between the dates of commission and of
conviction for earlier offences, we would regard the date of commission as
generally being of more significance than the date of conviction when assessing
admissibility. 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.
12. It
will often be necessary, before determining admissibility and even when
considering offences of the same description or category, to examine each
individual conviction rather than merely to look at the name of the offence or
at the defendant's record as a whole. The sentence passed will not normally be
probative or admissible at the behest of the Crown, though it may be at the
behest of the defence. Where past
events are disputed the judge must take care not to permit the trial
unreasonably to be diverted into an investigation of matters not charged on the
indictment.
...
17. In
cases of the kind we are considering, it is the Crown which begins the process
of applying to adduce evidence of bad character. It must specify the relevant
gateways.... We would expect
the relevant circumstances of previous convictions generally to be capable of
agreement, and that, subject to the trial judge's ruling as to
admissibility, they will be put before the jury by way of admission. Even where the circumstances are
genuinely in dispute, we would expect the minimum indisputable facts to be thus
admitted. It will be very rare
indeed for it to be necessary for the judge to hear evidence before ruling on admissibility
under this Act.
18. Our
final general observation is that, in any case in which evidence of bad
character is admitted to show propensity, whether to commit offences or to be
untruthful the judge in summing-up should warn the jury clearly against placing
undue reliance on previous convictions.
Evidence of bad character cannot be used simply to bolster a weak case,
or to prejudice the minds of a jury against a defendant. In particular, the jury should be
directed; that they should not conclude that the defendant is guilty or
untruthful merely because he has these convictions. That, although the convictions may show
a propensity, this does not mean that he has committed this offence or been
untruthful in this case; that whether they in fact show a propensity is for
them to decide; that they must take into account what the defendant has said
about his previous convictions; and that, although they are entitled, if they
find propensity as shown, to take this into account when determining guilt, propensity
is only one relevant factor and they must assess its significance in the light
of all the other evidence in the case.
We do not purport to frame a specimen direction but the Judicial Studies
Board may wish to consider these observations in relation to their helpful
specimen direction No 24 on bad character."
11. It seemed to me to be clear that the
convictions against the Defendant for offences involving either illegal entry
or assault against the Complainant, with whom, as I have said, he is in a relationship
of sorts, were directly relevant to the issue of propensity to commit offences
of the nature of those with which he is currently charged. A review of the general description of
the circumstances in which those previous convictions came into existence also
persuaded me that it was appropriate to admit them under the Article 82F
propensity gateway.
12. I do not, however, think it is appropriate to
admit the convictions relating to violence against a third party member of the
public or a breach of a restraining order.
In the former case, I do not think in these circumstances the fact that
any individual might get into a physical altercation with a member of the
public is necessarily indicative of the fact that he might have a propensity to
assault a woman with whom he was in a relationship. Similarly, the breach of the restraining
order, although it did relate to the Complainant, was in the circumstances so I
am told by the defence, where he had feared that the Complainant, who had
threatened to commit suicide, might need help. I am not, of course in a position to say
whether that submission is accurate but in the circumstances I do not think it
would assist the conduct of the trial were a matter disputed to that extent to
be placed before the jury.
13. Accordingly I refused to allow the Crown to
adduce evidence of the breach of the restraining order or the assault against a
member of the public under the propensity provisions in Article 82F but agreed
the other three previous convictions should be so admitted.
14. I endorse the observations of the Court in Hanson
(above) at paragraph 17 of the judgment.
Once previous convictions are held to be admissible under the relevant
gateway the new relevant facts of the previous convictions should generally be
capable of being placed before the jury in written admissions.
Authorities
Police Procedures and Criminal
Evidence (Jersey) Law 2003
Regina v Hanson
and others (2005) EWCA Crim 824, (Court of
Appeal Criminal Division)
