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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Gonzales v Folkestone Magistrates Court [2010] EWHC 3428 (Admin) (14 December 2010) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2010/3428.html Cite as: (2011) 175 JP 453, [2010] EWHC 3428 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand London WC2A 2LL
		14 December 2010

1. LORD JUSTICE SULLIVAN: I will ask Burton J to give the first judgment.
2. MR JUSTICE BURTON: On 30 November 2009, Mr Gonzales, the Claimant before us, was convicted at the Folkestone Magistrates Court of assault on his ex-partner on 13 September 2009. He had two previous convictions, on a plea of guilty, of common assault on the same complainant on 30 and 31 January of that year, the conviction being on 24 June 2009. On this occasion he committed, on the prosecution case, a further assault on the same ex-partner.
3. On the day after the alleged assault on 13 September, he had a police interview in which, although accepting that he was present and that he did have physical contact with her, he asserted self-defence as to the bulk of the alleged attack, and accident so far as concerned the alleged hitting of her with or by means of a television.
4. The prosecution supplied to the defence a copy of the record of that interview, but declined to adduce it as part of the prosecution case. The defence applied to the justices at the close of the prosecution for directions that the statement should have been adduced and/or that it was an abuse if it was not adduced. The justices ruled that there was no requirement on the prosecution to adduce such statement, which consequently did not go in before them. It is common ground before us that the defence was not able to adduce it on the defendant's behalf because it was a mixed statement and, to an extent, self-serving.
5. A mixed statement was defined by Boreham J in the case of R v Hamand [1986] 82 Cr App R 65 as being a statement which is, in part, comprised of admissions and in part exculpatory or self-serving. In this case, the admissions of course were the fact that he was party to the incident. The self-serving exculpatory aspect was the explanation that he gave.
6. In the very helpful written submissions by counsel before us today (Mr Skinner for the Claimant and Mr Connolly for the Crown Prosecution Service as interested parties), we have been referred to a number of authorities on the subject of the adduceability of mixed statements: R v Lobell [1957] 1 QB 547; R v Pearce [1979] 69 Cr App R 365; R v Sharp [1988] 1 WLR 7; Hamand (to which I have referred); R v Russell-Jones [1995] 1 Cr App R 538 and Western v DPP [1997] 1 Cr App R 474.
7. It is clear and is now accepted by Mr Connolly for the Crown Prosecution Service that the prosecution should have adduced the evidence as part of its case.
8. The defendant was convicted without the interview going before the justices. It seems that, unfortunately, at one stage the prosecution counsel then instructed (not Mr Connolly) sought to cross-examine the defendant by reference to an alleged inconsistency between the interview and what he was now saying in court, but there was an understandable objection by counsel for the defendant and the question was withdrawn. But that only, in a way, compounds the situation. The consequence of the prosecution's not adducing the evidence is, Mr Skinner has argued, twofold. The first is that he lost the option of not giving evidence at all, if his case of self-defence and/or accident had been put before the justices to an extent by the interview. The second is that, had he exercised the alternative option to give evidence, he lost the benefit of having before the Court a statement given almost immediately after the accident, consistent (if it was) with the evidence he was now giving.
9. The case for the prosecution is described succinctly by Mr Skinner in his skeleton as follows. The complainant alleged that the Claimant shoved her with his elbow, to which she responded with a push. It was then alleged that the Claimant pulled the complainant's hair back and forth and spat in her face. The complainant attempted to leave the room, but was pushed to the floor by the Claimant, who then pushed a television onto the complainant's ankle, causing it to swell.
10. In his interview, the Claimant raised effectively three matters of defence to the course of events that was described by the complainant. He admitted that he lost his temper and used very rude words to the complainant, and he then, in the interview, stated that he turned his back on the complainant and felt a punch to his face, and he said that it was then that he slapped the complainant. Then he said that as he went to get his jeans and came back to the bunk bed, the complainant tried to charge at him, and he stuck his arms out and the complainant tried to jump over him and stumbled back, tripping over the telephone wire and falling over. Thus it was that the television may have caused the damage, although he did deny that the television hit the complainant. That was certainly, whether accepted or not, particularly after being tested by cross-examination, an account consistent with a defence of self-defence, so far as the physical contact is concerned, and accident, so far as any injury caused by the television is concerned.
11. The prosecution submits that, after the acceptance which Mr Connolly has now given that the interview statement ought to have gone in, nevertheless the magistrates would have convicted. He accepts that we have to be sure after the error of law that the magistrates would have convicted. He also accepts that we have to be so sure after considering either of the two options of which the Claimant complains that he was deprived by the course that was taken by the justices in upholding the prosecution's objection to adduce the interview, which I have already described.
12. Mr Connolly has submitted that if the Claimant had not given evidence, ie he had accepted option one, then it is overwhelmingly likely that he would have been convicted. First, there would have been the appropriate inference drawn against him as a result of his not giving evidence: second, his previous convictions would have gone in: and third, any weight given to the account of self-defence and accident contained in the interview would have been more than outweighed by the, no doubt, compelling force of the oral evidence given by the complainant, not countered by any oral evidence by the defendant.
13. There is much force in what Mr Connolly has said about the likely outcome had that course been taken. But, of course, it is not the only possible result of the option. The other option, which we have described, would have involved the defendant giving evidence and having what Lawton LJ in the case of McCarthy [1980] 71 Cr App R 142 described as "one of the best pieces of evidence that an innocent man can produce [namely] his reaction to an accusation of a crime". Plainly Mr Connolly submitted that the justices would still have been likely to convict notwithstanding, and the existence of the earlier consistent statement, if it was consistent with the evidence that he gave, would have not been likely to have enabled him to defeat the powerful oral evidence of the complainant, and that of course his case of self-defence and accident was no doubt put forward orally without the benefit of the consistent statement and disbelieved by the magistrates.
14. We cannot be certain, particularly had option two been followed, that the defendant would have been convicted. It seems to us entirely possible that the justices would have at least had seriously to consider a defence which they would thus have known would have been put forward immediately after the accident, and with some degree of particularity, before reaching the same conclusion as they did in fact reach. There is, in our judgment, a reasonable doubt as to what would have occurred, and we thus cannot be sure that he would still have been convicted.
15. On his conviction, he was sentenced to 100 days' custody and to serve a previous suspended sentence, no doubt imposed upon him in respect of his convictions in respect of the same victim to which I have referred, and that sentence has now been served. At the same time, there was imposed upon him a two-year restraining order to prevent him from any similar conduct against the complainant.
16. When we come therefore to consider the consequence of our judgment, it is plain that the conviction must be quashed, but the question is whether there should be a re-trial. A re-trial could not result in any other custodial sentence than that which he has now served. The only outstanding question must therefore be whether there is any public interest in a conviction of this man, who already has convictions for assaulting the same victim, and it appears to us that the real question must be what is best in the interests of the complainant in this case, rather than the public, who have been satisfactorily protected in the circumstances of this case.
17. So far as the complainant is concerned, the Crown, through Mr Connolly, did say that they would wish to consider the possibility of a re-trial, but they have no express instructions as to whether the complainant would be willing to give evidence, although we assume that she would. Plainly the most important thing so far as she is concerned is that she should have the benefit of the protection which the justices thought appropriate.
18. There has been reported in today's Times newspaper the decision of R v Major before the Lord Chief Justice and others in a judgment given on 1 December 2010, in which it was made clear that judges have power to make restraining orders against defendants who have been acquitted (in that case of a harassment offence), but they must make clear the factual basis for imposing such an order. The basis upon which such an order can be made is that the court could come to a conclusion that, even though the conduct alleged had not been proved to the required criminal standard, it had been proved on the balance of probabilities.
19. We are entirely satisfied, and Mr Skinner does not argue to the contrary, that it is appropriate for such a restraining order to be imposed, notwithstanding the quashing of the Claimant's conviction in this case, because it is clear to us, even on the basis of his own interview statement had it been before the justices, that on the balance of probabilities, he was guilty of the assault on his ex-partner, albeit that we are not satisfied that such could have been proved beyond reasonable doubt. This is a paradigm case, in our judgment, in which we can impose a fresh restraining order upon the conviction being quashed.
20. We will hear argument on the period of such restraining order.
21. LORD JUSTICE SULLIVAN: Now, Mr Skinner, I suppose part of the question is: fresh restraining order or not to quash the one that was made by the magistrates. But if we make a fresh restraining order, presumably one would make it to at least expire on the date that the Magistrates' Court order entitled. Do you have any submissions to the contrary in respect of that?
22. MR SKINNER: My Lord, no.
23. LORD JUSTICE SULLIVAN: Mr Connolly?
24. MR CONNOLLY: No, my Lord.
25. LORD JUSTICE SULLIVAN: Just as a matter of administration, fresh order or not to quash the order made by the magistrates, even though we have quashed the conviction? Although my Lord has mentioned fresh order, he has indicated he is entirely content, certainly I would be, not to quash the restraining order made by the magistrates, which would seem the most convenient course.
26. MR SKINNER: My Lord, I agree.
27. LORD JUSTICE SULLIVAN: We have a discretion, as it were, as to what consequential orders we make following upon the quashing of the conviction, and it seems to me that we should exercise our discretion not to quash that element of the magistrate's order. Would that be your submission?
28. MR CONNOLLY: Yes.
29. LORD JUSTICE SULLIVAN: Then that is the order of the court then. The conviction is quashed. The magistrates' order is set aside, save insofar as it relates to the imposition of the restraining order, which we expressly maintain in force. Any further consequential applications to be made?
30. MR SKINNER: My Lord, Mr Gonzales has the benefit of public funding, I ask that there be a detailed assessment of his costs.
31. LORD JUSTICE SULLIVAN: Yes.
32. MR SKINNER: I am obliged.
33. LORD JUSTICE SULLIVAN: Thank you both very much indeed for very helpful skeleton arguments, and I think particularly thank you, Mr Connolly, for a very proper concession, if I may say so.