Jersey Unreported Judgments

Criminal - Application by the Attorney General to adduce evidence at the Newton Hearing

[2012]JRC101

Royal Court

(Samedi)

14 May 2012

Before     :

M. C. St. J. Birt, Esq., Bailiff, sitting alone.

The Attorney General

-v-

David Nimmo

R. C. P. Pedley, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE BAILIFF:

1.        I have to consider a number of issues in relation to a Newton Hearing which is to take place shortly.  The background is that the defendant faces an Indictment which, among other matters, alleges that on 28^th September, 2011, he committed a grave and criminal assault on his mother.  When indicted on 13^th January, 2012, the defendant pleaded not guilty and an Assize trial was fixed.  Subsequently on 10^th February he changed his plea to guilty.  However, an issue has arisen as to the relevant facts constituting the grave and criminal assault on the mother.  Advocate Haines told me today that the defendant admits all but one part of the prosecution case.  He therefore admits kicking her in the back, pulling her hair, punching her in the face more than once, pulling her across the hallway and pushing her right arm up behind her back.  However, he denies part of the prosecution case which is to the effect that the defendant struck his mother's feet with a hammer.  He says that the injuries to her feet were caused by him stamping on them with his bare feet during the course of the assault.  Accordingly the issue at the Newton Hearing will be whether or not the defendant struck his mother's feet with a hammer, as she says, or stamped on them with his feet, as he says. 

2.        Against that background the Prosecution wishes to adduce evidence that the defendant has committed a number of previous assaults.  In summary the matters which the Prosecution wish to adduce are as follows:-

(i)        On 10^th September, 2011, he committed common assaults on two ambulance crew when called to the home where he lives with his mother, and during the course of that he also threatened the mother.  Those two counts of common assault in fact form part of the current Indictment.

(ii)       On 24^th August, 2011, the defendant was sentenced to 12 months' Probation for an assault on his mother involving kicking her in the stomach causing her to fall onto her back.

(iii)      In 1995, when drunk, he hit his mother with the back of his hand and was bound over;

(iv)      In 1996 he committed a grave and criminal assault on his mother, then aged 57, by holding a kitchen knife against her neck and threatening her with it.  He also maliciously damaged a cabinet and a clock on the same occasion.  Not long afterwards he committed a grave and criminal assault on his then girlfriend by slapping her and kicking her whilst on the ground.  For all these offences he was placed on probation.

(v)       In 1997 he again committed a grave and criminal assault on his mother, this time by punching her, threatening her with a knife and a rolling pin and then smashing the bathroom cabinet.  On this occasion he was sent to prison for 6 months. 

All of these assaults were committed when he was drunk. 

3.        The Prosecution seeks to adduce evidence of these previous assaults on two grounds:-

(i)        As similar fact evidence;

(ii)       As necessary background.

I shall therefore consider these grounds in turn starting with similar fact evidence. 

4.        The test for admitting similar fact evidence is well established.  A convenient and brief summary is to be found at paragraphs 12 and 13 of the recent Jersey Court of Appeal case of U-v-AG [2012] JCA 085 where Nutting JA said this:-

"12. It is common ground that the relevant legal test for the introduction of similar fact evidence involves a two-stage analysis.  The first is a hard-edged question of relevance, at which stage the question is whether the material has any probative value.  The second stage involves a discretionary exercise to determine whether the evidence should, in all the circumstances of the case, be admitted.

13. None of this is controversial or new.  It is well established that similar fact evidence is admissible if it is relevant to an issue before the court, e.g. because it tends to prove one of the elements in the alleged offence, or to rebut a defence which would otherwise be open to the accused:  Styles, Day, Carney & De Sousa-v-AG [2006] JLR 210, following O'Brien-v-Chief Constable of South Wales (2005) 2 AC 534, at para 67 et seq and ultimately Makin-v-AG for NSW (1894) AC 57.  The question of coincidence lies at the heart of the analysis.  Evidence is likely to be admissible if an attempt to explain it away by coincidence would be an affront to common sense, or would be against all probabilities, or would only be accepted as an explanation by an ultra cautious jury."

5.        In my judgment the application on this ground must be rejected.  As paragraph 13 of the judgment of Nutting JA, which I have just quoted, makes clear, to be admissible similar fact evidence must be relevant to the issue before the Court.  In this case the issue is not whether the defendant assaulted his mother or whether he caused the injuries to her feet accidentally; it is whether during the course of an admitted assault, he hit her feet with a hammer or stamped on them.  I have to say that I cannot see how the fact that he has assaulted her, and other people, on previous occasions would help the Jurats determine whether on this particular occasion he did or did not use the hammer. 

6.        Crown Advocate Pedley argues that the facts of the previous cases show that when drunk he will, on occasions, turn to using a weapon such as a knife or a rolling pin. But, in my judgment, all this does is show that he has a propensity towards violence including the use of a weapon when necessary.  It would, in my judgment, not be an affront to common sense if the Jurats were to find that, notwithstanding his previous assaults, on this particular occasion he assaulted her with his feet rather than with a hammer.  Therefore I do not consider that the evidence meets the high threshold necessary for admission of similar fact evidence as I do not consider it probative to the issue in this case, which as I say is not whether he committed the assault, but whether he committed it with the hammer. 

7.        The second ground relied upon is that of background material.  The test for admission of such evidence is conveniently summarised in Archbold at paragraph 13-36, which quotes from R-v-Pettman 2^nd May 1985, as follows:-

"Where it is necessary to place before the jury evidence of part of a continual background of history relevant to the offence charged in the Indictment and without the totality of which the account placed before the jury would be incomplete or incomprehensible, then the fact that the whole account involves including evidence establishing the commission of an offence of which the accused is not charged, is not of itself a ground for excluding the evidence."

8.        Again I have to say that I cannot see that the fact that the defendant has assaulted his mother on previous occasions is necessary background for the Jurats to determine the issue in this case, namely whether he used a hammer on this particular occasion or did not do so.  Taking the quote from Pettman I do not consider that the evidence in this respect would be incomplete or incomprehensible if the Jurats did not know of the previous assaults. 

9.        I therefore reject the Prosecution application on this ground also. 

10.      The second application which the Prosecution have made is to admit certain hearsay evidence on the basis that it forms part of the res gestae.  According to the mother, after the assault she went upstairs to the bathroom to get washed; whilst there the defendant came up and turned the heat of the water up to scalding hot, which hurt her head.  She then got dressed and went next door to her immediate neighbours, Mr and Mrs Le Cocq.  She spoke to Mrs Le Cocq whilst Mr Le Cocq was telephoning the police.  At this time, according to Mrs Le Cocq, the mother said that the defendant had taken a hammer to her feet.  It is that statement which the Prosecution wish to adduce. 

11.      The evidence by Mrs Le Cocq is of course hearsay, as she herself was not present during the assault.  Hearsay can only be admitted if it is part of the res gestae.  The test for admissibility in these circumstances was recently summarised in the case of Shewan-v-AG [2006] JLR 79 at paragraph 23 of the judgment of Nutting JA where he quotes from the speech of Lord Ackner in R-v-Andrews [1987] AC 281 as follows:-

"1. The primary question which the judge must ask himself is-can the possibility of concoction or distortion be disregarded?

2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection.  In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity. 

3. In order for the statement to be sufficiently 'spontaneous' it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event.  Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative.  The fact that the statement was made in answer to a question is but one factor to consider under this heading. 

4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion . . . The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused."

12.      Applying that test to the facts of this case I have found the matter fairly finely balanced.  On the one hand it is clear that the mother was still in a distressed state when she allegedly made this statement.  That appears from the statement of Mrs Le Cocq who described her as very distressed and weeping, and the statement of Mr Le Cocq who described her as very distressed and the fact that she was bleeding from her forehead.  That points strongly to the fact that the event would still have been dominating her mind and that it was very close to the incident in question.  As against that it is clear that some minutes must have elapsed since the assault; she had had time to go upstairs to upstairs, wash, get dressed and then go to her neighbour. 

13.      I have considered Archbold at paragraph 11-77 which refers also to the case of R-v-Nye [1977] 66 Cr. App. R. 252 which was referred to with approval in Shewan.  I have also considered the facts of Shewan where the victim identified his assailant to a woman immediately but also to a police officer which must have been a good few minutes after the assault, as the police officer was not there at the time of the assault.  On balance I am persuaded that, given the immediacy and her state of distress, the test set out in Shewan is satisfied in that her mind would still have been dominated by the event.  In the circumstances I am willing to admit that statement as part of the res gestae. 

14.      As I said earlier it is incumbent upon counsel now to agree the exact difference and what is the issue which the jurats have to decide, which must be reduced to writing, and then clearly you will prepare in the usual way for that hearing. 

Authorities

Archbold Criminal Pleading Evidence and Practice paras. 13-36 and 11-77.

U-v-AG [2012] JCA 085.

R-v-Pettman 2nd May 1985 (unreported).

Shewan-v-AG [2006] JLR 79.

R-v-Andrews [1987] AC 281.

R-v-Nye [1977] 66 Cr. App. R. 252.