Jersey Unreported Judgments

Grave and criminal assault and larceny - bad character application.

[2023]JRC188

Royal Court

(Samedi)

19 October 2023

The Attorney General

-v-

Mark Goodchild

Addison Mazurke

M. R. Maletroit Esq., Crown Advocate.

Advocate C. R. Baglin for Defendant Goodchild.

Advocate G. F. Herold-Howes for Defendant Mazurke.

reasons

THE DEPUTY BAILIFF:

Introduction

1.        The Defendants were convicted of grave and criminal assault and larceny by the jury on 5 October 2023.

2.        On 2 October 2023, I declined to admit a caution for breach of the peace recorded against the complainant in this case, Mr Ratajczak, which the Second Defendant, Mr Mazurke, sought to adduce by way of bad character evidence.  I now give reasons for this ruling.

3.        The application was made shortly before trial owing to late disclosure of the fact and circumstances of the caution for breach of the peace recorded against Mr Ratajczak on 12 January 2022.  Mr Ratajczak was forty-seven years old and had other matters recorded against him, but the application to adduce evidence in respect of offences for which he appeared before the Guernsey Magistrate's Court in March 2019 was withdrawn in the course of argument.  The circumstances giving rise to the caution were that Mr Ratajczak was involved in a late night altercation in St Helier whilst intoxicated in which he had headbutted another person at just after 2am.  He accepted what he had done and, owing to the minor injury suffered by the complainant, it was recommended that the matter be dealt with at the parish hall. 

4.        The brief circumstances of the case heard by the jury were that in the small hours of the 12 September 2022 Mr Ratajczak was assaulted by the Defendants.  The Defendants' actions appear to have been prompted by Mr Ratajczak taking a bag of takeaway food from a third party who was a stranger to him.  This led Mr Mazurke to remonstrate with him, and trip him up on more than one occasion.  Mr Ratajczak was then knocked to the ground and punched and kicked repeatedly by the Defendants.  He was then pursued down King Street and near Charing Cross thrown to the ground by Mr Goodchild.  Whilst Mr Ratajczak was unconscious, Mr Mazurke video recorded him on his mobile phone, laughed and made a number of disparaging remarks about his victim.  Shortly thereafter, the Defendants stole Mr Ratajczak's shoes, and according to Mr Mazurke threw them away.

5.        The application to adduce Mr Ratajczak's caution was made pursuant Article 82J(1)(b) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the Law") on the footing that it was of substantial probative value in relation to a matter in issue in the proceedings and was of substantial importance in the context of the case as a whole.

6.        The approach to this application was considered by the Royal Court in the case of AG v PMB [2021] JRC 335, where the Court said:

"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."

7.        Normally such application would be dealt with well before trial, but the material allowing the defence to make this application was only disclosed by the Crown on 27 September 2023.  It was said on behalf of Mr Mazurke that this material supported Mr Mazurke's account that he was simply seeking to recover the property of another person (the takeaway meal), that Mr Ratajczak then became angry and there was a confrontation, that Mr Ratajczak was the aggressor who was seen to swing punches at Mr Mazurke on several occasions and therefore Mr Mazurke was acting in self-defence.  It was argued that Mr Ratajczak's creditworthiness was an issue of substantial importance and that this bad character evidence was of persuasive value and accordingly of substantial importance in the context of the case as a whole. 

8.        The Crown initially argued that the circumstances of the caution could not be relevant to any issue between the parties as Mr Mazurke had already pleaded guilty to common assault prior to trial and the only issue between the parties was whether or not what he did amounted to a grave and criminal assault.  However, I accepted during the application that Mr Mazurke, whilst accepting that part of the force he offered amounted to common assault in respect of the significant injuries occasioned by Mr Ratajczak, said that either he did not cause those injuries or that he was acting in self-defence when he did. 

9.        The Crown went on to argue that what Mr Ratajczak said and did was not a significant issue in the case.  It was accepted that he was drunk and the CCTV footage, which everyone agreed was central to the Crown's case, showed that he was aggressive.  The Crown's case derived from the CCTV footage and was undisputed (save for the issue of Goodchild's presence, which was resolved by the jury).  Mr Ratajczak's evidence was likely to be (and indeed it was) to the effect that he could not recall how the incident started, and accordingly it was unlikely that he would say anything to contradict Mr Mazurke's case to the effect that he took a takeaway meal from the third party concerned.  The Crown said that it was not Mr Ratajczak's conduct that was in issue, as it was undisputed.  What was in dispute was whether or not Mr Mazurke's response was lawful.  Mr Ratajczak's bad character was not relevant to this issue.

10.      On balance I concluded that this evidence, namely Mr Ratajczak's caution for breach of the peace, was not of substantial probative value in relation to an issue of substantial importance in the context of the case as a whole, and was therefore not admissible.

11.      Nonetheless, I indicated that Mr Mazurke's counsel was at liberty to renew his application at the end of cross-examination of Mr Ratajczak if he wished to do so.  This he chose not to do, which was fully explicable in the circumstances where, as predicted in the course of argument, Mr Ratajczak did not contest what was put to him as to how the confrontation between himself and Mr Mazurke began.

12.      In view of my decision on admissibility of the question of any exclusionary discretion does not strictly arise and, indeed, the exclusionary discretion under Article 82E(2) does not apply to evidence admitted under Article 82J.  However, I note from the extract cited above from Brewster, that it is said that there is "no residual discretion except in the exercise of case management to refuse the admission of the evidence".  The Court's general power to exclude unfair evidence under Article 76 does not apply either as that only applies to prosecution evidence.  Nonetheless, had I admitted the evidence, I would have been concerned about the fairness of doing so, as it would have inevitably led to the Crown applying under Article 82G to adduce Mr Mazurke's relevant convictions.  Such an application would have been, prima facie, unanswerable subject to the Court's exclusionary powers under Article 82(E)(2).  Further, such evidence in the case of Mr Mazurke would have included convictions for an offence contrary to the Crime (Disorderly Conduct and Harassment) Law 2008 resulting in a conviction in December 2020,.  It might have also extended to other matters involving allegations of violence, in respect of which he was already in custody.  Such an outcome might, overall, have been disadvantageous to Mr Mazurke.

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003

AG v PMB [2021] JRC 335. 

Crime (Disorderly Conduct and Harassment) Law 2008