Jersey Unreported Judgments

[2011]JRC125A

Royal Court

(Samedi)

28 June 2011

Before     :

Sir Philip Bailhache, Kt., Commissioner, sitting alone.

The Attorney General

-v-

Gary Hogg

Directions Hearing to adduce evidence and various issues prior to trial.

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

Advocate P. S. Landick for the Defendant.

JUDGMENT

THE commissioner:

1.        I have been asked to rule on a number of issues that have arisen prior to the trial of this defendant on two counts of grave and criminal assault which are alleged to have occurred on 31^st December, 2010.  The first count alleges a grave and criminal assault by Hogg and another man, Ryan Donachie, upon the victim.  The second count alleges a grave and criminal assault by Hogg upon Donachie. 

2.        When the Indictment against both defendants was laid, Donachie pleaded guilty to the grave and criminal assault upon the victim but only upon a particular factual basis, different from that alleged by the Crown.  He stated that he recklessly threw a bottle at the victim causing injury, whereas the Crown case is that he deliberately struck the victim over the head with a bottle.  On either version there was a grave and criminal assault. 

3.        The Crown Advocate's position was, and is, that he will consider whether a Newton Hearing is necessary to establish the manner in which the assault took place after the trial of this defendant.  Counsel for Hogg has submitted that there was an agreement between the prosecution and the defence at the time when Donachie's guilty plea was accepted and that the Crown is bound by that agreement.  It seems clear to me that this submission is misconceived.  There is no agreement between the prosecution and the defence and it follows that the prosecution cannot be bound by the version of events given by Donachie at the time when the plea was entered. 

4.        I therefore reject this submission of counsel for Hogg. 

5.        I turn to evidence that the Crown seeks to adduce as part of the prosecution case.  Both counsel agree as to what is the applicable law.  In Makin-v-Attorney General of New South Wales [1894] 1 AC 57 the Privy Council stated:-

"It is undoubtedly not competent for the prosecution to adduce evidence tending to show that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried.  On the other hand, the mere fact that the evidence adduced tends to show the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused."

6.        Another leading case is DPP-v-P [1991] 2 AC 447 where Lord MacKay of Clashfern stated:-

"From all that was said by the House in Reg-v-Boardman I would deduce the essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, not withstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime.  Such probative force may be derived from striking similarities in the evidence about the manner in which the crime was committed and the authorities provide illustrations of that of which Reg-v-Straffen [1952] 2 Q. B. 911 and Rex-v-Smith [1915] 11 Cr. App. R. 229, provide notable examples.  But restricting the circumstances in which there is sufficient probative force to overcome prejudice of evidence relating to another crime to cases in which there is some striking similarity between them is to restrict the operation of the principle in a way which gives too much effect to a particular manner of stating it, and is not justified in principle.  Hume on Crimes, 3rd ed. (1844), vol. II, p. 384, said long ago:

'the aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deponing to the same facts.'

Once the principle is recognised, that what had to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises, demonstrates that there is no single manner in which this can be achieved.  Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree."

7.        The first issue that arises is whether the prosecution should be permitted to lead evidence that shortly before 31^st December, 2010, Hogg and Donachie had been released from prison on licence and were under a curfew.  The relevance of this evidence from the perspective of the prosecution is that their case is that Hogg became angry and violent when he believed that the victim, who had been threatened by him, had telephoned the police.  He knew that he was beyond his curfew limit and that if discovered by the police, he would be at risk of being returned to prison.  In fact the victim had telephoned his brother, but that was not the belief of Hogg or Donachie and it was, the Crown says, the touch-paper that lit the violence.  It would of course be prejudicial for the jury to know that Hogg had been in prison.  Is that prejudice outweighed by the probative value of the evidence?  In my view it is.  It is all part of the story and the prosecution is entitled to adduce evidence that Hogg and Donachie were under licence and subject to a curfew. 

8.        The second issue is whether the prosecution may adduce evidence that Hogg and Donachie met while in prison and as fellow Scots became friendly there.  Given that the jury is to know that both men were in prison and had been released on licence and subject to a curfew, it seems to me that no additional prejudice is caused by this evidence and that it is, again, all part of the story.  It helps to explain why Hogg was present in the flat on a family occasion.  This evidence too is therefore allowed. 

9.        The third issue is whether the prosecution may adduce evidence of the reason why Hogg was in prison, namely that he had been convicted of another grave and criminal assault involving a knife.  This would clearly be highly prejudicial.  On the other hand the Crown Advocate submits that it is admissible under the "similar fact principle" to rebut a defence which would otherwise be open to the accused.  The Crown Advocate contends that there were a number of similarities between the circumstances of the offence committed by Hogg in 2009 and the circumstances of the current alleged offences.  Both took place on private premises and the victim, or alleged victim was known to Hogg; in both cases there was excessive drinking; in both cases there was an altercation following a telephone call.  More significantly, in both cases Hogg went to arm himself with a knife in order to cause injury to his victim.  During his question and answer interview by the police in relation to these alleged offences, Hogg was asked whether he had a knife from the kitchen in his hand.  He replied "not a chance, I wouldn't pick a knife up".  The Crown is entitled to adduce that evidence which reveals the defence that Hogg is not the kind of person to go and pick up a knife.  The evidence of what he did in 2009 would go, the Crown Advocate submits, to rebut that defence.  In my judgment the probative value does exceed the prejudicial effect and the Crown is entitled to adduce evidence of what the defendant did leading up to the 2009 conviction. 

10.      Those are my rulings. 

11.      You are remanded on the same terms on bail, subject to the existing conditions, to the 8^th July at 10 o'clock in the morning and you must turn up in the Royal Court at that time. 

Authorities

Makin-v-Attorney General of New South Wales [1894] 1 AC 57.

DPP-v-P [1991] 2 AC 447.