Jersey Unreported Judgments
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Baglin -v- AG [2014] JCA 082 (27 March 2014)
URL: http://www.bailii.org/je/cases/UR/2014/2014_082.html
Cite as: [2014] JCA 82, [2014] JCA 082
|
|
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Jersey Unreported Judgments |
||
|
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Baglin -v- AG [2014] JCA 082 (27 March 2014) URL: http://www.bailii.org/je/cases/UR/2014/2014_082.html Cite as: [2014] JCA 82, [2014] JCA 082 |
||
[New search] [Help]
Applications for leave to appeal conviction and sentence on one count of grave and criminal assault.
|
Before : |
The Hon. Michael Beloff, Q.C., President; |
Philip William Baglin
-v-
The Attorney General
Applications for leave to appeal against the conviction by the Assize Court on 12th August, 2013 and the sentence passed by the Superior Number of the Royal Court on 5th September, 2013 on:
|
1 count of: |
Grave and criminal assault (Count 1). |
J. C. Gollop, Esq., Crown Advocate.
Advocate S. E. Fitz as Amicus for the Applicant on the conviction appeal.
Advocate S. E. Fitz for the Applicant on the sentence appeal.
JUDGMENT
bennett ja:
This is the judgment of the court.
1. Philip William Baglin ("the applicant") seeks this court's leave to appeal (1) his conviction on 12th August, 2013 when he was found guilty at an assize trial of one count of grave and criminal assault on the person of Kenneth Siouville and (2) his sentence of imprisonment of 6 years for that offence imposed on 5th September, 2013.
2. The trial was conducted between 6th and 12th August, 2013 in the Royal Court, Samedi Division, before Mr Commissioner Clyde-Smith and a jury. Several witnesses gave evidence including the applicant. After the opening by the prosecution, the applicant wanted to represent himself and thereafter did so. The Royal Court appointed Advocate Fitz, his counsel, as amicus curiae to assist the applicant and the court. Before us Advocate Fitz was appointed amicus curiae in the conviction appeal and rightly reminded us that, as amicus, it was not her role to 'filter' the points the applicant wished to make but to put to this Court the submissions the applicant wished to make in as coherent a manner as possible for the Court's benefit.
3. The Crown's case against the applicant at trial was as follows. Mr Siouville lived at Flat 13, Hampshire Gardens, Aquila Road in St Helier. The applicant lived at Flat 7, Hampshire Gardens. At about 9 pm on 28th February, 2012, Mr Siouville left his flat and walked to Aquila Stores nearby to buy some Fosters beer and a packet of cigarettes. He there saw the applicant, who asked him to buy some cigarettes for him. Mr Siouville declined, and went home. At about 9.20 his doorbell rang. Mr Siouville answered it and found the applicant at the door. The applicant asked if Mr Siouville had got some beer. Mr Siouville said he did not. The applicant pushed past Mr Siouville into his flat. The applicant began shouting at Mr Siouville, and then, without warning, punched Mr Siouville a number of times in the face and then head-butted him to the bridge of his nose. Mr Siouville was then pushed backwards, stumbled, and fell to the floor and hit his head on the tread of the kitchen door. The applicant then kicked and punched Mr Siouville a number of times, in particular he kicked him to the left side of his face, his left elbow, and to his ribs. The kicks were full force. Mr Siouville suffered a fracture to the left jaw, a fracture to the left elbow, fracture of the ribs, bruising to his face, neck, abdomen, and back, and lacerations to his head and left ear.
4. Mr Siouville identified the applicant as his assailant when the police attended shortly after the assault. The police went to the applicant's flat at about 10.25 pm. and arrested him. The police noticed that the washing machine was in mid cycle and appeared to have some clothing in it. Various items of clothing and a pair of trainers were removed and later sent to forensic examination, particularly for blood staining and the presence of DNA. Expert evidence was given that a small blood stain was found on the sole of the left trainer and there was blood staining in and along the majority of the stitching on the upper right trainer. DNA analysis of the blood on the right trainer revealed that it could have originated from Mr Siouville. CCTV footage of the applicant in Aquila stores showed the applicant wearing those trainers. On 29th February he was later interviewed by the police under caution. In essence the applicant denied having assaulted Mr Siouville, indeed denied being in his flat the previous evening. On 1st March the applicant came before the Magistrates' Court where he pleaded guilty to the charge of having committed a grave and criminal assault against Mr Siouville. When the applicant was presented before the Royal Court (which we understand to have been on 8th May, 2012) he pleaded not guilty to the charge. At some later date the Crown was advised by the applicant's then counsel that the applicant's defence was one of self-defence.
5. The applicant's case at trial is to be found in the Commissioner's summing-up. It is apparent that his defence was indeed one of self-defence. The applicant, when in Aquila Stores, asked Mr Siouville to buy him a beer as he owed him £50 and it was about time that he paid him back. Mr Siouville said he had no money. The applicant went home, took his trainers off and put on his red Doc Martin boots. He went out into the back garden when he heard loud bangs and swearing coming from Mr Siouville's flat. He sent Mr Siouville a text asking if he was all right to which he got no reply. He therefore went to Mr Siouville's flat where he saw him outside in the passage. He described him as "drunk as a skunk". The applicant went into the flat and went to pick up the blank DVD. He then received a blow straight into his face from Mr Siouville which broke his glasses. The applicant pulled back, and being a boxer gave Mr Siouville two lefts and a good right. Mr Siouville's legs gave way and he fell to the floor. The applicant picked up his broken glasses and turned to walk out when he felt a blow to the back of his leg. The applicant turned round to find Mr Siouville standing who squirted him with liquid ammonia. Mr Siouville rushed at him and the applicant pushed him back with his full weight and Mr Siouville fell down again. The applicant then left the flat.
6. The applicant accepted that when interviewed by the police he had told lies. He accepted that on 1st March he had pleaded guilty but said that that was on the advice of his then Counsel in an endeavour to persuade that court to accept jurisdiction which would lead to a sentence, the maximum of which would be 1 year's imprisonment.
7. We now turn to the applicant's grounds for leave to appeal his conviction which are that for the following reasons a substantial miscarriage of justice has occurred. First, the trial judge erred in not recusing himself on the grounds of bias as requested by the applicant at the beginning of his trial. Second, the summing-up was unfair to the applicant. Third, the Crown's case in a significant manner was contradicted by its own principal witness, Mr Siouville. Fourth, the police hindered the applicant in the preparation and presentation of his defence by failing to investigate properly, removing evidence from his Blackberry and doctoring the photographs of Mr Siouville's injuries to make them look worse than they were. Fifth, the foreman of the jury should have raised the issue of a conflict and should not have been permitted to sit on the jury as he worked at Social Services with Mr Siouville's sister. Before us, Advocate Fitz said there was an additional ground that the Commissioner interfered unfairly during the applicant's cross-examination of Mr Siouville.
8. As to the first reason, this matter was first raised by Advocate Fitz, who was then acting for the applicant, in her letter of 2nd August, 2013. The applicant wished to object to the Commissioner sitting at his trial because (a) he believed that the Commissioner, when in private practice, acted for the applicant in a criminal matter in about 1987 and thus the Commissioner would have obtained prejudicial information against him, and (b) the applicant believed that the Commissioner disliked him and is biased against him as demonstrated in refusing him bail and in the way he spoke to him at the applicant's application for an adjournment in April 2013. Advocate Fitz enclosed a transcript of the April hearing and the case of Baglin v Attorney General [2005] JLR 180, a decision of the Court of Appeal of Jersey, which set out the test upon an application for recusal on the grounds of apparent bias in paras 4, 5, and 6, namely that the court is required, having ascertained first all the relevant circumstances which have a bearing on the suggestion of bias, to ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility or a real danger that the tribunal was biased. Subsequently, in Porter v Magill [2002] 2 AC 357, the House of Lords endorsed this test with the deletion of the reference to "a real danger".
9. The recusal application was made to the Commissioner on 6th August, 2013 before the trial began. We have the short transcript of the application by Advocate Fitz. She relied upon what she had said in her letter about the Commissioner having acted for the applicant. She then pointed out the passages in the transcript of the April hearing upon which the applicant relied as showing bias, namely at pages 5, 9 and 11 where the Commissioner stopped the applicant from speaking and then told him that if he interrupted again he would be removed from the court. The Commissioner rejected this application. As to the first ground he said that he had no memory of acting for the applicant as counsel and therefore "it follows that I'm not in a possession of any information in relation to him, let alone prejudicial information". As to the second ground he said that he had read the transcripts of the April hearing and "can find nothing in it to indicate any bias against the Defendant or an apparent dislike of him". He further said that he had granted the applicant's application for an adjournment. He accepted that he had spoken "firmly" to the applicant because at one point the applicant was interrupting the proceedings. As to the refusal of bail, the Commissioner said that that was a decision of the Inferior Number, that he had delivered the decision of the court and that there had been no appeal against it. He thus concluded that, applying the appropriate test, "no fair-minded or an informed observer would conclude that there was a real possibility or a real danger that in presiding over the Defendant's trial I would be biased and therefore decline to recuse myself."
10. We have read the transcript of the hearing before the Commissioner on 16th April, 2013. The applicant was represented by Counsel, Advocate Chiddicks, who was applying for the adjournment of the applicant's trial fixed for 17th April on the grounds that a witness, Peter Alluto, was unfit to attend, to give evidence for the applicant. At page 5 of the transcript Advocate Chiddicks was addressing the Commissioner. The applicant asked for permission to speak but was refused and told by the Commissioner that he could "take" (which must mean "give") instructions at a later stage. It is then to be noted that at page 9 Advocate Chiddicks did take instructions from the applicant. Very shortly afterwards the applicant interrupted and the Commissioner said that he had to stop the applicant and invited Advocate Chiddicks to proceed. At page 10 Advocate Gollop began his submissions and opposed the application to adjourn the trial. He sought to demonstrate to the Commissioner that this was the third occasion close to the trial date when such an application had been made. The applicant then again tried to interrupt the proceedings whereupon the Commissioner told him that if he interrupted again he would be removed from the court - see page 11.
11. We can then move to pages 17 to 19 and can see that the Commissioner then adjourned the application for an adjournment to 5 pm that day for Dr Spence to attend to assist the court as to Mr Alluto's condition. Dr Spence attended and gave evidence under oath, which was to the effect that Mr Alluto was a very sick man. Both Counsel then addressed the court. The Commissioner retired and then returned to deliver his judgment. We do not have a copy, but it is apparent that he must have acceded to the application because the trial did not go ahead the next day. It actually started on 6th August, 2013.
12. Advocate Fitz submitted that a fair-minded and informed observer would thus conclude that in presiding over the applicant's trial there was a real possibility that the Commissioner would be biased and that the Commissioner was wrong not to have recused himself. She further told us that the applicant was of the view that that real possibility was manifested in the Commissioner's unfair summing-up and in his unfair interference in the cross-examination of Mr Siouville.
13. However, we can see absolutely no ground whatever that the Commissioner should have recused himself. He had no memory of having ever acted for the applicant and thus he was right to say that he could not have any, let alone any prejudicial, information about him. The Commissioner acted well within his discretion to stop the applicant interrupting the proceedings. The applicant had counsel and was able to give him instructions. Having interrupted and been told to be quiet, when the applicant interrupted yet again the Commissioner again was well within his discretion to warn the applicant that if he interrupted again he would be removed from the court. As the Commissioner pointed out, he granted the application for an adjournment and the application for bail, which was considered by the Inferior Number and not the Commissioner, was refused. In our judgment it is quite impossible to say that the circumstances would have led a fair minded and informed observer to conclude that there was a real possibility that the Commissioner was biased, still less that he was so. Indeed, in our judgment the application, put forward on the applicant's instructions, was a mischievous one designed at a late stage to put off the trial yet again. It failed, and rightly so.
14. The second ground of the application for leave to appeal the conviction is that the summing up was unfair. Advocate Fitz contended, both orally and in para 8 of her submissions, that the Commissioner (a) did not present the applicant's defence in an even handed and impartial manner but gave a one-sided account, (b) wrongly left the jury with the impression that he favoured the prosecution, and (c) wrongly "entered the arena" and assisted the prosecution by pointing at apparent weaknesses in the defence case that the prosecution had not made reference to. At para 9 of her submissions and orally she, very helpfully, highlights those parts of the summing up, upon which the applicant relies as showing that the summing up was unfair.
15. Advocate Fitz took us to Archbold, Criminal Pleading, Evidence and Practice 2014 at paras 4-440 and 4-454, where it is said, in summary, that a summing-up must be fair as between prosecution and defence, and that where the case against the a defendant is strong and his defence correspondingly weak, the trial judge must be scrupulous to ensure that the defence is presented in an even-handed and impartial manner. The judge is entitled to express his opinion strongly in a proper case provided he leaves the issues to the jury. It is an inherent principle of the system of trial in England that no matter how distasteful the offence, however repulsive the defendant, however laughable his defence, he is entitled to have his case fairly presented to the jury. Advocate Fitz referred us to the decision of the Privy Council in Mears v Regina (1993) 97 Cr. App. R. 239. The appellant there contended that the trial judge's summing up was so unfair that they may have produced a miscarriage of justice. Their Lordships then analysed the summing up. At page 243 Lord Lane, giving the Board's judgment, cited with approval the dicta of Lord Justice Lloyd (as he then was) in Gilbey (unreported January 26, 1990):-
Lord Lane said at page 244 that they took the summing-up as a whole and then asked themselves in the words of Lord Sumner in Ibrahim v R. [1914] AC 599, 615, whether there was:-
Lord Lane then said:-
The appeal was accordingly allowed and the appellant's conviction and sentence quashed.
16. In R v Wood [1996] 1 Cr. App. R. 207, to which we were also referred, the Court of Appeal allowed an appeal against conviction on the grounds both that comments in the press before the appellant's trial was prejudicial to a fair trial and also that the character of the summing-up, which it described at pages 217 and 218 was "the stuff of advocacy". However, it is to be noted that at the bottom of page 218 and the top of 219 the court said that "neither the prejudicial material in the press, nor the character of the summing-up described to us as old-fashioned or robust, is of itself enough to persuade us that the conviction is unsafe or unsatisfactory." It was the combined effects of the prejudicial material in the press and the summing-up which led the court to set aside the appellant's conviction.
17. Accordingly we now look at the summing-up as a whole, including those parts drawn to our attention by Advocate Fitz, and then ask ourselves whether it was so unfair as to be unbalanced so that the applicant was deprived of his right to a fair trial.
18. There is no criticism of the Commissioner's directions to the jury as to matters of law, particularly to his direction about the issue of self-defence, which was the issue in the case. He directed the jury that it was for the prosecution to prove, so that the jury was sure, that the applicant did not act in self-defence. If they thought that the applicant "was or may have been acting in self-defence he's entitled to be acquitted". He then directed the jury that the first question for it to consider was whether the applicant honestly believed that it was necessary to use force to defend himself at all. If it was sure that the applicant did not have that honest belief then he cannot have been acting in self-defence and he was guilty. However, if the jury thought that the applicant did honestly believe or may honestly have believed that it was necessary to use force to defend himself, then it must decide whether the type and amount of force used was reasonable. If the jury was sure that the amount of force was unreasonable then the applicant cannot have been acting in self-defence and was guilty.
19. Having then directed the jury as to matters of law, namely the applicant's admitted lies to the police in interview, expert evidence called by both sides, the applicant's previous convictions, and the applicant's guilty plea in front of the Magistrates' Court, all of which not only are not in any way criticised but also could not be the subject of any criticism, the Commissioner said (this being the first part of the summing-up to be criticised):-
"Now turning to the evidence and my summary of it, having heard all of the evidence as you have, it seems to me that there are a number of facts upon which you may feel you can be certain. Firstly, Mr Siouville was seriously injured in an incident in his flat on the evening of 28th February, 2012. In the words of Doctor Johnson, "there were many injuries," which she listed for you and which can be seen in the photographs taken both by her and PC Lovesey. Secondly, the Defendant was present in Mr Siouville's flat when the incident took place and there were no other witnesses to it. Thirdly, none of the injuries to Mr Siouville, save for the possible emergence of a black eye, which the Defendant referred to, were visible before the Defendant entered Mr Siouville's flat. And fourthly, that on the Defendant's own admission, he hit Mr Siouville three times, "two left and one good right" to the left side of his face, which he would "put money on" caused the fractured jaw. As I said to you earlier, you may have little difficulty in finding that three such blows, knocking a man to the ground are capable of being a grave and criminal assault, even without the alleged kick."
20. The Commissioner then said:-
"Thus in reality the issues before you have narrowed I feel to the single issue of whether the Defendant was acting in self-defence."
He pointed out to the jury that the evidence of Mr Siouville and of the applicant was in direct conflict. He summarised the evidence of Mr Siouville. He summarised the applicant's evidence to the jury. During that summary he, when referring to the applicant's evidence that, having put on his Doc Martin boots, he went out into the garden to smoke and access his Blackberry and Facebook, interjected to "comment incidentally that of course this all took place in February, and at this time of night I think it was within all our knowledge it would have been dark". Advocate Fitz submitted that this comment was casting doubt on the applicant's evidence but, if it in fact added nothing, it ought not to have been made. The Commissioner then continued to put the applicant's evidence to the jury, without, before us, any complaint on behalf of the applicant. Having reminded the jury that the only accounts of the incident came from Mr Siouville and the applicant, there being no independent witnesses, the Commissioner, drew the jury's attention to six points upon which the prosecution relied as assisting the jury in addition to having seen and heard from both Mr Siouville and the applicant.
21. The Commissioner spent some time putting the applicant's case to the jury. The next criticism of the summing-up is made in relation to a passage about the applicant's evidence relating to the alleged use of the Jiff bottle by Mr Siouville squirting it at the applicant. The criticised passage reads as follows:-
"Even on the Defendant's account, it is worth noting that this squirt was used after the Defendant admits striking him three times, not before."
22. The Commissioner, it is submitted, was casting doubt upon the applicant's evidence, not withstanding that in fact what the Commissioner said was a correct recital of the applicant's evidence.
23. The Commissioner then continued as follows:-
"The Defendant went on to draw attention to certain discrepancies between the evidence Mr Siouville gave you and the statements that he had made to the police in paragraph 15 of his statement he had said the Defendant had pushed past him placing both hands on his chest and that he, Mr Siouville, had followed him into the living room. Mr Siouville said all he could now remember was the Defendant pushing him. In paragraph 17 of his statement Mr Siouville had said he had taken his glasses off a minute earlier, because he didn't want the Defendant to break them and the way the Defendant was speaking had made Mr Siouville wary of him. Mr Siouville reiterated in evidence that he had taken his glasses off when the Defendant was hitting him. Further discrepancies were Mr Siouville saying that the Defendant had threatened to have his mates "slash him" but telling Doctor Johnson that he had threatened to kill him. And there is the issue of the doorbell, where in a statement he said the doorbell rang, kept on ringing and he thought it must be Mr Baglin, the Defendant. Now you may feel that given some 18 months have elapsed from the incident that some discrepancies between statements made at the time and evidence now given would arise. But it is a matter entirely for you to assess the significance of those discrepancies."
24. It is the penultimate sentence of that passage that is criticised in that the benefit of the discrepancies was being negated by the Commissioner.
25. The Commissioner then turned to the admitted lies of the applicant to the police in interview. Having reiterated that it was for the prosecution to make the jury sure that the applicant did not lie for an innocent reason and, if so, whether his lies go towards proving his guilt, the Commissioner said (which is criticised):-
"I'd make the point however that in the transcripts of the police interview which you have, you have a copy, you can see that the Defendant himself states on a number of occasions that he was aware of the serious nature of the injuries and indeed you will see that the whole of Mr Siouville's complaint was put to him by the police. It is difficult to see in the light of this, in the light of his arrest and the caution, how the Defendant can say he did not believe that Mr Siouville had made a complaint and that he didn't know of the seriousness of the injuries. But that is of course a matter for you."
26. It is submitted that that comment went too far and illustrated a pattern of the Commissioner putting the applicant's case and then casting doubt upon it.
27. The next criticism of the summing-up is in relation to the guilty plea of the applicant before the Magistrates' Court. The Commissioner told the jury what was the applicant's case namely that he was advised to plead guilty by his then counsel, Advocate Baker, because if the Magistrate accepted jurisdiction, the maximum sentence that could be imposed was 1 year's imprisonment, thus he would be freed quicker than if the matter came before the Royal Court. When the Magistrate declined jurisdiction the applicant called Advocate Baker over and asked him to reverse the plea. Mr Baker told him that he was not to worry because he could reverse his plea before the Royal Court. The applicant also said that he was then heavily medicated and in shock. The criticism of the summing-up is as to what the Commissioner then said, namely:-
"Again whether you accept that explanation or think it might be true is a matter for you, but I would draw your attention to the first page of the transcript of the Magistrate's Court's hearing, were the first thing that Advocate Baker says after entering a guilty plea on the Defendant's behalf, is that "the defence accepted that the case did not fall within the jurisdiction of the Magistrate's Court." The record therefore appears to show that there was no attempt to persuade the Magistrate to accept jurisdiction, but an acceptance from the outset, presumably on instructions, that the case would go to the Royal Court."
28. The Commissioner then continued, and this is not the subject of criticism:-
"Again these are matters for you and you will look at the transcripts. And you've got to consider those transcripts and the Defendant's evidence with care. If you are sure that the Defendant was not pleading guilty on tactical grounds on the advice of his lawyer, but through his lawyer was genuinely admitting the offence, then this represents evidence in support of the Prosecution. If however you are left in doubt as to whether there was a genuine admission of the Defendant's guilt made at that hearing, then it is of no assistance to the Prosecution and you must ignore it."
29. Another passage of the summing-up which is criticised by Advocate Fitz in her written submissions is where the Commissioner was referring to the injuries to Mr Siouville and drew the jury's attention to the evidence of Dr Johnson who had said that the lacerations were unlikely to have been caused by Mr Siouville falling over and hitting himself on the furniture and that the many injuries suffered by him over a short period of time was consistent with Mr Siouville's account.
30. The last matter of criticism made on behalf of the applicant about the summing-up concerns the following passage, where the Commissioner said:-
"Now standing back you might feel the evidence of this case is heavily weighted against the Defendant, when you consider the many and serious injuries suffered by Mr Siouville, Mr Siouville's immediate call to the Police and complaint. The Defendant's subsequent conduct and the forensic evidence. The Defendant has given you his account and his explanations and you will consider them very carefully. He told you he was being honest with you and as a demonstration of his honesty he volunteered to you that he had been to prison many times, and indeed he proffered to you some of his criminal expertise. But he told you that he has now changed. He's no longer a criminal, whereas in the past he said he would have dealt with Mr Siouville, he would not do that today. He told you that he's now a Christian and indeed had a conversion when, some years ago when he was last in prison. He tells you that he honestly believed that he had been attacked by Mr Siouville and that he had the right to use force to defend himself. And he asks you to believe him. Now in considering this you might wish to bear in mind that at the beginning of the police interview proper, that is the second of the transcripts that you have with your papers, he told the police that in view of the severity of Mr Siouville's injuries of which he had been informed, he was going to be "100% honest" with the police. Now this at a time where he had had his religious conversion and was a Christian. He has now admitted that everything material that he then went on to say to the Police was a lie. Even if you think that the Defendant did or may have honestly believed it was necessary to use force to defend himself against a man that he described as an "alcoholic" you then, as I have previously directed you, have to consider whether the type and amount of force used was or may have been reasonable. This is of course entirely a matter for you, but you will no doubt look at the blood-splattered curtains, furniture and floor, and the photographs of Mr Siouville immediately after the event. Was this a man against whom reasonable force had been used? Or had he suffered a serious and unjustified battering?"
31. Again it is submitted that this is part of a pattern of putting the applicant's case and then casting doubt upon it, thus tilting the balance unfairly in favour of the prosecution.
32. In our judgment we are not persuaded that the summing-up was unfair to the applicant. It is apparent to us that the issue the jury had to decide was - had the prosecution proved so that the jury were sure that the applicant had not acted in self-defence? There was no issue that in the melee in Mr Siouville's flat that evening he had suffered serious injuries. Mr Siouville gave evidence that he was attacked by the applicant and the attack was unprovoked. The applicant gave evidence that Mr Siouville attacked him and that he reacted in self-defence. The medical evidence was to the effect that Mr Siouville's serious injuries were consistent with his description of being attacked. The applicant admitted lying to the police in interview despite having told them that he was going to be 100% honest with them. There were no injuries found upon the applicant other than a three millimetre abrasion of his right little finger. He also had told his doctor that he had suffered no injuries. The applicant had pleaded guilty in the Magistrates Court.
33. If the summing-up is considered as a whole it is our opinion that the Commissioner fairly put to the jury what was the applicant's case and what was his evidence. The Commissioner recounted in some detail what was the applicant's evidence. But the problem for the applicant in putting forward a defence of self-defence, in particular that Mr Siouville, and not he, was the aggressor, was that it depended upon the veracity of his evidence. Plainly, on his own admission, he had lied to the police. As the Commissioner pointed out it was indeed difficult to see how in his interview the applicant said that he did not believe Mr Siouville had made a complaint and that he did not know the seriousness of the injuries. There was nothing objectionable in that comment. Further, the Commissioner was perfectly entitled to draw the jury's attention (para 27 above) to the apparent flaw in the applicant's assertion that he had pleaded guilty in an endeavour to get that court to accept jurisdiction leading to a maximum sentence of no more than 1 year's imprisonment, namely that the transcript of the proceedings in that court showed that the first thing that happened after the plea of guilty was the applicant's then counsel conceded that the case did not fall within that court's jurisdiction. The Commissioner was therefore equally entitled to comment that the record appeared to show that there was no attempt by the applicant to persuade that court to accept jurisdiction. He told the jury that it had to consider the transcript and the applicant's evidence with care and that before it could consider that the plea of guilty supported the prosecution it had to be sure that the applicant was not pleading guilty on tactical grounds on the advice of his lawyer but was genuinely admitting the offence.
34. As put in the passage set out in para 30 above, the fact is that the jury could feel that the evidence in the case was "heavily weighted" against the applicant. But in any event the Commissioner did go on to remind the jury that the applicant, in an endeavour to persuade the jury that he was being honest with it, volunteered that he had been to prison many times, but that he had now changed, that he was a Christian and was no longer a criminal. However, as the Commissioner reminded the jury, which he was entitled to do, the applicant had not been honest to the police in his interview.
35. As to the passage set out at para 19 above, we can see nothing objectionable there. The Commissioner was simply reciting to the jury a number of uncontentious facts about which it might feel it could be certain. Furthermore, his remark that the jury might find little difficulty in concluding that the 3 blows landed on Mr Siouville (which the applicant admitted) knocking him to the ground were capable of being a grave and criminal assault, even without the alleged kick, was again hardly something about which there could be any dispute.
36. The paragraphs set out at paras 21 and 29 above were factually accurate and permissible observations. The passage set out at para 23 above leading to the Commissioner's comment that the lapse of time could lead to discrepancies arising between what was said 18 months earlier and then at the trial was, in our view, a perfectly permissible comment.
37. Advocate Gollop drew our attention to a passage in the judgment of the Privy Council in Michel v The Queen [2009] UKPC 41 where the appeal of the appellant was allowed on the grounds that his trial was unfair due to excessive and inappropriate interventions by the judge in the course of the trial. At para 33 Lord Brown, giving the judgment of the Board, said:-
38. In our judgment the Commissioner was doing no more than giving the jury the benefit of his own powers of logic and analysis of the evidence of the applicant so as to assist the jury to reach a logical and reasoned conclusion on all the evidence. The Commissioner was at pains to make it plain to the jury all the important conclusions on the facts were for it alone.
39. The third ground of the application for leave to appeal does not find its place in Advocate Fitz's written submissions but was put forward by her orally after the applicant had made known to her his concern about the Commissioner's interference in his cross-examination of Mr Siouville. Her submission to us was that the Commissioner interfered on far too many occasions so that the applicant was significantly disadvantaged in challenging Mr Siouville's evidence. She submitted that at times the applicant had lost his flow, was told to "move on" when pressing Mr Siouville over his answers, was told to "accept" Mr Siouville's answers, and that at times the Commissioner took over the cross-examination. Advocate Fitz took us through many of the 94 pages of the transcript of the cross-examination, which we were told lasted some two hours, and showed us extracts where the applicant felt that the Commissioner had behaved unfairly.
40. We have read the transcript. It is true that the Commissioner did intervene on a number of occasions. He did indeed at the very beginning intervene when the applicant was trying to explain to the jury that he was not articulate and told him that he must question Mr Siouville. He also intervened to encourage the applicant to "move on" and "accept" the answers. He also did ask Mr Siouville questions himself. But, having read the whole cross-examination, we are not in any way persuaded that his interventions, whether looked at individually or cumulatively, were unfair either in the number of times he intervened or in what he said. It is to be noted that what the Commissioner was trying to do was to control the proceedings in a situation which was very fraught. It is apparent that Mr Siouville and the applicant disliked each other and tried to talk over each other. Tempers became frayed. Several times the Commissioner had to tell Mr Siouville to allow the applicant to put his questions and then to answer them. Several times the Commissioner had to tell the applicant to allow Mr Siouville to give his answers without interruption. In telling the applicant to "move on" and "accept" the answers of Mr Siouville, the Commissioner was trying to encourage the applicant not to go over ground he had already covered and to maintain a balance between giving the applicant the opportunity to challenge Mr Siouville's evidence and the necessity to progress the trial. In our judgment what the Commissioner was trying to do was to see that the cross-examination was conducted fairly in a fraught and difficult situation, both to the applicant and to Mr Siouville. We further note that at the end of the applicant's cross-examination of Mr Siouville the Commissioner asked Advocate Fitz whether there was anything further she wished to put to Mr Siouville on behalf of the applicant and she told the Commissioner that everything had been covered. We mention this as it seems to us to be matter which shows that the Commissioner was being very fair to the applicant by making certain that all matters on behalf of the applicant had been put to Mr Siouville. Accordingly, for all these reasons we reject the submissions of Advocate Fitz.
41. The applicant was, of course, a litigant in person. Obviously a court will seek to assist such a litigant in his presentation of his case but not at the expense of the rules of evidence and proper procedures appropriate to lawyers. In our view the Commissioner struck the right balance.
42. The fourth ground of the application for leave to appeal concerns what the applicant was or was not wearing on his feet that evening. It was the prosecution's case that the applicant was wearing the trainers, later found by the police in his washing machine, at the time that he assaulted Mr Siouville. Forensic evidence suggested that there was a small blood stain found on the sole of the left trainer and blood staining found on the stitching on the upper part of the right trainer. CCTV evidence suggested that the applicant had been wearing those trainers earlier in the evening. Furthermore, the forensic evidence was that a low level DNA had been obtained. The result indicated that the blood could have come from at least one, possibly two, individuals and that the DNA of Mr Siouville was fully represented in that result. The forensic evidence confirmed that the blood was human and not dog blood; the relevance of that being that the applicant asserted that the reason he had washed his trainers was because his dog was on heat and had bled on his trainers.
43. However, when Mr Siouville gave evidence he was shown the CCTV footage and he identified the applicant as the person shown therein but when asked in examination-in-chief whether the applicant was wearing the same clothes and shoes when the applicant came to his flat, said "No, he had red Doctor Martin boots on." He was asked whether he was sure about that and he replied "Yup. Same jeans, same jacket."
44. In closing the Crown asserted to the jury that the shoes taken from the washing machine were those that he had been wearing in the flat of Mr Siouville and referred to the forensic evidence.
45. It is therefore submitted to us that the prosecution in closing should have based their case on what its principal witness had said and should not have persisted in the allegation that the applicant had been wearing the trainers when he went to Mr Siouville's flat.
46. We reject that submission. The jury were entitled to consider all the evidence in the case, including inconsistencies in the evidence of the prosecution. It was for the jury to decide what to make of Mr Siouville's evidence about the applicant wearing red Doctor Martin boots as against the evidence that the trainers with blood on them was found in the applicant's washing machine. The Commissioner dealt with this matter in his summing-up. He drew the jury's attention to this matter and told the jury that it was the prosecution's case was that the boots were a "red herring". In our judgment the prosecution were entitled to call all the evidence in its possession which supported its case and to say in effect to the jury that Mr Siouville must have been mistaken about the boots.
47. The fifth ground of the application for leave to appeal relates to text messages on both Mr Siouville's and the applicant's mobile phones apparently exchanged between the two of them, which the applicant contends were important to his defence, in that they showed Mr Siouville threatening the applicant, and which were not available at the trial having been lost or deleted.
48. It is apparent from Mr Siouville's statement to the police of 29th February, 2012 that he and the applicant had exchanged text messages about three weeks before the assault. On 10th March DC MacLennan went to the flat of Mr Siouville and asked him if he still had the text messages. He told the officer that he had deleted all his text messages due to his memory card being full. The officer confirmed that, having looked at Mr Siouville's mobile, there were no text messages. Statements were obtained from various telephone company suppliers who confirmed that they did not have the ability to access short message service or could only do so within a period of 28 days.
49. When the applicant was in custody his Blackberry was in the care of the police and/or the prison authorities. When he was allowed access to it he found that the battery was nearly empty and the texts had gone. He complained. The matter was investigated but he does not believe properly. Accordingly, deletion of the texts denied him a proper defence. The applicant believes that his mobile phone was hacked into and the texts deleted.
50. We do not consider that this ground has any merit. DS MacLennan, when cross-examined by the applicant, completely denied that the police had hacked into his mobile and deleted text messages. No evidence was brought by the applicant to support his assertion that his mobile had been improperly accessed when in the possession of the police. Finally, we would emphasise that, in relation to this ground and the preceding one, the issue the jury had to decide was what had occurred in Flat 13 on the evening of 28th February. What might or might not have been the content of text messages three weeks earlier would only have been of very marginal relevance to that inquiry.
51. The sixth ground of the application for leave to appeal is that the applicant believes that the photographs of Mr Siouville's face put before the jury have been doctored to exaggerate his injuries. We were told that the applicant had been refused funding to investigate whether or not the photographs had been doctored.
52. In our judgment there is no basis for this suggestion. DC Lovesey produced the photographs of Mr Siouville to the jury in his evidence and no suggestion was made to him by or on behalf of the applicant that they had been doctored. In any event the jury had the medical evidence, which supported the evidence of Mr Siouville of a sustained and brutal assault.
53. The seventh ground is an assertion that the foreman of the jury has a connection with Mr Siouville and thus should not have sat on the jury. It is said that the foreman works at Social Services as does the sister of Mr Siouville. Advocate Fitz told us that this ground was abandoned.
54. Accordingly, we reject the application of the applicant for leave to appeal the conviction. We now turn to the question of sentence.
55. The applicant seeks this court's leave to appeal against the sentence of 6 years' imprisonment on three grounds. First, it is submitted by Advocate Fitz, now in her role as the applicant's counsel, that the Royal Court erred in sentencing the applicant on the basis of the prosecution's version of the events. Second, it is submitted that the sentence was manifestly excessive. Third, the court took into account matters that were irrelevant. We shall take each ground in turn.
56. It is submitted that there were before the jury two distinct versions upon which the jury could have found the applicant guilty, namely the prosecution's version that the applicant suffered an unprovoked attack by the applicant on the one hand and on other hand that he had in fact acted in self-defence but that his use of force in defending himself was unreasonable. The Commissioner had given the jury a direction on self-defence on which it was possible for the jury to find that the applicant had acted in self-defence but that his use of force in defending himself was unreasonable. If the jury's verdict was indeed upon that basis then that would make a considerable difference to the sentence. Accordingly, what should have happened is that the Commissioner should have asked the jury in his summing-up when delivering its verdict, if the verdict was to be one of guilty to indicate to the court upon which of the two versions it based its verdict. In the absence of any such request the sentencing of the applicant should have been on the basis most favourable to the applicant. Furthermore, for the reasons set out in para 8 of Advocate Fitz's submissions on sentence to this court, such matters cast doubt on the version of the prosecution and made it more likely that the jury's verdict was based on the applicant going over the top in responding to any attack upon him by Mr Siouville.
57. Advocate Fitz drew our attention to the decision of this court in Hamilton and Owens v The Attorney General [2010] JCA 136A where at paras 79 to 84 the Bailiff, sitting as the President, in giving the judgment of the court, said:-
58. Advocate Fitz took us to the summing-up and highlighted the passages where the Commissioner directed the jury on the issue of self-defence - see para 18 above. The jury thus had the task of determining whether it was sure that the applicant had acted at all in self-defence, and if it thought that the applicant did honestly believe or may have believed that it was necessary to use force to defend himself, whether his use of force in defending himself was reasonable. She submitted that as there was a clear distinction between the two versions of self-defence, the court, in the absence of asking the jury to say upon which version it convicted the applicant, had to sentence the applicant on the second basis, namely that he honestly believed or may have honestly believed that it was necessary to use force to defend himself but that the type and amount of force he used was unreasonable. In that event the sentence should have been one of 2 years imprisonment.
59. We cannot accept these submissions. This was not a case for the jury to have been asked to inform the Royal Court upon returning its verdict of the basis upon which it came to the conclusion that the applicant was guilty of the offence with which he was charged. The reason we have reached this conclusion is to be found in the judgment of the Commissioner when giving reasons for the sentence which the Royal Court imposed, at paras 2 to 5 inclusive:-
60. We respectfully agree with those paras. The Commissioner succinctly and accurately summarised what the trial had been about and the different versions of the facts put forward by Mr Siouville and the applicant. As he said, the reality was that the jury had conflicting versions of the incident and that it unanimously found in favour of Mr Siouville that the applicant was indeed the aggressor. We would merely add that the Crown's case against the applicant was a strong one and that it cannot be gainsaid that the result of the incident was that Mr Siouville suffered severe injuries whereas the applicant suffered nothing of any consequence. Thus, it is our judgment that the applicant did stand to be sentenced on the basis of the prosecution case. We do not consider the submissions of Advocate Fitz at para 8 of her submissions in any way undermine the reasoning of the Royal Court. Neither individually nor collectively do they undermine the prosecution's case against the applicant that his actions on that evening amounted to an unprovoked attack upon Mr Siouville.
61. Advocate Fitz in challenging the sentence of 6 years' imprisonment submitted that although the starting point of 7 years put forward by the prosecution was challenged by the Commissioner, nevertheless the court's starting point of 6 years was still too high. She submitted that in accordance with the authority of Harrison v AG [2004] JLR 111 where it was said that the starting point for an offence of grave and criminal assault should be one of 5 years' imprisonment and in the light of other authorities which she brought to our attention, the right sentence of imprisonment should have been one of 4 years. Advocate Fitz contended that it was appropriate to compare the starting point of 6 years in the instant case with starting points taken in other reported authorities of grave and criminal assault and when that was done it would be seen that the starting point of 6 years was too high. To that end she took us to her helpful summary of the reported authorities set out in para 11 of her submissions, where the starting points and relevant facts are set out. She amplified those submissions by telling us in respect of each authority whether the defendants had previous convictions for violence or not. She emphasised that in those authorities which had a starting point of 6 or 7 years the defendant had either used a knife or other implement or the level and type of violence inflicted on the victim was of different magnitude to that in the instant case.
62. In giving reasons for the sentence of 6 years' imprisonment, the Commissioner set out in detail why such a sentence was imposed. He said:-
63. We have considered this matter of sentence carefully but we cannot agree that it was manifestly excessive. It is quite apparent that the Royal Court gave the matter very careful scrutiny and acknowledged that its starting point of 6 years was "high" but then went on to give careful and strong reasons why it set that starting point in the circumstances of this case, particularly the matters set out in para 8 of the judgment. We agree with the court's observations that ultimately a comparison of different cases with the instant case was not an instructive process whether as to starting point or as to final outcome. We accept Advocate Gollop's submission to us that the facts of the instant case and the applicant's previous history showed him to be a vicious bully who would resort to substantial violence if he did not get his way. Accordingly, in our judgment there being no mitigation to reduce the sentence beyond the starting point, a sentence of 6 years had to follow.
64. The final submission that Advocate Fitz made on sentence is that the court must have taken into account irrelevant matters i.e. those which she set out in her speech to the Royal Court at pages 181 and 182 of the transcript. Advocate Gollop contended that they were relevant but that in any event the Royal Court set out in its judgment what it considered to be relevant when concluding that a sentence of 6 years was appropriate.
65. We do not consider that this ground is made out. The court set out in detail why it came to its conclusion on sentence and we can see nothing there upon which it can be inferred that it took into account "irrelevant" matters.
66. Accordingly, we refuse the applicant leave to appeal against sentence.