Grave and criminal assault and larceny - bad character application.
[2023]JRC188
Royal Court
(Samedi)
19 October 2023
Before :
|
R. J. MacRae, Esq., Deputy Bailiff
|
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withdrawn in the course of argument.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