Newton Hearing - procedure
[2023]JRC252
Royal Court
(Samedi)
14 December 2023
|
Before :
|
R. J. MacRae, Esq., Deputy Bailiff, sitting alone.
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The Attorney General
-v-
Wayne Christopher Metcalfe
Crown Advocate C. L. G. Carvalho for the
Attorney General
Advocate D. S. Steenson for the Defendant
JUDGMENT
THE DEPUTY BAILIFF:
Introduction
Newton hearings - procedure
1.
The
Defendant pleaded guilty to grave and criminal assault on a basis that was
rejected by the Crown. The case was
thereafter listed for a Newton hearing with the Crown identifying four issues
which required determination by the Jurats.
2.
At any
such hearing, it is for the Crown to prove the issues identified to the usual
standard - accordingly, the Jurats need to be sure that the
prosecution's version of events is correct and, in a case where separate
issues had been identified for their determination, must consider the evidence
for and against the Defendant on each issue separately.
3.
An issue
that arose in the Newton hearing in this case was whether or not the Court is
entitled to entertain a submission of no case to answer or an equivalent
submission.
4.
Archbold
is silent on this issue which, perhaps, is unsurprising because Newton hearings
in England and Wales are determined by a judge sitting on their own. The Crown submitted that the Court could
not entertain such a submission.
5.
On any
view, such a submission could not be entertained strictly in accordance with
the principles set out in Galbraith [1981] 73 Cr App R,124, which has
been adopted in criminal trials in Jersey.
This is because the first limb of Galbraith deals with circumstances
where there is "no evidence of the crime alleged has been committed by
the defendant". Such
considerations cannot arise in a Newton hearing - the defendant has
already been convicted by his or her plea.
6.
Accordingly
any submissions, if they are to be received by the Court, must be on the
footing that they are made in accordance with the principles in the second limb
of Galbraith, namely where the judge concludes "that the prosecution
evidence, taken at its highest, is such that a jury properly directed could not
properly convict on it", with the test by transposition to these
circumstances being "where the judge concludes that the prosecution
evidence, taken at its highest, is such that Jurats properly directed could not
properly be satisfied so that they are sure on one or more of the issues that
they are to determine".
If this test is met, it is the duty of the judge to stop the case.
7.
Accordingly,
the key issue is whether there is sufficient evidence on which a reasonable
body of Jurats could convict. I
note from Archbold, paragraph 4.364, that the Court needs to consider whether
the "state of the evidence called by the prosecution, taken as a whole
is so unsatisfactory, contradictory or so transparently unreliable, that no
jury [for which read "Jurats"] properly directed could convict [for
which read "be sure of the prosecution's version of
events"]".
8.
In the
circumstances and bearing in mind that submissions of no case to answer can
generally be made in both civil and criminal trials, I saw no reason why a
similar principle should not apply to a Newton hearing and on that footing I
permitted the defence to make the application and ultimately withdrew one of
the four issues from the Jurats, on the footing that on that issue the evidence
called by the prosecution was so unsatisfactory that no Jurats properly
directed could be sure of the allegation made.
9.
The three
remaining issues were left for the Jurats and determined by them (although I
was required to exercise my casting vote on one issue) after the Defendant had
given evidence.
10. The second issue that arose during the hearing
was in respect of character evidence.
11. It was necessary for me to deal with two
applications in relation to character during the hearing. The first related to the
complainant's character and the second to the Defendant's.
The complainant's character
12. On the Crown's case, this was an incident
of domestic violence at the end of a short, intimate relationship between the
complainant and the Defendant.
However, notwithstanding the Defendant's plea of guilty on a
limited basis, the Defendant disputed the most serious allegations of violence
against him, in particular the assertion that he grabbed and squeezed the
complainant's neck, grabbed her head and smacked it against the wall in
her sitting room approximately seven times, and thereafter punched her in the
chest.
13. The defence said that the complainant was the
aggressor and instigated the violence between the parties when she had been
drinking for a number of hours - which, on any view, she had.
14. The defence obtained the particulars of various
of the complainant's previous convictions in the form of a number of
police reports which they said individually and collectively showed that:
(i)
The
complainant had a propensity to become aggressive when in drink;
(ii) Often she would forget what she had done in
drink, including acts of violence;
These matters were said to support the
Defendant's account as to how she had behaved on this occasion.
15. In respect of her failure to recall what had
happened when she became involved in violent incidents when drunk, the defence
relied in particular on the fact that on the evening in question she had no
memory of the Defendant leaving her home and thereafter her telephoning him on
numerous occasions and asking him to return to the premises which, on any view
of the evidence, is something which had, in fact, occurred.
16. The Crown opposed the admission of this
material on the footing that the convictions were recorded too long ago and
were irrelevant. The Crown warned
that admission of all or any of the convictions of the complainant would lead
to an application to cross-examine the Defendant on a number of his previous
convictions.
17. The defence applied to admit four previous
convictions of the complainant, each of which involved her consuming alcohol
and committing offences of assault.
For example, the last two convictions for assault on a police officer in
2017 involved the complainant, when very drunk, attempting to enter a nightclub
and then when she was arrested for being drunk and disorderly, assaulting two
police officers. In interview, she
said that she could not recall going to the nightclub or her interaction with
the police and when shown body worn footage was disgusted when considering what
she had done.
18. The test for admission of such material was
considered in the decision of Attorney General v PMB [2021] JRC 335 as
follows:
"26. It is necessary to consider the provisions of the Police
Procedures and Criminal Evidence (Jersey) Law 2003 ("the 2003
Law") as introduced by way of amendment under the provisions of the Law
before considering the evidence in this case which the defence seek to
adduce. At the outset it is
important to note that the test for admissibility of evidence of a
defendant's bad character is quite different for the test for admission
of a non-defendant's bad character.
The former is considered at Article 82E of the 2003 Law and the articles
referred to within that Article; the latter is provided for at Article 82J.
27. It
is fair to note that the circumstances in which a defendant's bad
character may be admitted as evidence are wider in scope than the circumstances
in which the character of a non-defendant may be admitted. Archbold says in relation to the equivalent
provisions in the English legislation (Archbold 2021 edition at 13-23):
"It
appears from the Law Commission's Report that the section was mainly
intended to regulate the use of bad character evidence to undermine the
credibility of witnesses, whether by calling evidence or by cross-examination. The previous law was criticised because
it permitted the credibility of witnesses to be too readily attacked, with
witnesses sometimes needlessly humiliated by questioning on discreditable
incidents long ago which had little real bearing on their credibility and [the
English provision] was intended to limit this. The underlying train of thought was as
follows. [The English provision]
will admit evidence of bad character only where this has "important
probative value in relation to a matter which is in issue in the proceedings
and is of substantial importance in the context of the case as a
whole." Where the subject of
a witness's testimony satisfies this test, his credibility (or otherwise)
will be important to the "probative value" of his evidence, and hence
evidence bearing on his credibility will be impossible. But if the witness's testimony is
only of peripheral importance, or if the bad character evidence does not
seriously undermine his credibility, it will not be admissible."
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.""
19. Applying those principles to this case, first
the creditworthiness of the complainant is a matter in issue which is of
substantial importance in the context of the case as a whole.
20. As to the second issue, is the bad character
relied upon of substantial probative issue in relation to that issue or, in
other words, would a fair-minded tribunal regard them as affecting the worth of
the witness' evidence? In my
view, they would, and on that basis I admitted three of the four previous
convictions and a brief description of the underlying facts, so that the
complainant could be cross-examined upon these matters.
21. This duly occurred and led to the Crown's
subsequent application to admit certain of the Defendant's previous
convictions.
The Defendant's character
22. The Defendant had a substantial list of
previous convictions, with 90 court appearances representing over 130 offences.
23. The Crown sought to adduce 37 of those previous
convictions and a correspondingly greater number of offences. The Crown sought to adduce most of the
Defendant's convictions for violence, dishonesty and public order
matters. The Crown argued, rightly,
that there had been an attack on the character of the principal Crown witness
and accordingly this opened the gateway under Article 82G of the Law. Article 82G provides:
"(1) Evidence of a defendant's bad
character is admissible if the defendant has made an attack on another
person's character.
(2) Only
prosecution evidence is admissible under this Article.
(3) A
defendant makes an attack on another person's character if -
(a) he or
she adduces evidence attacking the other person's character;
(b) he or
she (or any legal representative appointed to cross-examine a witness in the
defendant's interests) asks questions in cross examination that are
intended to elicit such evidence, or are likely to do so; or
(c) evidence
is given of an imputation about the other person made by the defendant -
(i) on
being questioned under caution, before charge, about the offence with which he
or she is charged, or
(ii) on
being charged with the offence or officially informed that he or she might be
prosecuted for it.
(4) In
paragraph (3)(a) "evidence attacking the other person's
character" means evidence to the effect that the other person -
(a) has
committed an offence (whether a different offence from the one with which the
defendant is charged or the same one); or
(b) has
behaved, or is disposed to behave, in a reprehensible way.
(5) In
paragraph (3)(c), "imputation about the other person" means an
assertion to that effect."
24. The admissibility of the Defendant's bad
character in these circumstances is subject to the Court's exclusionary
discretion under Article 82E(2) and (3) which provides:
"(2) The court must not admit evidence under
Article 82F or Article 82G if, on an application by the defendant to exclude
it, it appears to the court that the admission of the evidence would have such
an adverse effect on the fairness of the proceedings that the court ought not
to admit it.
(3) On
an application to exclude evidence under paragraph (2) the court must have
regard, in particular, to the length of time between the matters to which that
evidence relates and the matters which form the subject of the offence
charged."
25. I gave my ruling (with reasons reserved) in
relation to these matters by reference to these two statutory provisions and
sight of the Royal Court decision in AG v Withe [2023] JRC 125.
26. For the purpose of providing reasons for my
decision, I have now had the opportunity to consider the relevant passages in Archbold. The evidence of previous convictions, as
the Crown properly stated, goes to the Defendant's credibility. At paragraph 13-66 Archbold says:
"It is universally accepted
that the purpose of gateway (g)...is to enable it to be shown that the
defendant's word is not worthy of belief as Moses, LJ said in Hearne
[2009] EWCA Crim 103...adopting the earlier words of Lord Lane LCJ in
Powell (1986) 82 Cr App 165:
"...it
is only fair that the jury should have before them material on which they can
form their judgment whether the accused person is any more worthy to be
believed than those he has attacked"."
27. It seems that in these circumstances the Court
is entitled to let in all of a defendant's previous convictions.
28. Nonetheless, Archbold goes on to say "In
the context of gateway (g), much turns in practice on the willingness or
otherwise of the trial judge to invoke [Article 82E(3)] and exclude the
evidence of the defendant's bad character on the ground that admitting it
would make the trial unfair".
29. Archbold says "However, case law gives
no encouragement to judges to exclude the evidence on the ground that the
volume or the nature of the defendant's criminal record might damage them
in the eyes of the jury. In Clarke,
the Court of Appeal upheld the judge's refusal to exclude the
defendant's atrocious record...at his trial for sex
offences...".
30. In Clarke, the English Court of Appeal
held that the judge, when considering the English equivalent to gateway 82G,
was considering a test of admissibility much less restrictive than that under
the equivalent to Article 82F. A
judge when considering this gateway could admit evidence which tended in a
general sense to damage the character of a defendant in order to allow the jury
to assess the respective merits of the accounts given by the complainant and
the defendant. It was not
unreasonable to admit the whole of the defendant's character. In that case, the defendant was charged
with sexual offences against his step-daughter and her sister, and the judge
admitted his convictions going back over 20 years including for taking a
conveyance with authority, having an offensive weapon, robbery, having an
imitation firearm with intent to commit an indictable offence, theft of a
vehicle, assault occasioning actual bodily harm, carrying a firearm with intent
to commit an indictable offence and possessing an imitation firearm without a
certificate. His appeal against
conviction was dismissed.
31. The commentary on this decision in the Criminal
Law Review says "The court's judgment in the present case
further entrenches the rather indiscriminate approach that has been taken to
the reception of bad character evidence through gateway (g)".
32. The Court of Appeal held at paragraph 29 of the
judgment that there was an extended line of authority which establishes that
where a defendant makes an attack on the character of a complainant "all
convictions are potentially relevant to assist the jury to assess the character
of the accused and it is not necessary, or at least not generally so, for
detailed facts about the nature and circumstances of those convictions to be
put before the jury that is only likely to be required where it is necessary to
demonstrate a propensity for untruthfulness in paragraph (g) cases".
33. At paragraph 30, the Court of Appeal in Clarke
continued:
"The rationale for adopting
this wider principle was succinctly expressed by the Vice-President, Hughes LJ,
in the case of Singh [2007] EWCA Crim 2140, where he said that the rationale
for the gateway is:
"...the obverse of the
reason why a defendant is entitled to plead his own good character in support
of his claim that he should be believed.
The reason why he is entitled to do that is because ordinary human
experience is that people of proven respectability and good character are,
other things being equal, more worthy of belief than those who are not. Conversely, persons of bad character may
of course tell the truth and often do, but it is ordinary human experience that
their word may be worth less than that of those who have led exemplary
lives"."
34. The commentary in the Criminal Law Review says,
having regard to this comment "Like so many of the generalisations
concerning human behaviour that have underpinned the development of the law of
evidence, its empirical validity may be questionable". The Court of Appeal in Clarke
continued:
"31. In Singh itself the defendant was alleged to have
robbed the complainant. He alleged
that the complainant was on hard drugs, and that in fact it was an unidentified
third party who had been responsible for the offence. The defendant had a record for such
offences as assault and criminal damage.
He submitted that it would not assist the jury to have that evidence
before the jury; it did not go specifically to dishonesty. The court rejected that submission,
Hughes LJ observing that the information would assist the jury to judge the
complainant's credibility against that of the accused."
32. There
have been a number of other cases where this court has adopted the same
approach to s 101(1)(g)cases, including George [2006] EWCA Crim 1652; Bahanda [2007] EWCA Crim 2929, and the case of Lamaletie and Royce [2008] EWCA Crim 314. In Lamatelie
two Defendants were tried for inflicting grievous bodily harm on a taxi
driver. They said that he had
attacked them and they were merely seeking to protect themselves. The prosecution sought to have their bad
character put before the jury. They
had numerous convictions for violence.
The court held that the evidence was admissible. In fact, the judge in that case directed
the jury to the fact that the evidence of bad character went not to propensity,
but only to the question of their credibility. (In fact the jury could it seems
have relied on the evidence for propensity too since once evidence is admitted,
it can be used for any purpose to which it is relevant: see R v Highton [2005] EWCA Crim 1985; [2006] 1 Cr App R 7.) The significance of the case here is that
the fact that the convictions did not fall within the Hanson category, if I can
so describe it, did not prevent the material being adduced before the
jury."
35. Clarke also
considered the judge's failure to exclude the evidence under the
exclusionary discretion, which is in identical terms to the Jersey
statute. It was said that as some
of the convictions related to events committed over 20 years before the
offences then they ought to have been excluded. The Court of Appeal said:
"39. In this case, the jury already knew about the
first offence. That was relatively recent. In our judgment, it was perfectly
proper for the judge to consider that, given the fundamental nature of this
attack on the Complainant RH, the jury were entitled to know the whole of this
Appellant's character. We can see that where the only offences are historic
offences there may well be circumstances where the court will take the view
that it is not fair to rely upon them as fairly reflecting the Defendant's
character as it is at the time of trial. In those circumstances it might be
unfair to admit it.
40. Again,
if these old convictions demonstrate a propensity to commit the offence and are
sought to be adduced for the purpose of going to general credit, then it may be
highly prejudicial and unfair to admit them. But that was not the position
here. In our judgment, the judge was entitled to allow the jury to see the full
range of the Defendant's offending, in particular given that the admitted drugs
offence - a recent one - was already before the jury. We suspect
that, save perhaps for the robbery count, these historic convictions would in
any event have been of little moment as far as the jury were concerned.
41. We
have to ask ourselves, as we have indicated, whether it was Wednesbury
unreasonable for the judge to act as he did. We think he applied the proper
principles and came to a judgment he was perfectly entitled to reach."
36. Accordingly, all the defendant's previous
convictions are prima facie admissible subject to the Court's
exclusionary discretion under Article 82E(2) having regard to the matters in
particular under 82E(3).
37. When exercising my discretion under Article 82E
I was concerned that, notwithstanding what is said in Archbold, to leave
the convictions to the Jurats (and for these purposes I treated them as
indistinguishable from a jury) would be wholly disproportionate owing to the
extent of the Defendant's criminal record. In any event, the Crown were not seeking
to admit the whole of the Defendant's record, but 37 particular
convictions for, as I have said, violence, dishonesty and public order.
38. Consequently, I decided it was proper to
exclude any court appearances from when the Defendant was under the age of 18
and perhaps - having regard to the authorities to which I have referred
- adopting an over-generous but to my mind justified approach, excluded
all the convictions for public order offences, offence of dishonesty and an
assault conviction where the penalty imposed was a conditional discharge
(presumably indicative of the court's view of the seriousness of the
matter) on the footing that such matters would have such an adverse effect on
the fairness of the proceedings that the Court ought not to admit them.
39. Accordingly, I admitted the following 9
convictions only, namely the Defendant's convictions for assault
occasioning actual bodily harm in 1992, common assault in 1996, assault
occasioning actual bodily harm in 1997, common assault in 2009, battery in
2010, common assault in 2012, common assault in 2016, assault in 2019 and
battery in 2019. The Jurats were
directed that those convictions went to the Defendant's credibility; that
they had to decide whether or not those convictions assisted them when
considering whether or not he had told them the truth, but that they could not
find the allegations against him proved simply because of his previous
convictions.
40. The admission of the Defendant's bad
character under Article 82G and the Court's exclusionary power under
Article 82E(2) is doubtless a matter that will arise for consideration again,
and when that occurs the Court should be furnished with all the relevant
authorities in order for a more detailed review of the same. That is not criticism of counsel in this
case as the character issues arose late owing to the Defence obtaining the
details of the Complainant's previous court appearances shortly before
the hearing. It is generally
preferable for these matters to be dealt with prior to trial.
Authorities
Galbraith [1981] 73 Cr App R,124.
AG
v PMB [2021] JRC 335.
AG
v Withe [2023] JRC 125.
Criminal Law Review.
Archbold.
