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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG -v- Monks [2015] JRC 028 (06 February 2015) URL: http://www.bailii.org/je/cases/UR/2015/2015_028.html Cite as: [2015] JRC 028, [2015] JRC 28 |
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Magistrate's Court Appeal - appeal against Magistrate's refusal to grant bail.
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Before : |
J. A. Clyde-Smith, Esq., Commissioner and Jurats Nicolle and Crill |
The Attorney General
-v-
Nathan Stanton Monks
M. T. Jowitt, Esq., Crown Advocate.
Advocate D. S. Steenson for the Defendant.
JUDGMENT
THE commissioner:
1. This is an appeal against the Learned Magistrate's refusal to grant bail on 21st January, 2015, which application was renewed and refused before the Assistant Magistrate on 4th February, 2015. The defendant has been charged with a number of offences identified on the charge sheet arising out of the events of Sunday 18th January and Monday 19th January, 2015. The police report states as follows:-
"On Sunday 18th January 2015 Monks was calling the victim all day, possibly more than 10 times, she did not answer any of the said calls. At approximately 18:00 hrs on the same day the victim's doorbell rang, she did not answer but Monks opened the front door and asked her to go outside. He asked her the reason for not replying to his messages and that he wanted to make plans to see the child on Monday 19th January 2015. He was asked to leave and left slamming the door behind him. Approximately 10 minutes later Monks returned to the address, ringing the bell and knocking on the door. The victim called the police but on arrival at the address Monks had already left the address. The victim states that Monks caused damage to a wooden bench outside her address at the time of his attendance.
On Monday 19th January 2015 Monks started messaging [the victim] he was angry and abusive, calling her a "cunt" on 2 occasions. At approximately 15:00 hrs on the same day the victim received two calls from a number not known to her, she then received a text message reading: "[Victim's name] you know what you're doing, I just want to fucking see my daughter, fucking ring me".
At approximately 16:00 hrs the victim's doorbell rang, she looked outside but could not see anyone. She opened the door and Monks pushed in. She told him she would call the Police and he has then given her his phone and said "go on then". They have gone into the kitchen, leaving [a child] who she was caring for in the lounge playing.
In the kitchen Monks pulled out a chair and said "sit down" which the victim did placing the child on her lap. The victim could see by Monks body language that he was becoming angry and asked him to leave. They then exchanged words and something was said causing him to flip, he has then recklessly smashed the kitchen dining table with his fist, there was glass everywhere and the child started crying. At the time the victim was sat approximately 1 metre away from the said table. Chards of glass were everywhere.
Monks cleaned up some of the glass with his hands, causing him some cuts to his hands and leaving some blood smeared on the floor. The victim was scared not only for her safety but the children present also.
The victim moved into the lounge where the children were jumping on the trampoline, she kneeled next to them. Monks walked in holding what was perceived by the victim to have been a kettle full of boiling water. She feared for her safety and was more focused on the children; Monks approached and poured the water over her head, which was cold. The water was poured from a height and as a result the children got wet also from being splashed. All females were then crying and scared. The victim thought she was going to get badly hurt. She asked Monks to leave which he continuously refused, he eventually said words to the effect of: "fine we'll do a deal. If you bring the child to see me bang on 9am then I won't break your legs before leaving".
In subsequent statements the victim indicated that she was extremely concerned that the water in the kettle might have been hot."
2. Currently the defendant is being charged with a number of offences arising out of those two incidents, one count of harassment of another person, pursuant to Article 3 of the Crime Disorderly Conduct and Harassment (Jersey) Law 2008, one count of intentionally or recklessly exposing a child to harm, pursuant to Article 35(1)(b) of the Children (Jersey) Law 2002, two counts of grave and criminal assault, one count of illegal entry with intent to commit a crime, and two counts of malicious damage.
3. The two charges of grave and criminal assault were apparently elevated from common assault moments before the case was called before the Magistrate on 21st January, 2015. Advocate Steenson submits that there are a number of issues in relation to these charges, which the prosecution may find difficult to overcome. Although the defendant admits that he did attend at the victim's home on these occasions and to breaking the glass and the table, and pouring cold water over her head from a kettle, he will be pleading not guilty, certainly to the substantive charges.
4. If the Magistrate were to decline jurisdiction this means that allowing for committal and the process for Indictment before the Royal Court, the defendant's trial may not take place before the late summer at best. If bail is declined therefore he will stand to be in custody for at least 5-6 months for offences which, if he is found guilty, may not justify a prison sentence of that duration. Furthermore the defendant is a young man of 22 with a job as a painter and decorator, which is open for him now to return to, but which will be lost if he is held in custody for any appreciable period.
5. Turning to the legal test on appeal, the prosecution of the defendant is currently before the Magistrate's Court and although a decision to decline jurisdiction has been made, formal committal has yet to take place and Advocate Steenson indicated that there was some possibility that a decision for it to be referred up to the Royal Court may be reviewed before or at the committal stage. Even so, it is clear to us that we are not exercising a de novo jurisdiction. This is a review of the decision of the Magistrate and it is well established that the grounds upon which the Court will normally intervene in a decision of the Magistrate to refuse bail, would be in circumstances where:-
6. As the Deputy Bailiff said in Evans and Evans-v-AG [2011] JRC 199:-
But those grounds need to be considered also in the context of the Human Rights (Jersey) Law 2000 and in particular Article 5 of the Convention in relation to the right to liberty. There is accordingly a presumption in favour of bail with the onus being on the prosecution to establish one or more of the legitimate objections to bail, those normally being:-
7. Advocate Steenson, while accepting the test that should be applied on an appeal of this kind, submitted that in practice the Royal Court had, in his experience, effectively paid lip service to it and approached any appeals de novo, bearing in mind that if the case is referred up to the Royal Court it will be in a position to do so. He said it would be illogical if the Royal Court decided that, if approaching the matter de novo it would grant bail to the defendant but it refused the appeal because the relevant test was not met; in effect the Royal Court would be holding the defendant in custody until he reached the Royal Court where it could then approach the matter de novo.
8. We do not think that this is the right approach for us to take. The fact of the matter is that this case is not before this Court and this is an appeal from a decision of the court that currently does have jurisdiction. We should, in our view, therefore approach the appeal on a principled basis applying the test laid down for such an appeal.
9. It would seem that on 4th February, 2015, the Assistant Magistrate refused bail on the ground that there had been no material change in circumstances since the decision of the Magistrate on 21st January, 2015. It is really that decision which we are reviewing and we note that there was no immediate appeal from that decision.
10. We have no transcript of the hearing before the Magistrate but it is agreed that bail was refused on the grounds that the defendant might interfere with witnesses and could commit further offences, in both cases in relation to the victim. It is not suggested that the defendant would attempt to flee the jurisdiction or be a danger to the public in general. In our view the Magistrate faced a very difficult decision. This is a young man who is pleading not guilty to the substantive charges and faces the possibility of being held in custody for an appreciable length of time and losing his job. He also comes from a very supportive family, all of whom have supported him in the lower court and who have been present here today. The proposal put forward by Advocate Steenson is that a condition of bail will be that he live with his mother and father in the family home, subject to the usual requirements that he will not directly or indirectly contact the victim or go anywhere in the vicinity of her home.
11. Difficulties with bail can be summarised as follows:-
(i) The defendant does not have a good record. There are previous convictions for malicious damage and in particular a conviction for common assault upon the victim committed on 4th April, 2014, only ten months ago. He was sentenced inter alia to 12 months' probation;
(ii) The Probation Department are, we are told, in the course of bringing breach of probation proceedings in relation to the defendant. According to Advocate Jowitt one of the reasons for doing so is the refusal of the defendant to attend an anger management course as required by the Probation Department. The defendant does not accept that he refused to attend such a course but he does admit to failing to attend appointments on three occasions, for two of which he says he had a legitimate excuse;
(iii) There are issues in the defendant living at home. Although this was the condition of bail imposed on the last occasion in connection with the common assault against the victim, the police have apparently been called to the home on four occasions, all involving the defendant, although no charges arose from those calls. Advocate Steenson, on instructions, told us that the mother is aware of two occasions when the police were called but he accepted that the defendant clearly has anger management issues.
12. In Evans and Evans-v-AG the Royal Court intervened because the Magistrate had wrongly treated the gravity of the offence and the likelihood of a substantial sentence as a reason for refusing bail without saying why that was relevant to the defendant possibly committing further offences.
13. In the appeal before us it cannot be said that the Magistrate misdirected herself and indeed Advocate Steenson, we think correctly, accepted as much. Nor can it be said that there was a procedural irregularity; no-one has suggested any such irregularity. The decision, as we have said, was clearly a very difficult one but we cannot say that it was "one which no reasonable Magistrate would properly have reached." The sad fact is that in the light of the information before her, there is a well-founded risk that the defendant would interfere with witnesses and good reason to believe that he would be likely to commit further offences in relation to this victim.
14. The appeal is therefore dismissed. We appreciate that this will be a disappointment to the family and to the defendant but they must understand that we have to apply the Law on a consistent and principled basis.
