BAILII is celebrating 24 years of free online access to the law! Would you consider making a contribution?
No donation is too small. If every visitor before 31 December gives just £1, it will have a significant impact on BAILII's ability to continue providing free access to the law.
Thank you very much for your support!
 |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] | |
Jersey Unreported Judgments |
||
|
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> AG v Connor [2024] JRC 029 (05 February 2024) URL: http://www.bailii.org/je/cases/UR/2024/2024_029.html Cite as: [2024] JRC 029, [2024] JRC 29 |
||
[New search] [Help]
Inferior Number - adduce evidence of bad character.
|
Before : |
Sir Michael Birt, Commissioner, sitting alone. |
|
Between |
Attorney General |
Plaintiff |
|
And |
Michael Robert Connor |
Defendant |
Crown Advocate C. L. G. Carvalho for the Attorney General
Advocate M. L. Preston for the Defendant
judgment
the commissioner:
1. This is an application by the prosecution to adduce evidence of bad character of the Defendant in his forthcoming trial before the Inferior Number.
2. The Defendant has pleaded not guilty to one charge of intimidating a witness contrary to Article 107(1) of the Criminal Procedure (Jersey) Law 2018. According to the prosecution, the facts giving rise to the charge are as follows.
3. At the time of the alleged offence, a Mr Jobe Le Jehan had been charged with committing a grave and criminal assault on Mr Jose Paulo Mendes ("the Complainant") on 13 January 2023. Although he has since pleaded guilty, Mr Le Jehan had at the time pleaded not guilty and was awaiting trial. The Complainant was to be a witness for the prosecution in the trial. The Defendant knows both Mr Le Jehan and the Complainant. He has been in prison with each of them.
4. On 3 February 2023, the Defendant's phone was used to contact the Complainant through Facebook Messenger. The Complainant and the Defendant are 'friends' on Facebook. There was an initial call at 10:06 pm which the Complainant did not answer. There was then a second call at 10:06 pm when the caller left the following voice message:
5. The Complainant did not respond to this message. There was then a further call at 10:11 pm which the Complainant did not answer.
6. On 7 February 2023, the Complainant attended Police Headquarters and showed the police the two missed calls and the voice message. He said that the message had made him feel threatened.
7. The Defendant was arrested on 8 February on suspicion of intimidating the Complainant in relation to the criminal proceedings against Mr Le Jehan. The Defendant said to the police officer that he did not even know a Jobe Le Jehan. His phone was seized and the two missed calls and voice message were seen on the phone.
8. At interview, he said that he had been out drinking on the evening of 3 February and had been to a number of pubs. He did not remember anything that happened that evening and only recalled waking up the next morning on the floor of the hallway in his home. He last remembered contacting the Complainant by phone in November or December 2022. When asked who else might have access to his phone, the Defendant explained that he would give the passcode to his phone to friends if one of them needed to use it. He gave no comment answers to other questions about the offence although when asked whether anyone had encouraged, forced or coerced him into contacting the Complainant, he said "no".
9. The Defendant has pleaded not guilty and denies that he was responsible for the voice message. The Defence obtained a report from a forensic speech analyst who stated that the evidence was inconclusive as to whether the Defendant was the person who left the voice message. The Crown then obtained its own forensic expert report and the Crown's expert came to the same conclusion, namely it was not possible, by listening to the short voice message, to conclude whether or not the Defendant was the person who left the message.
10. It appears, therefore, that there is no dispute that the caller who left the voice message was using the Defendant's phone, but the issue at trial will be whether the caller was the Defendant or someone else using his phone.
11. The Defendant has a number of previous convictions, but the prosecution seeks only to adduce certain evidence in relation to two sets of convictions, one set in 2015 and the other set in 2021.
12. Taking first the 2015 convictions, on 17 October 2015 the Defendant committed the offences of failing to stop and report a road traffic collision, driving whilst disqualified, failing to provide a breath sample, taking and driving away a motor vehicle, and driving without insurance. These all arose out of a single vehicle collision where the Defendant was driving a car but left the scene. The female passenger who remained with the car later identified the Defendant as the driver. Upon arrest, the key to the car was found on the Defendant.
13. The occupier of the address where the car had been kept stated that the Defendant had stayed at that address the night before the incident but that when she awoke, the vehicle, the key to the vehicle and the Defendant were no longer there.
14. In his first interview, the Defendant was adamant that he was not the driver of the vehicle. In his second interview, in response to the occupier's statement being put to him, he maintained he was not at the address from which the key was taken. When the passenger's account was put to him, he stated that he was not the driver and he did not know the passenger.
15. Subsequently, despite these various denials at interview, the Defendant entered guilty pleas to all the offences.
16. As to the 2021 convictions, the Defendant on 7 April 2020 committed the offences of failing to stop and provide his name and address to a constable, driving whilst disqualified, driving without insurance and reckless or dangerous driving.
17. The facts behind these convictions were that a moped had struck the complainant's parked car and had then left the scene. Later the following afternoon, the police attempted to stop the same moped and the rider accelerated away when he became aware of the police vehicle attempting to stop him. In the attempt to escape, the moped went through a red light and crossed onto the other side of the road, including going around a blind right-hand bend on the wrong side of a traffic island. The Defendant was arrested a short while later and the moped was located nearby. The Defendant's fingerprint was found on the helmet underneath the moped's seat and his DNA was found on clothing found in undergrowth that CCTV showed to have been discarded by the rider of the moped.
18. In his first interview, the Defendant said that he had been at home all night and gave the name of an alibi witness who he said he was with.
19. In his second interview, he stated that he knew and associated with the owner of the moped and that he had looked at the moped before and may have sat on it and may have looked at the helmet.
20. In his third interview, he was asked to explain his DNA being found on the discarded clothing and replied that the owner had arrived in Jersey with a few belongings and the Defendant had lent him clothes. He maintained his denial that he was the rider of the moped and stated that the owner of the bike was "William Roberts".
21. In the Defence Case Statement, he again denied being the rider of the moped. He said that he had lent William Watton-Roberts clothing the day before the incident including a grey hooded top and that there was DNA from at least two others and there were other fingerprints that had not been checked.
22. Despite his denials both at interview and in the Defence Case Statement, the Defendant subsequently pleaded guilty to all charges on the full prosecution facts.
23. The prosecution seeks to adduce the above evidence on the ground that it establishes a propensity on the part of the Defendant to be untruthful.
24. Article 82E(1) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the 2003 Law") provides that evidence of a defendant's bad character is admissible if, but only if, it falls within one or more of a number of specified gateways. Article 82E(1)(d) provides that one of the gateways is if the evidence is admissible under Article 82F.
25. Article 82F(1) provides as follows:
26. The current application is brought under Article 82F(1)(b), namely it is said that the evidence of bad character shows that the Defendant has a propensity to be untruthful.
27. Even if evidence is admissible under Article 82F, the Court has a discretion to exclude it pursuant to Article 82E(2) which provides:
28. Article 83E(3) provides in relation to the exercise of the above discretion:
29. Counsel have been unable to find any local judgment dealing with admissibility under Article 82F(1)(b), i.e. untruthfulness; all the local authorities concerning Article 82F(1) appear to have been dealing with admissibility under Article 82F(1)(a), i.e. on the ground of a propensity to commit similar offences. However, the statutory provisions as to bad character in the 2003 Law are based upon similar provisions in England and Wales and accordingly judicial decisions in that jurisdiction can be of assistance.
30. The leading authority in England and Wales is R v Hanson [2015] EWCA Civ 824. The English Court of Appeal described the overarching aim of the bad character provisions in the following terms at [4]:
31. The Court went on to deal with the question of untruthfulness at [13] in the following terms:
32. There appears to have been some inconsistency in England and Wales as to the width of the untruthfulness gateway. As can be seen, the Court in Hanson expressed itself in general terms and clearly envisaged that, where truthfulness was an issue in the present case, evidence of an untruthful account on arrest or in interview or in evidence in a previous case could be admissible. Similarly, in R v Jarvis [2008] EWCA Crim 488, the English Court of Appeal, when considering the trial judge's decision to admit evidence of lies told by the defendant in the course of conducting his business, said at [30]:
33. An example of the admission under this gateway of lies told by a defendant when interviewed by the police in relation to a previous conviction can be found in R v Ellis [2010] EWCA Crim 163, where the defendant was charged with having an offensive weapon. His account concerning why he had the item was in dispute. The trial judge admitted evidence that, at the time of a previous conviction, he had advanced a detailed untrue account at two police interviews before, late in the second interview, admitting his guilt and that the accounts he had given earlier were untruthful. He went on to plead guilty.
34. The Court of Appeal said that the issue as to his propensity to be untruthful was a serious issue in the present case and noted that it had not been argued on behalf of the appellant that the judge had been wrong to admit the bad character evidence relating to his lies on the previous occasion.
35. However, in R v Campbell [2007] 1 WLR 2798, the English Court of Appeal adopted a more restrictive approach to the untruthfulness gateway. It emphasised that, to be admissible, bad character evidence had to be relevant to an important matter in issue between the defendant and the prosecution. It held at [31].... "The only circumstance in which there is likely to be an important issue as to whether a defendant has a propensity to tell lies is where telling lies is an element of the offence charged".
36. The decision in Campbell has been subject to considerable criticism. For example, in R v Norris [2014] EWCA Crim 419, the defendant was charged with sexual offences. The trial judge allowed in, through the untruthfulness gateway, evidence that in an earlier trial for sexual offences, his defence case had been disbelieved by the jury which had convicted him; and furthermore that he had advanced false mitigation during the sentencing process in those proceedings by relying upon a distinguished military career when he had in fact only served briefly and the accomplishments which he referred to belonged to his brother. The Court of Appeal upheld the admission of that bad character evidence on the basis that the credibility and reliability of the defendant and the complainant were of central importance to the case and in those circumstances the judge was entitled to allow in the evidence of earlier lying on the basis that it was indicative of previous sustained lying in a court context. In the course of its judgment, the Court said this about Campbell at [29]:
37. The observations in Campbell have also been the subject of criticism by the Northern Ireland Court of Appeal in R v LH [2017] NICA 67. The bad character provisions in Northern Ireland are the same as in England and Wales and this jurisdiction. In relation to what was said in Campbell, the Northern Ireland Court of Appeal said this at [17]:
38. Having referred to some of this case law, the Court of Appeal went on to say at [21]:
39. Advocate Preston did not seek to argue that Jersey law should follow Campbell in holding that evidence of a propensity for untruthfulness should only be admitted where telling lies is an element of the offence being tried.
40. In my judgment he was right not to do so. I agree with the criticisms which have been made of Campbell and am of the clear opinion that the restrictive approach in that case should not be applied as part of Jersey law. In particular, I agree with the observation in R v LH that whether or not a defendant is being truthful is likely to be an important matter in issue between the defendant and the prosecution in many criminal trials. I also agree that the approach in Campbell is more restrictive than the language of the statute requires.
41. It seems to me that a judge considering whether to admit bad character evidence through the untruthfulness gateway ought to consider the following questions (amongst others):
(i) Is the issue of whether the defendant is being truthful an important matter in issue between the defendant and the prosecution in the trial in question?
(ii) If so, does the bad character evidence sought to be admitted establish a propensity to be untruthful?
(iii) If so, should the bad character evidence nevertheless be excluded? In particular, would the admission of the evidence have such an adverse effect on the fairness of the proceedings that it ought not to be admitted?
42. Turning to the facts of this case, Crown Advocate Carvalho submits that the requirements of the statute are all fulfilled in that (i) the crucial issue in the case is whether the Defendant is being truthful when he denies having made the call to the Complainant's phone, (ii) the evidence shows a propensity to untruthfulness in the context of criminal investigations and (iii) it would not be unfair to admit the evidence.
43. Advocate Preston, on the other hand, submits that the evidence should not be admitted for the following reasons:
(i) He notes that there was no lawyer present at the interviews in 2015 or 2021, and that there was an appropriate adult present during the interviews in 2015. There was no appropriate adult at the interviews in 2021 or in the present case. The fact that it was thought necessary for there to be an appropriate adult in 2015 suggested that it might be unfair to rely on lies told on that occasion or in 2021, when there was no appropriate adult; it certainly raised a lingering concern as to whether it would be right to do so. The Defendant was not the most articulate or intelligent of men and there must be some doubt as to whether reliance could safely be placed on what was said in 2015 and 2021 as showing that the Defendant had a propensity for untruthfulness.
(ii) The application was brought very late, only a few days before the trial was originally due to start (although it was subsequently adjourned for two months for unrelated reasons). The late application was brought despite there having been an application for the admission of different bad character evidence as long ago as August 2023. Furthermore, it had only been brought after production of the expert evidence to the effect that it could not be said whether or not the voice in the voice message was that of the Defendant. Whilst he did not doubt the explanation for the delay given by Crown Advocate Carvalho during the course of the hearing before me, he submitted that it nevertheless gave the impression of the prosecution seeking to bolster a weak case following production of the expert reports. In his submission, it was a weak case. The only real evidence against the Defendant was that the call came from his phone. In circumstances where the experts were agreed that it could not be said one way or the other whether it was his voice on the phone, it was a weak case. In those circumstances, to admit the bad character evidence would be very prejudicial. It was well established that bad character evidence should not be used to bolster a weak case.
(iii) He also referred to the case of R v Atkinson [2006] EWCA Crim 1424 and submitted that this appeared to be fairly similar on the facts.
44. In my judgment, the evidence should be admitted. I take the three questions mentioned at paragraph [41] above in turn.
45. As to (i), I have no doubt that the question of whether the Defendant is telling the truth when he denies having sent the voice message is an important matter in issue between the prosecution and the Defendant. Indeed, it is the only real issue. There can be little doubt that someone sought to intimidate the Complainant by means of the voice message; the real issue is whether it was the Defendant. He says that it was not him despite the fact that the message was sent from his phone at a time when the phone was in his possession and had a passcode, and in circumstances where he knew both Mr Le Jehan and the Complainant. In those circumstances, whether the Defendant is telling the truth when he denies that it was him is indeed an important matter in issue.
46. As to (ii), I am satisfied that the lies told by the Defendant in 2015 and 2021 show a propensity to be untruthful. The lies in 2015 continued over two interviews and included maintaining the lies even after being confronted with the evidence of the occupier of the address from which the car had been taken and with the evidence of the passenger. The lies extended to denying that he even knew the passenger.
47. The lies in 2021 extended over three interviews and included the provision of a false alibi as well as complicated lies to explain the presence of the fingerprints on the helmet and the DNA on the clothing. The lies were also maintained beyond the interviews and were continued in the defence case statement when he was legally represented.
48. These were not therefore isolated lies. They show, in my judgment, that, when being investigated for the commission of a crime by the police, the Defendant is willing to lie persistently to the police and is willing to maintain those lies despite being confronted by contrary statements from witnesses and even, by means of a defence case statement, after the commencement of a prosecution.
49. Advocate Preston submitted that there was a lingering concern as to whether reliance should be placed on this evidence (and whether it showed a propensity to lie) because it was thought necessary to have an appropriate adult present at the interviews in 2015 and there was no such adult in 2021. An appropriate adult is required when police are interviewing a juvenile or a person who is mentally disordered or mentally vulnerable. The Defendant was not a juvenile in 2015 and there is no evidence that at that time or at any time since he has been mentally disordered or mentally vulnerable. On the contrary, the custody record for 2015, which was produced at the hearing before me, shows that the Defendant was intoxicated and in an angry and aggressive state after his arrest, so much so that he injured himself when punching a lintel in the police station. The custody record shows that the Forensic Medical Examiner had not indicated that an appropriate adult was required for interview and also that it was noted that the Defendant had not had an appropriate adult present for interviews on any of the last four occasions before then on which he had been detained. The custody record states that the custody sergeant noted that the Defendant was emotionally upset and could be at risk of self-harm. It also states that the Defendant thought the police would "stitch him up". The custody sergeant felt that in those circumstances it might be beneficial to use an appropriate adult for the interview.
50. I do not consider that the fact that there was an appropriate adult in 2015 or that an appropriate adult was not used in 2021 or that there was no legal representative present for the interviews undermines the strength of the evidence showing a propensity to be untruthful. The Forensic Medical Examiner in 2015 did not advise that an appropriate adult was required and it appears to have been a precautionary step on the part of the custody sergeant because of the Defendant's emotional state. There is no evidence that the Defendant was at any form of disadvantage; he knew what the truth was and simply persisted in lying, no doubt in the hope that he would not be charged. Similarly, in 2021, there is no evidence to suggest that he needed an appropriate adult and the lies which he told at interview were continued into his defence case statement, at which time he was of course legally represented. In short, I do not consider that the presence of an appropriate adult in 2015 in any way detracts from the strength of the evidence in 2015 and 2021 showing that he has a propensity to be untruthful in the context of a police investigation.
51. Nor do I consider that the fact that the first set of lies was told back in 2015 is any reason to exclude the evidence. The Defendant repeated such conduct more recently in 2021 and in my judgment they show a pattern of conduct.
52. As previously stated, Advocate Preston sought to derive support from the decision in R v Atkinson, a decision of the Court of Appeal, Criminal Division in England and Wales. In that case, the defendant was charged with possession with intent to supply a controlled drug. The facts were that he was stopped whilst driving a car and a search established that heroin was hidden under the bonnet. He denied any knowledge of the drug. Late in the course of the proceedings, the prosecution applied to adduce evidence of two previous convictions (arising from the same incident) for possession with intent to supply heroin and crack cocaine. The defendant had pleaded guilty to those charges but, when stopped in a car in which the drugs were contained, he had at first told the police that the drugs were not his.
53. The prosecution applied to admit bad character evidence of the two previous convictions on the ground that they showed a propensity to commit similar offences to the type charged and the trial judge admitted the evidence on that ground. However, during the trial, the defendant was cross-examined about the fact that he had told a lie when stopped on the previous occasion and the judge directed the jury that they could take this into account when considering the truthfulness of the defendant.
54. For reasons specific to the facts of that case, which it is not necessary to describe, the Court of Appeal held that the previous convictions should not have been admitted as showing a propensity to commit the crime charged. The Court further held that, if admitted, that evidence should not have been treated as showing a propensity to tell untruths. Advocate Preston submits that this supports his submission that the lies told by the Defendant in 2015 and 2021 should not be treated as showing a propensity to tell untruths and admitted it in evidence.
55. In my judgment, the decision in Atkinson turned on its own special facts and does not assist in the present case. I reach that conclusion for the following reasons:
(i) In Atkinson, the bad character evidence was not admitted to show a propensity to tell untruths; it was admitted solely on the basis of a propensity to commit similar offences. There was therefore no consideration of whether it showed a propensity to be untruthful and the Court of Appeal held that this ought to have been considered separately before the defendant was cross-examined on that basis.
(ii) As the Court of Appeal pointed out, the lie on the previous occasion was a spontaneous lie uttered when the defendant was first stopped in his car. It was not persisted in and the defendant pleaded guilty in the Magistrate's Court. Although the Court considered that the judge might have permitted cross-examination on the basis that the previous evidence showed a propensity to tell untruths, the Court felt that it was at any rate doubtful whether a lie told in those specific circumstances could really be relied upon as showing a propensity to be untruthful. The most important point, said the Court, was that there was never any focused discussion about that question before the trial judge or any ruling by the judge.
(iii) The present case is very different. The application is specifically made on the grounds of a propensity to tell untruths and argument has been addressed to that issue. Furthermore, the lies are of a wholly different character. The lies told by the Defendant were not an isolated lie at the point of arrest; they were lies persisted in over several interviews and, in the case of 2021, persisted in for the defence case statement.
56. As to (iii), I do not consider that admission of the evidence would have such an adverse effect on the fairness of the proceedings that, pursuant to Article 82E(2) or the general discretion to exclude evidence conferred by Article 76(1), I ought to exclude it. Advocate Preston relied on the "lingering concern" because of the point concerning the presence or absence of an appropriate adult but, for the reasons I have already given, I do not consider that this assists him or that, as a consequence, it would be unfair to admit the evidence.
57. He further submits that the bad character evidence is being used by the prosecution to bolster a weak case. I accept that it is well-established that bad character evidence should not be used to bolster a weak case. However, I do not consider that that is the position here.
58. On the prosecution evidence, the call was made from the Defendant's phone at a time when it was in his possession and when he says he cannot recall events because of his consumption of alcohol. The phone has a passcode so that, in order for the voice message to have been left by someone else, the Defendant would have to have given the passcode to the other person or inserted the passcode himself in order for the other person to make the call. In addition, the call was made to someone the Defendant knew in order to assist another person (Mr Le Jehan) who the Defendant knew. On the Defendant's case, it would therefore be something of a coincidence if someone else who wanted to help Mr Le Jehan happened to choose the Defendant's phone with which to intimidate the Complainant.
59. Whether such evidence and the evidence heard at trial will be sufficient to establish guilt on the part of the Defendant will of course be a matter for the Jurats. However, I am unable to categorise the prosecution case as a weak one. In my judgment, when assessing whether the Defendant is telling the truth when he says it was not him who left the message, it is fair and reasonable that the Jurats should know of the lies he has told on previous occasions when being investigated by the police. The Jurats will of course be directed by the trial judge as to the use which they can properly make of such evidence.
60. For these reasons, I rule that the bad character evidence requested by the prosecution may be admitted. In my judgment, such evidence should be admitted by way of admission setting out as concisely as possibly a summary of the lies which I have ruled the prosecution may adduce.
