Grave and criminal assault - bad character and hearsay evidence

[2025]JRC021

Royal Court

(Samedi)

21 January 2025

Before     :

Sir Michael Birt, Commissioner, sitting alone

The Attorney General

-v-

Taylor Rhys Anthony

M. L. Preston, Crown Advocate.

Advocate S. M. Baker for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        On 9 January, I sat to hear applications by the Crown for the admission of certain bad character and hearsay evidence in the forthcoming trial of the Defendant.  I announced my decisions at the conclusion of the hearing and now give my reasons for those decisions.

Factual background

2.        The Defendant is charged with one count of grave and criminal assault on his then partner (“the Complainant”).  He has pleaded not guilty and an assize trial is scheduled to commence on 3 March.

3.        The Defendant and the Complainant have been in an on/off relationship for some eighteen months.  The Crown case is that, on the evening of 15 June 2024, they had dinner at a restaurant in St Helier where they both consumed a fair amount of alcohol.  In due course, they went to the Defendant’s flat (“the Flat”) where they drank some wine.  They began talking about their recent separation and the fact that the Complainant had been sent a video on 26 May of the Defendant kissing another girl.

4.        When the Defendant made a remark adversely comparing the Complainant’s appearance with that of the other girl, the Complainant got up from the sofa and attempted to slap the Defendant across the face.  The Defendant grabbed hold of her wrist to block her.  The Defendant then grabbed her and held her down by the throat.  She tried to get the Defendant off her and grabbed him back by the throat.  The Defendant then punched or slapped the Complainant to the left side of her face using his right hand.  The Complainant managed to get up and run out of the door barefoot. The Defendant followed the Complainant and told her that nothing had happened.  She managed to get away from the Defendant and called 999 at approximately 2am whilst still in the building in which the Flat is situated.  As a result of the call, police attended just after 2am and found the Complainant by Dominos on St Saviour’s Road, barefoot, hysterical and crying.  There is body worn camera footage recording what the Complainant said to the officers about what had just occurred.

5.        In his defence case statement, the Defendant denies assault.  His case is that after the remark comparing her with the other girl, she lost her temper and physically attacked him.  It was she who put her hands round his throat.  Any force he used towards her was in lawful self-defence.

The hearsay application

6.        Pursuant to Article 64(1)(b) and 64A(b), hearsay evidence is admissible in a criminal trial if it is part of the res gestae.  The Crown seeks to adduce the following evidence on that ground:

(i)        The content of the 999 call made by the Complainant.

(ii)       Statements made by the Complainant in the body worn camera footage of PC Bolton, one of the officers who attended at the scene.

(iii)      A relevant entry in PC Bolton’s notebook summarising what the Complainant said to him about what had occurred at a time when she was seated in the rear of the police car.

7.        The position as to res gestae in Jersey was summarised in AG v McKeegans [2018] JRC 063 in the following terms at [18]-[20]:

“18.      In Shewan v AG [2006] JLR 79 the Court of Appeal held that the law of Jersey in relation to res gestae is similar to English law and is derived from the principles set out in Ratten v R [1972] AC 378 and R v Andrews [1987] AC 281.  In Ratten, Lord Wilberforce confirmed that a hearsay statement made by the victim of an attack or by a bystander was admissible if it was part of the res gestae.  He then went on to explain what this meant and concluded at 391 that the authorities:-

"...show that there is ample support for the principle that hearsay evidence may be admitted if the statement providing it is made in such conditions (always being those of approximate but not exact contemporaneity) of involvement or pressure as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused."

19.      Earlier, at 388, he had said this:-

"The possibility of concoction, or fabrication, where it exists, is on the other hand an entirely valid reason for exclusion, and is probably the real test which judges in fact apply.  In their Lordship's opinion this should be recognised and applied directly as the relevance test: the test should be not the uncertain one whether the making of the statement was in some sense part of the event or transaction.  This may often be difficult to establish: such external matters as the time which elapses between the events and the speaking of the words (or vice versa), and the differences in location being relevant factors but not, taken by themselves, decisive criteria.  As regards statements made after the event it must be for the judge, by preliminary ruling, to satisfy himself that the statement was so clearly made in circumstances of spontaneity or involvement in the event that the possibility of concoction can be disregarded.  Conversely, if he considers that the statement was made by way of narrative of a detached prior event so that the speaker was so disengaged from it as to be able to construct or adapt his account, he should exclude it."

20.      The position was authoritatively summarised by Lord Ackner in Andrews where he said this at 300:-

"My Lords, may I therefore summarise the position which confronts the trial judge when faced in a criminal case with an application under the res gestae doctrine to admit evidence of statements, with a view to establishing the truth of some fact thus narrated, such evidence being truly categorised as 'hearsay evidence':-

1.        The primary question which the judge must ask himself is - can the possibility of concoction or distortion be disregarded?

2.        To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection.  In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.

3.        In order for the statement to be sufficiently 'spontaneous' it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event.  Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative.  The fact that the statement was made in answer to a question is but one factor to consider under this heading.

4.        Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion...... The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.

5.        As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury.  However, here again there may be special features that may give rise to the possibility of error.  In the instant case there was evidence that the deceased had drunk to excess, well over double the permitted limit for driving a motor car.  Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight.  In such circumstances the trial judge must consider whether he can exclude the possibility of error."

8.        On the evidence before me, the 999 call was made at a time when the Complainant appears to have been in the hallway of the building in which the Flat is situated and she is clearly very distressed during the call.  She states that she had been assaulted by the Defendant.  During the course of the call she leaves the building and heads towards Dominos.  The call ends when she meets up with the police arriving as a result of her call.

9.        The body worn camera footage shows the interaction between the police officers and the Complainant on their arrival.  The Complainant appears to be distressed and hysterical.  She says that she has been assaulted by the Defendant.  After a while, there comes a time when she is seated in the back seat of the police car and is somewhat calmer.  She then answers questions from PC Bolton about what happened and he writes down a summary of what she says in his telephone.

10.     Advocate Baker submits that both in the 999 call and in the body worn camera footage, the risk of concoction cannot be discounted, as is required for the admissibility of res gestae evidence.  He submits that the level of distress shown by the Complainant in the camera footage is so excessive as to lead to doubts about its genuineness.  He points out that the Complainant repeatedly claims that there will be scratch marks on the Defendant which she caused when defending herself.  He further submits that, according to Advocate Preston’s skeleton argument, the Complainant has said that the assault had occurred some thirty minutes before the police arrived.  This was a lengthy period and meant that the incident would no longer have been dominating her thoughts and there would have been opportunity for reasoned reflection and therefore concoction. 

11.     As to the 999 call, I have no hesitation in concluding that this forms part of the res gestae.  Whilst the exact timing is not known at this stage, it seems clear that the call was made immediately after the Complainant had left the Flat, as she is still in the building.  She is clearly very distressed.  I consider that the call was made at a time and in circumstances where what she said was an instinctive reaction to what had occurred and there was no real opportunity for reasoned reflection.

12.     I consider next the first part of the camera footage.  It is clear that this immediately followed the ending of the telephone call.  The Complainant is visibly distressed and, in my judgment, the events in question were still dominating her thoughts.  There had still been no time for reasoned reflection.  I acknowledge Advocate Baker’s submission that the Complainant’s apparent level of distress was very high, but this will be a matter for the jury to consider with the assistance of an appropriate direction on distress.

13.     I also acknowledge Advocate Baker’s point that both in the telephone call and the footage, the Complainant appears to have been focussed on explaining why there would be scratches on the Defendant, but I do not consider that that is sufficient to lead me to exclude the evidence on the ground that it does not form part of the res gestae or should be excluded under Article 76.  It will of course be open to the defence to make what they wish of this point before the jury but, for reasons already stated, I consider that the circumstances in which both the telephone call and the first part of the camera footage occurred meet the requirements of res gestae evidence as set out in the passages quoted above.

14.     Similarly, even if it is the case that the alleged assault had occurred as much as thirty minutes before the police arrived – as to which there must be some doubt – I do not consider that this means that the footage is not admissible as part of the res gestae.  As the observations of Lord Wilberforce and Lord Ackner in the passages quoted above make clear, statements do not have to be exactly contemporaneous with the event in question in order to be admissible as res gestae.  The real question is whether they are made in circumstances where the event is still dominating the thoughts of the witness so as to prevent the opportunity for reasoned reflection and therefore possible concoction.  I consider that even if the delay was as much as thirty minutes, the criteria for admitting the footage as part of the res gestae are satisfied in this case.

15.     In this connection, Advocate Preston referred to AG v N [2024] JRC 251 at [28] which in turn referred to the English case of DPP v Barton [2024] 2 Cr App R 15 where the complainant had made a 999 call to the police that she had been assaulted and the police arrived about twenty-five minutes later, at which point there was body worn camera footage of statements made by the complainant about how her husband had assaulted her.  On appeal the court held that the court below had been “plainly correct” to find that the 999 call and the complainant’s words as recorded on the body worn video footage were admissible as res gestae.

16.     I have ruled that the first part of the body worn camera footage is admissible as res gestae.  However, at the latest, from a point when the Complainant is seated in the back seat of the car and begins to calm down and to give an account to PC Bolton who records it on his telephone, I consider that the requirements for res gestae are no longer met.  At this point, the position is akin to a witness giving a witness statement in the calming presence of police officers after the event.  I do not feel confident that from this point onwards, there was no opportunity for reasoned reflection by the Complainant.  I therefore decline to admit the footage as res gestae from this point.

17.     The question then arises as to the exact point at which the footage to be admitted should cease.  The court does not as yet have a transcript of what was said in the footage – although this is to be prepared – and the footage is very lengthy, lasting almost thirty minutes.  There are periods where not much is happening and/or the Complainant is repeating things she has already said.  At the conclusion of the hearing I instructed counsel to seek to agree the exact point in the footage at which the admissible evidence should cease.  If an agreement cannot be reached, I shall consider the matter further with the benefit of the transcript and a further viewing of the footage.

18.     It follows from what I have said that the content of PC Bolton’s notebook entry, which resulted from what the Complainant said while seated in the back seat of the police car, is not admissible, as what she was saying at that point does not form part of the res gestae.

Bad character

19.     The Crown seeks to adduce evidence of bad character on the part of the Defendant.  The proposed evidence relates to two alleged incidents.

20.     The first occurred in September 2023.  The Complainant states that she and the Defendant attended the Havre Des Pas Festival.  The Defendant got into an argument with a male friend of his.  They then all went to a pub where the argument between the Defendant and the friend continued.  There came a point when the friend reacted to an offensive remark by the Defendant by slapping the Defendant to the neck.  The Complainant sought to intervene and in response, the Defendant said to the Complainant “You can fuck off as well” and proceeded to push the Complainant against the wall.  The Defendant was drunk.

21.     The second incident occurred over Christmas 2023.  The Complainant and the Defendant were at the Defendant’s father’s home.  The Complainant and the Defendant got into an argument.  The Complainant tried to leave but as she was leaving, the Defendant grabbed the Complainant’s hood and pulled her to the floor.  The Defendant immediately denied that he had done anything wrong. 

22.     In neither incident were the police called and the only evidence which the Crown would seek to adduce in relation to these two incidents would be the evidence of the Complainant herself. 

23.     There is no dispute that the conduct alleged in the two previous incidents constitutes “bad character”.  In order to be admissible, evidence of bad character must satisfy one of the gateways established by Articles 82E-82I of the Law.  The Crown relies on two possible gateways in this case, namely important explanatory evidence and propensity. 

24.     The admissibility of important explanatory evidence is dealt with at Article 82E as follows:

“(1) In criminal proceedings, evidence of the defendant’s bad character is admissible if, but only if:

           ….

           (c) it is important explanatory evidence; or ….

(5)  For the purposes of paragraph (1)(c), evidence is important explanatory evidence if –

(a) without it, the court or jury would find it impossible or difficult properly to understand other evidence in the case; and

           (b) its value for understanding the case as a whole is substantial.”

25.     Crown Advocate Preston submits that, without knowledge of the previous incidents, the jury would find it impossible or difficult to understand the Defendant’s treatment of the Complainant.  He placed particular reliance on the decision of Commissioner Clyde-Smith in AG v E [2021] JRC 252.  In that case, the defendant was charged with grave and criminal assault on the complainant, with whom he had been in a relationship for many years and with whom he had had a child.  The Crown sought to admit evidence of a number of previous incidents where the defendant had been verbally and physically abusive to the complainant when in drink.  The previous incidents were said to have had a striking similarity to the alleged grave and criminal assault.

26.     The principal ground relied upon for the admissibility of the evidence of the previous incidents was that it was important explanatory evidence.  Having referred to the well-known dictum of Nutting JA in U v AG [2012] (1) JLR 349 at [39] and [41] as to the meaning at customary law of “important explanatory evidence”, the Commissioner decided to admit the evidence on that ground.  In a passage particularly relied upon by Crown Advocate Preston, he said in passing at [30]:

“Advocate Harrison submitted….there was no authority for the proposition that when a case concerns an allegation of domestic abuse, evidence of bad character in the form of past complaints is always admissible to assist the jury to properly understand the evidence in the case.  I agree that there is no such authority with each case depending on its facts, but I venture to suggest that in cases of alleged domestic abuse, the background to the relationship and the history and pattern of behaviour will very often be relevant and probative; it is very difficult to consider conduct between two people in a relationship in isolation.”

27.     I agree that such evidence may often be admissible but, as the Commissioner stated, each case must depend upon its own facts.  I consider the facts of this case are very different from those in AG v E.  There are only two previous incidents relied on in this case and they do not bear any particular similarity to the facts of the alleged grave and criminal assault.  One relates to the Defendant pushing the Complainant against a wall in the context of a verbal and physical altercation with another man and the second alleges grabbing the Complainant’s hood and pulling her to the floor.  Whilst bad character evidence does not have to have a striking – or indeed any – similarity to be admissible as important explanatory evidence, applying the wording of Article 82E(5), I do not consider that, without knowledge of the two previous alleged incidents, the jury would find it impossible or difficult properly to understand the evidence in relation to the charge, nor do I consider that the value of the bad character evidence for understanding the case as a whole would be “substantial”.  I see no reason why the jury cannot properly assess the veracity of the Complainant’s evidence in this case without deciding whether they also have to believe her in relation to two other incidents. 

28.     Accordingly, I do not consider that the bad character evidence in this case is admissible as important explanatory evidence.

29.     If I am wrong about the admissibility of the evidence as important explanatory evidence, I would nevertheless exclude the evidence under Article 76 of the Law for similar reasons to those explained below concerning Article 82E(2) in relation to propensity.

30.     The second gateway relied upon by the Crown is that contained in Article 82F of the Law, namely that the bad character evidence establishes a propensity on the part of the Defendant to assault the Complainant when in drink.

31.     Article 82F provides, so far as relevant, as follows:

“(1)  Subject to paragraph (2), evidence of a defendant’s bad character is admissible if it is relevant to an important matter in issue between the defendant and the prosecution which includes –

(a)        the question whether the defendant has a propensity to commit offences of the kind with which he or she is charged, except where the defendant having such a propensity makes it no more likely that he or she is guilty of the offence….”

32.     Having regard to its nature, I accept that if the bad character evidence in this case is accepted, it would establish a propensity on the part of the Defendant to assault the Complainant when in drink.  It is therefore prima facie admissible. 

33.     However, the admission of bad character evidence under Article 82F is subject to the important proviso in Article 82E(2) 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.”

34.     In my judgment, admission of the bad character evidence would adversely affect the fairness of the proceedings to the degree that I ought not to admit it.  There is no independent evidence of the two previous incidents.  The only evidence which would be adduced to prove those incidents would be the oral evidence of the Complainant herself.

35.     In my judgment, in such circumstances, there is a real risk of the jury being distracted by collateral issues.  At present, their task will be to assess the evidence of the Complainant and any other evidence in order to decide whether they are sure that the Defendant is guilty of assaulting the Complainant on this occasion as alleged.  If the bad character evidence is adduced, they will also have to determine whether they are sure that the Defendant has the propensity alleged.  They would therefore have to consider the evidence in relation to the two other incidents and decide whether this established propensity.  Yet the only evidence to support such propensity is the evidence of the Complainant herself, whose evidence is critical to proving the charge brought in this case and whose evidence they will have to assess for that purpose.  As Advocate Baker submitted, there is an element of pulling oneself up by one’s boot straps.  I think it would be unfair to risk the jury being distracted by collateral issues in respect of which there is no independent evidence, only that of the Complainant.  It would also lengthen and complicate the trial in that evidence would be given both for the prosecution and, quite possibly, the defence on matters which are not directly related to the charge which the jury has to determine.

36.     For these reasons, having regard to the terms of Article 82E(2), I consider that the bad character evidence showing propensity should not be admitted and I so ruled at the conclusion of the hearing.

Note

37.     The Defendant was found not guilty at the subsequent trial.

Authorities

AG v McKeegans [2018] JRC 063.

AG v N [2024] JRC 251.

DPP v Barton [2024] 2 Cr App R 15.

AG v E [2021] JRC 252.

U v AG [2012] (1) JLR 349.