Attorney General v Freeman

• Jurisdiction: Jersey
• Court: Police Court (Jersey)
• Judge: Sowden, Magistrate:
• Judgment Date: 25 January 1994
• Date: 25 January 1994

POLICE COURT

Sowden, Magistrate:

Centenier M. Stayte for the prosecution;

Mrs. S.A. Pearmain for the accused.

Cases cited:

(1) Att. Gen. v. Bre, Royal Ct. (1944), 31 P.C. 92, unreported, considered.

(2) Att. Gen. v. Cawley, Royal Ct. (1937), 29 P.C. 240; 1931-40 T.D. 33, unreported, considered.

(3) Att. Gen. v. Clavel, Royal Ct. (1851), 14 P.C. 468, unreported, considered.

(4) Att. Gen. v. Davies, Royal Ct. (1832), 9 P.C. 268, unreported, considered.

(5) Att. Gen. v. Fauvel, Royal Ct. (1848), 14 P.C. 61, unreported, considered.

(6) Att. Gen. v. Julien, Royal Ct. (1853), 15 P.C. 397, unreported, considered.

(7) Att. Gen. v. Lilley, Royal Ct. (1883), 21 P.C. 394, unreported, considered.

(8) Att. Gen. v. McLaren, Royal Ct. (1853), 15 P.C. 319, unreported, considered.

(9) Att. Gen. v. McLaren, Royal Ct. (1853), 15 P.C. 398, unreported, considered.

(10) Att. Gen. v. Monkey, Royal Ct. (1839), 2 P.C. 346, unreported, considered.

(11) Att. Gen. v. Murrell, Royal Ct. (1847), 13 P.C. 321, unreported, considered.

(12) Att. Gen. v. Nicolle, Royal Ct. (1926), 27 P.C. 491, unreported, considered.

(13) Att. Gen. v. Robins, Royal Ct. (1936), 29 P.C. 168, unreported, considered.

(14) Barnett v. Gun, Royal Ct. (1957), 251 Ex. 92; 1951-58 T.D. 114, unreported.

(15) Bennett v. Seymour, Royal Ct. (1952), 247 Ex. 192, 218; 1951-58 T.D. 114, unreported.

(16) Carter v. Nimmo, 1968 J.J. 1007; on appeal, 1969 J.J. 1257, applied.

(17) Hutchings v. de Warren, Royal Ct. (1951), 246 Ex. 466, 516; 1951-58 T.D. 114, unreported.

(18) Luce v. Derrien, Royal Ct. (1952), 1 P.D. 66, 70; 13 C.R. 116; 1951-58 T.D. 115, unreported.

Text cited:

First Report of the Commissioners appointed to inquire into the state of the Criminal Law of the Channel Islands: Jersey (1847), Report, at xxvi; Minutes, para. 2858, at 236.

Criminal Lawmalicious damageres suahusband acquires no interest in property by virtue of marriage such as to sustain defence of res sua to charge of causing malicious damagemistake as to rights over property no defence

Criminal Lawmalicious damageelements of offenceintentional or reckless disregard of property or possessory rights of anotherpossible to commit offence to own property if another has joint ownershipunnecessary that financial loss caused, property damaged was of value or that owner troubled to rectify damage

Criminal Lawconduct likely to cause breach of peacenature of offencebehaviour, viewed objectively, to be likely to cause breach of peaceunnecessary that accused intended to create disturbance

The accused was charged in the Police Court with causing malicious damage to property and with acting in a manner likely to cause a breach of the peace.

The accused had cohabited with and subsequently married the complainant and the couple lived at the complainant's house, which was situated in a residential area. There was no evidence that on their marriage the complainant had in any way altered her property rights. Following the breakdown of their relationship, the accused agreed to leave the matrimonial home and only to return to visit the child of the marriage with the prior consent of his wife. She subsequently obtained an injunction against him although it did not appear that there had yet been any matrimonial proceedings.

Several days after leaving the matrimonial home, the accused returned late at night in an intoxicated state, without his wife's consent, and kicked in a panel in the front door, thereby gaining access to the house.

The accused was charged and, at his trial, he submitted that there was no case to answer in that (a) he had not intended to damage the door, but was lawfully attempting to gain access to his own property and the defence of res sua therefore applied; and (b) the offence of acting in a manner likely to cause a breach of the peace required that the acts in question were public; in this case the accused was on his own property and could lawfully create any disturbance.

Held, convicting the accused on both counts:

(1) Merely by virtue of his marriage to and cohabitation with his wife and in the absence of any matrimonial proceedings to establish the contrary, the accused had acquired no material interest in his wife's property. In any case, by his agreement to leave the house and not return without his wife's consent, he had surrendered any interest he might have had and the defence of res sua could not therefore apply (page 35, line 43 - page 36, line 36).

(2) Even if he had established that he had any rights over the property, the offence of causing malicious damage would nevertheless have been made out, since it was possible to commit the offence against property owned jointly with another and in the present case, notwithstanding any interest of his own, he had intentionally or recklessly disregarded the property or possessory rights of another (i.e., his wife). Although in this case substantial damage had been caused, it was not in principle necessary that the damage cause financial loss, nor that the property damaged was of any value, nor that the owner was put to any trouble to rectify it, in order to establish the offence, although an insignificant interference with property would not suffice. Nor was it the case that the accused's misconception as to his legal rights over the property was a defence. For these reasons, the accused would be convicted of causing malicious damage to property (page 37, line 28 - page 38, line 21).

(3) Viewing his behaviour objectively, it was clear that the accused had also committed the offence of acting in a manner likely to cause a breach of the peace and it was unnecessary to show that he had actually intended to create a disturbance. It was a question of fact in each individual case whether the acts committed amounted to a punishable crime and in the present case, in view of the late hour in which the disturbance was committed, the residential nature of the area in which the house was situated and the likelihood that neighbours would be disturbed and might come to the assistance of his wife, the accused's actions fell into this category (page 38, line 34 - page 39, line 1; page 40, lines 8-32).

SOWDEN, MAGISTRATE: On January 13th, 1994, Mr. Freeman was presented before me in Police Court No. 1 charged by Centenier Michael Stayte (a) with having between 22.40 and 23.00 hours on December 22nd, 1993, at the premises 16 Beach Crescent, in the Parish of St. Clement, caused malicious damage estimated at 50 to the front door of the said premises; and this to the prejudice of Susan Freeman, ne Power; and (b) with having, during the same interval of time, at the said premises, acted in a manner likely to cause a breach of the peace.

Advocate Susan Pearmain appeared for Mr. Freeman and entered not guilty pleas. The Centenier outlined the case and Police Constables Keith Perchard and Martin Buckfield gave evidence as did Mrs. Susan Freeman (Mr. Freeman's wife, the complainant). During the evidence, the first charge was amended by consent so that the words "to a door" were substituted for the words "to the front door."

At the conclusion of the prosecution case and directly following the complainant's evidence, counsel made submissions tantamount to there being no case to answer. Whilst the submissions were attractive, they were not accepted. Counsel then called Mr. Freeman to give evidence on his own behalf. At the...