Caboz v Attorney General

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Sumption, Rokison and Hodge, JJ.A.
• Judgment Date: 02 March 2004
• Date: 02 March 2004

COURT OF APPEAL

Sumption, Rokison and Hodge, JJ.A.

R. Da S. Tremoceiro and M.L. Preston for the appellant;

N.M. Santos-Costa, Crown Advocate, for the Crown.

Cases cited:

(1) Att. Gen. v. Prior, Royal Ct., July 24th, 2001, unreported, applied.

(2) Att. Gen. v. Vibert, 1991 JLR N-8, considered.

(3) Gregory v. Att. Gen., 1997 JLR 1, referred to.

(4) Mackenzie v. Att. Gen., 1995 JLR 9, considered.

(5) R. v. Ball, [1911] A.C. 47; (1910), 6 Cr. App. R. 31, applied.

(6) R. v. Berry (1986), 83 Cr. App. R. 7; [1986] Crim. L.R. 269, considered.

(7) R. v. Bond, [1906] 2 K.B. 389, considered.

(8) R. v. Campbell, English Court of Appeal, December 20th, 1984, unreported, considered.

(9) R. v. Dolan, [2003] 1 Cr. App. R. 18, considered.

(10) R. v. Johnson (1993), 14 Cr. App. R. (S.) 661, considered.

(11) R. v. Nixon (1994), 15 Cr. App. R. (S.) 492, considered.

(12) R. v. O'Toole, [1987] Crim. L.R. 759, referred to.

(13) R. v. P, [1991] 2 A.C. 447; [1991] 3 All E.R. 337, referred to.

(14) R. v. Pettman, English Court of Appeal, May 2nd, 1985, unreported, considered.

(15) R. v. Smith, [2000] 1 Cr. App. R. (S.) 212, considered.

(16) R. v. Whybrow (1951), 35 Cr. App. R. 141, referred to.

(17) R. v. Williams (1987), 84 Cr. App. R. 299; [1987] Crim. L.R. 198, considered.

Additional cases cited by counsel:

Barra Hotel Ltd. v. Att.Gen., 2000 JLR 370.

Ferguson v. Att.Gen., 1998 JLR N-9.

Harrison v. Att. Gen., 2001 JLR N-47.

R. v. Alves, [1997] 1 Cr. App. R. 78.

R. v. Gunning (1994), 98 Cr. App. R. 303.

R. v. McCann (1991), 92 Cr. App. R. 239.

R. v. Marsh, The Times, July 6th, 1993.

R. v. Soffe, The Times, April 5th, 2000.

R. v. Stosiek (1982), 4 Cr. App. R. (S.) 205.

R. v. Welby, [2000] Crim. L.R. 59.

Snooks v. Att. Gen., 1997 JLR 253.

Text cited:

Thomas, 3 Current Sentencing Practice, para. B2-1.3 (1996).

Criminal Procedure—sentence—sentencing information—summary of facts—if facts disputed, court to consider all evidence adduced—not bound to accept entire prosecution version of facts after guilty verdict

Evidence—character—previous conduct of accused—admissible to show relationship with victim prior to offence, to allow inference of relevant intention—not limited to proving likelihood accused committed actus reus

The accused was charged before the Criminal Assizes with attempted murder.

The relationship between the accused and his wife, the victim, had deteriorated for some months prior to the attack due to his repeated gambling and drinking and had resulted in a number of serious incidents, including assaults on both his wife and her brother. During some of these assaults, the accused had made threats to kill his wife.

After spending the night out, the accused saw the victim walking towards their former home carrying their youngest child. Despite some dispute about what then took place, it was agreed that he savagely attacked his wife with a knife on the pavement outside the house, inflicting serious wounds and leaving the knife embedded in her back. He was charged with attempted murder.

At his trial, the accused did not claim to have been provoked and always admitted that he was responsible for the injuries inflicted on his wife. He claimed, however, that he had not intended to kill her and that the attack had been spontaneous. The jury found him guilty of attempted murder and he was sentenced by the Superior Number to 11 years' imprisonment.

On appeal, he submitted that (a) the evidence of the previous episodes of violence should not have been admitted as, although such evidence was admissible where it made it more probable that the actus reus had been committed, it was not proper to use it to prove his state of mind and its admission was prejudicial to his defence that the crime was committed spontaneously; (b) several of the actions and statements of the judge had been prejudicial to his case as they indicated that the judge was unsympathetic to him; and (c) the judge had misdirected the jury in his summing-up by treating as correct evidence led by the Crown which was disputed by the accused, e.g. that he removed the knife from his pocket immediately before the stabbing.

The accused also submitted that the sentence was "manifestly excessive" because (a) the sentencing procedure was wrong in principle as the court should have sentenced on the accused's version of events unless "manifestly implausible," or held a Newton hearing when there were disputed matters of fact; and (b) the sentencing court had taken into consideration irrelevant factors and failed to take into account or give sufficient weight to relevant considerations.

The Crown submitted in reply that (a) the admission of the evidence of previous episodes of violence was entirely appropriate as they showed the state of the relationship between the accused and his wife and would not have any prejudicial effect as the violence evidenced was far less serious than the stabbing for which he had already accepted responsibility; (b) there was no basis, moreover, for excluding background evidence on the ground that it was relevant to motive or intention rather than to the actus reus; and (c) the Jurats were able to make up their own minds on the facts relevant to their sentencing function.

Held, dismissing the appeal:

(1) The prosecution was entitled to adduce evidence of the previous episodes of violence, including the numerous threats to kill the victim, which demonstrated the state of the relationship between them. The use of this evidence was not, moreover, restricted to proving the likelihood that the accused committed the actus reus of the offence but could be used to help the jury infer his intention at the time of the stabbing, as an intention to kill the victim was a necessary component of the offence of attempted murder. The evidence was also relevant to the psychiatric evidence concerning the accused's mental state at the time. The case for admitting it was not, moreover, outweighed by its prejudicial impact on his case as (a) it would not have been possible to give an accurate account of the relationship between him and his wife without giving evidence of its deterioration and the escalation of violence in the preceding months; and (b) the evidence was not, in fact, prejudicial to him as the earlier offences were relatively minor whereas the accused had admitted responsibility for the near fatal stabbing of his wife with which he had been charged ( paras. 14-18).

(2) In the absence of evidence to the contrary, when summing up the evidence for the benefit of the jury, the judge was entitled to treat as correct evidence led by the Crown to the effect that the accused took the knife out of his inside pocket immediately before stabbing his wife. Furthermore, as the judge had made it clear that there was no evidence as to when the knife had been removed from the house, the comment could not be taken as supporting the prosecution's assertion, which was disputed by the accused, that the knife had been removed from the house one or two days before the stabbing and so including this assertion in the summary of facts was not prejudicial to the accused ( para. 25).

(3) The sentence was not "manifestly excessive" as the sentencing court's approach had, in fact, been more favourable than that to which the accused was entitled as it had only taken the incontrovertible aggravating factors into account. Although the court was not bound to accept the entire case of the prosecution after a verdict of guilty, as there were no special circumstances which might permit the accused to make an application for a Newton hearing and as he had not given any evidence to support his version of events, the court would have been entitled to proceed on the basis of the unchallenged and admissible prosecution evidence ( paras. 33-37; para. 41).

(4) The correct approach for a sentencing court when there was a factual dispute which affected sentencing but not the verdict itself, depended on the evidence adduced. If there was no evidence at the trial on the areas in dispute, the court would sentence on the basis of the accused's version of events. If only one side had adduced evidence, it was reasonable for the court to sentence on that version. When both sides provided evidence on the matter at trial, they should endeavour to agree a statement of facts as early as possible in advance of the sentencing hearing and, if this were not possible, identify areas of dispute so that the Jurats could be provided with the appropriate parts of the transcript in order to reach their own conclusions. If both sides had already given evidence on a disputed point, a Newton hearing, at which the same evidence would be given again, was obviously unnecessary and undesirable, particularly as it could lead to the reopening of an issue previously considered ( paras. 33-37).

1SUMPTION, J.A., delivering the judgment of the court: José Manuel Cabral Caboz was tried before the Criminal Assizes (Hamon, Commr. and a jury) on two counts, namely grave and criminal assault on his wife, Mrs. Maria Caboz on March 16th, 2002 and the attempted murder of Mrs. Caboz on April 18th, 2002. On October 18th, 2003, the applicant was acquitted on the count of grave and criminal assault and convicted on the count of attempted murder. On December 11th, 2003, the applicant appeared before the Superior Number of the Royal Court (Commr. Hamon and five Jurats) for sentencing. He was sentenced to 11 years' imprisonment.

2 The applicant applies for leave to appeal against conviction and against his sentence. At the outset of the hearing, we asked counsel to deal with the issues as if this were the hearing of the substantive appeal and not merely an application for leave.

Background

3 The applicant was born in Madeira in 1970 and married his wife there in 1991. They have two children, the younger of whom, David, was born in 1996. The family...