Jersey Unreported Judgments

2000/33

3 pages

ROYAL COURT

(Samedi Division)

 

23^rd February, 2000

 

Before:    Sir Peter Crill, K.B.E., Commissioner,

(Sitting alone)

 

 

The Attorney General

 

-v-

 

David Rodney Picot.

 

 

On 15^th October, 1999, the accused pleaded guilty to 1 count of indecent assault, but disputed the prosecutions version of the facts.  The Court adjourned the hearing for the purposes of a "Newton"  hearing fixed for 14^th April, 2000.

 

Application by the accused for an Order that psychiatric and psychological records held by the consultant psychiatrist, Dr Blackwood, be produced to the accused for use at the "Newton" hearing.

 

Preliminary points decided by the Court:

(1)   Does the Court have the power to order a third party to produce confidential records for the purposes set out above; and:

(2)   if the Court does have such power, should it, on the facts, make such an Order in this case.

 

 

                                              P. Matthews, Esq., Crown Advocate

                                          Advocate C.M. Fogarty  for the Accused.

 

 

JUDGMENT

 

THE COMMISSIONER:   This cases raises an interesting and, to some extent, a novel point.

 

This Court has always been wary in the past of changing its well established practice, set out in O'Brien -v- Jersey Evening Post (1985-86) JLR N3, which is that, unless it is satisfied that it would be in the interests of justice to do so, the Court will not order disclosure of information by a non-party.

 

The Crown has not sought to suggest, in this case,  that I should not exercise my discretion against the accused.  Instead, the Crown has put the facts and the arguments, and the cases before me, very fairly, and allowed me to make up my own mind.

 

The Jersey Courts have never been afraid of making an order which, it seems to them, is appropriate to the case, if that would further the interests of Justice,   And Justice, of course, as we know, includes not only the interests of the accused, but those of the Public as well; and that, I am afraid, is very often overlooked.

 

Decision on Preliminary Point (1) .

 

I was minded having regard to the judgment in the criminal case of A.G -v- Patterson & Nolan (10^th June, 1988) Jersey Unreported, to say - and to agree with Mr Matthews for the Crown - that this application should more properly have been made to the Jurats.   In other words to the trial court.

 

But I find there is much to commend the submissions of Miss Fogarty, that the trial has already commenced, inasmuch as a "Newton" hearing has been ordered, and I am sitting on a preliminary matter connected with - or indeed forming part of - the trial process and accordingly I rule, first, that I have the power to make the orders sought, provided I am satisfied that they are material and relevant.

 

Decision on Preliminary Point (2).

 

I am satisfied the material information arising out of the psychological records - the medical records have already been disclosed - should be made available to the court of trial, and I therefore order that they be disclosed by Dr Blackwell, on behalf of the Hospital, but they will be disclosed to an independent competent member of the Bar, chosen by agreement between the Crown and the Defence.  If they cannot agree, then they will have to come back to me to nominate one and that competent member will, of course, examine the third party documents in order to determine their relevance, and if there are arguments as to their relevance they will have to come back to the Court.

 

Authorities

 

In re: Lucas (1981) JJ 83

 

O'Brien -v- Jersey Evening Post Limited (1985-6) JLR N 3

 

In re: Sauvage (1989) JLR N 7

 

Representation of Sauvage (30^th March, 1989) Jersey Unreported

 

A.G -v- Patterson & Nolan (10^th June, 1988) Jersey Unreported

 

Toohey -v- Metropolitan Police Commissioner (1965) 1 All ER 506 HL

 

Brockington: "Motherhood & Mental Health" (1996: O.U.P.): pp. 209-210

 

Nicolle:  Origin & Development of Jersey Law: an Outline Guide: 15.6 - 15.14

 

Archbold (1997 Ed'n): 12 - 46.