Jersey Unreported Judgments

[2006]JRC089

ROYAL COURT

(Samedi Division)

28^th June 2006

The Attorney General

-v-

Peter Wilson Michel

And

Simone Anne Gallichan

Doléance of Peter Wilson Michel before the superior Number of the Royal Court.  

C. E. Whelan, Esq., Crown Advocate.

Advocate D. F. Le Quesne for P.W. Michel.

JUDGMENT

THE DEPUTY BAILIFF:

1.        This is a petition of doléance by Mr Michel in respect of a decision of Commissioner, Sir Richard Tucker, on the 20^th June refusing an application by the defendant for an adjournment of the trial for a period of not less than one month. 

2.        The background is as follows; the defendant was indicted on 27^th January, 2005.  The indictment contains ten counts of assisting another to retain the benefit of criminal conduct contrary to Article 32 of the Proceeds of Crime (Jersey) Law. 

3.        It is clearly a complex case involving a very substantial amount of paper work and other materials.  Originally the defendant was represented by Advocate Le Cornu.  Unfortunately Advocate Le Cornu fell ill in November 2005, the trial at that stage being fixed for February 2006.  He became unfit to conduct the case and in late December 2005 Advocate Juste was appointed on legal aid to replace him.  Unfortunately, she identified a conflict of interest in late January 2006 and accordingly a further advocate had to be appointed.  Advocate Le Quesne, although not on the legal aid rota, very responsibly volunteered to conduct the case.  He was appointed on 11^th February, 2006.

4.        It was, however, known at the time that he was involved in a civil trial and would not be available until early March.  For reasons which he has given us during the course of his submissions it appears that he and his team were unable to turn to the matter until mid-March, and we accept that that was reasonable.

5.        The trial date was fixed round about that time for 26^th June.  On 8^th June, Advocate Le Quesne applied for an adjournment to the 5^th July on the grounds that he would not be ready to conduct the case by 26^th June.  The Commissioner granted that application to the extent that it was adjourned to the 3^rd July, next Monday, and that remains the trial date.

6.        On 20^th June, Advocate Le Quesne applied for a further adjournment of not less than one month, again on the grounds that he would not be ready to conduct the case properly by 3^rd July because of the sheer volume of material which he and his team had to inspect and absorb.  The Commissioner refused that adjournment and it is against that decision that the doléance is now brought.

7.        Doléance is well established under our law.  In the case of Re Doléance of Lagadec [1996] JRC 36, Bailhache, the Bailiff quoted with approval the words of Frossard, Commissioner, in Re Doléance of Barker [1985 - 86] JLR 284, where the Commissioner said this:

"Before allowing a doléance the Court has to be satisfied that there has been an excess of jurisdiction or a breach of natural justice which needs to be remedied, as a doléance is a remedy 'in last resort' when all other doors are closed and a grave injustice will remain unless remedied.  This being so, the onus to show this is on the petitioner and can only be described as a heavy burden"

8.        We have also been referred by Mr Le Quesne to Re Doléance of the Harbours and Airports Committee [1991] JLR 316.  The judgment of Tomes, Deputy Bailiff refers there to "manifest, judicial error".

9.        We regard the cases as not being inconsistent.  Essentially the position is this. A doléance is not an ordinary appeal.  It is a review and the Superior Number may only intervene to overturn a decision where the petitioner satisfies the heavy burden of showing that a grave injustice will result whether it be from an excess of jurisdiction, a breach of natural justice, an error of law or some other manifest judicial error.

10.      In our judgment the burden is particularly heavy when a defendant seeks to challenge an interlocutory decision of a trial judge during the course of case management in relation to criminal proceedings.  Although, save in the case of preparatory hearings under the Police Procedures and Criminal Evidence (Jersey) Law 2003, it is correct to say that there is no immediate right of appeal against an interlocutory decision, it is not correct to say there is no right of appeal at all so that doléance becomes appropriate as being the only method of remedying a manifestly incorrect decision.

11.      That is because if a defendant is convicted he may appeal to the Court of Appeal and may raise as a ground of appeal any criticism which he may have of any interlocutory decisions made by the trial judge.  If satisfied that the interlocutrory decision of the trial judge was wrong and has lead to injustice the Court of Appeal may allow the appeal.  So we are not in the situation where doléance has most frequently been used, namely where there is in effect no other remedy whatsoever to correct a manifest judicial error.  So that militates against the Court intervening in connection with interlocutory case management decisions in a criminal case. 

12.      Secondly, such decisions often depend very much upon a detailed knowledge of, and a feel for, the case in question.  This will be possessed by the trial judge, but it will not be possessed by the Superior Number and that is particular so, of course, in a complex case such as the present.

13.      With his detailed knowledge of the case the Commissioner was in a much better position to assess whether Mr Le Quesne's submission that he needed more time was reasonable or not.  We would go so far as to say we think it will be exceedingly rare that it will be appropriate for the Superior Number to interfere by way of doléance with an interlocutory decision of a trial judge concerning case management issues in a criminal case.

14.      We have carefully considered Mr Le Quesne's submissions in the present case.  He submits forcefully that in view of the sheer volume of material and the complex nature of the issues, he has simply had insufficient time to prepare and get himself into a position that he can fully and properly represent the defendant.  There is therefore, he submits, a real risk of a grave injustice to the defendant.

15.      These are clearly weighty submissions.  They were however the same submissions that were put to the Commissioner and a decision as to whether to grant an adjournment or not is par excellence a discretionary decision for the trial judge.  It is a decision which involves balancing a number of matters.

16.      We were referred by Mr Whelan to the case of R -v- Jan Jisl [2004] EWCA Crim 696 which in turn quoted from a passage of R -v- Chaaban [2003] EWCA Crim 1012 and we think it is worth quoting from paragraph 35 of that latter case:

"35.    A trial judge has always been responsible for managing the trial.  That is one of his most important functions.  To perform it he has to be alert to the needs of everyone involved in the case.  That obviously includes, but is not limited to, the interests of the defendant.  It extends to the prosecution, the complainant, to every witness (whichever side is to call the witness), to the jury, or if the jury has not been sworn, to jurors in waiting.  Finally the judge should not overlook the community's interest that justice should be done without unnecessary delay.  A fair balance has to be struck between all the these interests."

17.      We would also refer to paragraph 114 of Jan Jisl where the Court said this:

"The starting point is simple.  Justice must be done.  The defendant is entitled to a fair trial; and, which is sometimes overlooked, the prosecution is equally entitled to a reasonable opportunity to present the evidence against the defendant.  It is not, however, a concomitant of the entitlement to a fair trial that either or both sides are further entitled to take as much time as they like or for that matter as long as counsel and solicitors or the defendants themselves think appropriate".

18.      The task for the Commissioner was to balance all these factors including the need for the defendant to have a fair trial and to consider whether in his judgment the defendant could have a fair trial without an adjournment.  This was a matter of discretion.  One can envisage that some judges would have granted an adjournment.  One can envisage that others would not have.  The Commissioner chose not to and we cannot possibly say that his decision was not within the band of reasonable decisions open to him and discloses a manifest judicial error which would entitle this Court to intervene.  We must therefore dismiss the petition. 

19.      We would, however, add this.  No decision on an adjournment is of itself final.  Circumstances change.  We do not mean to indicate any view, one way or the other, as to the likely or proper outcome of any such application, but we merely point out that it is certainly open to Mr Le Quesne to apply to the Commissioner for an adjournment of the trial on Monday on the basis of the circumstances as they then are; these may or may not be different to the circumstances as they were when he made the last application.  We have also been alerted to a possible new ground concerning a potential appeal to the Privy Council against an interlocutory decision of the Court of Appeal in relation to the preparatory hearing and that too is a matter which Mr Le Quesne can of course bring before the Commissioner on Monday.  It will be for the Commissioner to balance up all these matters and reach a decision on the matters as they are then before him.

Authorities

Proceeds of Crime (Jersey) Law. 

Re Doléance of Lagadec [1996] JRC 36.

Re Doléance of Barker [1985-86] JLR 284.

Harbours and Airports Committee [1991] JLR 316.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

R -v- Jan Jisl [2004] EWCA Crim 696.

R -v- Chaaban [2003] EWCA Crim 1012.