Jersey Unreported Judgments

[2007]JRC249

ROYAL COURT

(Samedi Division)

28^th December 2007

The Attorney General

-v-

Patrick Louis Drean

M. St. J. O'Connell, Esq., Crown Advocate.

Advocate D. S. Steenson for the Defendant.

DC Cathy Davidson present on behalf of the Police Child Unit.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The defendant in this case is charged with the rape of two young girls.  E is now 13 and she says that she was about 5 at the time of the alleged offences.  N was born on 10^th January, 1991, and she is therefore 16 now, and was 16 at the time when she was interviewed by the police, but she will be 17 before the trial commences on 21^st January.

2.        On behalf of the prosecution, Mr O'Connell has applied, under Article 3 of the Criminal Justice (Evidence of Children)(Jersey) Law 2002, for the evidence of both girls to be given by way of a video recording of their interviews with the police officer.  He has also applied, under Article 2 of that Law, for their oral evidence, and in particular their cross-examination, to be given by way of television link.

3.        I propose to deal first with E.  She clearly falls within both Articles 2 and 3.  The offence charged is rape, which falls within Article 2(1)(c) and therefore engages both Articles.  She is also clearly a child, for the purposes of both Articles.  Article 3(2) says this:-

"Subject to the exercise of any of its powers to exclude evidence which is otherwise admissible, the court shall give leave under paragraph (1) unless -

(a)       it appears that the witness will not be available for cross-examination;

(b)       any rules of court requiring disclosure of the circumstances in which the recording was made have not been complied with to the satisfaction of the court; or

(c)       it considers that, having regard to all the circumstances of the case, in the interests of justice the recording ought not to be admitted."

4.        In my judgment it is clear from Article 3, and paragraph (2) in particular, that the legislature did intend that, where appropriate, young witnesses should derive the benefits of giving their evidence by video recording and avoiding the stress of having to give their evidence live in Court.  However the Court must always balance the interests of the victim against the interests of the defendant and his need to have a fair trial; in particular his right to challenge the evidence which is brought against him. 

5.        Mr Steenson says that in relation to E, whilst he does not raise strong opposition to the introduction of the video, he does object to her being cross-examined by television link.  He says that her credibility is fundamental to this case and that if she is old enough to make the complaint, she is old enough to give evidence in Court.  I have to say that I was not convinced by that point because that will apply in the case of any child who makes a complaint and, if interpreted literally, would completely negate both Articles 2 and 3 of the Law.  But more significantly he said that in this particular case her credibility was vital and that the defence were in possession of what has been called a diary, which raises a number of issues upon which he will wish to test her evidence.  He has summarised parts of what is said in that diary and in particular the suggestion that, in the diary, she has said that she was having sex with other boys when she was about 5.  He says that that is highly relevant to her credibility and that fairness dictates that the jury should be able to see how E reacts to cross-examination in person.

6.        I have considered carefully his submissions but in my judgment this legislation was aimed at ensuring that young witnesses can give of their best when giving evidence rather than face the intimidating surroundings of a Court.  E is only 13, I have seen the video and it is clear that she found it very difficult to speak of these matters.  I do accept that this should by no means be an automatic process; the Court must exercise a discretion in each case and balance the ability of the witness to give of his or her best with the defendant's right to challenge the evidence in an appropriate way, but I am satisfied in this case that the balance comes down firmly in favour of allowing E to give her evidence both by way of a video recording in chief and to be cross-examined by way of a television link.

7.        I turn now to N.  Article 3(10)(b), which deals with the admission of a video recording, defines a child, in the case of a defendant who is charged with rape under Article 2(1)(c), as being a person who "is under 17 years of age or, if the person was under that age when the video recording was made, is under 18 years of age."  Now N clearly meets that requirement because she will be 17 when the trial takes place, but she was under 17 when the video recording was made.  She therefore complies with Article 3. 

8.        However the definition of a child in relation to Article 2, which deals with evidence through a television link, is different.  First of all Article 2(2) provides:-

"This Article applies to a -

(a)       child witness; and

(b)       witness who is a patient or person requiring special care within the meaning of the Mental Health (Jersey) Law 1969, being a patient or person who is competent to give evidence."

Article 2(3) then says:-

"Article 3(10) shall apply for the purposes of this Article as it applies for the purposes of that Article, but with the omission of the references to a person being, in the cases there mentioned, under 15 years of age or under 18 years of age."

9.        In my judgment the only natural construction of that provision is that, in the case of Article 2, the witness has to be a child when the evidence is given and that means she must be under the age of 17, because the provision in Article 3(10)(b) which deals with where she is under 18, is removed by Article 2(3). 

10.      Mr O'Connell put forward a subtle argument that it was only the last six words of Article 3(10)(b) which were removed by Article 2(3), but I think that is a most unnatural reading of the provision and would indeed mean that a person of any age, with no upper limit, would be able to give evidence by television link provided that the video recording was made when they were under 17.

11.      Mr O'Connell also relied on Rule 2(1)(b)(iii) of the Evidence (Television and Video Recordings) Rules 2006, which are the rules made pursuant to the 2002 law.  Rule 2(1)(b)(iii) provides, where relevant, as follows:-

"Any party may apply for leave under Article 2(1) of the Law for evidence to be given through a live television link where-

...

(b)       the evidence is to be given by a witness who is either -

...

(iii)      a person who is to be cross-examined following the admission under Article 3 of the Law of a video recording of testimony from the person."

In other words the Rules clearly do envisage that if I allow in N's evidence-in-chief by way of video recording under Article 3, she is then a person who can be cross-examined by television link pursuant to Article 2. 

12.      The difficulty is that in my judgment Rule 2(1)(b)(iii) is simply ultra vires.  The Rule starts "Any party may apply for leave under Article 2(1) of the Law for evidence to be given through a live television link".  Article 2(1) does not contain a provision stating that a person who is to be cross-examined following admission of a video recording falls within the Article.  In my judgment there is no power for the rules to expand the provision of the primary legislation.

13.      Mr O'Connell argues that I should find an inherent jurisdiction to do so.  He says the Court has frequently taken measures under its inherent jurisdiction to ensure that evidence emerges as well as possible.  The difficulty with that argument is that primary legislation was clearly felt necessary to allow admission of television link evidence in criminal cases.  First of all there is Article 2 itself; secondly in relation to overseas witnesses, Article 98 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 was thought necessary.  Furthermore the primary legislation does make very detailed arrangements as to exactly when evidence may be given by way of television link, that it can only be for the offences there specified, and it can only be for the witnesses there described, namely a witness who is a child or a witness who is a patient.  If Mr O'Connell is right the Court nevertheless has an inherent jurisdiction to allow television link evidence to be given wherever it considers it necessary in the interests of justice.  I find the existence of such a general discretion impossible to reconcile with the detailed provisions of the primary legislation, both in the 2002 Law and the Police Procedures and Criminal Evidence (Jersey) Law 2003. 

14.      It is noteworthy indeed that in England Section 32 of the Criminal Justice Act 1988 conferred power by primary legislation for the English courts to accept evidence by television link and interestingly there, as well as children and persons overseas, specific reference was made in the primary legislation to a witness who was to be cross-examined following the admission of a video recording of testimony.  In other words the English primary legislation dealt specifically with the position which faces me.  For some reason our legislation does not, although the rules of court do.

15.      All in all I have concluded that I do not have jurisdiction to allow N to give evidence through a television link under Article 2, however much I might otherwise wish to do so.

16.      The question then arises as to whether, if she has to give evidence in person when being cross-examined, it is still nevertheless right to allow her evidence in chief to be given by way of her video recording.  Mr Steenson did not make a strong point on this but he felt that it would be inconsistent to allow her to give her evidence in chief by way of video recording but undergo the more stressful experience of cross-examination in Court. 

17.      In my judgment, bearing in mind the balancing operation that I have referred to earlier and the terms of Article 3, I think it right that she should be permitted to give her evidence in chief by way of the video recording and I so rule.

Authorities

Criminal Justice (Evidence of Children)(Jersey) Law 2002.

Evidence (Television and Video Recordings) Rules 2006.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Criminal Justice Act 1988.