Jersey Unreported Judgments

[2009]JRC026A

ROYAL COURT

(Samedi Division)

17^th February 2009

The Attorney General

-v-

Curtis Warren

John Alan Welsh

James O'Brien

Jason Woodward

Paul Hunt

Oliver Lucas

J. C. Gollop, Esq., Crown Advocate.

Advocate D. Gilbert for Woodward.

The other Defendants represented themselves.

JUDGMENT

THE commissioner:

1.        This case first came before me as long ago as the 12^th December, 2007.  It was last before me on the 18^th November, 2008.  Today, the 17^th February, 2009, is the fourteenth day on which I have had to consider various aspects of the case.  These include a four day hearing last March relating to an alleged abuse of process by the Crown in which it was submitted that I should exercise my discretion to stay the Prosecution.  There was a subsequent application to exclude evidence arising from the same circumstances.  On the 3^rd October, 2008, a comprehensive list of directions was agreed between the Crown and all six defendants, which I approved.  Trial was set to commence on the 9^th March, 2009. 

2.        On each of these occasions, and at an unsuccessful application to the Court of Appeal for leave to appeal against my rulings, and until some time last week, all defendants were represented by experienced trial Advocates, under the benefit of legal aid certificates.  As far as I was aware there had been no complaint by any defendant about that representation or of the way in which counsel had presented their cases.  Then, by a series of letters, dated the 11^th, 12^th and 13^th of February, the Court was informed by the Advocates for five of the defendants that their clients had dispensed with their services.  In the case of Mr Curtis Warren it was expressly stated that he would represent himself forthwith.  And the Court infers that the other defendants intended to do the same and they have confirmed that to me this morning.  The remaining defendant, Woodward, who has been on bail, took a different course, the Court was informed yesterday, the 16^th February, that his Advocate was expressly retained and she has appeared before me this morning. 

3.        What flows from that decision of the majority of the defendants?  First it is apparent from the date and stage of their decisions to dismiss their counsel that this was a considered and concerted course, agreed and consented to by them as a joint decision.  Second, the reason for this decision appears, in my view, from a letter to the Court in which the Advocates states as follows "I make the Court aware that in any event the position had been reached where no admissions would be made and all witnesses were required.  The stage of professional embarrassment had thus been reached."  That was what the Court was told, and that, I deduce, is the reason for these decisions.  From the coordinated nature of the decisions, to which I have referred, and in the absence of any other acceptable explanation, I infer that the same position applies to all the other defendants.  I have heard what Mr Warren has said, but it is clear in my mind that the reason I have given is the reason for the dismissal of counsel.

4.        The order for directions made and agreed to on the 3^rd October, provided for admissions to be made on a number of matters.  This was, as everyone must have thought at the time, a sensible and responsible course to adopt, with the object of saving time and costs and of simplifying the evidence for the Jury and enabling them to concentrate on the matters which are really important and not on matters as to which there is no dispute.  Unfortunately all that appears to have gone by the board.  What is the result? 

5.        I note the provisions of Article 89 of the Police Procedures and Criminal Evidence (Jersey) Law 2003, that in certain circumstances the Bailiff, or I as the Commissioner in this case, may make any comment that appears to be appropriate and the Jury may draw any inference that appears proper.  In any event, even without that provision, if it should occur that a string of witnesses should be required to attend Court to give evidence which is not challenged, it will be open to me to observe to the Jury that the evidence could have been admitted and that it is for them, the Jury, to consider why the witnesses should have been brought here.  Of course I shall explain to the Jury that I cannot force a defendant to admit evidence, but that I am in the defendant's hands.  On a different aspect, if it appears to me, at the end of the trial, whatever the outcome, that time and costs have been wasted by reason of the defendants' attitude, I shall wish to consider whether to make a wasted costs order against them, and that is whether they are found guilty or not guilty. 

6.        I say this not by way of threat but as part of my duty to caution the defendants against taking this course which, in my view, may be against their best interests.  A defendant has the right to conduct his own defence, that is recognised by an Article of the European Convention and by common law, however the exercise of that right may bring advantages and disadvantages.  A person who chooses, as here, to exercise the right cannot pray in aid the ordinary and anticipated disadvantages of his choice, such as lack of knowledge of the law, lack of experience of the trial process, and lack of forensic skill, in any subsequent proceedings.  In other words it will be no good if you are convicted to try to go to the Court of Appeal complaining you were not lawyers and you did not have the proper skill to present your case and you did not have proper legal advice, when it is your choice to dismiss your counsel, I make that plain.  In other words, none of you can complain that you have been unfairly treated or placed at a disadvantage when it is your own deliberate decision to dismiss your counsel, save for one of you.  But I do beg you to consider gentlemen whether you are really doing yourselves any good by all this.  If, at any time before the commencement of the trial you decide to attempt to re-engage your counsel, I mean the same counsel as before, then it is up to you to try and do so, if they are willing to accept your instructions again.  You really should be represented by counsel with experience of Jersey Law and with the right of audience before me.

7.        As to your applications for legal aid to cover English counsel who can advise you, I very much doubt whether there is jurisdiction to grant it, but I am leaving the matter in the hands of the Acting Bâtonnier; he is responsible for the grant or otherwise of legal aid.  The Acting Bâtonnier may have been notified of your intentions, but it is for you to make the applications and you must do so in writing within seven days of today's date.

8.        Gentlemen I very much regret that this position has been reached, it makes life difficult for me, but it makes life far more difficult for you.

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003.