Jersey Unreported Judgments

[2009]JRC060C

ROYAL COURT

(Samedi Division)

2^nd April 2009

The Attorney General

-v-

Curtis Warren

John Alan Welsh

James O'Brien

Jason Woodward

Paul Hunt

Oliver Lucas

Ruling on audio transcript.

J. C. Gollop, Esq., Crown Advocate assisted by Advocate D. S. Steenson.

Advocate S. E. Fitz for Welsh.

Advocate E. Le Guillou for O'Brien.

Advocate D. Gilbert for Woodward.

Advocate M. J. Haines for Hunt.

Advocate M. L. Preston for Lucas.

Curtis Warren acting on his own behalf.

Advocate R. Tremoceiro as an amicus to the Court.

RULING

THE commisioner:

1.        I have to rule on a series of applications on certain matters of case management or admissibility of evidence. 

2.        The first of these relates to transcripts of recordings made of conversations during a covert surveillance operation.  There is no challenge to the admissibility of the transcripts in general, save as to an exchange between the defendant Welsh and French Customs Officers with which I shall deal in due course.  It is now accepted in principle on behalf of all defendants except the defendant Warren that a transcript of extracts of the audio surveillance recordings can, with appropriate directions, be provided to the Jury as an aide memoir or working document only.  Even if the defendant Warren does not agree with this I rule that the Jury can properly be shown the document on this basis.  This accords with the English practice approved by the Court of Appeal in R v Evans (2005) EWCA 3542 and is a practice which I have adopted both in England and in Jersey, see AG v Durkin and Howard [2005] JLR 12.  I am grateful to the amicus, Advocate Tremoceiro, for referring me to a further case of AG v McCann [2008] JCA 081. 

3.        It is emphasised that the extracts are not agreed or admitted by the defence.  It is suggested that this is because the quality and audibility of the recordings is in part very poor and this is in some respects so.  I observe that this is also symptomatic of the regrettable stance taken by the defendants not to admit anything.  It will be for the Jury to determine what is said and by whom.  Equally, subject to what I shall have to say hereafter, it would be a matter for the Jury to decide what parts of the recordings are audible to them so as to enable reliance to be placed upon them. 

4.        However the defence raise a number of specific objections to the form in which the transcript is produced.  The first objection is to the fact that it contains commentary.  It is submitted by the defence that the commentary is not agreed, is not evidence and is highly prejudicial.  The objections include references to date and time.  The Crown originally submitted that the commentary is based on evidence that will be adduced and assists the Jury in conveniently understanding the recordings and placing them in context.  These are admirable motives but they can and must be achieved by other means.  In my view, in the absence of agreement, the transcripts should contain nothing more than the speech which is actually recorded, as the Crown now concede, though they still contend that the dates and times should be retained.  Any commentary should be removed from the document which is put before the Jury.  It will, of course, be open to Counsel on either side to make appropriate comments in opening speeches or as the evidence unfolds, and to invite the Jury, through me, to make such notes as they think fit on their working document.  I cannot see any reason why the dates and times should not be admitted.  In the absence of agreement I cannot direct the defence to admit these matters, though I encourage them to do so, in order to avoid the calling of laborious, time-consuming and costly evidence. 

5.        Second, the defence refer to the poor quality of the recordings and there was a submission, at one stage, that some parts should be excluded.  On the other hand the written skeleton argument contains a submission that it is a matter for the Jury to decide if a particular sound or word is audible or not, as I have already said.  That is the position, if there is any doubt about the audibility of the recording.  If, on the other hand, all parties agree that it would be a waste of time for a particular passage of the recording to be played because of its inaudibility then clearly there is no point in doing so and such passages should be excluded. 

6.        The position which has now been reached, and which I direct should be adopted, is as follows.  Advocate Fitz, who addressed me on behalf of all represented defendants, has helpfully highlighted in yellow certain passages which she submits are inaudible.  She does not ask that these passages should be excluded from the evidence but that they should for the time being be removed from the transcript and that it should be left to the Jury to decide, after hearing the recordings, what, if anything, they could make of them, and should, if they think fit, note what they have heard in blanks that would be left in the transcript.  I make this ruling having listened to some of the recordings myself and without any objection from Mr Warren who I invited to address me if he wished.

7.        Third the defence object to the identification of the speaker.  In most instances, the Crown say in 29 out of 31 transcripts, the defendant Welsh is speaking from the car or just outside it, and therefore there should not be any real doubt about who the speaker is and there should be no difficulty in identifying him as such.  But, for the reason I have previously mentioned, without any agreement about who this speaker is then his identity should not be specified in the transcript.  It should be left to the Jury to decide this question after hearing any evidence which may be adduced and drawing any necessary inferences from it.  In R v Flynn and St. John (2008) Cr. App. R. 20 the Court of Appeal warned against the dangers of identification by voice recognition or lay-listener evidence, and no doubt this will be borne in mind.  However, here again I cannot direct the defendants to make any admission as to identity, though I cannot see why they should not do so in at least some instances.  It would be most regrettable if Court time should be taken up and costs incurred by proving matters which ought not to be in dispute.

8.        The fourth objection relates to the use of slang in the transcripts.  Similar considerations apply as in the first point, commentary.  References should be deleted from the transcript and, in the absence of agreement, must be proved by independent evidence.  I gratefully adopt the words of the amicus:-

"Any purported explanation of the meaning of words is clearly beyond the concept of transcription of the sounds that can be heard in the recording and it should therefore be removed from the document."

The Crown agree to the deletion of the words "scagbags" or "junkie" on page 17 of the transcripts, and also the pronunciation "skeens" on page 2.

9.        Fifth, generally, it hardly needs saying that only relevant parts of the transcript are admissible.  In seeking to adduce the evidence it is for the Crown to satisfy the Court as to the relevance of the evidence, bearing in mind that what the Crown have to prove is the existence of a conspiracy and that participation of each defendant in it.  Advocate Fitz has highlighted in green those passages which she submits are irrelevant and which should be excluded, and in some instances the Crown have agreed.  I direct that the following parts should be excluded, page 1, page 3 down to the time 13:22:50, page 4, page 5 from 14:26:03, page 8, the reference to petrol bombs, page 9, page 15 from the time 17:58:16, page 16 from the time 18:02:27, page 17, page 25, page 32, the pronunciation, page 34, the reference to sat-nav. 

10.      Objection was taken to the admissibility of conversations between the defendant Welsh and Customs Officers on the ground that he should have been cautioned, though the objection, on that ground, has now been withdrawn.  In my opinion the circumstances were not such as to give rise to the necessity of administering a caution, either under the laws of Jersey or, so far as I am aware, France.  As I have indicated I do not believe that these provisions applied to conversations which took place on the French-Belgium border.  The decision of Deputy Bailiff, Birt, in AG v McIntyre [2006] JRC 112B would seem to support this view.  Nonetheless it is submitted that it would be unfair to admit this evidence and reliance is placed on Article 76 Police Procedures and Criminal Evidence (Jersey) Law 2003 which, so far as material, provides as follows:-

"...in any proceedings a court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would so adversely affect the fairness of the proceedings that the court ought not to admit it."

No reasons for unfairness have been identified or relied upon and I can see no specific reasons.  There is no substance in this objection and no unfairness will be caused by admitting this evidence.

Authorities

R v Evans (2005) EWCA 3542.

AG v Durkin and Howard [2005] JLR 12.

AG v McCann [2008] JCA 081.

R v Flynn and St. John (2008) Cr. App. R. 20.

AG v McIntyre [2006] JRC 112B.

Police Procedures and Criminal Evidence (Jersey) Law 2003.