Jersey Unreported Judgments

[2010]JRC224

ROYAL COURT

(Samedi Division)

14^th December 2010

The Attorney General

-v-

Raymond David Bisson

Jury to be dismissed and new date to be fixed for trial.

S. M. Baker, Esq., Crown Advocate.

Mr Bisson representing himself.

JUDGMENT

THE commissioner:

1.        The defendant is standing trial for grave and criminal assault allegedly committed on 12^th July, 2009.  He is representing himself.  As part of the case against him the prosecution have played to the jury CCTV footage of him in the police custody suite on the evening of 12^th July, 2009, in which he made certain admissions upon which the Prosecution rely. 

2.        In the course of playing that CCTV footage the defendant is heard to make reference to having "been in here for assault before" and to having been "handcuffed" before.  The Prosecution have candidly accepted that these references were not picked up when in preparation for the trial another counsel listened to this footage.  It is therefore an inadvertent reference to the defendant's bad character; he does have a previous conviction for assault. 

3.        It is my duty to inform the defendant that he has a right to apply to discharge the jury; as Mr Baker pointed out if he had legal representation his counsel would almost certainly have made such an application.  After careful thought Mr Bisson has made that application.  He is concerned that this disclosure will influence the jury and he cannot take that risk.  Mr Baker submitted that the issue could be dealt with by a careful direction to the jury. 

4.        The ultimate question for me is whether the continuation of the trial could lead to an unsafe conviction.  The factors for me to take into account are set out in paragraph of Archbold 4-260 10^th Edition and include consideration of:-

"(a)     the important issues in the case,

(b)       the nature and impact of improperly disclosed material on those issues, having regard, inter alia, to the respective strengths of the prosecution and defence cases,

(c)       the manner and circumstances of its disclosure and whether and to what extent it is potentially unfairly prejudicial to the defendant, and

(d)       the extent to which, and manner in which, it is remediable by judicial direction or otherwise, so as to permit the trial to proceed:"

The issue in this case is whether the defendant assaulted the victim; did he push her down the stairs or was it an accident?  It is clear from that paragraph in Archbold that I should apply the most prejudicial interpretation to the disclosure which is that the jury will conclude that he has a previous conviction for assault, the very offence, albeit it grave and criminal, for which he is being tried here.  That must, in my view, impact upon the defence in that it shows the defendant as having a propensity to violence. 

If I were able to hear these words at my first hearing of the footage then it is likely that members of the jury would also have heard it and will raise it in their deliberations.  It seems to me that saying nothing to the jury is not an option; either I discharge the jury or deal with it by way of direction.  I have written out the sort of direction I might give but I conclude that even with a direction, continuation of the trial could still result in an unsafe conviction.  I have therefore determined to discharge the jury. 

Authorities

Archbold 4-260 10th edition.