Magistrate's Court Appeal - reasons for dismissal of appeal against conviction and recommendation for deportation.
J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Cornu and Milner.
Rafal Piotr Rojek
The Attorney General
The Appellant appeared on his own behalf.
Advocate M. T. Jowitt, Esq., Crown Advocate for the Attorney General.
1. On the 27th September, 2013, the Court dismissed the appellant's appeal against his conviction on 28th June, 2013, under Article 28(1)(a) of the Road Traffic (Jersey) Law 1956 ("the Road Traffic Law") and that part of his sentence imposed on 12th July, 2013, whereby the Magistrate recommended that he be deported. We now set out our reasons.
2. Shortly after being reported as driving on 19th April, 2013, the appellant provided two breath specimens at the Police Station, the lower of which contained 135 micrograms of alcohol in 100 millilitres of breath. The prescribed limit is 35 micrograms, meaning that the appellant was almost 4 times over the legal limit.
3. In his interview with the police at 9:45am on 20th April, 2013, having declined legal advice, the defendant denied driving and the following is a summary of the interview:-
"He declined legal advice. The defendant denied driving the car and stated that he had been drinking with a friend and his friend's son had given them a lift to the shop in order to buy more alcohol, in Mr Rojek's car. He confirmed that he had been drinking vodka with his friend Zenon and that he was very drunk. He stated that Matthew Zenon had driven Mr Rojek's vehicle to the hospital car park from Mr Zenon's home address at Harbour View Apartments. He confirmed the route taken by Matthew Zenon to the Police. The evidence of prosecution witnesses was put to Mr Rojek in the interview and he continued to deny driving to the hospital car park. The defendant was then shown the CCTV of the hospital car park. The defendant continued to deny driving the vehicle."
4. The CCTV footage, which we viewed, clearly shows the appellant driving the vehicle from the road into the hospital car park and at his trial he admitted that he had been driving.
5. His defence at trial was that he had driven the car to Kensington Place before drinking any appreciable amount of alcohol, such that when he drove, he was not over the prescribed limit, but that in a matter of a few minutes between arriving there and being arrested by the police, he consumed the best part of an entire bottle of vodka. This defence brought into play the provisions of Article 33(3) of the Road Traffic Law, which is in the following terms:-
"The assumption described in paragraph (2) shall not be made if the accused proves -
(a) that the accused had consumed alcohol before providing the specimen or having it taken, and -
(i) in relation to an offence under Article 26, after the time of the alleged offence, or
(ii) otherwise, after the accused had ceased to drive, attempt to drive or to be in charge of a motor vehicle on a road or other public place; and
(b) that had the accused not done so, the proportion of alcohol in his or her breath, blood or urine would not have exceeded the prescribed limit and, if it is alleged that the accused was unfit to drive through drink, would not have been such as to impair his or her ability to drive properly."
6. The test to be applied on appeal against conviction from the Magistrate's Court is to be found in Milho v AG  JLR 363 at page 366:-
"Finally we remind ourselves of the correct approach on appeals from the Magistrate's Court, which were summarised conveniently in Rushton v AG when the court said:-
'The court of course has on many occasions said that its duty in looking at an appeal on conviction from the Magistrate below is to examine the transcripts to see if there was evidence on which the Magistrate concerned could properly have come to the decision he did. If there was that evidence, then even though the court might not necessarily have come to the same decision, the court does not lightly interfere with it. The court has to be satisfied that there was insufficient evidence for the Magistrate to have come to the decision he did, or that he drew the wrong conclusions and inferences from the evidence before him."
7. The Magistrate heard evidence from Mr Humberto Ribeiro, who had seen the defendant driving and called the police, Mr Dean Morgenthal, who had seen the defendant and his friend leaving the car and the two police officers who arrested the appellant, both of whom described him as being intoxicated. In defence, the defendant gave evidence, together with his passenger, Mr Zenon Dzimira.
8. In her judgment, the Magistrate gave a very comprehensive review of the evidence that had been heard, but on the key issue of whether the appellant had discharged the burden upon him under Article 33(3) of the Road Traffic Law she said this:-
"Finally, and perhaps most compellingly, the basic sums simply don't add up, Mr Rojek. Mr Dzimira tells us, and he is your witness, coming to tell the Court what was true and what really happened that afternoon, he is the person who is really supposed to know. He had half a bottle of vodka left from the night before. He and his guests drank it. The guest Daniel went to the Spar and bought a 70 centilitre bottle because they had consumed all of the other bottle that they had. They brought it back and Mr Rojek had 200 millilitres or 20 centilitres from that bottle, leaving 50 centilitres or half a litre. Mr Dzimira and his friends drank from that bottle during the afternoon. Then, Mr Dzimira says they took it with them in the car and Mr Dzimira drank more of that bottle. Then Mr Rojek asked the Court to believe that he managed to drink three-quarters of that bottle. That is 75 centilitres. There were never 75 centilitres in the bottle in the first place. It was only a 70 centilitre bottle. It is simply not credible that Mr Rojek could have drunk 75 centilitres of vodka from Mr Dzimira's bottle in the few minutes available to him between parking his car and going out of sight of the CCTV and later being arrested.
Mr Rojek, I find that you have failed to persuade me, on the balance of probabilities, that you drank any alcohol after driving, let alone enough alcohol that, had it not been for that amount consumed, you would have been under the limit. I find that your story lacks any credibility. The defence fails and I am satisfied beyond reasonable doubt that you are in fact guilty of this offence."
9. The appellant, who was representing himself, set out his grounds of appeal in writing as follows, it being necessary to bear in mind that English is not his first language:-
"1. The witness Mr Huberto Ribeiro stated that was walking when he saw me, as if I was walking through a 60 mph wind. However the CCTV footage does not show this. This is the same footage that the Magistrate was happy to accept to prove other facts.
2. He asserts that I and my friend Zenon was coming back from Alfonso's shop to my car parked about 40 meters away from shop. How is that possible when Zenon was inside shop?
3. Mr Ribeiro is mistaken in his witness statement in that Mr Ribeiro is very graphic about what happened and how I was walking, after watching me for some time, but could not describe any clothes I had on.
4. That if I was so drunk that I could not walk straight, why was my driving and parking OK. This is confirmed in the CCTV footage, and in Mr Ribeiro's statement where he states that he was not concerned about my driving.
5. My conversation to the police when I was arrested was taking out of context when I said "I had a drink, but I wasn't driving". I was applying that I had not been drink-driving, I have never denied driving, but I have denied drinking before I drove that night.
6. The police record shows that I was capable of giving a breath sample and that the officer carrying out did not think that I was too intoxicated to carry it out. I would state that this is correct and supports that I had only just drunk alcohol. As if I had been drinking all afternoon as suggested I would have been visibly intoxicated and unable to carry out a breath sample.
7. That I did drink vodka, but that this was after driving.
8. That when I said I wanted to leave the police station to get a drink this was to help with my hangover.
9. That I was confused when under questioning due to the alcohol I had consumed. Again if I had been drinking all afternoon I would have been confused when arrested. I was not and the police officers also thought I was not.
10. That I did not lie during questioning, but was confused about my days due to my hangover.
11. That the shoes I wear have an arch sole. This makes it difficult to stand straight. This can be monstated if need be."
10. We are not going to address each of those grounds, because as can be seen, the appellant effectively argues that the Magistrate reached the wrong conclusion on the evidence before her, and he sets out the reasons why he feels she should have believed his account. As Mr Jowitt said the hurdle on an appeal is high. It was the Magistrate who heard the witnesses, and in particular the defendant, giving evidence and being cross-examined. She did not believe the defendant's account (which on any analysis was inherently unbelievable) and was perfectly entitled on the evidence to reach the conclusion that his story lacked any credibility. She set out her reasons comprehensively and with clarity. There was no suggestion that she had misdirected herself in law and there are simply therefore no grounds upon which this Court can interfere with the conviction. In our view the appeal against conviction was wholly without merit.
11. Turning to the issue of deportation, the test on an appeal against a recommendation was confirmed in Gomes v AG  JRC 223 at paragraph 4:-
"We have to consider whether the recommendation was manifestly excessive in all the circumstances ... and whether the discretion of the Court was wrongly exercised. It is not for the Court to decide merely whether we would have come to a different view."
12. The appellant came to Jersey in June, 2001 and it is fair to say that since 2009, has become a regular offender. It is clear that his offending is fuelled by alcohol and that he has an alcohol problem. His offending includes offences in breach of existing court orders. From 2012 onwards, it is fair to describe his offending as habitual. This has culminated in this offence of drink driving at almost 4 times over the limit, with the attendant risk to public safety such conduct involves. His conduct of the trial and his subsequent and continued denials of guilt are not consistent with someone who has learnt any lesson. In their social inquiry report, the Probation Department says the appellant poses a high risk of re-offending. They say he has a limited employment record and has not taken up professional support in the past. Furthermore, in their assessment, he has repeatedly shown scant regard for the Court's sentencing disposals, breaching his probation and binding over orders as well as committing offences on bail. In addition to the drink and driving charge he had also to be sentenced for contempt of court for coming to the Court, on one occasion, intoxicated.
13. In his written submissions on the issue of deportation, the appellant conceded that his appeal was unlikely to succeed on the basis of the documentation before the Court. He told us that going to Poland would be like starting anew, as he had no family over there.
14. We agree with the submissions of Mr Jowitt that in light of:-
(i) the appellant's criminal record;
(ii) the nature and seriousness of the latest offence, including the threat it posed to public safety;
(iii) the appellant's failure to make any serious attempt to curb his drinking or to respond to the help offered him in that regard;
(iv) the high risk he posed of re-offending;
Together with the fact that he made no contribution to the Island but was in fact a drain on the resources of the Island by virtue of his offending, the Magistrate's conclusion that the appellant's continued presence in the Island was detrimental to the public good was neither manifestly excessive nor unreasonable. The conclusion she reached fell comfortably within the reasonable exercise of her discretion. The first part of the two part test in AG v Camacho  JRC 045 was satisfied.
15. Furthermore in light of the fact that the appellant:-
(i) has no family in Jersey;
(ii) has no intimate relationships in Jersey;
(iii) has no employment in Jersey;
(iv) has but one friend in Jersey - and he is an alcoholic, present with the appellant in the car during the commission of the drink driving offence,
The Magistrate's conclusion that the appellant's Article 8 rights did not outweigh the detriment to the Island posed by his continued presence, and that deportation was thus proportionate, was neither manifestly excessive nor unreasonable. Her conclusion fell comfortably within the reasonable exercise of her discretion. The second limb of the test in Camacho was thus satisfied.
16. For all these reasons, the appellant's appeal against conviction and against that part of the sentence by which the Magistrate recommended deportation was dismissed.