J. A. Clyde-Smith, Esq., Commissioner, sitting alone.
The Attorney General
Ms S. J. O'Donnell, Crown Advocate.
Advocate C. Hall for the Defendant.
1. Following my decision, handed down earlier today, not to exclude the evidence of the Prosecution witness, Witness A, two further applications have followed.
2. I take first the use of screens. The Prosecution applies for the use of a screen when Witness A gives her evidence so that the defendant cannot see or be seen by her. In summary Witness A will be giving evidence that she was in a relationship with the defendant for 4 years, ending in December 2012. She will say that she was the subject of domestic violence. She will say that 1 month after the relationship commenced the defendant seriously assaulted her as a result of extreme sexual jealousy. On that occasion she will say she was wearing a scarf which he used to strangle her, he threw objects at her, he punched her and he kicked her. She will say that he held her hostage whilst forcing her to repeat countless times every detail of where she had been and whom she had been with. If the slightest detail changed the defendant, she will say, would beat her. She said that he controlled her movements using her mobile phone and told her he had watched the security cameras where she worked. He threatened to cut her from her genitalia to her mouth to kill her, cut her to pieces and cover in acid so no one would find her. She will say that he blackmailed her with intimate photographs.
3. Witness A has spoken with Detective Constable Joao Carvalho who has provided a statement setting out her concerns. She told the officer that she ran away from the defendant after 4 years of an abusive and violent relationship. She believes that if the defendant is able to look directly at her as she gives evidence that she will feel intimidated and it will cause her a considerable amount of distress. She has also stated that "his gaze scares me". She has stated that if she is afforded the protection of a screen it will assist her in giving her evidence.
4. The test to be applied is set out in the Jersey Court of Appeal decision Myles-v-AG  JCA 065 at paragraph 19:-
"In every case in which it is sought to use screens to shield a witness, the Judge has first to be satisfied either that the witness may be affected in giving evidence by fear or distress if not screened from the defendants, or that the quality of a witness's evidence may be adversely affected, or that for some other reason applying specifically to the witness, the witness may be so affected. If, and only if, the Judge is satisfied of this, the Judge will then need to balance the adverse effect on the witness, if there is no screening, against the potential prejudice to the defendant, if there is screening. The Judge in this way has to balance the just treatment of the defendant with both the just treatment of the witness and the interests of justice in the trial being fair to both the defendant and the witness."
5. Advocate Hall resists the application. In Myles the witness concerned had given evidence to the trial judge in advance at a Plea and Directions hearing, shielded by a screen; see paragraph 19 of the judgment. Advocate Hall submitted that in order to be satisfied as to the first part of the test I should hear the evidence of Witness A using a screen, at which she would presumably be exposed to cross examination on the issue of her fear of giving evidence without a screen.
6. In my view there is no requirement that a witness who seeks the protection of a screen must be subjected to the process of giving evidence on that very issue before the trial judge can make a determination. There may be situations in which the trial judge may need to hear evidence but it seems to me, in general, counter intuitive to require a witness, who is in fear of the process, to go through the ordeal of a further hearing in order for that fear to be tested. In most cases the trial judge should be in a position to make a determination upon the production of witness statements and an understanding of the case as a whole. Witness A says that she was in an abusive relationship with the defendant for 4 years and is intimidated by him. She is aged around 25 years, I am told, and is therefore an adult, but even so I am satisfied that the quality of her evidence may be adversely affected or diminished if she can see the defendant and he can see her.
7. Turning to the second part of the test, Advocate Hall says that the use of a screen will prejudice the defendant in that by its use the Court is implicitly representing to the Jury that she is a truthful witness. Advocate Hall points out that the complainant herself has not requested a screen.
8. I accept that there may be an element of prejudice in the use of a screen but not such as with the use of appropriate directions both in opening and in the summing up, to outweigh the adverse effect. The fact that the complainant has not sought such assistance is of little relevance in my view; they are different people. This is all about ensuring that the Jury receive the best evidence possible. This witness, who was in a relationship with the defendant for far longer than the complainant needs that assistance and the Court, in the interests of justice, should facilitate that.
9. The use of a screen, with clear directions, will not in my view render the defendant's trial unfair.
10. I now turn to the application for an adjournment. Notice that the Prosecution would be calling Witness A was only given on 31st January, 2014, just 2 weeks before the trial, I should add through no fault of the Prosecution. The defendant speaks little English and is in custody with all the practical difficulties that go with that. He has informed Advocate Hall that there are some three witnesses, all of them living in Portugal and Portuguese speaking, he wishes to call in response to the evidence of Witness A, and there are further investigations he wishes to carry out in relation to her credibility. Advocate Hall does not speak Portuguese and has not been able to take witness statements from these witnesses but she told me, as an officer of the Court, that she was satisfied that their evidence was relevant.
11. The defendant has been in custody since last August and I am told was refused bail because of his very short connection with Jersey and that he therefore represents a flight risk. Apparently once back in Portugal it may not be possible for the authorities here to procure his return to stand his trial. He is therefore making this application for an adjournment knowing that it may result in his spending further time on remand in custody.
12. I adjourned the application this morning so that Advocate Hall could provide better information in relation to these witnesses and to these investigations. The Defence are not obliged to disclose their hand to the Prosecution, as a general rule, but where it is seeking an adjournment on the eve of a trial it seems to me that that better information should at least be provided to the trial judge. Having resumed this afternoon more information has now been provided to me and I am satisfied that the evidence of these three potential witnesses may be material and that it is not practically feasible to procure their attendance next week. They appear willing to give evidence for the Defence but there may be practical difficulties in their attending a later trial and Advocate Hall has raised the possibility of an application being made for their evidence to be heard by way of video link.
13. In essence, and as a matter of justice, I am satisfied that fairness dictates that the defendant be given more time to respond to the evidence of Witness A and that it would not be just for this application to be refused. The trial date will therefore be vacated and the case adjourned so that a new date can be fixed.
14. A further issue has arisen during the course of the hearings today, namely that, according to Witness A, she was telephoned by someone in Portugal, who is not identified, but whose purpose it seems clear from the transcript, was to persuade her not to come to Jersey to give evidence. The Prosecution have very fairly pointed out that they have no evidence that the defendant had any involvement in this; even so it is of concern that the person calling did know Witness A's phone number and where she worked. Attempting to persuade a witness not to give evidence could amount to the offence of perverting the course of justice and/or a contempt of this Court. Either way I must warn the defendant of the serious consequences that might flow if he were in any way to be found to have interfered with any of the witnesses in this case.
15. Therefore, in summary, I grant the application for the use of a screen for the evidence of Witness A and I grant the Defence application for the trial to be adjourned.
Myles-v-AG  JCA 065.