P. J. L. Beaumont, C.B.E., Q.C., Commissioner, sitting alone.
The Attorney General
Neil William Bennett
M. T. Jowitt, Esq.,Crown Advocate.
Advocate M. L. Preston for the Defendant.
1. In the exercise of my discretion I will permit the Prosecution to lead in whatever form is agreed between the parties the statement of Police Constable Howard. It goes as to the issue as to when the complainant Justin Sumrie was first alleging that he was attacked by the defendant. According to Police Constable Howard's statement, which I have read for the purpose of this ruling, he did so at some stage after 10:25 hours on Saturday 28th September while Constable Howard was guarding Mr Sumrie who was then an inpatient in Jersey General Hospital. Its importance is highlighted by the evidence that the jury heard from the defence witness Dionne Gilbert this morning in asserting that in the course of that Saturday 28th of September, there was a phone call between Mr Sumrie and herself in the course of which Mr Sumrie told Miss Gilbert that what had happened on the Friday night was a terrible accident and that he could not recall very much of what had happened.
2. A version of events repeated, according to Miss Gilbert, on Sunday the 29th of September in a second phone call taking place that Sunday morning. So the Crown submit it is therefore of importance to the jury's consideration of the issues that the jury should now hear what Mr Sumrie was saying as recorded by Constable Howard sometime after 10:25 on the Saturday.
3. The Defence objects to the admission of this evidence, Advocate Preston asserting that the evidence was available to the Prosecution and that if it has the importance that the Prosecution ascribe to it then it should have been led as part of their case. Advocate Jowitt responds by submitting that in fact the evidence would not have been admissible as part of the Prosecution case until Dionne Gilbert spelt out the timing of the phone calls and in particular her assertion that in the course of the latter phone call, he was making it clear to her that he, Mr Sumrie, was going to tell the police that it was an accident.
4. The Prosecution submit that applying the rebuttal principals that this material falls strictly within the ex improviso principle and they rely on part of the judgment of the Court of Appeal Criminal Division given in Scott (reference to be supplied) at page 51)
"If the prosecution could reasonably have foreseen that a particular piece of evidence was necessary to prove their case they should have put it before the court as part of their case. They should not wait until the defendant has given evidence to produce that evidence. Much, however, will turn on what is reasonable."
In the circumstances pertaining here Advocate Jowitt submits that it was not only strictly inadmissible in accordance with that principle but that it is now reasonable within the wider meaning of that term to admit it in the context that faces the Court in determining this issue, the Prosecution contending that the Defence suffer no prejudice by it's admission at this stage now that the issue has been so plainly highlighted in the light of Miss Gilbert's evidence given to the Court this morning. I can find no prejudice to the Defence that arises from the evidence being given at this stage and, as I've indicated, will permit it.
Anthony Stanley Scott 27th January, 1984.