Jersey Unreported Judgments

Hearing (Criminal) - application for the provision of screens whilst giving evidence.

[2015]JRC005

Royal Court

(Samedi)

12 January 2015

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone

The Attorney General

-v-

Tamara Nadine Dubois

Brandon Jules Dubois

R. C. P. Pedley, Esq., Crown Advocate.

Advocate M. J. Haines for Tamara Dubois.

Advocate H. J. Heath for Brandon Dubois.

JUDGMENT

THE commissioner:

1.        A number of issues have arisen on the eve of the trial of the defendants which I heard last Friday 9^th January, 2015.  Tamara Dubois is charged with one count of grave and criminal assault on Witness 4 on 28^th April, 2014, outside the Mayfair Hotel.  She admits the assault but at the time of the hearing her case was that she had acted recklessly and that this was a common assault as opposed to a grave and criminal assault; a plea which the Crown, at that stage, were not able to accept. 

2.        Brandon Dubois and Tamara Dubois are jointly charged with one count of grave and criminal assault on Witness 2 on the same occasion. 

3.        In view of time constraints my decision on the issues that have been raised will be set out somewhat briefly and I take them in turn. 

Special Measures - Screens

4.        The prosecution have applied for screens to be used when Witness 4 gives her evidence before the Jury.  This is not something which I understand she has asked for and she has no knowledge that the application is being made by the prosecution on her behalf.  The application has been made on the initiative of Miss Tracy Lynch, the witness care officer, and arises out of her concern for Witness 4 when they talked on the phone last Monday.  Miss Lynch, who gave evidence before me, described Witness 4 as very vulnerable and fears that she may fall apart without a screen.  She is very frightened at the prospect of giving evidence; she fears for her safety in the Court itself despite assurances that the Courtroom is a safe environment, and she fears for the repercussions if she were to meet Tamara Dubois after the trial.  Miss Lynch told me that she had been contacted by Witness 4's doctor in July last year who was concerned about her welfare then and she had been referred to victim support.  Miss Lynch's contact with her thereafter has been by telephone to keep her updated on the progress of the case and each time she phoned Witness 4 she had been distressed about the prospect of giving evidence.  There has however been no input that I am aware of from victim support about the need for special measures. 

5.        Witness 4 and Tamara Dubois appear to be of the same age, 25, and according to Miss Lynch, attended Grainville School together.  Witness 4 has told Miss Lynch that she was bullied there by Tamara Dubois but there is no detail beyond that bare assertion.  They have not come across each other since leaving school and the date of the alleged assault, which is some eleven years.  Miss Lynch's email to Miss Ridley dated 7^th January, 2015, forms the basis of the application and is in the following terms:-

"Hi Katie,

Further to our recent conversation, I just wanted to let you know about my concerns about Witness 4.  In my professional opinion I feel that Witness 4 is going to struggle on Monday giving the fact she has disclosed to me about the fear of seeing Tamara.  I have spoken with Witness 4 and explained that she will be safe within a court room, however she is very vulnerable.  Whilst I appreciate that the Trials starts Monday I ask if you would kindly enquire to see if any application could be made on behalf of the crown to the court to apply for screens.

Having screens I believe, will only assist achieving Witness 4's best evidence.

I look forward to hearing from you.

Tracy Lynch

Witness Care Unit"

6.        The power of the Court to order the use of screens in the exercise of its inherent jurisdiction is well established (see Myles-v-AG [2005] JCA 065 and AG-v-Richards [2010] JLR N 37).  We do not have the statutory framework that exists in England but I note from Blackstones Criminal Practice 2013 that in England an application must be made as soon as possible after a not guilty plea and applications must be accompanied by an explanation for any delay. 

7.        This trial was set down last August and the application has been made on the very eve of the trial.  Advocate Haines for Tamara Dubois and Advocate Heath for Brandon Dubois resist the application.  They point out the following:-

(i)        That there is no statement from Witness 4;

(ii)       She is in full time employment;

(iii)      On the evening in question she had been out drinking with friends and appeared to have no difficulty in coming down to the reception of the Mayfair Hotel and engaging with Brandon Dubois;

(iv)      Tamara Dubois will say that she has no memory of Witness 4 at school and in any event was not at Grainville School between the ages of 14 and 16;

(v)       There is no supporting evidence from a doctor, an employer, or from the school to support the contention that Witness 4 is vulnerable;

(vi)      Bar a brief meeting to hand over the statement, the contact between Miss Lynch and Witness 4 has been by phone when Witness 4 has been updated on the progress of the case;

(vii)     The fears Witness 4 has expressed about giving evidence generally and the repercussions after the trial will apply whether or not screens are used;

(viii)    There is no sexual element to the alleged assaults and therefore Witness 4 is not having to give evidence about intimate or personally sensitive matters;

(ix)      There is prejudice to the defendants in use of screens in that even with appropriate directions, their use inevitably implies that there is a need to protect Witness 4 from the defendants and, in particular, Tamara Dubois.  Their use is likely, say the defence, to invoke sympathy for Witness 4. 

8.        Following the hearing I have been informed that the Crown have now accepted Tamara Dubois' plea of guilty to the lesser charge of assault on Witness 4 on the following basis and quoting from the basis of plea:-"whilst running past Witness 4 the defendant intentionally struck Witness 4 with her arm causing the injury to Witness 4 either by making contact with Witness 4's face or part of the injury being caused when Witness 4 fell to the floor".  Witness 4 will still be called as a witness in relation to the alleged grave and criminal assault against Witness 2 but she will not now be giving evidence in relation to the assault on her. 

9.        It seems to me that if special measures are to be used for adult witnesses that any application must be made in good time and not as here on the eve of the trial.  Furthermore, the application should be supported at least by a statement from the witness explaining why such measures are necessary to enable the witness to give the best evidence he or she can and by any other material that may be available supporting his or her vulnerability as a witness. 

10.      Notwithstanding the lateness of the application and lack of supporting documentation, I am concerned to support any witness giving evidence before the Court to the extent that I properly and fairly can do so.  Accepting the wholly unparticularised assertion of bullying at school, that was over eleven years ago.  Witness 4 is now 25 and in full time employment.  There has been no ongoing relationship that I am aware of between her and Tamara Dubois or indeed Brandon Dubois before or after the incident and there is no evidence of intimidation.  As far as I can see that incident is in fact the only time that she has met either of the defendants since leaving school. 

11.      In my view, like many witnesses Witness 4 is very frightened about the prospect of giving evidence and about the possibility of meeting Tamara Dubois in particular in the future, but I am not convinced that the use of screens will address that fear.  She is no longer giving evidence about the assault upon her, which is now admitted, but about the assault on Witness 2.  There is nothing intimate or sensitive about the evidence she is giving, it will relate simply to what she saw on that occasion.  Balancing the just treatment of the defendants with both the just treatment of Witness 4 as a witness and the interests of justice in the trial being fair to both defendants and Witness 4, I conclude that the application for the use of screens should be refused. 

Transcripts of police interviews with Tamara Dubois

12.      Advocate Haines for Tamara Dubois objects to a number of passages of the transcript of the police interview with Tamara Dubois being read to the jury.  The transcript has already been heavily edited to remove irrelevant material but the passages complained of show Tamara Dubois responding to legitimate questions from the police in a very aggressive and uncooperative manner.  An example can be found on page 5 of the transcripts:-

"251 Tamara this is your opportunity this interview, to give your account of eat happened

TD I'll have my lawyer to that. Thanks

251 Sorry?

TD      I'll have my lawyer to that thanks

251 Ok but it is your opportunity

TD Hmm can't be arsed

251 To tell us your account of what happened outside the Mayfair Hotel last night

TD No, bullshit, my lawyer will tell you

251 Why don't you want to talk to us Tamara?

TD I don't like you

251 We're just here to gather facts (indistinct) to err to determine what happened outside the Mayfair Hotel

TD Hmm I'm not doing your job for you

251 What happened outside the Mayfair Hotel last night?

TD (Silence)."

The other passages are all in a similar vein in an interview where she does answer questions that are put to her.  By including these passages in the transcript Advocate Haines submits that the prosecution are attempting to adduce evidence of Tamara Dubois' bad character, contrary to the provisions of Loi (1908) au Sujet Des Temoins et Informateurs which is in the same terms as section 1 of the Criminal Evidence Act 1898 and which provides that an accused who is called as a witness shall not be required to answer questions tending to show that she has committed or been convicted of an offence other than the one charged or is of bad character.  The commentary in chapter 8.1.77. of Archbold Criminal Pleading and Evidence Practice 2003 Edition as to what is meant under English law by "bad character" is to the effect that it not only covers the general reputation in which the defendant is held but her real disposition. 

13.      I regard this application as misconceived.  The prosecution are not proposing to put questions to Tamara Dubois, if she elects to give evidence, about her reputation or real disposition.  These are the answers that she gave to questions about the alleged offences quite properly put to her by the police.  I see nothing fair in the suggestion that the answers she elected to give should be sanitised in order to present her in a better light.  All of the passages objected to can therefore be retained within the transcript that is read to the jury. 

Bodycam recording of PC Quemard

14.      PC Quemard was one of the first police officers who attended the Mayfair Hotel and she was wearing a bodyworn video camera.  As she arrived Brandon Dubois and Witness 2 were still fighting.  The quality of the recording, which was played to me, appears good and it shows in summary the arrest of Witness 2; in the background one of the witnesses, Witness 13 had apparently been caught in the crossfire of this incident, lying on the pavement, it would seem, unconscious; the arrest of Tamara Dubois; Witness 4sitting in a distressed state with clear bruising to her eye in the lobby of the hotel where she gives an account of the assault upon her and finally, Witness 3 who was comforting Witness 4, and who gave an account of the assault by Tamara Dubois upon Witness 2, her fiancé. 

15.      Advocate Haines applies for a number of sections of the recording to be edited, principally where Witness 4 and Witness 3 give their accounts and this on the ground that this is hearsay.  The position is somewhat unusual because the recording is of what they say they saw first-hand.  Advocate Pedley accepted that technically this is still hearsay evidence.  Hearsay evidence is defined in Blackstone's Criminal Practice as follows at F15.1:-

"In Sharp [1988] 1 WLR 7, Lord Havers adopted the statement in Cross on Evidence (6^th ed.) that 'an assertion other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of any fact asserted".

This formulation of the rule was also approved by Lord Ackner in Kearley [1992] 2 App 228. 

16.      For this evidence therefore to be admitted it must come within the res gestae principle.  I was referred in this regard to the case of AG-v-Nimmo [2012] JRC 101 and the section on res gestae in the 2014 Edition of Archbold at paragraphs 11-74 onwards.  The practical approach of the trial judge taken from the House of Lords decision in R-v-Andrews [1987] App 281 onwards is set out at paragraph 11-78 as follows:-

"1.      The primary question which the judge must ask himself is - can the possibility of concoction or distortion be disregarded?

2.        To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event thus giving no real opportunity for reasoned reflection.  In such a situation the judge would be entitled to conclude that the involvement or the pressure of the event would exclude the possibility of concoction or distortion, providing that the statement was made in conditions of approximate but not exact contemporaneity.

3.        In order for the statement to be sufficiently 'spontaneous' it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event.  Thus the judge must be satisfied that the event which provided the trigger mechanism for the statement, was still operative.  The fact that the statement was made in answer to a question is but one factor to consider under this heading.

4.        Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion ....The judge must be satisfied that the circumstances were such that having regard to the special feature of malice there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.

5.        As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury.  However, here again there may be special features that may give rise to the possibility of error.  In the instant case there was evidence that the deceased had drink in excess ....Another example would be where the identification was made in circumstances of particular difficulty or where the declarant suffered from defective eyesight.  In such circumstances the trial judge must consider whether he can exclude the possibility of error" (pp. 300-301).

17.      In my view the possibility of error can be discounted.  This is a recording both visually and audibly of what was said.  I am also quite satisfied with the possibility of concoction and distortion can be disregarded.  Witness 4 had just been assaulted, she was in a state of considerable distress and she was being comforted by Witness 3.  PC Quemard approached them both in the lobby of the hotel immediately after the arrest of Brandon Dubois, Tamara Dubois and Witness 2 and within minutes of the assault itself.  Advocate Haines suggested that there was a real danger of contamination between Witness 4 and Witness 3 but I disagree.  Whilst according to her statements they came down to the hotel lobby together, prior to the incident, Witness 3 had been to the toilet and had not seen the assault on Witness 4.  When she came out of the toilet she found Witness 4 lying in the middle of the road with a huge black mark on her right cheek.  They had taken her into the lobby and arranged for the porter to get ice for her face.  She went back outside to witness the assault by Tamara Dubois on Witness 2.  Thus, Witness 3 was not present when Witness 4 was assaulted and Witness 4 was not present when Witness 2 was assaulted by Tamara Dubois.  They witnessed different parts of the incident.  Contamination between them is not a possibility in my view. 

18.      With the plea by Tamara Dubois to the assault on Witness 4 now being accepted, some of the recording of Witness 4 falls away.  The relevant sections will be her account of what happened prior to the assault and the account of Witness 3.  These recordings are admissible under the res gestae principle. 

Authorities

Myles-v-AG [2005] JCA 065.

AG-v-Richards [2010] JLR N 37.

Blackstones Criminal Practice 2013.

Loi (1908) au Sujet Des Temoins et Informateurs.

AG-v-Nimmo [2012] JRC 101.

R-v-Andrews [1987] App 281.

Criminal Evidence Act 1898.

Archbold Criminal Pleading and Evidence Practice 2003 Edition.

Kearley [1992] 2 App 228.