Jersey Unreported Judgments

Motoring - appeal against the conviction of the appellant before Relief Magistrate on 23rd March, 2018.

[2018]JRC168

Royal Court

(Samedi)

11 September 2018

Before     :

J. A. Clyde-Smith, Esq., Commissioner and Jurats Blampied and Ronge.

Georgina Hopkins

-v-

The Attorney General

Advocate D. S. Steenson for the Appellant.

M. R. Maletroit, Esq., Crown Advocate.

JUDGMENT

THE commissioner:

1.        This is an appeal against the conviction of the appellant before Relief Magistrate Fitz on 23^rd March, 2018, for the offence of holding a telephone whilst driving a motor vehicle, contrary to Article 50(1) of the Road Traffic (Jersey) Law 1956 which provides that it is an offence- "If any person who is driving a vehicle on a road holds a telephone in any way while the vehicle is in motion". 

2.        It was not in dispute that the appellant was driving a vehicle, that it was in motion and on a road, and accordingly, the only issue in the case was whether she was holding a telephone in any way as specified in Article 50(1).  It was agreed at the hearing that the law required the phone only to be held for the offence to be made out, there being no requirement for it to be in use. 

3.        The only witness for the prosecution was PC W Ross, who in summary, gave evidence that on 2^nd October, 2017, when he was on duty seated on his motor bike outside the Rowing Club on South Pier, he saw the defendant driving past towards La Collette, holding a phone in her right hand at the top right hand of the steering wheel, with her thumb scrolling down the screen.  He noted that the phone had a light patterned floral cover.  He said he had a clear unobstructed view, with no cars passing in the lane nearest to him and estimated the distance between him and the defendant's passing car at 10 metres. 

4.        PC Ross followed the defendant's car up to Fort Regent car park, where the defendant had parked, and the exchange between him and the defendant recorded on his body worn camera, was played to the Relief Magistrate.  

5.        We will not set out the whole of the transcript, but suffice it to say that when told that she had been seen on South Pier driving past on her mobile phone, she gave equivocal answers:-

"Appellant        Oh ok, I didn't realise

PC Ross          You didn't realise?

Appellant         No I didn't know, can't remember, no I can't remember

PC Ross          OK, I've given you a chance to say were you using it or were you not what's your ... bearing in mind I've just cautioned you.

Appellant         I, I don't know, I don't think I was but if you tell me I was, I was .....

Appellant         Yeah, I know I do yeah, I didn't think, I don't know, I didn't know I was, sorry ...

Appellant         I don't know is the honest answer.

PC Ross          You don't know if you were on your phone?

Appellant         Yeah I don't wanna ... if you said that you saw me on my phone then maybe I did I don't know ...

PC Ross          .... Get yourself a hand speaker, you can get them on Amazon.

Appellant         I had one, it broke and I never replaced it so this obviously teaches me that I need to replace it." 

6.        The matter could have been dealt with at the Parish Hall by way of a fine of £150, but the appellant said she could not admit to doing something she did not do, so the matter was referred to the Magistrate's Court, where she was represented by Advocate Steenson. 

7.        Before the Relief Magistrate, the appellant denied holding her phone.  In summary she said she had received an e-mail at 16:57 shortly before setting off in her car, had read it and closed the phone case without shutting down the e-mail, placing the phone on the passenger seat.  She denied making or receiving any text calls or e-mails while driving.  She had been to Sure for confirmation of this, but they could not provide a printout.  They had verbally confirmed to her that no e-mails had been sent after 16:47.  She was not in the habit of switching off her Internet access. 

8.        She told the Relief Magistrate that when she saw PC Ross she was in shock.  When asked why she did not deny the allegation, she said she did not want to call the officer a liar, and felt intimidated.  She did not want to antagonise the situation.  She considered PC Ross to have been aggressive. 

9.        The appellant explained to the Relief Magistrate that she has four roles, namely she is a self-employed trainer, a retained crew commander for the Fire Service, a cancer rehabilitation specialist and an exercise referral tutor and assessor.  Her father had been a police officer for 25 years and had brought her up to tell the truth, and to respect all police officers.  In cross-examination, she said she didn't know how to stand up to an officer and say that he was lying.  She didn't have the confidence to do that, and it meant a great deal to her that he was a police officer.  While she was trained to deal with fires and accidents, she was not trained in how to answer a police officer interrogating her about something she had not done.  It was when she sat down at her desk after the incident that she realised she had not done it. 

10.      The Relief Magistrate set out her reasons for convicting the appellant in a written judgment.  In summary:-

(i)        She accepted the evidence of PC Ross and was impressed by the way he gave evidence and withstood vigorous cross-examination by Advocate Steenson. 

(ii)       She went through all of the criticisms made by Advocate Steenson of the evidence of PC Ross, which he said affected the credibility and reliability of that evidence, none of which the Relief Magistrate found impacted negatively upon that evidence. 

(iii)      She took into account the appellant's reaction when spoken to by PC Ross.  Having viewed the video footage, she did not accept that PC Ross had been in any way aggressive or intimidating or that the appellant was intimidated or fearful.  If anything, she said the exchange was overly "chatty" and more was said by the officer than was necessary.  There was no issue of PC Ross saying anything inappropriate or being anything other than amicable.  Quoting from the judgment:-

"He tells her he saw her on her mobile phone outside the Rowing Club.  The defendant's response is 'Oh ok I didn't realise, I didn't know, can't remember, no I can't remember'.  If these words had been said in response to an allegation of for example, speeding, they would be understandable.  They are not understandable as a response to a specific allegation of holding a phone.  The court does not accept the defendant's explanation that she was in shock, in awe of the officer's authority and scared to make the situation worse by calling him a liar.

Whilst these words do not amount to an admission, the court is entitled to take them into account as the defendant's initial reaction to the allegation and how they impact on the credibility of her later denial."

11.      As to the appellant's demeanour, the Relief Magistrate said this:-

"c.       The defendant's demeanour.  The defendant's lack of convictions and positive good character were taken into account in assessing her credibility but the court did not find the defendant to be a credible witness.  Whilst her denials were strident, her points put across vehemently and she stood up determinedly to cross examination, the court did not find her evidence credible.  Whilst there was of course no burden on the defendant to prove anything, her evidence did not shake, in any way, the court's confidence in the evidence of PC Ross."

12.      The Relief Magistrate then went on to say that she paid no regard to the following matters in reaching her decision:-

"20      a.         the presence of the open email on the telephone or that the phone was connected to the internet when the officer looked at the phone;

b.        the argument that the defendant would not take the risk of a court appearance, the fees incurred and perjury when she could have received a fine at parish hall and no conviction, unless she were innocent.  It could equally be argued that a police officer would not risk his career by fabricating evidence unless it were true.  Such arguments cannot resolve factual disputes which can only be assessed on the quality of the evidence before the court."

13.      The grounds of appeal were as follows:-

(i)        Too much weight was placed by the Relief Magistrate on the video.

(ii)       Too much weight was placed by the Relief Magistrate on the evidence of PC Ross.

(iii)      Too little weight was placed by the Relief Magistrate on the evidence of the appellant.

(iv)      In the premises, the Relief Magistrate found the appellant guilty against the weight of the evidence.

14.      At the hearing, Advocate Steenson also raised two points of law:-

(i)        Where the Relief Magistrate said in relation to the appellant's demeanour - "whilst there was of course no burden on the defendant to prove anything, her evidence did not shake, in any way, the Court's confidence in the evidence of PC Ross" - she was effectively reversing the burden of proof in that she had already concluded that the evidence of PC Ross was entirely credible, and that it was for the appellant to displace her confidence in it. 

(ii)       The Relief Magistrate should have taken into account the argument that the appellant would not take the risk of a court appearance, the fees incurred and perjury when she could have received a fine at Parish Hall and no conviction unless she were innocent.  He said it was not an invalid submission and was simply one facet of the propensity argument upon which a person of good character is entitled to rely. 

Test on appeal

15.      The test on appeal has most recently been set out in Graham v Attorney General [2013] 1 JLR 91:-

"Under the Magistrate's Court (Miscellaneous Provisions)(Jersey) Law 1949, the Royal Court had a wide discretion on an appeal from the Magistrate's Court.  Article 20(3) provided that it could confirm, reverse or vary the decision of the Magistrate's Court, remit the matter to the Magistrate's Court or make such other order as it thought just.  Although the Law gave no indication as to the basis on which the Royal Court should approach an appeal, it was clear that the Royal Court would interfere with the Magistrate's Court decision where there was a sufficiently serious procedural defect before the Magistrate or where the Magistrate had made a material error on an issue of law.  Where an appeal simply concerned the evidence that had been given, if, upon examining the transcripts, the Royal Court concluded that there was evidence before the Magistrate on which he could properly have reached the decision that he did, the Royal Court would not lightly interfere with the decision.  Occasionally, the Royal Court would, however, interfere with the decision because it was uncomfortable with what had taken place in the Magistrate's Court (paras. 14-20)."

Application to hear recording of appellant's evidence

16.      Advocate Steenson applied for the Court to listen to the recording of the evidence given by the appellant before the Relief Magistrate from which he said her emotion would become apparent, and which would show that the appellant was not only a credible witness but compelling.  He went further and said that the appellant was content to give her evidence and be cross-examined again before us.  He said the position was analogous to the right of a defendant in a criminal trial to require that the recording of his or her police interview be played to the jury.  This Court should have the best evidence available to it. 

17.      Crown Advocate Maletroit submitted that the Court should not be drawn into listening to recordings of the trial unless there was good reason to do so.  The procedure which had been adopted on appeal and that envisaged by the relevant case law was that the Court examines the transcripts of the evidence only. 

18.      In the instant case, the thrust of the appeal is that one witness should have been regarded as more credible than another.  If the Court were to listen to the evidence of the appellant, it would also need to listen to the evidence of PC Ross, and indeed, view the video taken from PC Ross's body worn camera.  The Court would end up listening to the majority of the evidence in the trial, which was not a practical way of proceeding and there was no good reason for it. 

19.      We agreed with the submissions put forward by Crown Advocate Maletroit and refused the application.  If granted, the Court would be drawn into making its own assessment of the credibility of the witnesses, undermining the principle that the Relief Magistrate was in a better position to do so.  Our key task was to consider whether there was evidence on which the Relief Magistrate could properly have come to the decision she did, and we could make that assessment by reference to the trial transcript. 

Decision

20.      Given the nature of the grounds of appeal, which relate to the weight which the Relief Magistrate attached to the evidence, and not generally to matters of law, Advocate Steenson recognised that the Court would be reluctant to interfere with the Relief Magistrate's decision, and he was correct. 

21.      It was not enough, Advocate Steenson said, for the Relief Magistrate simply to say that she did not find the evidence of the appellant credible.  She had to explain why she had reached that conclusion.  He placed reliance on paragraph 29 of the judgment of the Bailiff in the case of Quérée v Attorney General [2018] JRC 014:-

"29     We will return to the evidence of X and the appellant in so far as material to the issues in this case later in this judgment but we make the more general observation at this stage that while there is definitely a place for a judge to place some store on his or her instinct or personal reaction to the witness giving evidence, one must always be wary of that approach, testing it rigorously against what the witness actually said and the extent to which what he or she said can be borne out or supported by other evidence in the case.  In this case the learned Magistrate believed what X had to say and disbelieved the appellant, but it is not clear whether there was really any evidence which supported the view that the appellant was not a credible witness.  The three members of this Court have individually read the transcript of the appellant's evidence before the learned Magistrate and each of us independently reached the conclusion that his evidence held together well, was credible and comprehensible.  By contrast, as the Magistrate herself accepted in her judgment, some aspects of X's evidence might be thought to be illogical, and perhaps, critically, there is no real explanation for why X was unsure whether the defendant had grabbed her breasts deliberately when she first spoke about the incident, and only later was completely sure that he had done so deliberately.  As a result, we are not unsympathetic to the approach taken in Rushton v Attorney General [Royal Court October 16th 1989 Unreported] where the Court indicated that if there was evidence upon which the Magistrate could have come to the decision he or she did, the court does not lightly interfere - in other words it will interfere sometimes, especially so where, as said in Graham, there was a lurking doubt or sense of unease about the finding of guilt.  In this case, we have had a similar sense of unease, and it is compounded by an analysis of all the evidence against the relevant law."

In the same way, Advocate Steenson invited the Court to find that the evidence of the appellant was credible, and in contrast, that of PC Ross inconsistent and therefore less satisfactory. 

22.      Quérée v Attorney General can be distinguished on its facts, in that it concerned an appeal against conviction for an indecent assault, carried out during consensual sexual activity, in which the Court grappled with the issues of indecency and intention.  As can be seen from the above extract, there were real concerns about the evidence of the complainant.  In contrast, the case before us is not one where from the transcripts it would be right for the Court to interfere.  The inconsistencies in the evidence of PC Ross were not material.  In addition to seeing and hearing the witnesses give evidence, the Relief Magistrate also had the benefit of seeing the video recording from the body worn camera of PC Ross, from which she found that he was not aggressive or intimidating, contrary to the evidence of the appellant.  Her answers, whilst not constituting an admission, were equivocal and this was something the Relief Magistrate was perfectly entitled to take into account.  Accordingly, when it comes to the weight which the Relief Magistrate attached to the evidence before her, we had no lurking doubt or sense of unease and will not therefore interfere. 

23.      That leaves the two points of law raised by Advocate Steenson.  We take first the sentence "Whilst there was of course no burden on the defendant to prove anything, her evidence did not shake, in any way, the Court's confidence in the evidence of PC Ross".  In our view, there is nothing in this to suggest that the Relief Magistrate reached a conclusion after hearing the evidence of PC Ross, which the appellant then had the burden of displacing.  The Relief Magistrate was summarising the case after hearing all of the evidence, and quite clearly preferred that of PC Ross. 

24.      We turn finally to the decision of the Relief Magistrate to pay no regard to the argument that the appellant would not take the risk of a court appearance, the fees incurred and perjury, when she could have received a fine at Parish Hall and no conviction, unless she were innocent.  The direction on good character, where a defendant has given evidence, ordinarily given to a jury, has two elements:-

(i)        Her good character would support her credibility and so is something which the jury should take into account when deciding whether they believe her evidence; and

(ii)       Her good character, may mean that she is less likely to have committed the offence with which she is charged.

The latter is referred to as "the propensity limb".  It is for the jury to decide what weight they give to the evidence of good character, taking into account everything they have heard about the defendant. 

25.      The Relief Magistrate was clear that she took the appellant's good character into account and would therefore have taken into account the propensity limb.  It was entirely a matter for her what weight to give to the appellant's good character and she did not find the argument as to risk persuasive.  Accordingly she paid no regard to it.  She was perfectly entitle to say that arguments as to risk of the kind put forward in relation to the appellant cannot resolve factual disputes and can only be assessed on the quality of the evidence before the Court.  The key finding reached by her, after taking into account the appellant's good character, was that the appellant was not a credible witness. 

26.      For all these reasons, we dismiss the appeal. 

Authorities

Road Traffic (Jersey) Law 1956.

Graham v Attorney General [2013] 1 JLR 91

Quérée v Attorney General [2018] JRC 014