Jersey Unreported Judgments

Inferior Number Trial - leave to amend error in admission.

[2019]JRC007A

Royal Court

(Samedi)

28 January 2019

The Attorney General

-v-

Alfredo Da Costa Rebelo

H. Sharp Esq., Crown Advocate.

Advocate J. C. Gollop for the Defendant.

JUDGMENT

THE BAILIFF:

1.        The Crown allege that the defendant murdered his wife at the premises in which they lived together, on or around 3^rd April, 2017.  In opening the case, Crown Advocate Sharp said that the defendant had two windows of opportunity for doing so.  The agreed chronology shows that in theory these would have been between 9:34pm and 11pm on 3^rd April, and between 7:35am and 8:06am the following morning. 

2.        The Crown asserts that the deceased decided that evening, that following some altercation with the defendant she would sleep in her daughter's bed, which was in the lounge of the matrimonial home.  It is admitted that the daughter, who is to give evidence for the Crown, returned home at about 11pm.  The admissions which have been signed by both counsel for the prosecution and defence respectively say she went to bed in the lounge "where her mother was asleep".  This was inconsistent with the way in which the Crown had opened its case, and I asked the Crown Advocate to explain.  Advocate Sharp says that this was his error and he asks leave to amend by deleting the word "asleep". 

3.        He says I have a discretion to allow him to do this, and that in a clear case of error, that discretion should be exercised in favour of the Crown.  To justify the statement that it was an error, he says in particular, that he sent the draft opening speech to the defence last week and that on 11^th January he had sent an email to Advocate Gollop in which he made it plain that the daughter's statement, which is presumed at the moment to be the basis of her evidence, was only accepted in part as being reliable.  That email makes it clear that her statement that she heard her mother breathing heavily during the night was not accepted by the Crown. 

4.        If her statement might be true, then one of the windows of opportunity as Advocate Sharp put it, for the defendant to have murdered his wife would have been removed.  Advocate Gollop submits I should not give that leave.  He says the draft opening speech was only sent to him last Friday, that is 3 days before the commencement of the trial, and that the admissions had been agreed long before that, save one admission which is not relevant to this question.

5.        I have been referred to Archbold Criminal Pleading, Evidence and Practice 2018 edition at paragraph 10-08, which makes it plain that leave to amend an admission can be given where the defendant has made a clear mistake.  It says nothing about amending an admission made by the Crown, but in my view there is no reason in principle why the same rule should not apply to both in the case of manifest error.  I am satisfied that this was such an error, with one qualification which is this; it is the Crown's job to prove its case, the defence has to prove nothing.  Admissions can be helpful to both the Crown and the defence cases of course, and the legislation which provides for admissions has as its purpose the efficiency as well as the fairness of the trial process.  Nonetheless, the defence is entitled to treat admissions as setting out conclusively the position adopted by the Crown.  If therefore, there were anything in the Crown's position which would have influenced the defendant's preparations for trial, or his ability to call other evidence that would be a convincing reason why leave to amend the admission should not be given. 

6.        Advocate Gollop did not contend that either of these circumstances had arisen.  It is true that in the email of 11^th January, Advocate Sharp does not say expressly, that the prosecution contended that the murder could have occurred on either of two opportunities.  However, the email does make it clear that the material part of the daughter's witness statement was considered as unreliable and the defence therefore must be taken to have understood that the Crown did not accept that she had heard her mother breathing heavily during the night.  What could the defence have deducted from this?  It must be that the Crown had left it open that she did not hear the deceased breathing heavily or perhaps at all. 

7.        For these reasons I give leave to Advocate Sharp to amend the error in the admission by deleting the word "asleep" from paragraph 18. 

8.        In reaching my conclusions on this I have also taken into account that if the Jurats consider at the end of the trial, that what the daughter says in her evidence on this point is or might be true, then the amendment to the admission will have no impact because what she has said will have been consistent with the admission.  If on the other hand they think the daughter's evidence is to be rejected on this point, there would then be a conflict between the admission and the evidence which she gave, which is undesirable because admissions are a hard set of facts on which the 'deciders of fact' are generally entitled to rely.  Thus the amended admission is probably more neutral from a defence perspective than it would be to leave it un-amended, and to the extent that any exercise of discretion was hanging into the balance, I have taken that point into account.

Authorities

Archbold Criminal Pleading, Evidence and Practice 2018 edition.