Jersey Unreported Judgments

Trial - decision on whether to allow the prosecution to recall a witness

[2020]JRC231

Royal Court

(Samedi)

3 November 2020

The Attorney General

-v-

Jamie Lee Warn

S. C. Thomas Esq., and M. R. Maletroit Esq., Crown Advocates.

Advocate J. W. Bell for the Defendant.

JUDGMENT

THE COMMISSIONER:

1.        The question which has arisen is as to whether the prosecution should have the right to recall Mr Dominic Pallot to give evidence.  In his examination in chief Mr Pallot told the jury that Michelle Cooper - the evidence suggests that she is the partner of the defendant - was working in Trinity Stores on the 10^th May between 5 o' clock and 9 o' clock in the evening.  It is said that the CCTV, from which he identified her, shows timings which are out by approximately an hour.  The Crown considers it is important that the evidence that she worked till 9 o' clock is properly before the jury and is not subject to challenge.

2.        As far as I can tell, in cross examination it was not suggested to him that the timings on the CCTV were right and that he was wrong.  He was asked a question by Advocate Bell as to whether the police had asked for the till receipts and he responded that no, he had only been asked for CCTV.  I have not been informed that there were any further questions that were put in that connection.

3.        It is unusual for the Crown to seek to recall a witness who has been discharged from the trial, having given the evidence which they are asked to give.  If the matter had arisen after the close of the prosecution case it seems to me that, although the trial judge has a discretion to allow that evidence to be adduced, it is a discretion which would only be very cautiously exercised and I note that, and this was certainly the position under the old law, the Crown would have a much stronger position if the evidence was necessary because of something which arose ex improviso and not something which was necessary to be proved as part of the Crown case from the outset.  In the latter case where it was obvious from the beginning that this was evidence that ought to have been adduced, the Crown would be expected to adduce the evidence and would not be permitted to call the evidence after the close of the prosecution case.  For the purposes of exercising my discretion I am quite clear that if this had arisen after the close of the prosecution case I would not have given permission for Mr Pallot to be recalled.

4.        The question which arises here is whether he should be recalled because the Crown has not closed its case, where Archbold seems to be rather more silent on the matter, although the question of recall is dealt with at Chapter 8-303, where it is said:

"It is highly irregular in a trial before a jury to recall a witness who has already given evidence merely for the purpose of giving the evidence again"

And there is reference there to the case of R v Sullivan 16 Cr. App. R 121 CCA

5.        The objection here is that the Crown had the opportunity of obtaining the evidence it now seeks to adduce in re-examination and because those questions in re-examination were not put the Court should not allow them to be put now. 

6.        I have to say that this is not a matter which has arisen before this court regularly.  In my judgment it is a matter which is affected by Article 3 of the Criminal Procedure (Jersey) Law 2018 of implementing the overriding objective and dealing fairly with prosecution and the defence and I have not overlooked the other parts of Article 3(1) which involve acquitting the innocent and convicting the guilty.

7.        There are rules which surround a criminal trial and unless there is a very good reason for departing from them, my own judgment is that the Court should follow those rules.  While the decision for me is not an easy one to take, I think in the interests of justice it is right that the discretion is exercised in favour of the defence and I therefore do not allow the Crown to recall this witness in the circumstances which apply here.

Authorities

Archbold Criminal Pleading, Evidence and Practice. 

Criminal Procedure (Jersey) Law 2018. 

R v Sullivan 16 Cr. App. R 121 CCA