Jersey Unreported Judgments

Hearing (Criminal) - re: trial.

[2021]JRC079

Royal Court

(Samedi)

18 March 2021

Before     :

R. J. MacRae, Esq., Deputy Bailiff, sitting alone

The Attorney General

-v-

Robert John Ingram Moon

Crown Advocate R. C. L. Morley-Kirk

Advocate A. M. Harrison for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Defendant was tried on indictment by the jury, the trial commencing 8^th February 2021 and lasting five days. 

2.        A number of matters were considered at a pre-trial hearing the week before the trial and certain matters were considered during the trial and prior to my summing the case up to the jury.  The purpose of this short judgment is to record, where appropriate, the reasons for those decisions. 

The facts

3.        A brief summary of the facts is necessary.  On Thursday 14^th May 2020 the Defendant was arrested on suspicion of harassment, interviewed by the police and discharged on police bail at about 10:00 p.m.  A condition of his police bail was that he was required to observe a curfew between 9:00 p.m. and 7:00 a.m. which angered the Defendant as he was predisposed to go out at night.  The police took him home, where the Defendant took an overdose of medication.  As he did so he sent a message to his brother which caused the latter to alert the Defendant's ex-girlfriend who went to the Defendant's home.  The Defendant could not be roused, and she arranged for the Defendant to be taken to hospital.  He arrived there at 2:30 a.m. and discharged himself against medical advice shortly after 6:00 a.m.  Just over half an hour later, police attended the Defendant's home to carry out a welfare check upon him.  The police attended the Defendant's property in uniform, knocked on his door and shouted for a response.  Owing to a concern for the Defendant's safety, the police obtained access to the Defendant's home and the first officer who entered the property, PC Anderson, saw the Defendant crouching down in his hallway holding two spear guns, one in each hand.  Both spear guns were loaded with the metal tipped spears pointing directly at the police officer. 

4.        PC Anderson and another officer immediately retreated to behind their police car and issued themselves with firearms, which were kept in the police car. 

5.        Other officers arrived and formed a cordon around the property.  Two officers, PC Bell and PC Blasco, approached the front of the property via an alleyway, believing the Defendant to still be at the front of the property.  In fact, he was now on a balcony at the rear of the first floor, overlooking the garden.  As they approached the front of the property, PC Bell looked up to see the Defendant pointing the loaded spear gun directly at her head - the distance between the loaded tip of the spear gun and her head was, she estimated, five feet.  She shouted "weapon" and she and the accompanying officer were extremely concerned that she was about to be shot. 

6.        Over the next hour or so the Defendant stood on his balcony pointing the spear guns directly at the four police officers who attended the premises (two at the back, two at the front).  He refused to put down the weapons and asked all four officers to "take a shot", inviting them to shoot him - all four were armed with the same police issue rifle.  The Defendant also shouted about the matter which had led to his arrest on the charge of harassment and spoke about his concerns in relation to the bail conditions. 

7.        Towards the end of this period the Defendant went back into his property and came out with an object in the shape of a gun, which officers thought initially was a hand gun and then thought was a flare gun, which itself could cause serious harm, particularly as the officers to the rear of the property knew that the garage in their vicinity contained a substantial amount of petrol.  Again, the Defendant pointed this item at the direction of the police officers, sometimes closing an eye, in order to suggest it was a weapon of some sort.  In fact, it was later found to be a digital thermometer. 

8.        After approximately an hour of negotiation on the telephone with a trained police negotiator, the Defendant left the property and was arrested.  Having been reviewed by two psychiatrists he was admitted under the provisions of the to Mental Health (Jersey) Law 2016 Orchard House. 

9.        The psychiatrist who saw him on the day did not believe that he was suffering from a condition directly related to his underlying diagnosis of bipolar disorder. 

10.      The Defendant made no comment in interview.  The defence case statement said that at all material times the Defendant was suffering from a mental disorder and should not be held responsible for his actions. 

11.      At the trial, the three doctors who saw the Defendant in May 2020 gave evidence, as did two forensic psychiatrists based in London.  These two experts expressed the view that the Defendant was likely to have been suffering from a hypomanic episode at the time of the incident as a consequence of his bipolar disorder, although both observed that whether or not the Defendant ought to be held criminally responsible for his actions on 15^th May 2020 was a matter for the jury to determine. 

Expert evidence - leave

12.      Less than two weeks before trial, the Crown said that they wished to call an expert, a consultant forensic psychiatrist, to respond to the evidence of the report of the defence expert Dr Berman dated 20^th September 2020. 

13.      The Crown said that although the decision they had made to call expert evidence was a late one, they did not need leave to file this evidence.  I did not agree.  In these circumstances, a late application to adduce expert evidence by either party must require leave.  I say this for three reasons.   First, at the plea and directions hearing (which in this case took place on 9^th October 2020) it is necessary for either party, the prosecution in particular, to notify the Court of any additional evidence that it expects to serve.  This is the opportunity for the Crown to indicate that it wishes to call expert evidence and submit to an order requiring it to file the same within such period as the Court regards as reasonable in the circumstances.  If the Crown fails to identify the need for such evidence at that stage, then prima facie it needs leave to do so, particularly if the trial date is close at hand.  In this case at the directions hearing the Crown merely indicated that it "may seek further medical reports once it has received and had an opportunity to review the medical report obtained by the defence".  In fact receipt of the defence expert evidence, which took place shortly after the plea and directions hearing, did not prompt the Crown to instruct an expert at that time and procure a report from them. 

14.      Secondly, the Criminal Procedure (Notice of Expert Evidence) Rules 2000 provides in Rule 3:

"Notice of expert evidence in Royal Court

(1) A party to criminal proceedings who wishes to adduce expert evidence shall give each other party, as soon as practicable, a statement in writing of any finding or opinion that the party proposes to adduce by way of such evidence.

(2) If the party is requested in writing by any other party to do so, the party shall also give that party a copy or (where appropriate) a sample of -

(a) the record of any observation, task, calculation or other procedure on which the finding or opinion is based; or

(b) any document, recording device, substance or other thing in respect of which such a procedure has been carried out.

(3) However, if it appears to the party that it is more practicable to do so, the party may instead give the other party a reasonable opportunity to examine the record or thing to which the request relates."   

15.      Rule 6 provides: 

"Restriction on adducing expert evidence without notice

A party who is required to comply with Rule 3 in respect of expert evidence but fails to do so shall not adduce that evidence without the leave of the Court."

16.      A party who fails to obtain and serve its expert evidence until a few weeks before trial has not, in my view, given the other party the statement or opinion of the proposed expert evidence "as soon as practicable" as required by Rule 3(1), and accordingly needs leave of the Court under Rule 6. 

17.      It is no excuse in those circumstances that a late decision owing to a change of counsel shortly before trial (as in this case) has led to a belated appreciation that the jury might be assisted by such evidence. 

18.      Thirdly, it is consistent with the implementation of the overriding objective under Article 3 of the Criminal Procedure (Jersey) Law 2018 and the obligation of the Court under Article 7 of the Law to actively manage criminal proceedings that parties in circumstances such as these need leave to adduce expert evidence which may, if admitted, cause delay and applications to vacate the trial date, if such matters are dealt with late in the day. 

19.      In any event, owing to the fact that the defence would not be prejudiced by the anticipated evidence to be given by Dr Cumming, and indeed the contents of that evidence when it was provided in his report dated 28^th January 2021, I granted leave. 

20.      I also granted leave for both experts to give evidence by video link from the United Kingdom owing to the current public health crisis. 

Body worn camera footage

21.      A contemporaneous recording of body worn footage from Police Constables Anderson and Bell recorded the incident and the jury was played some of that footage. That evidence was admitted with the consent of the parties under Article 64(1)(c) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 and had it not been admitted by consent, then it would have been admissible as part of the res gestae on normal principles. 

Article 72 of the Mental Health (Jersey) Law 2016

22.      I have referred to the contents of the defence statement above.  Article 72 of the Mental Health (Jersey) Law 2016 ("the Law") provides as follows: 

"72 Special verdicts

(1) Paragraph (2) applies in any proceedings, whether or not a determination of incapacity has been made under Part 8 in respect of the defendant.

(2) Where the court finds that -

                       (a) the defendant carried out the act alleged; but

(b) at the time of carrying out the act, the defendant was suffering from mental disorder to such a substantial degree that he or she ought not to be held criminally responsible for doing so, 

the court shall record a special verdict to that effect and may either acquit the defendant or make such an order as it has power to make under Article 59."

23.      As this "defence" to a criminal charge had not been considered before by a Jersey court, it was necessary to consider it, with the assistance of counsel, prior to the trial. 

24.      The following matters were considered. 

The role of the Court under Article 72

25.      The "court" is referred to in Article 72(2) on two occasions.  The Court has two roles.  The first is to consider whether or not the Defendant was suffering from a mental disorder to such a substantial degree that he or she ought not to be held criminally responsible for doing so and, secondly, to record a "special verdict to that effect" if the court makes such a finding and thereafter to acquit the Defendant or make such an order as it has the power to make under Article 59 of the Law. 

26.      The Crown submitted and the defence agreed that the first task, namely to determine, inter alia, whether or not the Defendant was suffering from a mental disorder to such a substantial degree that he or she were not to be held criminally responsible for doing so, was a matter for the tribunal of fact.  Both parties agreed that this should be the jury in this case.  I was content to proceed on that basis, although I leave open to further argument on a different occasion whether or not "court" should mean the Inferior Number - plainly it would in the context of an Inferior Number trial - in such circumstances.  Nonetheless, the parties were of the view that as the Defendant's guilt was to be determined by a jury, then this was a matter that should be determined by the jury and not by the Inferior Number.  

27.      As to the second function of the Court, namely to record the verdict and thereafter either acquit the Defendant or make such order as it has the power to make under Article 59, the Crown submitted (and defence agreed) that it was for the trial judge to record the special verdict and for that judge to decide whether to acquit the Defendant or make such an order as the Court had the power to make under Article 59.  If the judge took the view that it was necessary to make an order under Article 59 then the matter should be adjourned, so that relevant reports could be procured, for the purpose of that matter being considered by the Inferior Number of the Royal Court consisting of the judge and two Jurats who would then consider the Court's powers under Article 59 and make such order as was appropriate. 

Burden of proof

28.      The Crown contended and the defence agreed that owing to the customary law presumption of sanity and, in any event, the general approach taken to criminal defences that the burden of proof should be on the part of the party raising Article 72 "defence" and accordingly it was, in this case, for the defence to establish the matters required to be proved under Article 72(2)(b) to the civil standard, i.e. the balance of probabilities. 

The test - how the jury should be directed

29.      This is a matter upon which the Crown and defence were not agreed.  The Crown suggested that the jury should be directed with the McNaghten Rules as a starting point.  These rules were not adopted for the purpose of assessing insanity under Article 2 of the Criminal Justice (Insane Persons) (Jersey) Law 1964 as explained in the extremely helpful and comprehensive judgment of Sir Philip Bailhache, Bailiff in AG -v- Jason Cyril Prior [2001/35] (Royal Court 9th February 2001). 

30.      In that case, at paragraph 30 of the judgment, the Bailiff rejected the McNaghten approach and said "I therefore hold that a person is insane within the meaning of Article 2 of the [1964 Law] if, at the time of the commission of the offence, his unsoundness of mind affected his criminal behaviour to such a substantial degree that the jury consider that he ought not to be found criminally responsible."

31.      The test established by the Royal Court in Prior appears to have influenced the drafting of Article 72 and accordingly I agreed with the defence that the jury should be directed that the questions for them to answer are: 

(i)        Did the Defendant carry out the act alleged? 

(ii)       At the time of carrying out the act, was the Defendant suffering from a mental disorder? 

(iii)      Was the mental disorder of such a substantial degree that the Defendant should not be held criminally responsible for doing so?

32.      Both experts were quite rightly careful to avoid answering the third question directly in their reports, as this is a matter for the jury, although the experts did comment on matters which might assist the jury in reaching their conclusions on this question, including such matters as whether or not the Defendant, even if he was suffering from a hypomanic episode at the time, could have had capacity to understand what he was doing. 

33.      In terms of how the jury were ultimately directed in relation to this matter, there were two additional considerations.  First, although the Defendant did not, on key factual matters, challenge the Crown's evidence in terms of what he did, that did not mean that the Crown were released from the burden of proving that the Defendant acted intentionally or recklessly in putting the officers in question in fear that the spear gun might be used against them.  Accordingly, the burden of proof shifted twice in this case.  Once the Crown approved that the Defendant had carried out the act alleged the burden shifted to the defence for the purpose of considering the statutory defence under Article 72.  Then, if the defence was unable to satisfy that burden to the civil standard, the burden shifted back to the Crown for the purpose of considering the Defendant's mens rea.  This will be clear when I set out below the questions that the jury had to consider. 

34.      Secondly, the Crown contended that the jury ought to be directed on recklessness in respect of Counts 1 and 2.  As to recklessness, I was assisted by considering the decisions of the Court of Appeal in De La Haye -v- AG [2010] JLR 218, the Royal Court in AG -v- Vaughan (Royal Court November 1974 Unreported) and the recent decision of the Royal Court on appeal from the Magistrate's Court in B -v- AG [2021] JRC 052 (18th February 2021).  The latter decision contained a helpful review of certain authorities in respect of the elements of grave and criminal assault, which I do not propose to repeat. 

35.      This case is slightly different from the cases referred to above in that it was a grave and criminal assault where there was no direct application of force.  

36.      In the context of this case, it was necessary for the Crown to prove that the Defendant deliberately pointed the spear gun at the police officer in question.  This is the hostile or threatening act referred to by Ereaut, Deputy Bailiff, in Vaughan.   

37.      As to the Defendant's state of mind when he carried out that act, i.e. deliberately pointing the spear gun at PC Bell, the jury had to be sure that the Defendant intended to put the police officers in question in fear or was reckless as to the same and finally the jury needed to be sure that the police officer in question was put in fear that the spear gun might be used against them. 

38.      Accordingly, in summary the Crown need to prove, in the context of a grave and criminal assault where there is no contact between the defendant and the complainant:

(i)        that the defendant deliberately did something which;

(ii)       put the complainant in fear that they may to be subject of a grave and criminal assault; and

(iii)      at the time of so doing, the defendant either intended to put the complainant in fear that they were to be the subject of such an assault or were reckless as to the same.  Reckless in this context means "subjectively" reckless i.e. the jury need to be satisfied that the defendant knew that his deliberate act might cause the complainant to fear that they may be subject of a grave and criminal assault but nonetheless decided to take that risk. 

39.      In fact, the directions to the jury will be relatively straightforward, as illustrated by the directions set out below with which both counsel were content.  

40.      Accordingly, the jury were directed as follows on the three counts of the indictment: 

(i)        Count 1 - grave and criminal assault

Question 1 - has the Crown proved so that we are sure that on at least one occasion the Defendant deliberately pointed a spear gun at PC Anderson? 

If your answer is "yes", then go on to consider question 2 below.  If your answer is "no", then your verdict is "not guilty". 

Question 2 - has the defence proved that it is more likely than not that at the time the Defendant carried out this act, he was suffering from a mental disorder?

If your answer to this question is "yes", go on to consider question 3.  If the answer to this question is "no", go on to consider question 4. 

Question 3 - has the defence proved that it is more likely than not that the mental disorder was of such a substantial degree that the Defendant should not be held criminally responsible for carrying out the act? 

If the answer to this question is "yes", then you return the verdict of "not criminally responsible"; if your answer is "no", then you must go on to consider question 4. 

Question 4 - has the Crown proved so that we are sure that at the time the Defendant carried out the act that the Defendant intentionally or recklessly put PC Anderson in fear that the spear gun might be used against him? 

If your answer to this question is "yes", then your verdict is "guilty"; if your answer is "no", your verdict is "not guilty".

(ii)       Count 2 - grave and criminal assault

Question 1 - has the Crown proved so that we are sure that on at least one occasion the Defendant deliberately pointed a spear gun at PC Bell? 

If your answer is "yes", then go on to consider question 2 below.  If your answer is "no", then your verdict is "not guilty". 

Question 2 - has the defence proved that it is more likely than not that at the time the Defendant carried out this act, he was suffering from a mental disorder?

If your answer to this question is "yes", go on to consider question 3.  If the answer to this question is "no", go on to consider question 4. 

Question 3 - has the defence proved that it is more likely than not that the mental disorder was of such a substantial degree that the Defendant should not be held criminally responsible for carrying out the act? 

If the answer to this question is "yes", then you return the verdict of "not criminally responsible"; if your answer is "no", then you must go on to consider question 4. 

Question 4 - has the Crown proved so that we sure that at the time the Defendant carried out the act that the Defendant intentionally or recklessly put PC Bell in fear that the spear gun might be used against her? 

If your answer to this question is "yes", then your verdict is "guilty"; if your answer is "no", your verdict is "not guilty".

(iii)      Count 3 - affray

Question 1 - are you sure that the Defendant, in brandishing the two spear guns, including aiming them at various police officers, made an unlawful display of force in such a manner that reasonable people might be frightened or intimidated? 

If your answer is "yes", go on to consider question 2.  If your answer is "no", then your verdict is "not guilty". 

Question 2 - has the defence proved that it is more likely than not that at the time the Defendant carried out this act, he was suffering from a mental disorder?

If your answer to this question is "yes", go on to consider question 3.  If your answer is "no" then your verdict is "guilty".     

Question 3 -has the defence proved that it is more likely than not that the mental disorder was of such a substantial degree that the Defendant should not be held criminally responsible for carrying out the act? 

If the answer to this question is "yes", then your verdict is "not criminally responsible"; if your answer is "no", then your verdict is "guilty".

Authorities

Mental Health (Jersey) Law 2016

Criminal Procedure (Jersey) Law 2018

Police Procedures and Criminal Evidence (Jersey) Law 2003. 

Criminal Justice (Insane Persons) (Jersey) Law 1964

AG -v- Jason Cyril Prior [2001/35] (Royal Court 9th February 2001). 

De La Haye -v- AG [2010] JLR 218. 

AG -v- Vaughan (Royal Court November 1974 Unreported). 

B -v- AG [2021] JRC 052