Jersey Unreported Judgments

Hearing (Criminal) Assize Trial - Day 1

[2021]JRC202

Royal Court

(Samedi)

19 July 2021

The Attorney General

-v-

W

J. C. Gollop, Crown Advocate.

Advocate A. M. Harrison for the Defendant.

JUDGMENT

THE commissioner:

1.        The prosecution applies for a further special measure to be introduced when the complainant gives evidence live. She is now aged 16.  As matters currently stand her ABE interview will be played as her evidence-in-chief.  She may be asked a few further questions by the prosecution and be cross-examined and this via video link, so, she will not be in court or in the court premises.  These measures were not opposed by the defence.  

2.        In her statement of 14^th July 2021, the complainant who is aged 16, say this:

"I will be giving evidence in Court next week; this is the first time I have ever done this, and it makes me really nervous and scared.  I am giving my evidence on a screen, but I do not want [W] (that is the defendant) to see me while I am doing this.  It will really upset me knowing that he is watching me, and this will cause me distress and I won't be able to concentrate if I need to answer questions.  Knowing he can't see me will help me to relax.  I would like the Court to agree to him not being able to see me by using screens in the Court."

3.        The application is therefore for the defendant to be screened whilst the complainant gives live evidence via video link, in such a way that he can only hear but not see her.  The defence object to this further measure for the reasons set out in Advocate Harrison's email of 16^th July 2021, and perhaps I can just quote from that: 

"We recognise that the Complainant is likely to be distressed when giving her evidence.  For that reason the applications for her to give her evidence-in-chief by way of a recorded ABE video and the remainder of her evidence by way of video-link were not opposed by the defence.  Those special measures will be in place and as a result the Complainant will not be present in the same room as the Defendant, she will not have to be see the Defendant and the Defendant will not be able to see her in person.

The application is opposed.  It is respectfully submitted that a special measure that has no direct impact on the way in which the complainant would give her evidence is unlikely to improve the quality of her evidence, and it would be disproportionate to prevent the defendant from watching evidence in circumstances where they will be special measures in place to ensure that the complainant has no contact whatsoever with a defendant during the course of the trial." 

4.        The test to be applied is now set out in Article 101 of the Criminal Procedure (Jersey) Law 2018 but I have also had regard to the decision of the Court of Appeal in Myles v AG [2005] JLR Note 19 where the Court of Appeal said this:

"A screen should only be erected if a judge is satisfied either that a witness might otherwise be affected when giving evidence by fear or distress or that the quality of his evidence might be adversely affected. If so satisfied, the judge should balance the adverse affect on the witness, in giving evidence without a screen, against the potential prejudice to the defendant if a screen were to be erected. Although the direction to the jury was sufficient to avoid any prejudice to the appellant, it should have been given immediately before the witness gave his evidence rather than during the summing-up...."

5.        I will of course be telling the jury in advance about the special measures.

6.        I also had regard to the case of AG v A [2012] (2) JLR Note 1 where it says that:

"...the nature and alleged circumstances of the offence charged is one of the most important factors to be taken into account....... Sexual offences alleged to have been committed by a defendant against an underage victim, whatever the age of the victim when he or she gives evidence, are, if proved, likely to have a significant impact on the victim's ability to give evidence fully and reliably before a jury."

7.        These are of course sexual offences which are alleged to have been committed by the defendant when the complainant was between 7 and 10 years of age. The defendant is [Redacted] and at the time she said that they were very close.  The concern on her part is of course psychological in that although she and the defendant will not be in the same room, she says she will be distressed by the thought that he will be watching the television screen when she answers questions, and fears that she may see the defendant on her television screen when Advocate Harrison is asking her questions.  

8.        The whole purpose of special measures is to allow the complainant to give the best evidence she can and I can understand, and I am satisfied, that knowing the defendant can see her will adversely affect the quality of the evidence she gives.  The test in Article 101 (3) is in my view met.

9.        Turning to the position of the defendant I cannot see that this further measure will prejudice him, in that he will be able to hear her testimony.  If the complainant was giving evidence in court using screens, the defendant would not be able to see her only to hear her, and in my view a direction of the jury in the usual way will be sufficient to deal with any possible prejudice to the defendant.  I therefore grant the application.    

Authorities

Myles v AG [2005] JLR Note 19. 

AG v A [2012] (2) JLR Note 1. 

Criminal Procedure (Jersey) Law 2018.