Jersey Unreported Judgments

Legal Argument - Mode of Trial.

[2024]JRC220

Royal Court

(Samedi)

17 October 2024

Before     :

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

The Attorney General

-v-

Jake Alan Gallichan

Crown Advocate L. B. Hallam for HM Attorney General.

Advocate I. C. Jones for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Defendant is charged on an indictment to which he has pleaded not guilty.  The indictment contains three alleged offences.  Count 1, an allegation of assault committed on the Complainant, it is said on 9 May 2023.  Count 2, an allegation of domestic abuse, contrary to the Domestic Abuse (Jersey) Law 2022 which came into force in June 2023.  The particulars of Count 2 say that between June 2023 and January 2024 the Defendant, in relation to the same complainant as at Count 1, with whom he was at the time in a relationship, intentionally or recklessly engaged in behaviour towards her which was abusive.  There are nine forms of behaviour particularised in the count.  Count 3 charges the Defendant with malicious damage, alleging that on 10 October 2023 the Defendant damaged part of the vehicle belonging to the Complainant.  To these counts he has pleaded not guilty. 

2.        Accordingly, this is a mixed indictment and the Court's jurisdiction under Article 48 of the Criminal Procedure (Jersey) Law 2018 is engaged.  It is a mixed indictment because two of the alleged offences are offences under customary law which, had they stood alone, would have meant that the Defendant was entitled to be tried by jury, subject to his election to be tried by the Inferior Number.  The statutory offence would, had it stood alone, been inevitably tried by the Inferior Number. 

3.        Sub paragraphs 3 and 4 of Article 48 provide:

"(3)     This paragraph applies where -

(a)        no election is made under paragraph (2); or

(b)        a defendant's indictment charges 2 or more offences at least one of which is an offence under customary law and the other an offence under an enactment. 

(4)       Where paragraph (3) applies, the Royal Court shall decide, having regard to the nature and gravity of the offence and after hearing any submissions from the defence and the prosecution, the method by which the defendant shall be tried."

4.        The effect of Article 48 has been considered by the Royal Court in a number of recent cases.  Firstly, in Attorney General v Akhonya [2022] JRC176 where Commissioner Sir William Bailhache said: 

"9. The immediate conclusion to draw is that where Article 48(3) applies, it is the duty of the Crown and the defence to draw that to the attention of the Court at the earliest opportunity in order that the Court can give directions as to how the case should proceed. This follows from Article 4 of the 2018 Law which is in these terms:

'4.  Duties of the participants in criminal proceedings

(1)      A participant in criminal proceedings must -

(a)        prepare and conduct the case in accordance with the overriding objective;

(b)        comply with the relevant procedures; and

(c)        as soon as is reasonably practicable, inform the court and all parties to the proceedings if there is a significant failure (whether or not the participant's) to take a procedural step required by the relevant procedures.

(2)       For the purpose of paragraph (1) -

(a)        relevant procedures are the procedures prescribed by this Law, Criminal Procedure Rules or practice directions; and

(b)        a failure is significant if it might hinder the court in furthering the overriding objective.

......

Threshold question

12. Where Article 48(3) applies, the Royal Court has to decide the mode of trial. In my judgment, this involves an exercise of discretion and the question which naturally arises is as to the factors which can properly be taken into account in that exercise. A threshold question is whether the Court can only have regard to the nature and gravity of the offence - and I will turn shortly to the meaning of that phrase - or whether it can have regard to other considerations. On the face of it, the legislative provision refers only to the nature and gravity of the offence; but in my judgment, it would be unnecessarily restrictive to construe that language as meaning that the Court has no discretion to consider other factors.

13.      This view is confirmed by the terms of Articles 2,3 and 5 of the 2018 Law, which are in these terms:

"2       The overriding objective of the Law

The overriding objective of this Law is to ensure that cases in criminal proceedings are dealt with justly.

3         Implementation of the overriding objective

(1)        For the purposes of satisfying the overriding objective, dealing with cases in criminal proceedings "justly" includes-

(a)        acquitting the innocent and convicting the guilty;

(b)        dealing fairly with both the prosecution and the defence;

(c)        recognizing the rights of a defendant, particularly those rights granted under Article 6 of the European Convention on Human Rights (right to a fair trial);

(d)        respecting the interests of witnesses, victims and jurors and keeping them informed of the progress of the case;

(e)        dealing with the case efficiently and expeditiously; and

(f)         ensuring that appropriate information is available to the court when bail or sentence is being considered.

(2)        Dealing with a case justly also includes dealing with it in ways that take into account -

(a)        the gravity of the alleged offence;

(b)        the complexity of what is in issue;

(c)        the severity of the consequences for the defendant and for others that are affected;

(d)        whether the costs of the proceedings are proportionate having regard to the seriousness of the offence; and

(e)        the needs of other cases.

4         ....

5         The application by the court of the overriding objective

The court must act to ensure the implementation of the overriding objective when it -

(a)        exercises a power given to it by an enactment (including this Law);

(b)        applies Criminal Procedure Rules;

(c)        applies a practice direction; or

(d)        interprets legislation (including this Law), Criminal Procedure Rules or practice directions."

14.      The threshold question requires a construction of Article 48(4). Article 5(d) of the 2018 Law applies. Thus Article 48(4) is to be construed widely having regard to the overriding objective.

......

17.      In my view, the "offence" is to be construed as meaning all the offences in the Indictment. Article 48(4) applies to two types of indictment - a mixed indictment and an indictment containing only customary law charge(s) where the defendant has made no election for his mode of trial. It makes no sense to conclude that the legislature intended to give guidance to the Court as to what it should consider only in cases where there was just one customary law offence charged. Article 2(b) of the Interpretation (Jersey) Law 1954 supports this approach. The Court should make its decision having regard to the offence(s) charged as a whole.

18.      As to the second question, the fact that the overriding objective also falls to be considered means that the Court must have regard to the whole case when considering the nature of the offence - who the witnesses are, where they live, how the evidence will be presented, how much is in genuine dispute, how long the trial is expected to take, how complex it is and other similar factors. The 'nature' of the offence may not be defined, but in my judgment this is intended to include a consideration not just of the seriousness of the offence but of the allegations in the round which are to be proved. It may be that the facts of the particular case are such that the Court decides that a trial by the Inferior Number would be more likely to provide justice - for the Crown and for the Defendant - than a trial by jury, perhaps by the reason of the complexity of the issues which are to be raised. This is absolutely not to say that juries are less capable of handling complex trials than the Inferior Number; it is only to say that there are some complex trials which are more suitable for the particular skills of the Jurats. In all these considerations it is vital to recall that the jury and Inferior Number trials are equally capable of providing justice. One is not intrinsically more just than the other. They provide different modalities for achieving justice and both are consistent with the Island's history and traditions. When considering the nature of the offence charged and the ambit of the allegations involved, a Court, in my judgment, would be right to consider the potential length of the trial - a heavily contested documentary trial liable to continue over a period of months may, in the circumstances applicable in Jersey, be at the relevant time a too onerous commitment for the Court sitting with a jury, and might well be more suited to the Court sitting as the Inferior Number.

....

20.      The effect of an order under Article 48(4), that the defendant is to be tried by the Inferior Number on a mixed indictment, is that the defendant's choice, which existed previously under the 1864 Law and is restated under Article 48(2) in relation to customary law offences, has been removed. In my judgment, that is not a factor which falls to be taken into account of itself, but the reason does not lie in the fact that the removal of the right does not form part of the "nature and gravity of the offence". The reason lies in Part 2 of the 2018 Law. By Article 2, the overriding objective is to ensure that cases in criminal proceedings are dealt with justly, and that expression is defined by Article 3 which requires the Court to have regard to the interests of witnesses, victims and jurors, as well as the interests of the defendant, as well as requiring the Court to deal with the case efficiently and expeditiously, having regard to what is in issue and the consequences for the parties but also having regard to the needs of other cases. By Article 5, the Court is under an obligation to ensure the implementation of the overriding objective. The fact that that objective includes dealing with cases efficiently and expeditiously and having regard to the needs of other cases shows that the rights of the defendant to a jury trial under Article 48(2) are subordinated to the wider factors. The Court schedule and the availability of courts and jurors, as well as Jurats, are all factors that, in an appropriate case, fall to be taken into account. All that follows from a construction of Article 48(4) that, in its admonition to have regard to the nature and gravity of the offence, the Court is also to have regard to the overriding objective.

21. As to the third question, the facts alleged against a defendant will be relevant in determining the gravity of the offence which is charged against him. That is likely to be measured not just by the sentence to which the defendant in question is potentially liable - because all customary law offences carry a sentence at large, whereas with few exceptions notably in relation to trafficking in class A drugs, the statutory offences carry a lower sentence, a conclusion that a common assault was necessarily more serious than a conspiracy to import cannabis, a class B drug with a maximum sentence of fourteen years imprisonment, would not seem to be appropriate. It might be in some cases. I conclude, therefore, that the gravity of the offence is not to be measured by the potential sentence to which a defendant is theoretically liable by reason of the offence charged being a customary or statutory offence. By contrast, when considering the gravity of the offence, the Court must have regard to the facts alleged by the Crown and, if necessary, to the defences asserted by the defendant.

22. One has to question why the legislature has provided that the gravity of the offence is relevant to the mode of trial. That may have been apposite when statutory infractions did not carry heavy penalties but the creation of the more modern offences such as drug trafficking or money laundering offences demonstrates that both modes of trial may result in substantial terms of imprisonment for the convicted defendant. As has been said, both modes of trial are equally just, so it is not obvious why the gravity of the offence should be a relevant consideration. However, the statute provides as it does. In my judgment, the Court is required to take the gravity of the offence into account, but I leave open for argument in a contested case the significance of this factor having regard to the overriding objective.

23. Similarly, I do not think it is appropriate in a case where there is no contest as to the outcome to attempt to lay down firm guidelines as to what the other relevant factors are for consideration but it would seem to be essential for the Court to consider the nature of the evidence which is to be adduced in respect of the different charges. Where there is a similarity of evidence relevant to both statutory and customary law charges, it may well be that a defendant's right under Article 48(2) will have more relevance: but this is subject to the qualification that the overriding objective, including the availability of courts, is a relevant - perhaps the most relevant - consideration.

24. In this case, both the prosecution and the defence contend that a jury trial is the appropriate method of trial. That is a factor to be taken into account but it is not conclusive because the Court's obligation under Article 5 is a wider one. However, I accept the defence submission that the offence charged under the 2001 Law can be regarded as a 'paperwork' version of the customary law offence of bigamy and was a step on the way to the customary law offence being committed, if it was. I also accept that there would be a potential argument that to remove the Defendant's right to elect a jury trial under Article 48(2) because the Crown have preferred an additional and statutory charge which does not add much to the overall case would be unjust."

5.        So clearly the Court has a discretion, and I note that in Attorney General v Mazurke [2023] JRC 221 Commissioner Olsen considered a case where the defendant faced an indictment alleging grave and criminal assault and domestic abuse.  In that case the Court held that in its view the domestic abuse allegations taken cumulatively were more serious that the alleged assault which was a fact held to militate in favour of an Inferior Number trial.  Further the Court noted the case was not a complex one and made the following observations at paragraph 16 of its judgment.

"Mr. Herold-Howes submitted that this was not a complex case and directed our attention to paragraph 18 of the Akhonya judgment.  We agree that there will be some cases, for example of sophisticated fraudulent activity, or arcane forensic evidence, which might be more suitable for the expertise and/or experience of the Jurats than a jury.  We accept the defence submission that this is not such a case.  But complexity, or the lack of it, is but one of several factors that we have to weigh in the exercise of our discretion."

6.        Another issue which has been taken into account by the Court in similar applications is the likely trial date.  In this case, having spoken to the Listing Officer, whether tried by the Jury or the Jurats the Defendant can be tried on 11 March 2025.  Indeed, there is a date available to be tried by the Jurats on 17 February 2025 but that is during half-term and I do not think it has been offered to counsel. 

7.        As to other circumstances which the Court has taken into account, in Attorney General v Porter [2023] JRC 247 it was noted the Royal Court was currently facing more requests for Jury trial than at any other time in its history, and there was a risk of delay in trying cases by Jury when they could properly be dealt with by the Inferior Number.  Another issue is the interests of witnesses which may, depending upon the circumstance of the case, be an important consideration.

8.        In Attorney General v AB [2024] JRC 174 (see paragraph 17) the Court took into account the fact that all things being equal a trial before the Inferior Number is likely to be swifter than a trial by Jury as the Inferior Number is constituted of a Judge and two professional lay assessors, namely the Jurats.  Further, Inferior Number trials can be tried in a variety of Court rooms both in this Court and the Magistrate's Court, whereas Jury trials are reserved as things currently stand to one Court room only. 

9.        Turning to the facts of this case, the Crown makes the observation that Count 1 the allegation of common assault, occupies one paragraph only (paragraph 6) of the Crown summary, and had that alleged offence occurred a month or so later it would have been subsumed within the particulars of the allegation of domestic abuse, Count 2.  The Crown says that paragraphs 8 to 43 of its summary represent the circumstances giving rise to the allegation of domestic abuse and say really this is a case about domestic abuse, and it would be "the tail wagging the dog" for this matter to be tried by any other tribunal than the Inferior Number. 

10.     The defence say that to make such an order would deprive the Defendant of his right, had Count 2 not been contained in the indictment, to a Jury Trial, and also advance an argument that when one considers the particulars of behaviour which give rise to the alleged offence of domestic abuse at Count 2 they are mainly matters which could have been, and historically would have been if indicted separately, assaults or threats to commit damage at customary law.  The defence say that really Count 2 is clothing a number of separate customary law offences as a statutory offence.  Although rhetorically that argument has attraction, in reality domestic abuse is a statuary offence, and these are merely particulars which the Crown has provided of the ways in which the Defendant is alleged to have committed that statutory offence.  Although not determinative of the issue, as it is merely a matter to be taken into account, it is of relevance that the principal offence on this indictment is the offence at Count 2 which is a statutory offence.

11.     All things being equal the case will be tried on the same date regardless of the mode of trial adopted. Having regard to all the circumstances of this case I rule that the Defendant be tried by the Inferior Number on 11 March 2025 with a time estimate of three days.  The plea and directions hearing must take place before the end November. 

Authorities

Domestic Abuse (Jersey) Law 2022.

Criminal Procedure (Jersey) Law 2018.

AG v Akhonya [2022] JRC176.

AG v Porter [2023] JRC 247.

AG v Mazurke [2023] JRC 221. 

AG v AB [2024] JRC 174.