John Sutherland v The Attorney General
| Jurisdiction | Jersey |
| Court | Royal Court |
| Judge | James McNeill,Nigel Pleming,Sir David Calvert-Smith |
| Judgment Date | 29 July 2014 |
| Neutral Citation | [2014] JRC 149 |
| Date | 29 July 2014 |
[2014] JRC 149
ROYAL COURT
(Samedi)
James McNeill, Q.C., President; Nigel Pleming, Q.C., and; Sir David Calvert-Smith.
Advocate P. G. Nicholls for the Appellant.
Advocate P. Byrne for the Attorney General.
Road Traffic (Jersey) Law 1956.
Criminal Justice (Evidence and Procedure)(Jersey) Law 1998.
Vekaplast v T A Picot (CI) Limited and Vekaplast Windows (CI) Limited [1989] JLR 269 .
Lewis, Christmas, Foot and Cameron v AG [2013] (1) JLR 325 .
Magistrate's Court Appeal — reasons for dismissing appellants appeal against conviction.
On 23rd April, 2014, the Court dismissed the appellant's appeal against his conviction before the Magistrate's Court on 16th January, 2014, of driving his Range Rover motor car on the road in Grouville on 1st September, 2013, having consumed so much alcohol that the proportion of it in his breath exceeded the prescribed limit, and this in contravention of Article 28(1)(a) of the Road Traffic (Jersey) Law 1956 (“the Road Traffic Law”). We now set out our reasons.
The following basic facts were not in dispute at the appellant's trial. In the early evening of Sunday 1st September, 2013, he drove his Range Rover to Checkers Express on La Rue a Don, Grouville, where he purchased some items. He then drove the short distance along La Rue de la Ville es Renauds towards the Pembroke Pub. A member of the public, who had seen him at Checkers Express and followed him along the road in his car, phoned the police as he was concerned that the appellant was acting as though drunk.
The Pembroke car park was full and so the appellant drove the short distance to the house of his friend, Mr John Donaldson, where he parked his car. It was in dispute whether he then went directly to the Pembroke Pub or first entered Mr Donaldson's house but it was not in dispute that he went to the Pembroke Pub where he ordered and consumed a double vodka and coke.
The police, responding to the call from the member of the public, and not finding the appellant's car in the Pembroke car park, went first to his home address before returning to the pub where they found him. He later provided two samples of breath which showed 109 micrograms of alcohol in 100 millilitres of breath, substantially over the limit of 35.
Article 33(2) and (3) of the Road Traffic Law provides:–
“(2) Evidence of the proportion of alcohol or any drug in a specimen of breath, blood or urine provided by or taken from the accused shall, in all cases (including cases where the specimen was not provided or taken in connection with the alleged offence), be taken into account, and subject to paragraph (3), it shall be assumed that the proportion of alcohol in the accused's breath, blood or urine at the time of the alleged offence was not less than in the specimen.
(3) The assumption described in paragraph (2) shall not be made if the accused proves –
(a) that the accused had consumed alcohol before providing the specimen or having it taken, and
(i) in relation to an offence under Article 26, after the time of the alleged offence, or
(ii) otherwise, after the accused had ceased to drive, attempt to drive or to be in charge of a motor vehicle on a road or other public place; and
(b) that had the accused not done so, the proportion of alcohol in his or her breath, blood or urine would not have exceeded the prescribed limit and, if it is alleged that the accused was unfit to drive through drink, would not have been such as to impair his or her ability to drive properly.”
The onus was therefore upon the appellant to disprove the assumption in Article 33(2) by proving on the balance of probabilities that he consumed alcohol before providing the specimen and after he had ceased to drive and that, had he not done so, the proportion of alcohol in his breath would not have exceeded the prescribed limit.
In his interview with the police, the appellant said that having parked his car in Mr Donaldson's property, he went straight to the Pembroke Pub, where he had consumed at least six or eight double vodkas and coke. He gave the same explanation to his lawyer, Advocate Julian Gollop. Advocate Gollop commissioned a report from Mr Nicholas Hubbard, the official analyst to the States of Jersey, which concluded that even if he had consumed this amount of vodka, he would have had a breath alcohol concentration in excess of the legal limit at the time he was driving.
The appellant then changed his account, saying that having parked in Mr Donaldson's property, he went in and drank a large quantity of his own vodka which he kept there, as confirmed by Mr Donaldson. He said in evidence that he had consumed a quarter of a litre of 50% vodka, which is the equivalent of ten shots or measures of vodka, with a dash of coke. Mr Donaldson then gave him a lift to the Pembroke Pub where he ordered the double vodka and coke.
A subsequent report from Dr Graham Mould, a consultant in Pharmaceutical Forensic Toxicology, and a joint statement by Dr Mould and Mr Hubbard confirmed that if this scenario was accepted, then his breath or blood alcohol concentration would have been below the legal limit for driving a motor vehicle at the relevant time. They both agreed that the police breath test was higher than the result estimated by them based on this scenario, making it likely that the appellant had drunk more than he was stating.
The difficulty for the appellant lay in evidence as to timings that were formally admitted by him pursuant to Article 3 of the Criminal Justice (Evidence and Procedure)(Jersey) Law 1998. Article 4 of that Law provides:–
“4. Effect of admission
(1) An admission of a fact under Article 3 by a party in any criminal proceedings shall be conclusive evidence in those proceedings of that fact, as against that party”. (emphasis added)
(2) An admission by a party under Article 3, for the purpose of proceedings relating to any matter, shall be treated as an admission by that party for the purpose of any subsequent criminal proceedings relating to that matter.”
The admissions were based upon witness statements provided to the defence by the prosecution in relation to the following:–
-
(i) CCTV footage from Checkers.
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(ii) The police record of the timing of the call from the member of the public.
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(iii) The timing of the till receipt for the double vodka consumed at the Pembroke Pub and the evidence of the barmaid who served the appellant (taken a mere hour after the event).
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(iv) The evidence of the police officer who attended at the Pembroke Pub.
As a consequence of the admissions, those witnesses were not called at the trial.
The admissions were as follows:–
“(1) …
(2) …
(3) At approximately 18.38 hours Mr Sutherland drove J84712, a green Range Rover (“the Vehicle”) to the Checkers Express on La Rue a Don, Grouville (“Checkers Express”). Mr Sutherland entered Checkers Express and purchased some items.
(4) At approximately 18.44 hours Mr Sutherland left the Checkers Express and drove the Vehicle onto La Rue a Don and then along La Rue de la Ville es Renauds towards the Pembroke Pub.
(5) At approximately the same time a member of the public contacted the Police Control Room to report concerns about a male at Checkers Express acting as though he was drunk. The male had just left Checkers Express and was driving the vehicle. The member of the public followed the vehicle along La Rue de Ville es Renauds and saw him pull into the car park of the Pub.
(6) …
(7) At approximately 18.49 hours, Mr Sutherland entered the bar of the Pub and purchased and drank a double Smirnoff Red and a can of Coca-Cola from a barmaid in the Pub, Iwona Wawrzen. He paid the total of £6.55 in cash and used his Randalls Loyalty Card. This transaction is recorded on Exhibit GR/01/11/13/01.
(8) Mr Sutherland did not purchase or drink any other alcohol after the double...
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