Lundy v Attorney General

JurisdictionJersey
CourtCourt of Appeal
JudgeBailhache, Bailiff and Le Quesne and Harman, JJ.A.:
Judgment Date05 June 1996
Date05 June 1996
COURT OF APPEAL
Bailhache, Bailiff and Le Quesne and Harman, JJ.A.:

R.G.S. Fielding for the appellant;

M.C. St.J. Birt, Q.C., Attorney General and A.J.N. Dessain, Crown Advocate, for the Crown.

Cases cited:

(1) Att. Gen. v. Bale, 1983 J.J. 7; on appeal, sub nom. Bale v. Att. Gen., Royal Ct., February 2nd, 1984, unreported, overruled.

(2) Campbell v. Att. Gen., 1995 JLR 136.

(3) R. v. Andrews, [1987] A.C. 281; [1987] 1 All E.R. 513; [1987] Crim. L.R. 487; (1987), 84 Cr. App. R. 382; 151 J.P. Jo. 254; 131 Sol. Jo. 223, applied.

(4) R. v. Christie, [1914] A.C. 545; sub nom. D.P.P. v. Christie, [1914-15] All E.R. Rep. 63; (1914), 111 L.T. 220; 30 T.L.R. 471; 83 L.J.K.B. 1097; 10 Cr. App. R. 141; 24 Cox, C.C. 249; 58 Sol. Jo. 515, considered.

(5) Ratten v. R., [1972] A.C. 378 ([1971] UKPC 23); [1971] 3 All E.R. 801; (1971), 56 Cr. App. R. 18; 136 J.P. 27; 15 Sol. Jo. 890, applied.

(6) Subranamian v. Public Prosecutor, [1956] 1 W.L.R. 965; (1956), 100 Sol. Jo. 566, considered.

(7) Tilley v. Att. Gen., Guernsey Court of Appeal, November 27th, 1973, unreported, followed.

Additional cases cited by counsel:

Att. Gen. v. Aubignac, Royal Ct. (1980), 41 P.C. 353, unreported.

Att. Gen. v. Bevis, Royal Ct., May 8th, 1996, unreported.

Att. Gen. v. Burke, Royal Ct., January 24th, 1996, unreported.

Att. Gen. v. Cabot, Royal Ct., December 4th, 1995, unreported.

Att. Gen. v. Dowbiggin, Royal Ct., December 21st, 1995, unreported.

Att. Gen. v. Ernest Augustus of Hanover (Prince), [1957] A.C. 436.

Att. Gen. v. Heuz, Royal Ct., July 22nd, 1988, unreported.

Att. Gen. v. Kelly, 1982 J.J. 275.

Att. Gen. v. Plowright, C.A., July 3rd, 1995, unreported.

Att. Gen. v. Rafferty, 1995 JLR N-23.

Att. Gen. v. Russell-Biggie, Royal Ct., August 31st, 1995, unreported.

Att. Gen. v. Seddon, Royal Ct., October 30th, 1995, unreported.

Bartlett v. Smith (1843), 152 E.R. 895.

Basto v. R. (1954), 91 C.L.R. 628.

Boyle v. Wiseman (1855), 156 E.R. 870.

Chan Wei Keung v. R., [1967] 2 A.C. 160.

Daley v. R., [1994] 1 A.C. 117.

Goodman v. Att. Gen., 1995 JLR N-11.

Homes v. Newman, [1931] 2 Ch. 112.

Neild v. Att. Gen., C.A., September 28th, 1994, unreported.

R. v. Ashton-Rickhardt (1977), 65 Cr. App. R. 67.

R. v. Bradish, [1990] 1 Q.B. 981.

R. v. Davis (1975), 62 Cr. App. R. 194.

R. v. Galbraith, [1981] 1 W.L.R. 1039.

R. v. Kearley, [1992] 2 All E.R. 345.

R. v. Lewis (1988), 87 Cr. App. R. 270.

R. v. McNamara (1988), 87 Cr. App. R. 246.

R. v. Orpin (1974), 59 Cr. App. R. 231.

R. v. Sang, [1980] A.C. 402.

R. v. Turnbull, [1977] Q.B. 224.

R. v. Wright (1975), 62 Cr. App. R. 169.

Warner v. Metropolitan Police Commr., [1969] 2 A.C. 256.

Legislation construed:

Royal Court (Jersey) Law 1948, art. 13: The relevant terms of this article are set out at page 199, line 35 - page 200, line 8.

Text cited:

Phipson on Evidence, 14th ed., para. 29-01, at 706 (1990).

Evidenceadmissibilityquestion of lawRoyal Court's decision on admissibility of evidence properly made by judge alone since that issue, including ancillary findings of fact, is question of law under Royal Court (Jersey) Law 1948, art. 13(1) and not for Jurats

Evidencehearsayres gestaestatement of person not called as witness properly admitted in evidence if made as instinctive reaction to events, giving no opportunity for concoction or distortionappropriate direction on accuracy of evidence required

The appellant was charged in the Royal Court with possession of and possession with intent to supply controlled drugs.

The appellant and another, F, had been associates in a number of criminal enterprises although the appellant denied that these had ever included drug dealing. Witnesses saw the appellant on two occasions enter a derelict building and on their information, the police discovered two packets there, one containing LSD and the other amphetamines. The packets were left in place and a surveillance operation was mounted; when the appellant was later seen leaving the building (and it was later discovered that he had removed the packet containing LSD), he was confronted and chased by police officers.

During the chase, F ran alongside the appellant and, according to one of the police officers, said to him: "Have you got the acid Give me the acid," although the appellant alleged that he had merely been asked what was wrong. The appellant apparently made no reply. He was subsequently caught, but F was never apprehended. The appellant later claimed that F had asked him to fetch the packet but had not told him it contained drugs.

At the appellant's trial before the Royal Court (Hamon, Deputy Bailiff and Jurats Blampied and Vibert), the question arose whether evidence of F's words given by the police officer was admissible and the Deputy Bailiff, purportedly as sole judge of law under art. 13(1) of the Royal Court (Jersey) Law 1948, sat in the absence of the Jurats to consider this question. He decided to admit the officer's evidence on the grounds that (a) it was not hearsay, even though it was evidence of words spoken by a person who was not himself called as a witness, since the statement of F could be regarded as an introduction to the reaction of the appellant to that statement; and (b) the statement was made spontaneously in the course of the events in question and was therefore admissible as part of the res gestae. The Jurats subsequently found the appellant guilty as charged (in proceedings noted at 1995 JLR N-9).

On appeal, the appellant submitted, inter alia, that (a) the evidence of F's alleged statement was inadmissible hearsay evidence and could not be regarded as an introduction to the appellant's reaction to it, since he had not in fact reacted at all, nor was it part of the res gestae; (b) having admitted the evidence as part of the res gestae, the Deputy Bailiff had failed properly to direct the Jurats of the danger of accepting its truth; and (c) in any case, the court had been improperly constituted when deciding the issue of admissibility, which was a mixed question of law and fact and in so far as there were factual questions to be decided, by art. 13(2) of the 1948 Law these matters were to be decided by the Jurats and not by the Bailiff.

The Crown submitted in reply that (a) the evidence of F's words was properly admitted as part of the res gestae since they were spoken as a spontaneous reaction to the events then taking place, leaving no danger that F could have concocted or distorted his words merely for his own advantage or to the appellant's disadvantage; (b) in all the circumstances, the Deputy Bailiff had properly directed the Jurats to consider whether the police officer or F had been mistaken in any way; and (c) the Deputy Bailiff had properly decided the admissibility issue in the absence of the Jurats because that whole issue, including any ancillary questions of fact, was a matter of law which by art. 13(1) of the 1948 Law was for him alone; furthermore, to decide otherwise would require that the Jurats would hear evidence which might subsequently be ruled inadmissible, which would make their decision harder.

Held, dismissing the appeal:

(1) The Jurats had properly been absent when the Deputy Bailiff had ruled that F's statement was admissible. By art. 13(1), the whole question of admissibility, including ancillary findings of fact, was a matter of law of which the Bailiff or any of his substitutes was the sole judge. By art. 13(2), it was for the Jurats to decide whether the appellant was guilty on the basis only of the admissible evidence and while it would have been possible for them to have done so having heard and disregarded any inadmissible evidence there might have been, to require them to do so would have imposed an additional and unnecessary burden on them (page 200, line 38 - page 202, line 17).

(2) On the evidence, the Deputy Bailiff had properly admitted F's statement as part of the res gestae, since it was an integral part of the event, made as an instinctive reaction to the appellant's behaviour, and giving F no time for reasoned reflection, so as to exclude the possibility that he had concocted or distorted his words to his own advantage or the appellant's disadvantage. It was therefore unnecessary to consider whether the statement was admissible to establish the appellant's reaction to it and indeed, he had not reacted; rather, its relevance was that it was evidence of a close criminal association between F and the appellant. Having properly reached this conclusion, the Deputy Bailiff had then gone on to direct the Jurats that it was for them to consider whether, on the evidence, the statement was actually made as alleged, whether F had been mistaken in any way when he spoke and what significance his statement might have borne. For these reasons there was no ground for complaint and the appellant's conviction would be upheld (page 203, lines 14-24; page 204, lines 14-33; page 205, line 8 - page 207, line 40).

BAILHACHE, BAILIFF: On February 24th, 1995, this appellant appeared before the Royal Court and pleaded not guilty to an indictment containing four counts. The first count charged him with being in possession of a controlled drug, namely LSD on October 26th, 1994, with intent to supply it to another. In the second count he was similarly charged with having in his possession with intent to supply a controlled drug on the same date, namely amphetamine sulphate. Both these offences as charged were contrary to art. 6(2) of the Misuse of Drugs (Jersey) Law 1978. Counts 3 and 4 charged him with simple possession of the same drugs, that is to say LSD and amphetamine sulphate respectively, contrary to art. 6(1) of the Misuse of Drugs (Jersey) Law 1978.

The appellant was then remanded to be tried by the Inferior Number enpolice correctionelle, which trial took place on June 7th and 8th, 1995.

Although Counts 3 and 4 were presumably intended to be alternative to Counts 1 and 2, the...

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