MacKenzie v Attorney General

CourtCourt of Appeal
JudgeLe Quesne, Blom-Cooper and Frossard, JJ.A.:
Date13 January 1995
Le Quesne, Blom-Cooper and Frossard, JJ.A.:

Mrs. S.J. Fitz for the appellant;

C.E. Whelan, Crown Advocate, for the Crown.

Cases cited:

(1) Att. Gen. v. Bale, Court of Appeal, February 2nd, 1984, unreported, considered.

(2) R. v. Ahmed (1984), 80 Cr. App. R. 295; 6 Cr. App. R. (S.) 391; [1985] Crim. L.R. 250.

(3) R. v. Gandy (1989), 11 Cr. App. R. (S.) 564; [1990] Crim. L.R. 346.

(4) R. v. Hamilton, [1969] Crim. L.R. 486; (1969), 113 Sol. Jo. 546, dicta of Lord Parker applied.

(5) R. v. Harrow Crown Court, ex p. Dave, [1994] 1 W.L.R. 98; [1994] 1 All E.R. 315; [1994] Crim. L.R. 346; (1993), 99 Cr. App. R. 114; 158 J.P. 250, considered.

(6) R. v. Hulusi (1973), 58 Cr. App. R. 378.

(7) R. v. Newton (1982), 4 Cr. App. R. (S.) 388; 77 Cr. App. R. 13; [1983] Crim. L.R. 198.

(8) R. v. Parker (1984), 6 Cr. App. R. 444.

(9) R. v. Stevens (1986), 8 Cr. App. R. (S.) 297; [1987] Crim. L.R. 139.

(10) R. v. Taylor (1993), Criminal Appeal Office Index, Archbold, Criminal Pleading, Evidence & Practice, 1993 ed., 2nd Cumulative Index, para. A-40, at 18 (1993).

(11) R. v. Turnbull, [1977] Q.B. 224; [1976] 3 All E.R. 549; (1976), 63 Cr. App. R. 132; 140 J.P. 648; 120 Sol. Jo. 486.

(12) R. v. Williams (1990), 12 Cr. App. R. (S.) 415.

Additional cases cited by counsel:

Att. Gen. v. Ferri (C.J.), Royal Ct., June 25th, 1993, unreported.

Att. Gen. v. Ferri (M.N.), Royal Ct., May 17th, 1993, unreported.

Att. Gen. v. Vellam, Royal Ct., March 5th, 1993, unreported.

Clarkin v. Att. Gen., 1991 JLR 213.

Dick v. Dick, Court of Appeal, March 8th, 1993, unreported.

Drew v. Att. Gen., 1994 JLR 1.

Ferri v. Att. Gen., Court of Appeal, September 27th, 1993, unreported.

Fogg v. Att. Gen., 1991 JLR 31.

McFarlane v. Att. Gen., 1990 JLR N-14.

R. v. Aramah (1982), 76 Cr. App. R. 190.

R. v. Aranguren, [1994] T.L.R. 342.

R. v. Gebreel, The Times, June 7th, 1974, unreported.

R. v. Jauncey (1986), 8 Cr. App. R. (S.) 401.

R. v. Marsh, [1993] T.L.R. 375.

R. v. Smith (1988), 10 Cr. App. R. (S.) 271.

R. v. Whybrow, [1994] T.L.R. 75.

Legislation construed:

Royal Court (Jersey) Law 1948, art. 13: The relevant terms of this article are set out at page 17, lines 26-43.

Criminal Procedure—conduct of trial—prejudice to accused—apparent bias—interventions by judge at Newton hearing render sentence unsafe if (a) statement to Jurats that they must decide for themselves insufficient to overcome judge's comments adverse to defence; (b) counsel prevented from presenting defence properly; or (c) accused prevented from giving own version of events

Criminal Procedure—directions to Jurats—directions in open court—at Newton hearing, preferable that directions or summing-up to Jurats given in open court but not illegal to give in chambers—analogous to trial before Inferior Number

Criminal Procedure—sentence—Newton hearing—procedure to be adopted

The appellant was charged in the Royal Court with being knowingly concerned with the importation of a Class A drug.

The appellant travelled from Jersey to England with a party of friends, one of whom was found, on her return to Jersey, to be carrying a package containing heroin. She was charged with importing heroin and she alleged that the appellant had persuaded her to do so, although he denied it and claimed to have been merely a member of the group. On his return to Jersey he was charged and convicted following a guilty plea, but maintained that he had not been the prime mover in the offence.

Since there was thus a dispute as to the facts upon which his conviction was based, the Superior Number held a "Newton hearing" to determine the factual basis for sentencing. The main prosecution witness, the importer of the heroin, repeated her allegations and during an adjournment into chambers, the Bailiff indicated that he believed the evidence of the witness and did not consider cross-examination useful, since she had been believed by the court on previous occasions. He also expressed disbelief in the evidence to be put forward by the defence, although he stated that he had not formed any conclusions. The hearing was then resumed, cross-examination of the prosecution witness completed and the defence evidence heard, the Bailiff apparently making a number of interventions during the examination and cross-examination of the witnesses. The court then retired without the Bailiff's making made any summary of the evidence or giving any directions to the Jurats in open court. When the court returned the Bailiff stated that he had directed the Jurats in chambers as to the burden and standard of proof and that they had then unanimously found the prosecution's version of events to be correct. No reasons were given for this finding. The appellant was then sentenced on that basis.

He then appealed against his sentence, in particular on the ground that the Newton hearing had been flawed. He submitted that (a) the Bailiff's interventions during the hearing were such that he had been prevented from giving his version of events properly (although he conceded that his counsel had not been hindered in his cross-examination of the prosecution witness); (b) the Bailiff had approached the evidence with a closed mind and his statements of opinion must have influenced the Jurats in reaching their conclusions; (c) the Bailiff had failed to sum up the evidence or give directions in open court as he should have; and (d) no reasons had been given for preferring the prosecution's version of events, which vitiated the Newton hearing in that it deprived the appellant of the opportunity to challenge the decision on appeal.

The Crown submitted in reply that (a) the Bailiff's interventions had not been serious enough to vitiate the hearing; (b) under art. 13 of the Royal Court (Jersey) Law 1948, the Jurats and not the Bailiff were the arbiters of fact and since they were experienced and aware of their own role and the role of the Bailiff as the sole judge on matters of law, they were unlikely to have been influenced by his opinions on the facts; (c) although it was clearly better that directions be given in open court, the procedure adopted by the Bailiff had not been illegal; and (d) the court had no duty to give reasons for its decision after a Newton hearing, which would in any case be impractical since there were a number of Jurats involved.

The court also considered (a) the similarities between a Newton hearing and trials held before the Inferior Number; and (b) the procedure that ought to be adopted at Newton hearings.

Held, ruling as follows:

(1) It was clear that the interventions by the Bailiff had not been such as to render the proceedings invalid, for the following reasons:

(a) since by art. 13 of the Royal Court (Jersey) Law 1948 the Jurats and not the Bailiff were responsible for findings of fact and determinations of sentence, the Bailiff merely having a casting vote if necessary to ensure a majority decision (which was not the case here), it followed that the opinions of the Bailiff could not influence the Jurats if they were approaching their decision fairly, as they were, and it was relevant that they were experienced and aware of their function. Furthermore, the interventions had not so strongly invited the Jurats to disbelieve the defence evidence that they had outweighed his subsequent direction that they must decide on the facts for themselves;

(b) there was no question of the Bailiff's remarks having prevented counsel from presenting the defence or from pursuing his cross-examination of the prosecution witness; and

(c) equally, there was no question that the appellant might have been prevented from giving his own version of the events in question (page 16, line 39 - page 17, line 15; page 17, line 23 - page 18, line 34).

(2) The procedure used for the conduct of the Newton hearing could not be said to have been illegal and had in any case been similar to the long-standing practice of the Inferior Number of retiring to consider its verdict at a criminal trial without any summing-up or directions of law being given in open court. Furthermore, since the judge played no part in the factual decision in a Newton hearing, the Jurats could not be required to give reasons for their verdict. In the present case, no injustice had been caused and there was no reason to suppose that there had been any irregularity (page 19, lines 5-32; page 20, lines 1-11; lines 28-34).

(3) The following procedure ought to be adopted in future:

Once a conviction had been recorded and there appeared to be a question as to which version of events supporting it was to be believed, the judge should consider whether there was a need for a Newton hearing and if there was, counsel should be invited to formulate their own versions of the facts. If they did not agree, the rival versions should be reduced to writing and an indication of the witnesses to be called should be given. This material should be provided to the Jurats...

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