The Attorney General v Francis O'Neill

JurisdictionJersey
CourtRoyal Court
JudgeDeputy Bailiff
Judgment Date26 October 2018
Neutral Citation[2018] JRC 199
Date26 October 2018

[2018] JRC 199

ROYAL COURT

(Samedi)

Before:

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Grime and Ronge.

The Attorney General
and
Francis O'Neill

J. C. Gollop, Esq., Crown Advocate.

Advocate J. W. R. Bell for the Applicant.

Authorities

Graham v Attorney General [2013] (1) JLR 91.

Lewis & others v AG [2013] (1) JLR 325

Bennett v AG [2015] JCA 019

Le Pavoux v AG [2016] JRC 115

Appeal (Criminal) — further reasons for the Court's decision.

Deputy Bailiff

THE

1

On 16 th June, 2017, Mr Francis O'Neil (“the Appellant”) was convicted following a trial before the Magistrate's Court with regard to a single charge of common assault on the Complainant.

2

The Appellant appealed against his conviction and on 16 th July, 2018, this Court allowed the appeal and overturned his conviction. At that time we said that we would provide further reasons for our decision. These are those reasons.

The alleged assault
3

The incident upon which the charge against the Appellant was concerned took place on 13 th February, 2017. The Appellant lived in St Helier. Noise from carpentry work was coming from a neighbour's house renovation.

4

After unsuccessfully telephoning the Parish to raise concerns relating to the noise the Appellant then went to the neighbour's house to complain about it. He knocked on the door and went through, the door being open, into the hallway of the house. He spoke to the Complainant who was working on the stairs. The Complainant alleged that the Appellant reached up and pulled him down the stairs causing an injury to the back of his head. The Complainant was not alone and his brother and one of their friends were present and, in the trial of this matter, gave an account that was similar to but not exactly the same as that given by the Complainant.

5

Both Mr O'Neil and the Complainant separately called the police. Although the Complainant was spoken to by attending police officers, unfortunately the body worn video footage of this initial account was later deleted by the States of Jersey Police in error. During interview the Appellant said that the Complainant had been abusive to him and had taken hold of him and pushed him down the stairs. Importantly, the Appellant denied being physically capable of grabbing or striking the Complainant in the way alleged because he, the Appellant, has a disabled left arm as a result of a serious accident at work some years earlier.

6

The Appellant was represented by counsel in his trial before the Magistrate's Court although he was represented by different counsel on this appeal. A key point in the appeal is the failure by the Appellant's counsel to call expert evidence with regard to the injury asserted by the Appellant and, although being told of the injury, it is asserted that the Relief Magistrate failed properly to take into account its existence.

The Law
7

The approach of the Royal Court in considering appeals from the Magistrate's Court has been the subject of judicial consideration.

8

In Graham v Attorney General [2013] (1) JLR 91 the Royal Court said this:

“The Magistrate's Court ( Miscellaneous Provisions) (Jersey) Law 1949 provides as follows at art. 20(3):

“On any appeal under Article 17, the Royal Court may by order confirm, reverse or vary the decision of the Magistrate's Court, or may remit the matter with its opinion thereon to the Magistrate's Court, or may make such other order in the matter as it thinks just, and may by such order exercise any power which the Magistrate's Court might have exercised, and any order so made shall have the like effect and may be enforced in like manner as if it had been made by the Magistrate's Court.”

Article 17 does not itself give any indication as to the basis upon which an appeal from the decision of the Magistrate should be approached by the Royal Court. Nonetheless, it is clear that, if there has been some procedural defect before the Magistrate which is of sufficient significance, the Royal Court will interfere with the decision below; and it is also quite clear that the court occasionally directs that witnesses are heard before the Royal Court in relation to the appeal, as indeed we have done. Similarly, where there is an issue of law where the Royal Court is of the view that the Magistrate went wrong in a material way, the court will invariably interfere with the decision below. Where there is simply a complaint about the evidence that was given, the court's approach has been said on many occasions to be that set out in Rushton v Att. Gen (7), where the court said:

“The court of course has on many occasions said that its duty in looking at an appeal on conviction from the Magistrate below is to examine the transcripts to see if there is evidence on which the Magistrate concerned could properly have come to the decision he did. If there was that evidence, then even though the court might not necessarily have come to the same decision, the court does not lightly interfere with it. The court has to be satisfied that there was insufficient evidence of the Magistrate to have come to the decision he did, or that he drew the wrong conclusions and inferences from the evidence before him.”

We mention this background because an appeal to the Royal Court is not in the same terms as an appeal under art. 26 of the Court of Appeal (Jersey) Law 1061 where the appeal is taken from the Royal Court to the Court of Appeal. The language of the statute in that case is as follows:

“(1) Subject to the following provisions of this Part, on any appeal against conviction, the Court of Appeal shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that, on any ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal:

Provided that the court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

It is clear, therefore, that the Royal Court's approach to appeals from a decision of the Magistrate has historically been that it will not lightly interfere with a decision on the facts where the transcripts reveal that there was evidence on which the Magistrate could properly have come to the conclusion which he or she did. That approach is taken to give appropriate recognition to the principle that the Magistrate is in a better position than the Royal Court because he or she has had the advantage of seeing the witnesses give their evidence .

Nonetheless, it is to be recalled that the terms of the statute give the Royal Court a wide discretion on appeal. In our judgment, there will occasionally be cases where the court is simply uncomfortable with what has taken place below. In England, the changes which were introduced by the Criminal Appeal Act 1968 removed the similar language as in the Court of Appeal (Jersey) Law 1961 and instead permitted the Court of Appeal to allow an appeal against conviction if the court considered the decision below was under all the circumstances of the case unsafe or unsatisfactory, as well as setting aside the decision on a ground of law or where there was a material irregularity in the trial. When this was considered in R v Cooper (4), the court said this ( [1969] 1 Q.B. at 271):

“[The shift to unsafe and unsatisfactory] means that in cases of this kind the court must in the end ask itself a subjective question, whether we are content to let the matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been done. This is a reaction which may not be based strictly on the evidence as such; it is a reaction which can be produced by the general feel of the case as the court experiences it.”

There has from time to time been both judicial and academic criticism of the expression “lurking doubt”, but the Court of Appeal in England has continued to refer to this test from time to time (see R. v Litchfield (5) and R. v Benton (3)). It was said that the “lurking doubt” test and an alternative formulation advanced in R. v Wellington (6) – “whether we feel a reasoned and substantial unease about the finding of guilt” – are both acceptable and come to the same thing: “Was the conviction unsafe?” ( 2000 WL 491414, at paras. 28–29).

We consider that the tests as set out in Rushton v Att. Gen (7) will, absent any other considerations, be sufficient in most cases to lead to an appeal being refused where there was evidence upon which the Magistrate could reasonably reach the conclusion he or she did. However, the qualification in the Rushton case, that the court would not lightly intervene where those were the facts, is an important qualification because it chimes with the lurking doubt/sense of unease approach which has been advanced from time to time in the English courts on an admittedly different statutory test.”

9

The test which an appellate court should apply in circumstances where complaints are levelled against a previous legal representative was set out by the Court of Appeal in Lewis & others v AG [2013] (1) JLR 325 where Nutting JA said this:-

“269. It is important to assess the significance of these complaints against the authorities. There is limited jurisprudence in this jurisdiction; but there are two strands of authority emanating from appellate courts in London and elsewhere in recent years concerning cases of alleged incompetence by counsel during the course of a trial. The first strand evaluates the nature of the incompetence. The second focuses on...

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