Jersey Unreported Judgments

2000/217A

3 pages

ROYAL COURT

(Samedi Division)

 

6^th November, 2000

 

Before:  Sir Philip Bailhache, Bailiff,

and a Jury

 

The Attorney General

-v-

Leocadio Da Silva Maltez

 

Criminal Assize

 

1 count of grave and criminal assault.

 

The accused was found not guilty by the Jury on 8^th November, 2000, and was discharged.

 

Application by the accused, in the absence of the Jury, for an Order that the addendum to the report of Dr Margaret Joyce Bayes of 31^st October, 2000, be held to be inadmissible, on the ground that it was not disclosed in reasonable time, pursuant to Rule 3(1) of the Criminal Procedure (Notice of Expert Evidence) (Jersey) Rules, 2000.

 

 

P. Matthews, Esq., Crown Advocate.

Advocate R. Tremoceiro for the accused.

 

JUDGMENT

 

THE BAILIFF:

 

1.            This is an application by defence counsel in relation to evidence which the prosecution seek to adduce from Dr Margaret Bayes giving her opinion as to the nature of a bite which would have left a mark upon the very calloused hands of the defendant.

 

2.            The history of the matter is that the defendant was charged with this offence in December, 1999, and on 16^th February, 2000, the prosecution disclosed the evidence which was to be adduced in support of its case.

 

3.            A report which had been prepared by Dr Bayes recording her examination of the defendant was not included in that bundle.  More importantly, however, the second or third report of Dr Bayes expressed an opinion in these terms:

 

"In my opinion the appearance of both hands of Leocadio Maltez when examined on 5^th December, 1999, at 4.40 pm showed very calloused hands indicating heavy manual work.  If the hand had been bitten only a severe bite would have left a mark."

 

4.            This opinion was not disclosed to the defence until 1^st November, 2000, that is approximately five days ago.  The reason for the late disclosure is quite simply that the conduct of the prosecution case changed in September, 2000, and was only at that stage assigned to prosecuting counsel who now appears.

 

5.            The Criminal Procedure (Notice of Expert Evidence) (Jersey) Rules, 2000 provides at Rule 3(1):

 

"A party to criminal proceedings who wishes to adduce expert evidence shall give each other party, as soon as practicable, a statement in writing of any finding or opinion that he proposes to adduce by way of such evidence."

 

 

6.            Mr Matthews very properly concedes that notice of the opinion evidence of Dr Bayes was not provided to the defence as soon as practicable.  Mr Matthews, however, contends that the Court ought to grant leave under Rule 6 to adduce the evidence notwithstanding the failure to comply with Rule 3.

 

7.            Mr Tremoceiro has submitted that that leave should not be granted.  The failure to give him notice of the expert evidence of Dr Bayes deprived the defence of the opportunity to seek expert opinion from another, or, indeed, to seek advice as to the nature of Dr Bayes' expertise in this particular field.

 

8.            In my judgment the fairness of the case requires that I should refuse leave to the prosecution and leave is accordingly refused.

Authorities

 

 

Archbold (2000 Ed'n): para 10-68.

 

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