Jersey Unreported Judgments

 2001/168

ROYAL COURT

(Samedi Division)

 

31^st July 2001

 

 

The Attorney General

-v-

Gary MacKenzie

 

2 counts of:

Indecent assault; (counts 1 and 2).

 

Application by the accused re admissibility of evidence at forthcoming assize trial, opening on 22^nd August, 2001.

 

Mrs. S. Sharpe, Crown Advocate.

Advocate C.J. Scholefield for the accused.

 

 

 

JUDGMENT

 

 

THE Commissioner:

1.        I now give my ruling as to the submissions made by Counsel that certain interviews given by two young witnesses; the alleged victim, Miss B, aged eight, and her brother Master B, aged eleven, who is alleged to have witnessed the assault in count one, should be, in part, excluded for various reasons. 

2.        There are two counts of indecent assault on two separate occasions in April 2001.  Advocate Scholefield has taken me through all the leading cases with great care and I will not go into the matters contained in those cases, but I have been very much helped by his submissions.  In Archbold, in Evidence of Similar Facts, at 13-34, it says:

"A distinction should be drawn between evidence of similar facts, usually relating to offences against persons other than the alleged victim of the offence charged, and evidence of other acts or declarations of the accused indicating a desire to commit, or reason for committing the offence charged i.e. motive.  This distinction is sometimes blurred in reported decisions."

3.        But this is not a case where the accused has been charged with indecently assaulting any other children.  Advocate Scholefield argues that the evidence of Miss B must be significantly different from that of an independent adult witness because of the quality of that evidence, because those adults are impartial adults on oath.

But this, of course, is a matter on which a trial could turn on the weight of the Crown's evidence and which is essentially a matter for the jury.

4.        Fortunately, in the course of the hearing this afternoon, Crown Advocate Sharpe was able to concede very many of the passages which were in dispute.  Just four remain and I will deal with those as quickly as I can;

5.        Page six to page nine: It is argued by the Crown that all these matters are relevant to the allegation made in count two of the indictment.  Am I able to allow these questions and answers, despite the fact that they might have a prejudicial effect?  On that see DPP-v-P (1991), House of Lords 447.  We have one passage halfway through the extract which describes an alleged sexual incident but concludes with these words;

  DC609: "ok what were you wearing at the time?"

LB: "I was just wearing my knickers."

609: "Right, and what colour are your knickers?"

LB: "Um, they were red or pink.  They were pink, I think, yeah pink."

609: "Pink, ok and when did this happen?"

LB: "When I had, like, a bad dream."

609: "Can you remember what day that was?"

LB: "No - ages ago."

Now, the words 'ages ago' are possibly ambiguous, but, in my ruling, it is impossible to edit out any passage to cure what might be an ambiguity, and we must always bear in mind that we are dealing here with a child aged only eight.   

In my judgment, it is best left to be clarified by Counsel at trial and I will not exclude it at this stage. 

6.        The second passage to which objection is taken is at page four of the second interview of Miss B and it reads:

 609: "Right ok, now you have said that he kisses you from the top here, you mean your head and then he goes down to your private"

LB: "And then he bites me"

609: "He bites you there, right.  Now, are you wearing clothing when he does this?" 

LB: "Um, I had my trousers on and my top" 

609: "Right, and  he actually bites you on your private?"

LB: "Yeah" 

609: "ok" 

LB: "And, in my head I said ow, and then, like, whenever he goes on top of me he makes a noise, a funny noise" 

609: "ok, when did this last happen?"

7.        Now, what Advocate Scholefield put to me was that that wording is slightly in conflict with the wording of the next passage, which is not objected to, which reads (the question from 609 ' when did this last happen?') and the answer is this:

LB: "Um, like, when my mum was at a darts competition, no it wasn't a, I think it was, I don't know, I think it was.  My mum was playing darts and then um she wanted um to talk to her friends and so she was talking to her friends and then she wanted um to stay with her friend, so she stayed with her friends and then that's, and then um I went to take my shoes off and then um I went to ask Gary what we're having for our's tea, our tea and he just, and then he, and then I laid on the bed because I was tired and then he went on top of me and he kissed me up there, up to there and he bit me on my private."

8.        Now, the argument is that that latter passage is really totally specific, whereas the earlier passage is general.  The latter passage fixes the alleged incident in time, because of the darts match and the use of the past tense.  I have considered this point very carefully, but in my judgment it goes to weight rather than to admissibility and I reject the submission that this evidence should be ruled inadmissible.

9.        The last remaining point of submission lies in Master B's statement, as to whether he had a clear view, or whether in making that statement, he was being lead into his answer by the WDC.  I reject the submission that this is leading by the officer and that it should be excluded and also that the later statement in the questioning of Master B should also be excluded;

609: ''ok, now you had a very good view of what was going on..ok,,.how long were you standing by the door watching this?"

CB: "About three minutes."

That, again in my judgment, is well within the context of what is being said by way of clarification and I reject the submission that it should be excluded.

10.      Finally, we have an objection to a passage about the accused's body going up and down.  Again, in my judgment, the passage taken in context with what has gone on before in the question and answer is not objectionable and, on that basis, I leave it to stand for trial, when the trial is fixed to take place.  

 

 

   

 

 

Authorities

AG-v-Holley (5^th June 2001) Jersey Unreported; [2001/127A];

DPP-v-P. (1991) 2 AC 447.

Archbold (2000 Ed'n): para 13 -7; 13-34 13-38.

Blackstone's Criminal Practice (2001 Ed'n): F12.8-F12.18

R-v-Ananthanarayanan (1994) 2 All ER 847 CA.

Boardman-v-DPP (1974) 3 All ER 887 HL.

Bainbridge-v-AG (1998) JLR 221 CofA.

R-v-P (1991) 3 All ER 337 CA.

AG-v-Adams (9^th November 1998) Jersey Unreported; [1998/223]

May: Criminal Evidence (4^th Ed'n): Ch.6: Evidence of Disposition: 1: Similar Facts.

Ibid: Ch.12: Discretion to exclude evidence.