Jersey Unreported Judgments

[2006]JCA190

COURT OF APPEAL

14^th December 2006

Before     :

Sir Philip Bailhache, Kt., Bailiff, President; M. S. Jones, Esq., Q.C., and; M. C. St. J  Birt, Esq., Deputy Bailiff.

Peter Wilson Michel

And

Simone Anne Gallichan

-v-

The Attorney General

Application for leave under Article 90 of the Police Procedures and Criminal Evidence (Jersey) Law 2003, to appeal a decision of the Royal Court in a preparatory hearing on 1^st December 2006.

Advocate D. F. Le Quesne for Michel.

Advocate C. M. Fogarty for Gallichan.

C. E. Whelan, Esq., Crown Advocate.

JUDGMENT

THE PRESIDENT:

1.        This is an application by the Crown for leave to appeal against a decision of Commissioner Nice Q.C. given on 1^st December 2006.  The Commissioner allowed the prosecution's application to adduce evidence that the defendants had committed the offence which was charged in count 4 of the original Indictment, but refused the application by the prosecution to adduce in evidence the conviction recorded against the defendants in respect of that count at the forthcoming trial on the remaining counts on the Indictment.

2.        The learned Commissioner found that the underlying facts were admissible in law, but he held that he would exercise his discretion to exclude the evidence of the conviction under Article 76 of the Police Procedures and Criminal Evidence (Jersey) Law 2003, on the basis that, having regard to all the circumstances, the admission of the evidence would so adversely affect the fairness of the proceedings, that the Court ought not to admit it.

3.        Mr Whelan seeks to persuade the Court that the decision of the learned Commissioner was irrational, in a technical sense, and ought to be overturned.  It is clear on the authorities that the Crown has a heavy burden to discharge in seeking to persuade this Court that the trial Judge's exercise of discretion ought to be overruled.  In G-v-G [1985] 1 WLR 647 Lord Fraser of Tullybelton stated, in the context of a child custody case, but in terms which are clearly of general application -

"Certainly it would not be useful to enquire whether different shades of meaning are intended to be conveyed by words such as: "blatent error", used by the President in the present case, and words such as "clearly wrong", "plainly wrong" or simply "wrong" used by other Judges in other cases." 

All these various expressions were used in order to emphasise the point that the appellate Court should only interfere when it considers that the Judge of first instance has not merely preferred an imperfect solution, which is different from an alternative imperfect solution, which the Court of Appeal might, or would have adopted, but has exceeded the generous ambit within which a reasonable disagreement is possible.

4.        We intend no disrespect at all to the careful submissions of the Crown Advocate in support of his contentions, but given the shortness of time we will not deal with the individual submissions which he laid before the Court.  It is sufficient to give our conclusion which is that the trial Judge exercised a discretion on the facts of this case to exclude the evidence of the defendants' conviction on count 4, and that that exercise of discretion cannot, in our judgment, be characterised as plainly, or clearly wrong.  If follows that the application for leave to appeal must be refused.

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003.

G-v-G [1985] 1 WLR 647.