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Jersey Unreported Judgments |
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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Vibert v AG [2012] JRC 181 (11 October 2012) URL: http://www.bailii.org/je/cases/UR/2012/2012_181.html Cite as: [2012] JRC 181 |
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(Samedi)
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Before : |
W. J. Bailhache, Q.C., Deputy Bailiff and Jurats Morgan and Kerley. |
Cyril John Vibert
-v-
The Attorney General
Magistrate's Court Appeal.
The Appellant appeared in person.
Advocate S. O'Donnell for the Attorney General.
JUDGMENT
THE DEPUTY BAILIFF:
1. On 27th April 2012 the Appellant was convicted of using a motor vehicle registration J25152 at a parking space specified in Parts 1, 2 or 3 of Schedule 8 to the Road Traffic (St Helier)(Jersey) Order 1996 (as amended) ("the Order") without displaying a valid parking card and fined £100 or three days imprisonment in default. The Appellant was also ordered to pay prosecution costs in the sum of £100. He appeals against both of those orders on the following grounds:-
(i) He did not receive full disclosure;
(ii) The prosecution did not establish jurisdiction;
(iii) There was no valid cause of action;
(iv) The Assistant Magistrate failed to confirm her oath of office when requested;
(v) The Assistant Magistrate's verdict was not based on the evidence and/or the facts;
(vi) The Assistant Magistrate was conflicted.
2. The Appellant reserved the right to add to his grounds of appeal after he had read the transcripts of the trial and his notice of appeal indicated that he may wish to ask for a retrial.
3. There was a second charge brought before the Assistant Magistrate namely that on the same occasion the Appellant, as the owner of the said vehicle J25152 failed to give information as was required by or on behalf of the Centenier as the Parish of St Helier as to the identity of the person in charge of that vehicle at the time of the commission of the alleged offence, thus rendering himself liable to the penalties set forth in Article 86(1)(a) of the Road Traffic (Jersey) Law 1956 (as amended) (the "Law").
4. The appeal was listed for hearing on 25th June. On that day, the Appellant made these applications:-
(i) To call further evidence, namely a copy of PC O'Neill's pocket book.
(ii) To have an adjournment so that the Home Secretary and the Justice Secretary might intervene and adjudicate with a view to appointing an independent police force to look into the Appellant's allegation that the transcripts of the hearing before the Magistrate's Court were incomplete.
(iii) To have an adjournment generally as he was not ready to proceed with the appeal.
5. The Court dismissed the first two applications and agreed to the request for a general adjournment. Accordingly the appeal was deferred to 10 a.m. on 26th July and the Appellant was present in Court when that date and time were set.
6. The application to call further evidence was based upon the contention that the two police officers who gave evidence at trial had committed perjury. The only false statement upon which the Appellant relied for this purpose was PC O'Brien's evidence that when he cautioned the Appellant and asked the Appellant whether he understood the caution, the witness said that the Appellant shook his head from side to side. The Appellant contended and contends that he said "no I do not understand". The witness asserted that he was standing directly in front of the Appellant, and that all the Appellant did was to shake his head on two separate occasions. The relevance of seeking the admission of PC O'Neill's pocket book is the Appellant's view that that pocket book should contain the language which he remembers was used by PC O'Brien and was recorded by PC O'Neill. He saw what was in this part of the notebook because in accordance with usual practice he was shown the entries and signed the book himself.
7. No notice of the request to have the pocket book put in evidence was given to the Crown, and it was not available on 25th June. However, we did not give leave to the Appellant to introduce further evidence because it seemed to us that the further evidence was not material for the purposes of the appeal. Whether the Appellant shook his head in answer to the question "do you understand", or whether he said "no I do not understand" is not relevant to the matters which the Court had to resolve on this appeal. In any event, any natural construction of evidence that the Appellant shook his head when asked the question "do you understand?" would be that the Appellant did not understand and, absent any other evidence, there is no real difference between the Appellant saying he did not understand and the Appellant shaking his head in answer to the question.
8. The second application was to have an adjournment so that the Home Secretary and Justice Secretary might appoint an independent police force to look into the Appellant's allegation that the transcripts of the hearing before the Magistrate's Court were incomplete. This application simply misunderstands the jurisdiction of the Home Secretary and the Justice Secretary in this Island. As holders of those official positions in the government of the United Kingdom, they have no jurisdiction here. There is no law which confers any such powers, and to hold that they did have such powers offends basis democratic principle. The holders of those offices of state in Her Majesty's Government in the United Kingdom are, however, usually privy councillors and in that capacity, they may not only advise Her Majesty but, within the procedures established by Her Majesty in Council, act on behalf of the Crown. In relation to this part of the Appellant's application, the question therefore is whether the Crown has power to intervene and adjudicate with a view to appointing an independent police force to examine the Appellant's allegation.
9. The first answer to this is that any such exercise of Crown power, assuming it to be lawful, would be an administrative exercise of executive power which, in our view, would be subject to the control of the Courts on judicial review on the application of usual principles. The Court would be in the position of reviewing whether the Crown's exercise of power was or was not lawful, and it is constitutionally inappropriate to suggest that the Courts should be calling upon the executive to administer such powers. Secondly, in any event, the power of the Crown to intervene in the way in which the Appellant has contended, could only be lawful, so it seems to us, if based upon some existing legislation or upon the Crown's reserve powers to intervene in the interests of good government. We are not aware of any legislation which would enable such intervention in the manner requested by the Appellant. In our judgment the reserve powers of the Crown to intervene in the interests of good government are not engaged here either. The nature of the Appellant's complaint is that he asked the Assistant Magistrate the question "am I presumed innocent", and that he recalls the Assistant Magistrate answered "yes", and yet when one reads the transcript the exchange went as follows:
"Assistant Magistrate: This is for the prosecution to prove their case beyond reasonable doubt.
Mr Vibert: So I am presumed innocent of these alleged offences?
Assistant Magistrate: Well it is for the prosecution to prove the case against you.
Mr Vibert: And that's to beyond a reasonable doubt?
Assistant Magistrate: That's correct."
10. It seems to us that in effect the Assistant Magistrate was indeed confirming that Mr Vibert was presumed innocent of the alleged offences, no doubt because that is the way in which the law, and particularly the European Convention on Human Rights, works. Accordingly, even if it is right that the transcript omitted the word "yes" in the Magistrate's answer, that is not material, and certainly does not go anywhere near establishing the breakdown of law and order which it would be necessary to establish to justify the intervention of the Crown on the basis of its reserve powers.
11. The Appellant contended that there was a further specific question which was missing namely "am I presumed innocent of all the elements of this alleged crime?" His submission was that statute law did not apply to him because he was not an agent or an employee of the States of Jersey, which is a body corporate. He is self-governed, and not operating according to the statutes of the Island. He asserted that he was only present because he was threatened with violence and arrest, and that was a matter of duress. Before us, Mr Vibert explained that he was not making a general appearance in the Magistrate's Court, it was "a special visitation specifically, to challenge jurisdiction which I wasn't allowed to do in the end Sir".
12. As we indicated on 25th June, these arguments were not capable of giving rise to a legitimate complaint in this Court. The States of Jersey is the Island's legislature. It makes provision for laws which, once given assent by Her Majesty the Queen, bind all of us, including members of this Court. If the complaint is that there is a section missing in the transcripts in relation to the question "am I presumed innocent of all the elements of this alleged crime" and the reason for wanting to put that before the Court is that the Appellant is not bound by the statutory legislation of this Island, the application makes no legal sense. Accordingly it was dismissed.
13. As we have indicated the application for a general adjournment to 10 a.m. on 26th July was agreed and that order was made. Unfortunately, the Appellant did not appear at 10 a.m. on 26th July to conduct his appeal, and he was unrepresented. The Court waited until 10.30 am to give him the opportunity of either appearing late or making contact with the Judicial Greffier to give some explanation as to why he was not present. In the absence of his appearance or contact, the Court sat and dismissed the appeal. We made it clear that we were dismissing the appeal on its merits quite apart from the failure of the Appellant to appear. However we add that in our judgment, the failure of an Appellant to appear is capable of being a reason of itself to dismiss his appeal.
14. We now turn to the substance of the appeal on the papers.
15. It is clear from the transcript that the Appellant did not accept responsibility for either of these charges, and accordingly the prosecution called evidence in the usual way. The first witness was Parking Control Officer Sarah Le Miére. Her evidence was that she noticed vehicle J25152 was parked in Grosvenor Street on 21st December 2011, and no pay card was displayed notwithstanding it was parked in a pay card area. Accordingly she issued a fixed penalty notice. The time was 10.31. In her evidence she also indicated that she took a number of photographs, in accordance with usual practice. She took a photograph of the number of the vehicle; views of the windscreen and side windows to show that there was no ticket on the vehicle which was there, and a photograph of where the vehicle was in the street, with the penalty notice on the window. Those photographs were produced in evidence. Mr Vibert, who conducted his own defence, asked a number of questions which did not have any relevance to the issue which was before the Court, but he did elicit a confirmation that the witness did not know who was driving the vehicle on the morning of 21st December 2011, and had no evidence to give to the Court in that respect. He also elicited from the witness evidence that she was not aware whether he was within the Parish of St Helier at the time of the alleged offence.
16. The Court then heard from Mr Aaron Machin, who is employed at the Driver and Vehicle Standards Department. He produced to the Court the original vehicle registration document, namely a transfer of the vehicle into the name of the Appellant, which was received on 14th October 2010. The vehicle registration document gave the address of the Appellant as 10 Haut de la Rue Farm, St Martin. The vehicle registration document was completed with signatures in boxes 1 and 3, which the witness took to be the signature of the Appellant as the new registered owner. In cross examination, the Appellant elicited a confirmation from Mr Machin that the registered owner is not necessarily the same as the legal owner of the vehicle, and that the information which the Driver and Vehicles Standards Department record is the name of the registered owner. There was also considerable cross examination as to the manufacturer's certificate of origin, which does not seem to us to be relevant to this case.
17. The Court then heard from Police Constable O'Brien who has been a police officer in Jersey for just over 10 years. On 13th April 2012 he went to 10 Rue de Haut Farm, St Martin to speak to the Appellant, who confirmed he was the registered keeper of the motor vehicle J25152. He asserted that Driver and Vehicle Standards Department were the owner. The officer saw the vehicle parked outside the flat. There was a conversation between them. The Appellant said that "I don't consent to any traffic law". He was asked if he had been the driver, or who was driving at the time of the alleged offence in December 2011 and said that he did not remember. When cautioned for the offence of failing to provide the information requested, he said "I don't remember" and "I wasn't driving". He went on to say that he did not recognise statute law but only common law. In cross examination, the Appellant put the terms of Article 86(1)(a) of the Law to the police officer, and asked him to confirm that the Article referred to the owner of the vehicle and not the registered keeper. The witness responded that "substantially, I think, that is the same, the same thing". There was again extensive cross examination of the witness on matters which we do not think are relevant to this case. The Appellant did elicit from the witness a confirmation that the witness did not know the difference between the registered keeper and the legal owner of a registered vehicle although he imagined they were substantially the same. The fourth witness was Police Constable O'Neill, who had accompanied Police Constable O'Brien to the Appellant's address in April 2012. The Crown Advocate did not lead any evidence from the police officer but at the Appellant's request, tendered him for cross examination. The police officer was challenged as to whether the registered keeper was the same as the legal owner, and he indicated that the two should be the same but the matter could be disputed, and that would obviously be a civil argument. Later in his cross examination, there was this exchange:-
"Mr Vibert: Can you tell me, please, why did you interview and caution the registered keeper of the vehicle and not the owner?
Witness: Ok, on the day you confirmed to me that you were user of the vehicle.
Mr Vibert: Right I, I, I may have said that I sometimes use it.
Witness: You did.
Mr Vibert: But that is completely different from
Witness: You're also the registered keeper of the vehicle
Mr Vibert: I am the registered keeper, yes.
Witness: And you would have had knowledge of who was using the vehicle at the time of any offence."
18. At the close of the prosecution case, the Appellant made a submission of no case to answer which was rejected. He was asked whether he wished to give evidence and he said he did not. The Crown then summed up by indicating that the charges were brought in the alternative. The Appellant summed up by saying this:
"Well I have to say, Ma'am, that PCO20 evidence contained no factual reference to who was using or driving the vehicle. The Law is quite clear: it is the driver who is liable. When asked if there was a driver, if anybody was using the vehicle, the witness answered in the negative. She did not know who was driving the vehicle, did not know who was using the vehicle, in fact had no knowledge of who was the driver or user of the vehicle whatsoever, so I can hardly see how lack of evidence like that can lead to a conviction on that charge, Ma'am."
19. The Assistant Magistrate retired and returned later to enter a conviction. The material parts of her decision for these purposes are as follows:-
"So, if your vehicle is parked on the public road, you can still be said to be "using" the vehicle. There are many authorities in the UK of the various terms in which the phrase "user" has been taken to mean people connected with the car in various ways, but certainly a registered keeper is presumed to be the user of the vehicle unless, in my view, there is evidence to the contrary.
I find that you were the user in this case. You are the registered keeper. You have admitted that. You have signed a form saying you are the owner, which in this case I find to mean a de facto owner. Again the word "owner" has a wide meaning in law. The natural meaning of the word "user" is somebody who has control of the car. You have admitted to the police that you use it. It was seen at your home address, and in the absence of the evidence to the contrary, I find that you were the user in law of the vehicle."
20. The prosecution indicated it wished to withdraw the second charge, which the Assistant Magistrate allowed, but she indicated that she would have found that charge proved had she been asked to do so.
21. Article 62 of the Law confers on the Minister for Home Affairs, after consultation with the Connétable of the Parish in which any particular road is situated, to make Orders prohibiting, restricting, or regulating the use of any road or part of the road by vehicular traffic, as well as authorising the use of a part of the road as a parking place for vehicles, subject to such conditions if any as may be specified in the Order. The relevant offence for the purposes of this case is set out in paragraph (4) of that Article, which is in these terms:-
"Any person who uses a vehicle or causes or permits a vehicle to be used in contravention of any order made under this Article shall be liable to a fine not exceeding £100."
22. There is no dispute that (where this particular vehicle was parked in Grosvenor Street, St Helier), an Order had in fact been made which permitted parking only if a valid parking card was displayed.
23. The alternative charge with which the prosecution did not proceed in this case, is to be found in Article 86 of the Law, which is in these terms:-
"(1) Where an offence is alleged to have been committed in connection with a vehicle being on a road -
(a) The owner of the vehicle shall give such information as the owner may be required by or on behalf of the Connétable of the Parish or a Centenier to give as to the identity of the person in charge of the vehicle at the time of the commission of the alleged offence, and, if the owner fails to do so, shall be liable to a fine not exceeding £500, unless the owner shows to the satisfaction of the Court that he or she did not know and could not with reasonable diligence have ascertained who was the person in charge of the vehicle as aforesaid; and
(b) Any other person shall, if required as aforesaid, give any information which it is in his or her power to give and which may lead to the identification of the person in charge of the vehicle as aforesaid, and, if the person fails to do so, he or she shall be liable to a fine not exceeding £500.
(2) In this Article, "owner", in relation to a vehicle which is the subject of a hiring agreement, or a hire purchase agreement, means the person in possession of the vehicle under that agreement."
24. We deal first with the offence under Article 62(4) of the Law. The offence is committed by anyone who either uses the vehicle or causes it or permits it to be used in contravention of an Order made. The offence is not framed by a reference to the owner of the vehicle, nor to the registered owner or registered keeper of the vehicle. It follows that the prosecution must establish who was using the vehicle, or who has caused or permitted it to be used in contravention of the Order.
25. In our view, it is clear that the legislature could not reasonably have intended that those responsible for enforcing compliance with any Orders made by the Minister under this Article should be required to watch a parked car indefinitely until the person who was using it returned to move it, in order that that person could be identified. It would make a nonsense of the controls which the legislation envisages. Something else therefore must have been intended.
26. Article 86 of the Law gives some indication as to how the legislature intended the process to work. That Article shows that the legislature contemplated that information could be provided to somebody making enquiry by or on behalf of the Connétable of the Parish or a Centenier as to the identity of the person in charge of the vehicle at the relevant time by the owner of the vehicle, or indeed by any other person, who had information which was in his or her power to give. The reason that the owner is identified separately is that there is a working assumption that the person who owns the vehicle will know who had charge of it at any particular time - or if the owner did not know, could with reasonable diligence find out.
27. The question arises as to whether there is any other method of ascertaining who was using the vehicle at the relevant time. Is it really the case that the Court should construe this legislation as requiring further enquiry to be made, in every case where a parking infraction takes place, of the registered owner or keeper of the vehicle as to who might have been using it at the relevant time? We think that the States cannot have been intended to mean that. It may well be that it would be sensible for enquiry to be made of the owner in any contentious case, but there is a more practical approach which in our judgment needs to be taken as to the evidence which is necessary to prove parking offences.
28. It is right first of all however to restate, as the Assistant Magistrate did, that the burden of proof of an infraction under Article 62(4) of the Law lies on the prosecution and because it is a criminal matter, the standard of proof is such that the charge must be proved beyond reasonable doubt. In our judgment, proof as to the identity of the registered owner, in the absence of any other evidence to the contrary, is in law capable of amounting to sufficient evidence that that person is the person who was using the vehicle at the relevant time, and therefore is guilty of the offence. It is important to lay emphasis on the words "in the absence of any other evidence". If there is any other such evidence, it may well be that the Magistrate could not be satisfied beyond reasonable doubt that the registered owner or keeper was the person using the car at the relevant time. It is for that reason, in defended cases, that the police will want to exercise powers under Article 86 of the Law to request identification as to who the driver of the vehicle was at the relevant time.
29. Put another way, a court is entitled to infer from evidence as to the registered owner or keeper of the vehicle that that person was using it at any particular time, in the absence of any evidence to the contrary.
30. We are pleased to note that this common sense approach has been taken in a number of cases in England and Wales. In Elliott -v- Loake [1983] Crim LR36, the defendant appealed against convictions for driving without due care and attention, failing to stop after an accident, failing to report an accident and failing to give information as to the driver of the vehicle on the relevant occasion. He appealed on the basis that the justices were not entitled on the evidence before them to find that he had been the driver of the vehicle at the material time. The Divisional court found that there was a prima facie inference that the owner of a car was its driver, and in support, reference was made to the case of Barnard -v- Sully [1931] WN180, and Ende -v- Cassidy [1964] Crim LR595. Although the former authority was a civil case, the latter was a criminal matter in which the court was faced with a defendant who had caused an obstruction by leaving his car on a road. The commentary in the Criminal Law Review is that this was a 1964 decision, and that it might be that in 1982, the force of the inference will be correspondingly diminished as there was then a greater likelihood than formerly that a car would be driven by the owner's spouse or children. We agree that that may be the position, but it will depend on what evidence is produced. If no evidence is produced as to the person using the car at the time, the inference stands to be drawn, unchallenged, and in our judgment would be sufficient. By contrast, if there is evidence produced which indicates that at other times, persons other than the registered owner or keeper have been using the vehicle, then it may be necessary for the prosecution to go further.
31. We also note that in R -v- Collins (George) [1994] RTR 216, the court was considering a charge of conspiring to supply drugs. Wilkinson's Road Traffic Offences, a work to which the Courts of this jurisdiction have frequently had regard, 23rd Edition Volume 1 at paragraph 1.88 describes the matter thus:
32. As is emphasised by the editor of Wilkinson, inferences can only be drawn if it is reasonable under all the circumstances to draw them. In assessing reasonableness, consideration must be given to other explanations or possibilities. In that case, the decision takers on matters of fact, included within which was the identity of the driver of the car at the relevant time, should have considered the possibility that the other registered owner had given permission to someone else to drive the car. That is a different factual matrix from one where the Magistrate is faced with deciding if a single registered owner can be inferred to have been the driver at the relevant time in the absence of any other evidence to the contrary. We refer to the extract from Wilkinson and to the case of Collins for the purpose of emphasising the differences between that case and the instant one.
33. An amount of time has been taken up in the Magistrate's Court in this case and in the papers on appeal with the apparent distinction between the "registered owner" and "registered keeper". We note that the Road Traffic Act 1988, as amended in 1991 refers to the expression "the keeper of the vehicle" and "registered keeper". In our legislation, references are made to "owner", as indeed is shown by the extract from Article 86 of the Law. If one looks at the registration document issued by the Driver and Vehicle Standards Department, the description is of the "registered owner". It is clear that the registered owner is not necessarily the legal owner because the issue of a document by the Driver and Vehicle Standards Department cannot be taken as conclusive indication as to the civil rights over the vehicle in question of any other persons who are not the registered owners of the vehicle. However, the system for registration for ownership does enable the authorities to ascertain, for the purposes of the legislation which they administer, who has responsibility as owner for a particular vehicle. For the purposes of Article 86 of the Law, "owner" where the vehicle is not the subject of a hiring agreement or a hire purchase agreement, means the registered owner.
34. The Appellant's other arguments in relation to his conviction do not get off the ground. There is no evidence that he did not receive full disclosure of relevant material. All witness statements which the prosecution sought to rely upon were provided to him and he confirmed that in the Magistrate's Court. There is no suggestion that there was any other information available which would have supported the defence, and which was not disclosed.
35. As to the alleged lack of jurisdiction, the matter is so plainly within the jurisdiction of the Magistrate's Court that it is not an argument which requires to be taken further.
36. It is equally obvious that the statutory offence was created by the Law and that the Appellant is bound by legislation passed by the States of Jersey and given Royal assent, as he is by the customary law.
37. As to the allegation that the Assistant Magistrate did not confirm her oath of office, there was no requirement in law for her to do so but in any event, the Assistant Magistrate did indicate that magistrates always operate under an oath of office, and that she had sworn an oath to administer the law fairly and according to law and she would do so in every case.
38. As to the question of conflict, this appears to be based on the fact that the Assistant Magistrate is paid a salary by the States of Jersey and therefore has a conflict in dealing with the prosecution under legislation adopted by the States of Jersey. Such a contention is to disregard the nature of the Magistrate's appointment. First of all, the Magistrate (which includes the Assistant Magistrate for the purposes of this judgment) is appointed by the Bailiff and not by the States. Secondly, the Magistrate holds office until there is an order of Her Majesty in Council removing the magistrate from office, and it follows that the Magistrate, in the course of performing his or her functions, is under no pressure whatsoever to do the bidding of the state. Thirdly, the arrangements for the constitution of a Magistrate's court and the appointment of magistrates are made by the States for the purposes of ensuring that justice can be done impartially, in respect of the matters where the magistrate has jurisdiction. The fact that the States pay the salary of the magistrate for performing those functions does not lead to any conclusion that the States can interfere in the independence of the magistrate in reaching a decision in any particular case.
39. The correct test to be applied when considering an appeal from the Magistrate's Court is whether the Magistrate concerned has made an error of law which is fundamental to the decision, or whether there was evidence on which the Magistrate could properly have come to the decision she did. If that evidence existed, even though the Royal Court might not necessarily have come to the same decision, the Court does not likely interfere with it. For an appeal to succeed on the evidence, the Court has to be satisfied that there was insufficient evidence for the Magistrate to have come to the decision that she did, or that she drew the wrong conclusions and inferences from the evidence before her.
40. In this case we are quite satisfied that the Magistrate reached the correct conclusions on the evidence before her, and indeed that she conducted the proceedings impeccably in circumstances, given this particular Appellant, which were not at all easy. The appeal is rejected and the conviction, sentence and costs order stand.
41. In addition we order the Appellant to pay the Respondent's costs of and incidental to the appeal, if not agreed to be taxed on the standard basis. As this order was made in default, we expressly give the Appellant liberty to apply in relation to this order only.
