Jersey Unreported Judgments

Assize Trial Day 1 - illegal entry and larceny.

[2022]JRC021

Royal Court

(Samedi)

31 January 2022

Before     :

R. J. MacRae, Esq., Deputy Bailiff, sitting alone.

The Attorney General

-v-

Gilberto De Sousa Fernandes

Crown Advocate R. L. C. Morley-Kirk.

Advocate F. L. Pinel for the Defendant.

EX TEMPORE JUDGMENT

THE DEPUTY BAILIFF:

1.        This is an application to exclude two passages in the witness statement of Graham Michael Dryland, statement dated 18^th December 2021.  Mr Dryland is a scenes of crimes officer and he attended the scene on the afternoon following the alleged offence.  The Crown is unable to explain today why it was that he had not made a statement for some thirteen months until the 18^th December 2021, still less why that statement was not disclosed on the Crown and the Defence until two weeks ago on the 17^th January 2022. 

2.        The defence object to passages in the statement.  Firstly, to paragraph 10 which refers to some magazines being disturbed in a drawer by the bed which has not been mentioned hitherto by either householder, but it is accepted by the defence whether or not that evidence is given will cause no prejudice to the defendant as it will not take the case further either way. 

3.        A more substantive complaint is made about paragraph 12, and in summary paragraph 12 reveals that Mr Dryland discovered a fabric mark on the windowsill of the en suite bathroom to the master bedroom which the Crown prior to receipt of this statement had contented was the likely point of entry of they say the defendant into the property.

4.        Mr Dryland also found close to the windowsill mark a mark on an adjacent toilet which he describes as unknown striation marks thought to be a consequence of deposited footwear on the closed seat.  He could not secure an impression using photographic or powdering techniques of the mark.  Accordingly, there is no direct linkage from the mark to any particular person's footwear, still less this defendant.  Nonetheless the Crown seek to adduce this evidence as they say it is admissible as it is relevant and of course relevance is the key hallmark for admissibility.  

5.        The defence say that the footwork is of limited relevance which I am unable to accept.  Then go on to address the prejudicial effect of the admission of this evidence.  Notwithstanding the lateness with which it was served, defence counsel has had the opportunity to take instructions in the two weeks since the statement was served upon her and said in the course of submission that had she had this material earlier then she would have put a series of written questions to the Crown for the expert to answer.  That can be achieved when he is questioned.

6.        There is no question of a need for an adjournment or a need to obtain further expert or other evidence, or in my judgment prejudice sufficient enough to warrant the exclusion of the evidence on the footing that it may outweigh the probative effect of its admission.  Accordingly, I decline to exclude the evidence although I would like Advocate Morley-Kirk to pass on to the police the Court's concern that this was not obtained at the outset and was disclosed late, and express similar concerns to the Law Officers Department, because it seems to me that both played a part in the late obtaining and late disclosure of this material.  It would or should have been obvious to anyone investigating or prosecuting this case that there ought to have been evidence from a scenes of crimes officer. 

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