Jersey Unreported Judgments

Manslaughter - application to play the ABE video evidence - decision.

[2024]JRC039

Royal Court

(Samedi)

24 January 2024

The Attorney General

-v-

Y

Ms L. B. Hallam, Crown Advocate.

Advocate J. W. R. Bell for the Defendant.

ex tempore JUDGMENT

THE DEPUTY BAILIFF:

1.        This is an application made in relation to the evidence of W, who is a prosecution witness and reached the age of 18 on 2 January of this year - so some three weeks ago.  W is a friend of the Defendant who witnessed the incident that took place on 5 March 2023, which led to the death of Roy Bester, and in relation to that incident the Defendant is due to stand trial for manslaughter on Monday.

2.        W made a video disclosure to the police the following day.  I have read the transcript.  It is to be edited by agreement and if played to the Jury will last just under one hour.  It deals with the lead up to the incident with which the Jury will be principally concerned and a short period thereafter.  W spoke to the police when they arrived after witnessing what he saw.

3.        W also made a witness statement last year, to which the Crown has referred me this morning.  In that witness statement (which he made on 7 December) he indicated a reluctance to come to court as a witness, said that he was worried about giving evidence, had never been to court before and thought that the experience of giving evidence he would find upsetting.  He was finding the prospect of the approaching trial distressing; it was disturbing his sleep and he was feeling under great stress.  At that stage it was suggested that he might not attend court at all, although he is now prepared to come to court and be cross-examined behind a screen and I have granted an unopposed application for screening him from the Defendant and the public gallery when he gives his evidence today.

4.        In the intervening period - since making his statement in December - the witness has been subject to a wholly unexpected mental health crisis leading to his admission to Orchard House on 12 January 2024.  I have a report in relation to that matter.  This was the witness's first presentation to the mental health services and there had been a rapid decline in his mental state which was out of character.  There is reference to causative factors, possibly including the commencement of new employment and appearing as a witness in this case.

5.        In any event, he is currently detained in Orchard House under Article 21 of the Mental Health (Jersey) Law although hopefully will be discharged tomorrow.  According to the consultant psychiatrist, whose evidence on the issue is contained in a brief email, W has the capacity to "act as a witness in the trial" and he has confirmed that he is willing and able to attend court.

6.        The Crown's application is that nonetheless the ABE (Achieving Best Evidence) video be played as W's evidence in chief in that he is an eligible witness under Article 100 of the Criminal Procedure (Jersey) Law 2018.  He was eligible by virtue of his age until three weeks ago.  The Crown say he is still eligible under Article 100(2)(b)(ii)(E) because the Court can be satisfied the quality of his evidence is likely to be diminished by reason of fear or distress on his part.  When considering whether a witness falls within that provision under Article 100 I need to consider the circumstances set out in Article 100(6) including the nature and alleged circumstances of the offence to which I have referred, the age of the witness and other circumstances set out there.

7.        In any event if the witness were to fail to qualify as an eligible witness under Article 100 I have a discretion under Article 101 to agree to the requested measure as is made clear by Article 101(7).

8.        Today Advocate Bell resists this application on the footing that the witness in question is now 18 and it is common for witnesses to be anxious but owing to his age he ought to give evidence in chief in court in the usual way - with his ABE not played.  The Crown points to the frequent practice of witnesses who have made complaints in sexual offence cases or domestic abuse cases giving evidence in chief by way of the ABE disclosures, which is an accurate description of what occurs in those cases.  This of course is not such a case.  I need to deal with this application on its merits.

9.        Having regard to the overall circumstances of this case, the fact that this video evidence was produced the day after the incident, W's age, the contents of his witness statement and the very recent mental health crisis that the witness has suffered I have no doubt that it is in his interests and the wider interests of justice - whether he qualifies under Article 100 as an eligible witness or I am exercising my discretion under Article 101 - that he be able to give evidence by way of his ABE video being played to the Jury as his evidence in chief.

10.     That is the order that I make for the reasons that I have just given.

Authorities

Mental Health (Jersey) Law

Criminal Procedure (Jersey) Law 2018.