Jersey Unreported Judgments

[2010]JRC110

ROYAL COURT

(Samedi Division)

11^th June 2010

Before     :

Sir Philip Bailhache, Kt., Commissioner, sitting alone.

The Attorney General

-v-

Y

S. M. Baker, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE commissioner:

1.        I reserved my decision yesterday morning on an application made by the defence that the evidence contained in the report of psychologists at the Specialist Treatment Unit in New Zealand should be excluded for a number of reasons.  I have had the benefit of written and oral submissions which I have carefully considered. 

2.        Some of the submissions of Advocate Haines can be briefly dealt with.  Counsel submitted that the report was hearsay and that it did not amount to a confession which was admissible pursuant to Article 74 of the Police Procedures and Criminal Evidence (Jersey) Law 2003.  The Crown Advocate has replied that the report was signed by the defendant and cannot therefore be regarded as hearsay and was plainly a confession.  Having regard to the definition of confession in Article 1 of the 2003 Law I find that the submissions of the Crown Advocate are well founded.  I also find that there are no grounds to exclude the confession under Article 74(2)(b), there being no evidence that the circumstances in which the admission to the psychologists was made are such as to render the admission unreliable.  On the contrary it appears to have been an entirely voluntary statement. 

3.        Advocate Haines contended that the circumstances in which the admission was allegedly made rendered it inevitable that the defendant's previous offending would be brought to the attention of the jury.  I am not persuaded that it is inevitable but if it is, that is not necessarily a reason for excluding the evidence.  If the evidence is relevant and otherwise admissible the fact that it will incidentally alert the jury to the defendant's bad character is not a ground for excluding the evidence unless its prejudicial effect outweighs its probative value.  In my judgment it does not. 

4.        Advocate Haines' written submission suggested that the defendant's Convention right to a fair trial would be adversely affected but no ECHR authority was placed before me to support that contention.  The argument that the admission of the evidence would be an abuse of process justifying a stay of the proceedings was not pursued. 

5.        That leaves the final submission of Advocate Haines, namely that the evidence should be excluded pursuant to the Court's inherent power and the power conferred by Article 76 of the 2003 Law.  It is a submission which has caused me considerable difficulty.

6.        Counsel submits that the alleged admission was made in the context of a rehabilitative training programme undergone by the defendant following his conviction in New Zealand for offences against young boys.  He was, of course, not cautioned and it was a condition of his engagement in this programme that he was expected to disclose details of his past offending.  Participants in the programme agreed to be open and honest.  Under New Zealand law the information disclosed to staff was generally confidential.  Advocate Haines submitted, and I accept, that when the defendant signed a copy of the report and certified his agreement that it should be transmitted to the Jersey Probation Service, he did not waive any privilege or consent to its being transmitted to the Jersey Police.  He consented to its transmission to the Jersey Probation Service because he understood that he was to be supervised by the Probation Service on a voluntary basis following his deportation from New Zealand.  The admission of the report in criminal proceedings in New Zealand would be precluded by the privilege provisions of the New Zealand Evidence Act 2006.  Counsel submitted that against that background it would, in the words of the statute, so adversely affect the fairness of the proceedings that the Court ought not to admit it. 

7.        The Crown Advocate referred me to a decision of the English Court of Appeal which I have found particularly helpful.  It is the case of R-v-Elleray [2003] EWCA Crim 553 where a defendant made admissions of rape to probation officers who were preparing a pre-sentence report in relation to different offences.  Again, the defendant was not cautioned and no doubt expected that his frank admissions to the probation officers would go no further.  The Court of Appeal upheld the decision of the trial judge not to exclude the evidence.  There is, of course, an important public policy point involved here; if defendants come to understand that any comments or admissions made to probation officers, psychologists or others in a similar position may lead to a prosecution that is likely to inhibit the frankness of the exchanges which take place.  That is why in some jurisdictions, New Zealand for example, the legislature has intervened to provide that such admissions may not be used in subsequent criminal proceedings.  In this jurisdiction it is a matter for the Court's discretion. 

8.        This was no doubt carefully considered by the Attorney General and his advisers before the decision to prosecute the defendant was taken.  In this case the prosecution decided that, having regard to all the circumstances, it was in the public interest that the defendant should be charged.  Counsel for the defendant has submitted that the alleged victim has not identified the defendant as the perpetrator of the alleged sexual abuse but that, it seems to me, is a matter for the jury.  The Crown Advocate submitted that it was for the Attorney General and not for the Court to decide whether there should be a prosecution.  The judge's task was to ensure a fair trial and, in the context of this application, to determine whether the admission of the alleged confession would undermine the fairness of the trial. 

9.        On balance I am not satisfied that it would.  The fact that the defendant volunteered the admission in the circumstances that he did can, if he is convicted, be taken into account by the sentencing tribunal.  The application of Advocate Haines to exclude the evidence is accordingly rejected. 

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003.

New Zealand Evidence Act 2006.

R-v-Elleray [2003] EWCA Crim 553.