Jersey Unreported Judgments

2002/31

ROYAL COURT

(Samedi Division)

 

4^th February, 2002

 

 

Daniel Andrew Evans

-v-

The Attorney General

                                                                                                                            

Magistrate's Court Appeal by way of case stated

Appeal against grant of half of costs following acquittal on 2nd October, 2001, in the Magistrate's Court, of 1 count of being drunk and disorderly and 1 count of resisting a police officer in the execution of his duty.

Appeal allowed.  Appellant awarded costs, on standard basis, of appeal and of hearing in court below.

 

Advocate J. Michel for the Appellant.

Advocate C. Yates on behalf of the Attorney General.

 

 

JUDGMENT

 

 

THE BAILIFF:

1.        This is an appeal by Daniel Andrew Evans against the decision of the Relief Magistrate to award him only one half of his costs following an acquittal on charges of being drunk and disorderly and of resisting a police officer in the execution of his duty.

2.        The background to the charges can be briefly stated.  The appellant spent an evening with friends celebrating a birthday in a nightclub.  He emerged in the early hours of the morning and was observed by police officers on routine patrol to be spitting in a public place.  He admitted spitting on five or six occasions.  A police officer spoke to him in order to advise him that his conduct amounted to an offence.  They asked for his details and he gave his name and date of birth.  When asked for his address he became argumentative and in the view of the police officers started playing to the crowd.  At one stage he went down on his knees and according to him apologised to the officers.  During these exchanges he used foul language and he was arrested for being drunk and disorderly.  There was later mild resistance when placed in the patrol car as he remonstrated with the officers about his arrest.

3.        The issue at trial was essentially whether the act of swearing, which was the element of disorderly conduct upon which the prosecution relied to make out the first charge, had taken place before or after the arrest.  The appellant admitted that he had asked "why am I being fucking arrested?"  but claimed that this had happened after being told that he was being arrested.  The Relief Magistrate found that there was an element of doubt as to whether the swearing had taken place before or after arrest.  In his statement of case he also expressed the view that there had been an element of over-zealous questioning by the arresting officer.  The Magistrate considered that this combined with the excessive amount of alcohol consumed might have provoked the disorderly conduct.  He accordingly acquitted the appellant.

4.        Counsel applied for costs and was awarded one half of them.  Before making the award, the Relief Magistrate indicated that he was "... very close to thinking on Blanchard (sic) lines that the accused in this case is so close to bringing the prosecution on himself".

5.        In his statement of case the Relief Magistrate amplified that indication as follows:  "... it appeared to me that DAE had acted in a way that the police would have found to be a thorough nuisance on the night in question and that his evidence on the matter in Court was unclear and unreliable.  It was no surprise to me therefore that the arresting officers had acted as they did and that DAE had been prosecuted.  In considering the defence application for costs I considered all the circumstances of the case including the above matters.  I also formed the view that the period during which the trial took place would be likely to have been very considerably shorter had a good deal of unnecessary and repetitious material been omitted from that put before me on the three occasions on which the trial occupied the time and attention of the Court."

6.        The Relief Magistrate thus appears to have founded his decision to award the appellant only half of his costs on two factors:

(1)       that the appellant's conduct had been such as to bring the prosecution on himself; and

(2)       that the long trial had been the result of unnecessary and repetitious material which, by implication, had been put forward by counsel for the defence.

7.        As to the first factor, Mr Michel has referred us to a passage from Romeril-v-AG (26^th March, 2001) Jersey Unreported; [2001/71] where the Court stated:

"In AG-v-Bouchard (1989) JLR 350, the Court considered the circumstances in which the Court should refuse to make an order for costs, and adopted a practice direction issued under equivalent English legislation.  The relevant part of that practice direction provides:

It should be accepted as normal practice that an order should normally be made for the payment of the costs of an acquitted person out of central funds under section 3 of the 1973 Act, unless there are positive reasons for making a different order.   Examples of such reasons are:

(a)       Where the prosecution has acted spitefully or has instituted or continued proceedings without reasonable cause, the Defendant's costs should be paid by the Prosecutor under section 4 of the 1973 Act.

(b)      Where the Defendant's own conduct has brought suspicion upon himself and has misled the Prosecution into thinking that the case against him is stronger than it is, the Defendant can be left to pay his own costs.

(c)       Where there is ample evidence to support a conviction but the Defendant is acquitted on a technicality which has no merit.  Here again the Defendant can be left to pay his own costs.

It is worth noting in passing that the enactment of the Human Rights Act 1998 has led to the deletion of paragraph (c), which we have just cited, from the practice direction in England.

In Bouchard the Court held that in example (b) above, the phrases were to be read conjunctively so that the Defendant's conduct should be such, not only as to have brought suspicion upon himself, but also to have misled the Prosecution into thinking that the case against him was stronger than in fact it was."

8.        Counsel submitted that even if the appellant's conduct had been such as to bring suspicion upon himself he could not be said to have misled the prosecution into thinking that the case against him was stronger than it was.

9.        Mr Yates, who appeared for the Attorney General in this appeal, has very properly conceded that these submissions of counsel are correct.  We agree with both counsel.

10.      As to the second factor, it is true that the trial dragged on for far too long.  Indeed, for what was on any view a very trivial incident the wheels of justice ground excessively small.  The appellant was arrested on 14^th May, 2001, and presented before the Magistrate's Court on that day.  He pleaded not guilty and was remanded for trial on 20^th July, when the prosecution witnesses were heard and the case was adjourned.  The trial did not resume until 6^th September, 2001, when the appellant and one defence witness gave evidence.  The case was then again adjourned until 2^nd October, when the second defence witness was heard and the Relief Magistrate gave his decision.  A period of some 11 weeks thus intervened between the giving of evidence by the first and the last witnesses.

11.      It is in our judgment quite impossible for any Magistrate to retain during such a period the full flavour of all the evidence so as to be able properly to weigh up and to assess the merits of the case.  The Relief Magistrate himself said that in "a case which extended in hearing over two or three sessions ... it is not always easy ... in the absence of the provision and easy access to tape recordings to know exactly ... who said what to whom".  We sympathise with him.  This manner of conducting a criminal trial is not acceptable in a court of summary jurisdiction or indeed at all.  It is unfair on the accused.  It is inconvenient for the witnesses and it places an impossible burden on the Magistrate.  It is not consonant with the doing of justice.  In principle a criminal trial once begun should continue without significant interruption until it has been completed.  Adjournments should in general be to the next working day.

12.      We hope that the Magistrate and those responsible for the administration of the lower Court will take the appropriate action to ensure that this sort of delay does not recur.  As to whether the defence was responsible for the relatively long trial by unnecessary and repetitious questioning we have examined the transcript with some care.  It is sufficient to state that in our judgment this ground of complaint cannot fairly be laid at the door of the defence.  It may be that the Relief Magistrate felt, in our view, understandably, some frustration at the slow speed at which the trial had progressed.  It is clear that he also felt that the appellant had not behaved as perhaps he might on the night in question.

13.      We repeat that which we stated in Romeril-v-AG:

 

"It sometimes happens that a Magistrate who has reached the conclusion that an accused person should be acquitted nevertheless feels that the accused's conduct is worthy of criticism in some way.  It is tempting in such circumstances to seek to penalise him by refusing to award him costs.  This is not an appropriate reaction.  If an accused person has been acquitted he has been found to be not guilty of the offence with which he has been charged.  Other than in exceptional circumstances, and the practice direction sets out an example of such circumstances, he should receive an award of costs."

14.      It follows that in our judgment the appeal must be allowed and we accordingly quash the order of the Relief Magistrate and award the appellant his costs on the standard basis both here and below.

                        Authorities

Romeril-v-AG (26^th March, 2001) Jersey Unreported; [2001/71].

Magistrate's Court (Miscellaneous Provisions) (Jersey) Law, 1949: Article 18.