Jersey Unreported Judgments

Hearing (Criminal) - application to appoint an Amicus Curiae

[2020]JRC222

Royal Court

(Samedi)

22 October 2020

Before     :

J. A. Clyde-Smith O.B.E., Commissioner, sitting alone

The Attorney General

-v-

Darius James Andrew Pearce

M. R. Maletroit Esq., Crown Advocate.

The Defendant appeared in person.

JUDGMENT

THE COMMISSIONER:

1.        I have sat today to consider the possibility of appointing an Amicus Curiae in relation to this case.  The defendant is due to stand trial on 10^th December, 2020, at 2:30pm in respect of three money laundering charges.  His co-defendants have all been sentenced.  The defendant initially represented himself, but he accepted that it was in his interests to be legally represented and Advocate Morley-Kirk was appointed for that purpose.

2.          On 16^th October, 2020, Advocate Morley-Kirk informed the Court that she could no longer represent the defendant and the legal aid office, accepting that she could not act, nominated Advocate Jones to be appointed in her place.  However on 17^th October, the defendant declined any further legal representation saying that it was best that he represent himself.  He indicated in his email of that date that it was unfair to place any advocate in a position where they have to choose between conducting his defence and their professional reputation, as the defence would bring them into conflict with local authorities who had acted unlawfully.  He indicated that a person could be appointed to collect his thoughts in an appropriate manner for submission to and consideration by the Court, but he said this could be done by anyone who knows the proper form of pleadings. 

3.        Today the defendant supported the application of an Amicus Curiae to assist in ensuring that his submissions were made in the proper manner for the ease of the Court, as he put it, but he also raised the need for assistance he would have in taking statements from potentially nine defence witnesses concerned in the main with his business practices and as detailed in paragraph 41 of his defence case statement where those witnesses are named. 

4.        The prosecution not unreasonably say that before they can accept admissions that the defendant wishes to have contained in the proposed admission document, they need to see the statement of the witnesses that support those admissions. 

5.        At the plea and directions hearing held on 19^th October, the defendant confirmed:-

(i)        That he would be calling no witnesses other than himself.  It now seems that this was on the basis that the evidence of these nine witnesses would be contained in admissions statement;

(ii)       That he would not be making any of the applications listed in paragraph 11b of the plea and directions form.  His only application would be one of no case to answer which would be made at the close of the prosecution case and he reconfirmed that position today.

(iii)      Advocate Morley-Kirk's response to the prosecution's list of witnesses, were she indicated those witnesses who the defendant would not be questioning and who need not therefore be called.  Their evidence would either be read or preferably made the subject of admissions. 

6.        The work that is still required in preparation for the trial as far as the Court is concerned is:-

(i)        That the defendant's comments are needed to the interview summaries provided by the prosecution, and he has now done that.

(ii)       The voluntary filing of a further defence case statement, and he has now done that although it is unsigned and undated.

(iii)      The prosecution need to serve a draft admissions statement that will be provided to the defendant on or before 13^th November, 2020.

7.        I have been referred to the guidance given in the law in relation to applications for the appointment of an Amicus Curiae, set out in the case of I v J (Family) [2014] JRC 021, in that case in the context of family proceedings.  As is clear from that guidance an Amicus Curiae will ordinarily be appointed to assist the Court on questions of law which can include procedure, although it can extend to the giving of assistance to a defendant.  An Amicus Curiae will not be appointed solely because a defendant is legally unrepresented at trial.  The Court also needs to bear in mind that an Amicus Curiae will be paid out of public funds and thus the cost will be a burden upon the state.

8.        The prosecution have prepared a note dated 16^th October, 2020, on its interpretation of the relevant provisions of the Proceeds of Crime (Jersey) Law 1999 and the defendant has confirmed formally today that he accepts that interpretation as being correct.  No points of law will therefore arise in that respect and I have not been made aware of any other points of law that may arise in the case in the future, and there is therefore no need for the appointment of an Amicus Curiae to assist the Court on questions of law.

9.        The defendant is a business man.  From the many hearings I have had with him he is clearly articulate and intelligent and in my view he does not require assistance in commenting on the interview summaries which indeed he has done, or in agreeing upon the admissions or generally in the conduct of his defence. 

10.      He is understandably anxious that this hearing should not be delayed any further and has acknowledged that if it is to be completed in the time set aside the evidence of the 40 or so relevant prosecution witnesses, much of which is not contested, should be read or preferable, made the subject of admissions. 

11.      One of the overriding objectives in Article 3 of the Criminal Procedure (Jersey) Law 2018 is that cases are dealt with efficiently and expeditiously and the defendant is under a duty pursuant to Article 4 to prepare and conduct his case with that, and the overriding objective generally, in mind.  It is not efficient and will give rise to unnecessary delay if the defendant requires prosecution witnesses to attend whose evidence is not in dispute. 

12.      In terms of taking defence witness statements, I do not regard it is appropriate for this exercise to be conducted by an Amicus Curiae, as it inevitably will require the Amicus Curiae to become involved in the preparation of the defence case and advising on it.  Nor do I accept that the defendant is not able to undertake this function.  The prosecution will provide him with templates and a note of the formal requirements as to signing and dating.  He is, as I have said, an intelligent man and he must know what evidence he wishes these witnesses to give, and must be able to request them to set that down in writing.  So that these witness statements can be considered by the prosecution for inclusion in the admissions document, copies must be provided by the defendant to the prosecution by close of business on 6^th November, 2020. 

13.      So for all these reasons I think it unnecessary to appoint an Amicus Curiae in order for this trial to be conducted fairly.  I direct the prosecution to provide the witness templates and note of formal requirements by close of business tomorrow. 

14.      It is helpful if I also record what has been agreed by the defendant this morning in addition to the prosecution note on the Proceeds of Crime (Jersey) Law 1999:-

(i)        For the purposes of this case Crown Advocate Maletroit has helpfully formulated three ingredients namely:-

(a)       That cash changed hands;

(b)       That the cash constituted criminal property; and

(c)       That the defendant knew or suspected that it was criminal property.

Under Count 10 the defendant disputes all three elements but he said that only Customs Officers Small and Le Marrec should be called by the prosecution, the evidence of the other Custom Officers being admitted.  Under Count 11 he only disputes the third element and under Count 12 he disputes the second and third elements.  The elements not disputed are admitted by him. 

(ii)       In terms of the evidence of the forensic account Mr Sowden, he accepts the facts as set out in his reports bar one or two small points which he has taken up in his recent defence case statement, but not the interpretation placed upon those facts by Mr Sowden.  This is helpful in it will substantially reduce the evidence that Mr Sowden will need to give in chief.

(iii)      The defendant also accepts the prosecution evidence as to the activities of the other defendants and in particular the importation in June 2018.  Again that is helpful in reducing the evidence that has to be given before the Court by witnesses.

(iv)      The defendant accepts the mobile phone attributions of the prosecution's expert witnesses other than in respect of Mr Jones and again that's a helpful indication to the Court.

(v)       The defendant does wish to cross examine the prosecution witness McCormack, and Crown Advocate Maletroit has confirmed that she will be called.  If she is unable to travel to Jersey an application will be made for her evidence to be given by way of video link. 

Authorities

I v J (Family) [2014] JRC 021. 

Criminal Procedure (Jersey) Law 2018. 

Proceeds of Crime (Jersey) Law 1999