AG v McConnachie [2002] JRC 46A (27 February 2002)

JUDGMENT THE BAILIFF: 1. This is an application by the Defence relating to evidence which it is desired to adduce from Dr. Tracey Wade, who is a clinical psychologist. Mr. Kelleher has told me that the nature of her evidence would relate to the operation of the memory and would be directed towards the question of whether the mind recollects objectively or subject to an interpretation which might be in itself subject to a belief or predisposition of the person whose recollection is in question.

2. The evidence would relate to the evidence to be given by Customs Officer Le Neveu of his recollection of discussions which took place between him and the accused which were subsequently recorded by him in his note book and countersigned by the accused. Counsel submits that the exact words used and the precise chronology of what was said are crucial to the outcome of the case. No written report has as yet been prepared by Dr. Wade.

3. The history is that the date for this trial was fixed on 30 th November, 2001. During February the Defence became aware of the possibility that evidence from a clinical psychologist might be helpful to the accused's case.

4. An application was made to the Judicial Greffier for funds from the Legal Aid vote on 18 th February. That application to the Judicial Greffier for funding was refused on 22 nd February. On 25 th February the Defence became aware that funding for the fees of this expert witness would be available from another source and a fax was sent to Counsel for the Crown at 12.55 on 20 th February advising him that the Defence desired to call Dr. Wade to give evidence. On 26 th February Prosecuting Counsel was advised of the nature of the evidence to be adduced from Dr. Wade.

5. The question now arises as to the effect of the Criminal Procedure (Notice of Expert Evidence) (Jersey) Rules, 2000 , upon the desire of the Defence to call Dr. Wade. Mr. Kelleher concedes that the evidence to be given by Dr. Wade is expert evidence. Rule 3(1) of the Rules provides: "A party to criminal proceedings who wishes to adduce expert evidence shall give each other party as soon as practicable a statement in writing of any finding or opinion that he proposes to adduce by way of such evidence".

6. Mr. Kelleher submits that this rule did not oblige the Defence to give notice to the Prosecution of the desire to call Dr. Wade because she had not produced a written report. There was, therefore, nothing in Counsel's submission for him to disclose to the Prosecution.

7. I cannot accept that this is the correct interpretation of Rule 3(1). Rule 3(1) obliges a party who wishes to adduce expert evidence to give notice in writing to any other party as soon as practicable of any finding or opinion which he proposes to adduce by way of evidence. The absence of a written report is no reason for failure to give notice of the desire to adduce expert evidence. If the Rule were to be construed in that way it would drive a coach and horses through the object of the statute which is to avoid any party to criminal proceedings being taken by surprise by any other party in the production of expert evidence.

8. It follows in my judgment that the Defence has not given notice in accordance with Rule 3(1) as soon as practicable because it was open to the Defence to give notice to the Prosecution at the latest when application was made to the Judicial Greffier on 18 th February.

9. The next question for decision arises in relation to Rule 6 which provides: "A party who is required to comply with Rule 3 of these Rules in respect of expert evidence but fails to do so shall not adduce that evidence without the leave of the Court." 10. Counsel for the accused applies for that leave and has submitted that there would be no prejudice to the Crown if leave were to be granted.

11. In my judgment it cannot be said that the Crown would not be prejudiced by leave being granted to the Defence to call the evidence of Dr. Wade. The Crown has not been able to give consideration to the question of calling or rebutting other evidence, and he is, or would be, prejudiced in that sense.

12. More importantly, it seems to me that the matters which Counsel wishes to adduce by way of evidence from Dr. Wade can perfectly properly, and no doubt cogently, be put by Defence Counsel in the course of his submissions to the Court. Those submissions can be adopted as appropriate by the Judge in his summing up to the Jurats.

13. Looking at the matter in the round it does not seem to me that it is appropriate for me to grant leave under Rule 6 and I accordingly refuse leave to call Dr. Wade in the exercise of my discretion. Authorities Criminal Procedure (Notice of Expert Evidence) (Jersey) Rules, 2000 Page Last Updated: 22 Sep 2015 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII