AG v Pounds (Royal Court : Hearing (Criminal)) [2025] JRC 018 (20 January 2025)

JUDGMENT THE DEPUTY BAILIFF: 1. On 1 October 2024, I made various pre-trial rulings in this case at the request of counsel. I indicated that I would give, in due course, reasons for the decisions I made recorded at paragraphs 2 and 3 of the Act of Court from that day.

2. The first order which was the subject of discussion but not argument was in the following terms, namely that: "there shall be site visits conducted at - ( i ) Rue de Fauvic ; and (ii) the DVS compound at La Collette, such visits being subject to the following ground rules: (a) each site visit is to be treated as part of the trial hearing; (b) each site visit will be conducted in silence other than agreed observations to be made by the Deputy Bailiff (such observations to be agreed by the Deputy Bailiff and counsel in advance); (c) any questions from the Jurats to be directed to the Deputy Bailiff in the presence of counsel, and addressed in the presence of counsel; and (d) the Greffier Substitute shall have a recording device to record all communications between the Deputy Bailiff, Jurats and counsel; and (e) noted that Rue de Fauvic shall be closed to the public and vehicles during the site visit" 3. The second and third matters were the subject of argument and resulted in the following orders (paragraph 2 of the order); refusal of the defence application to exclude the witness evidence of Andrew Fairnie , Amanda Fairnie , Kyle Stratford and Dr Russell Delaney, and granting (paragraph 3 of the order) the defence application to exclude evidence pertaining to the Defendant's possession of cannabis, his possible use of cannabis on the day of the accident and his guilty plea to Count 5 of the indictment.

4. I will deal with the reasons for refusing the defence application to exclude the witness evidence first, and thereafter consider the applications to exclude evidence pertaining to the Defendant's possession and use of cannabis and his guilty plea to Count 5 of the indictment. The defence application to exclude witness evidence 5. The defence argument in relation to the admissibility of the evidence of four witnesses referred to above was as follows. When he was indicted, the Defendant pleaded guilty to counts of causing death by careless driving in relation to both Dean and Charlie Lowe (Count 1B and Count 2B) and failing to stop and report an accident (Count 3). It follows, therefore, that the Defendant had accepted that he was involved in an accident that caused the deaths of both Dean and Charlie Lowe. Defence counsel submitted that the only matters remaining in dispute were the extent of the Defendant's intoxication through alcohol at the material time and / or whether the manner of his driving was dangerous. It was accepted that these issues were inextricably linked, and defence counsel in his skeleton argument said that it was open to the Court to find that it was sure that the Defendant was intoxicated at the material time, and that such intoxication was enough to render his driving dangerous. Defence counsel also accepted that the speed the Defendant was driving at

the relevant time was also a material issue; the Crown's case being that the Defendant's speed was in excess of the speed limit (at trial, it was ultimately not challenged that the speed at impact was approximately 44 miles per hour against the prevailing speed limit of 30 miles per hour). The defence argument in short was that the evidence of the four witnesses referred to above - which the Crown wished to call - was not relevant to the issues which the Court needed to determine in this case and, accordingly, was prejudicial and ought to be excluded either at customary law or pursuant to Article 76 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the 2003 Law").

6. Amanda and Andrew Fairnie were in the first motor vehicle that arrived at the scene of the collision immediately after it occurred. They did not see the accident but alighted from their vehicle when they saw what transpired to be a body in the road. They tended to Dean and Charlie Lowe when they were grievously injured and unconscious. Mr and Mrs Fairnie both called 999 at 9.44pm and 9.45pm respectively. Mr Fairnie stayed with Charlie, and Mrs Fairnie and another member of the public stayed with Dean until they were joined by the emergency services.

7. Kyle Stratford was the only witness post collision to see the Defendant at close range driving his van which, on any view, was badly damaged as a consequence of the collision. Mr Stratford saw the Defendant driving his van just before it reached Five Oaks roundabout. His attention was drawn to the van owing to the extent of the collision damage. He was shocked to see a vehicle with such extensive damage being driven on the road and he thought that the van was being driven in excess of the 30 miles per hour speed limit. His evidence was relevant (on the Crown's case, central) to the offence of dangerous driving at Count 4 of the indictment, which covered the Defendant's driving of the van subsequent to the collision.

8. It was argued by the defence that the Crown had extensive CCTV evidence available to it as to the van being driven through St Helier and that Mr Stratford's evidence added little to that. In fact, that footage did not clearly show the extent of the damage to the vehicle which, although it was evident to the Jurats when they viewed the van during the trial, was described in quite graphic terms by Mr Stratford.

9. Finally, Dr Delaney is a forensic pathologist who carried out the post-mortems. It was argued that his findings could not assist the Jurats on the issues in dispute. Indeed, defence counsel argued that his evidence, and indeed the evidence of the other witnesses, " simply adds colour and drama to the Crown's case ".

10. The Crown argued that the evidence of Mr and Mrs Fairnie was important and provided a significant evidential foundation to the evidence of the scenes of crime officers who subsequently attended the scene. The Fairnies described the road conditions at the time, the position of Dean and Charlie, particularly their resting positions prior to them being moved by ambulance officers, what they could see as they approached the scene and, the Crown argued, that it was right and proper for the Jurats to hear from the witnesses who were first on the scene.

11. As to Mr Stratford, he was a key witness to the condition of the vehicle post-collision. He gave direct evidence of the vehicle and its dangerousness. It was important that the Jurats should hear his evidence.

12. As to Dr Delaney, his evidence was not simply relevant to the cause of the death of both Dean and Charlie Lowe but in relation to where they were struck and the path of their respective bodies after impact, particularly Dean Lowe's body which collided with the windscreen of the van immediately after impact.

13. While the Court inevitably has a power to prevent the Crown from calling evidence which is prejudicial and has little or no probative effect either at customary law and / or pursuant to Article 76 of the 2003 Law, the Court ought to be slow to interfere with the exercise of the Crown's discretion to decide how to put its case in terms of calling witnesses as to fact and relevant expert witnesses who they have been given leave to call. Although the preparation and agreement of admissions / agreed facts is to be encouraged, there are often witnesses who are better heard first hand by the tribunal of fact. This was, on any view, a very serious case and it was right and proper for the Jurats to hear from these witnesses. Further, it was very likely that the Jurats would have questions for Dr Delaney as it is common for the judge or Jurats / jury to wish (through the judge in the case of the Jurats and jury) to ask questions of an expert so that they fully understand the terminology and effect of their evidence.

14. Accordingly I declined to exclude the evidence of these witnesses. Evidence in relation to cannabis and Count 5 of the indictment 15. The Defendant pleaded guilty to Count 5 on the indictment - an offence of possession of a controlled drug, namely cannabis, on 6 August 2023. This was a small quantity of cannabis found in his van the day after the collision. The defence noted that the Crown had not made a bad character application in relation to the cannabis that was found in the Defendant's van (although such an application would not perhaps have been necessary). The defence said that the Crown advanced its case on intoxication on alcohol consumption and not on consumption of controlled drugs -� the latter was therefore irrelevant to the question of intoxication. The defence argued that if the tribunal of fact learned that the Defendant had cannabis in his van, then there was a risk that there would be an unspoken inference that the Defendant had been taking cannabis on the night in question, the prejudice that flowed in the event of the admission of such evidence would be significant and would outweigh the probative value of the evidence of the finding of such cannabis - which was said to be nil.

16. The Crown referred to the evidence from the Defendant's drinking partner, Mr Callum Best, that the two of them smoked a -�joint' of cannabis together that afternoon outside the Pembroke Public House. There was also evidence from members of the public who had met the Defendant and Mr Best that night, including Sarah Blake who was not drinking alcohol, to the effect that the Defendant and Mr Best were looking for some cannabis and the Defendant was searching his van for it when the two of them were planning to leave the Pembroke Public House for the Dolphin Hotel in Gorey. The Crown suggested that the Defendant searching for his cannabis in the van may have explained some of the telephone calls that the Defendant made to Mr Best (which neither of them was able to explain at trial) before and after the collision. Cannabis was detected in the Defendant's blood sample the following day, but the Crown accepted that it was not able to prove that the cannabis consumed was such as would adversely affect a driver still less that the Defendant's driving was in fact adversely affected.

17. I accepted the defence arguments. The presence of cannabis in the Defendant's van and the fact that he was or may have been smoking cannabis on one occasion that afternoon had no probative value in the context of the evidence taken as a whole. The admission of such evidence could only be prejudicial, although the extent of the prejudice in the minds of the Jurats would likely be slight. In the circumstances, the appropriate course was to exclude this evidence under Article 76 of the Police Procedures and Criminal Evidence (Jersey) Law 2003 , which I did. Authorities Police Procedures and Criminal Evidence (Jersey) Law 2003 Page Last Updated: 04 Feb 2025 BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII