Magistrate's Court Appeal.
[2012]JRC181
Royal Court
(Samedi)
11 October 2012
|
Before :
|
W. J. Bailhache, Q.C., Deputy Bailiff and
Jurats Morgan and Kerley.
|
Cyril John Vibert
-v-
The Attorney General
Magistrate’s
Court Appeal.
The Appellant appeared in person.
Advocate S. O’Donnell for the Attorney
General.
JUDGMENT
THE DEPUTY BAILIFF:
1.
On 27th
April 2012 the Appellant was convicted of using a motor vehicle registration
J25152 at a parking space specified in Parts 1, 2 or 3 of Schedule 8 to the Road
Traffic (St Helier)(Jersey) Order 1996 (as amended) (“the
Order”) without displaying a valid parking card and fined £100 or
three days imprisonment in default.
The Appellant was also ordered to pay prosecution costs in the sum of
£100. He appeals against both
of those orders on the following grounds:-
(i)
He did not
receive full disclosure;
(ii) The prosecution did not establish jurisdiction;
(iii) There was no valid cause of action;
(iv) The Assistant Magistrate failed to confirm her
oath of office when requested;
(v) The Assistant Magistrate’s verdict was
not based on the evidence and/or the facts;
(vi) The Assistant Magistrate was conflicted.
2.
The
Appellant reserved the right to add to his grounds of appeal after he had read
the transcripts of the trial and his notice of appeal indicated that he may
wish to ask for a retrial.
3.
There was
a second charge brought before the Assistant Magistrate namely that on the same
occasion the Appellant, as the owner of the said vehicle J25152 failed to give
information as was required by or on behalf of the Centenier as the Parish of
St Helier as to the identity of the person in charge of that vehicle at the
time of the commission of the alleged offence, thus rendering himself liable to
the penalties set forth in Article 86(1)(a) of the Road Traffic (Jersey) Law
1956 (as amended) (the “Law”).
4.
The appeal
was listed for hearing on 25th June. On that day, the Appellant made these
applications:-
(i)
To call
further evidence, namely a copy of PC O’Neill’s pocket book.
(ii) To have an adjournment so that the Home
Secretary and the Justice Secretary might intervene and adjudicate with a view
to appointing an independent police force to look into the Appellant’s
allegation that the transcripts of the hearing before the Magistrate’s
Court were incomplete.
(iii) To have an adjournment generally as he was not
ready to proceed with the appeal.
5.
The Court
dismissed the first two applications and agreed to the request for a general
adjournment. Accordingly the appeal
was deferred to 10 a.m. on 26th July and the Appellant was present
in Court when that date and time were set.
6.
The
application to call further evidence was based upon the contention that the two
police officers who gave evidence at trial had committed perjury. The only false statement upon which the
Appellant relied for this purpose was PC O’Brien’s evidence that
when he cautioned the Appellant and asked the Appellant whether he understood
the caution, the witness said that the Appellant shook his head from side to
side. The Appellant contended and
contends that he said “no I do not
understand”. The
witness asserted that he was standing directly in front of the Appellant, and
that all the Appellant did was to shake his head on two separate
occasions. The relevance of seeking
the admission of PC O’Neill’s pocket book is the Appellant’s
view that that pocket book should contain the language which he remembers was
used by PC O’Brien and was recorded by PC O’Neill. He saw what was in this part of the
notebook because in accordance with usual practice he was shown the entries and
signed the book himself.
7.
No notice
of the request to have the pocket book put in evidence was given to the Crown,
and it was not available on 25th June. However, we did not give leave to the
Appellant to introduce further evidence because it seemed to us that the
further evidence was not material for the purposes of the appeal. Whether the Appellant shook his head in
answer to the question “do you
understand”, or whether he said “no
I do not understand” is not relevant to the matters which the Court
had to resolve on this appeal. In
any event, any natural construction of evidence that the Appellant shook his
head when asked the question “do
you understand?” would be that the Appellant did not understand and,
absent any other evidence, there is no real difference between the Appellant
saying he did not understand and the Appellant shaking his head in answer to
the question.
8.
The second
application was to have an adjournment so that the Home Secretary and Justice
Secretary might appoint an independent police force to look into the
Appellant’s allegation that the transcripts of the hearing before the
Magistrate’s Court were incomplete.
This application simply misunderstands the jurisdiction of the Home
Secretary and the Justice Secretary in this Island. As holders of those official positions
in the government of the United Kingdom, they have no jurisdiction here. There is no law which confers any such
powers, and to hold that they did have such powers offends basis democratic
principle. The holders of those
offices of state in Her Majesty’s Government in the United Kingdom are,
however, usually privy councillors and in that capacity, they may not only
advise Her Majesty but, within the procedures established by Her Majesty in
Council, act on behalf of the Crown.
In relation to this part of the Appellant’s application, the
question therefore is whether the Crown has power to intervene and adjudicate
with a view to appointing an independent police force to examine the Appellant’s
allegation.
9.
The first
answer to this is that any such exercise of Crown power, assuming it to be
lawful, would be an administrative exercise of executive power which, in our
view, would be subject to the control of the Courts on judicial review on the
application of usual principles.
The Court would be in the position of reviewing whether the
Crown’s exercise of power was or was not lawful, and it is
constitutionally inappropriate to suggest that the Courts should be calling
upon the executive to administer such powers. Secondly, in any event, the power of the
Crown to intervene in the way in which the Appellant has contended, could only
be lawful, so it seems to us, if based upon some existing legislation or upon
the Crown’s reserve powers to intervene in the interests of good
government. We are not aware of any
legislation which would enable such intervention in the manner requested by the
Appellant. In our judgment the
reserve powers of the Crown to intervene in the interests of good government are
not engaged here either. The nature
of the Appellant’s complaint is that he asked the Assistant Magistrate
the question “am I presumed innocent”, and that he recalls the
Assistant Magistrate answered “yes”, and yet when one reads the
transcript the exchange went as follows:
“Assistant
Magistrate: This is for the
prosecution to prove their case beyond reasonable doubt.
Mr Vibert: So I am presumed innocent of these
alleged offences?
Assistant Magistrate: Well it is for the prosecution to prove
the case against you.
Mr Vibert: And that’s to beyond a reasonable
doubt?
Assistant Magistrate: That’s correct.”
10. It seems to us that in effect the Assistant
Magistrate was indeed confirming that Mr Vibert was
presumed innocent of the alleged offences, no doubt because that is the way in
which the law, and particularly the European Convention on Human Rights,
works. Accordingly, even if it is
right that the transcript omitted the word “yes”
in the Magistrate’s answer, that is not material, and certainly does not
go anywhere near establishing the breakdown of law and order which it would be
necessary to establish to justify the intervention of the Crown on the basis of
its reserve powers.
11. The Appellant contended that there was a
further specific question which was missing namely “am I presumed innocent of all the elements of this alleged
crime?” His submission
was that statute law did not apply to him because he was not an agent or an
employee of the States of Jersey, which is a body corporate. He is self-governed, and not operating
according to the statutes of the Island.
He asserted that he was only present because he was threatened with
violence and arrest, and that was a matter of duress. Before us, Mr Vibert
explained that he was not making a general appearance in the Magistrate’s
Court, it was “a special visitation
specifically, to challenge jurisdiction which I wasn’t allowed to do in
the end Sir”.
12. As we indicated on 25th June, these
arguments were not capable of giving rise to a legitimate complaint in this
Court. The States of Jersey is the
Island’s legislature. It
makes provision for laws which, once given assent by Her Majesty the Queen,
bind all of us, including members of this Court. If the complaint is that there is a
section missing in the transcripts in relation to the question “am I presumed innocent of all the
elements of this alleged crime” and the reason for wanting to put
that before the Court is that the Appellant is not bound by the statutory
legislation of this Island, the application makes no legal sense. Accordingly it was dismissed.
13. As we have indicated the application for a
general adjournment to 10 a.m. on 26th July was agreed and that
order was made. Unfortunately, the
Appellant did not appear at 10 a.m. on 26th July to conduct his
appeal, and he was unrepresented.
The Court waited until 10.30 am to give him the opportunity of either
appearing late or making contact with the Judicial Greffier to give some
explanation as to why he was not present.
In the absence of his appearance or contact, the Court sat and dismissed
the appeal. We made it clear that
we were dismissing the appeal on its merits quite apart from the failure of the
Appellant to appear. However we add
that in our judgment, the failure of an Appellant to appear is capable of being
a reason of itself to dismiss his appeal.
14. We now turn to the substance of the appeal on
the papers.
The Evidence
15. It is clear from the transcript that the
Appellant did not accept responsibility for either of these charges, and
accordingly the prosecution called evidence in the usual way. The first witness was Parking Control
Officer Sarah Le Miére. Her evidence was that she noticed
vehicle J25152 was parked in Grosvenor Street on 21st December 2011,
and no pay card was displayed notwithstanding it was parked in a pay card
area. Accordingly she issued a
fixed penalty notice. The time was
10.31. In her evidence she also
indicated that she took a number of photographs, in accordance with usual
practice. She took a photograph of
the number of the vehicle; views of the windscreen and side windows to show
that there was no ticket on the vehicle which was there, and a photograph of
where the vehicle was in the street, with the penalty notice on the window. Those photographs were produced in
evidence. Mr Vibert,
who conducted his own defence, asked a number of questions which did not have
any relevance to the issue which was before the Court, but he did elicit a
confirmation that the witness did not know who was driving the vehicle on the
morning of 21st December 2011, and had no evidence to give to the
Court in that respect. He also
elicited from the witness evidence that she was not aware whether he was within
the Parish of St Helier at the time of the alleged offence.
16. The Court then heard from Mr Aaron Machin, who is employed at the Driver and Vehicle Standards
Department. He produced to the
Court the original vehicle registration document, namely a transfer of the
vehicle into the name of the Appellant, which was received on 14th
October 2010. The vehicle
registration document gave the address of the Appellant as 10 Haut de la Rue
Farm, St Martin. The vehicle
registration document was completed with signatures in boxes 1 and 3, which the
witness took to be the signature of the Appellant as the new registered
owner. In cross examination, the
Appellant elicited a confirmation from Mr Machin that
the registered owner is not necessarily the same as the legal owner of the
vehicle, and that the information which the Driver and Vehicles Standards
Department record is the name of the registered owner. There was also considerable cross
examination as to the manufacturer’s certificate of origin, which does
not seem to us to be relevant to this case.
17. The Court then heard from Police Constable
O’Brien who has been a police officer in Jersey for just over 10
years. On 13th April
2012 he went to 10 Rue de Haut Farm, St Martin to speak to the Appellant, who
confirmed he was the registered keeper of the motor vehicle J25152. He asserted that Driver and Vehicle
Standards Department were the owner.
The officer saw the vehicle parked outside the flat. There was a conversation between them. The Appellant said that “I don’t consent to any traffic
law”. He was asked if he
had been the driver, or who was driving at the time of the alleged offence in
December 2011 and said that he did not remember. When cautioned for the offence of
failing to provide the information requested, he said “I don’t remember” and “I wasn’t driving”. He went on to say that he did not
recognise statute law but only common law.
In cross examination, the Appellant put the terms of Article 86(1)(a) of
the Law to the police officer, and asked him to confirm that the Article
referred to the owner of the vehicle and not the registered keeper. The witness responded that “substantially, I think, that is the same,
the same thing”. There
was again extensive cross examination of the witness on matters which we do not
think are relevant to this case.
The Appellant did elicit from the witness a confirmation that the
witness did not know the difference between the registered keeper and the legal
owner of a registered vehicle although he imagined they were substantially the
same. The fourth witness was Police
Constable O’Neill, who had accompanied Police Constable O’Brien to
the Appellant’s address in April 2012. The Crown Advocate did not lead any
evidence from the police officer but at the Appellant’s request, tendered
him for cross examination. The
police officer was challenged as to whether the registered keeper was the same
as the legal owner, and he indicated that the two should be the same but the
matter could be disputed, and that would obviously be a civil argument. Later in his cross examination, there
was this exchange:-
“Mr Vibert: Can you tell me, please, why did you
interview and caution the registered keeper of the vehicle and not the
owner?
Witness: Ok, on the day you confirmed to me that
you were user of the vehicle.
Mr Vibert: Right I, I, I may have said that I
sometimes use it.
Witness: You did.
Mr Vibert: But that is completely different from
Witness: You’re also the registered keeper
of the vehicle
Mr Vibert: I am the registered keeper, yes.
Witness: And you would have had knowledge of who
was using the vehicle at the time of any offence.”
18. At the close of the prosecution case, the
Appellant made a submission of no case to answer which was rejected. He was asked whether he wished to give
evidence and he said he did not.
The Crown then summed up by indicating that the charges were brought in
the alternative. The Appellant
summed up by saying this:
“Well I have to say,
Ma’am, that PCO20 evidence contained no factual reference to who was
using or driving the vehicle. The
Law is quite clear: it is the
driver who is liable. When asked if
there was a driver, if anybody was using the vehicle, the witness answered in
the negative. She did not know who
was driving the vehicle, did not know who was using the vehicle, in fact had no
knowledge of who was the driver or user of the vehicle whatsoever, so I can
hardly see how lack of evidence like that can lead to a conviction on that
charge, Ma’am.”
The Assistant Magistrate’s Decision
19. The Assistant Magistrate retired and returned
later to enter a conviction. The
material parts of her decision for these purposes are as follows:-
“So, if your vehicle is parked on the public road, you can
still be said to be “using” the vehicle. There are many authorities in the UK of
the various terms in which the phrase “user” has been taken to mean
people connected with the car in various ways, but certainly a registered
keeper is presumed to be the user of the vehicle unless, in my view, there is
evidence to the contrary.
I find that you were the user in this case. You are the registered keeper. You have admitted that. You have signed a form saying you are
the owner, which in this case I find to mean a de facto owner. Again the word “owner” has a
wide meaning in law. The natural
meaning of the word “user” is somebody who has control of the
car. You have admitted to the
police that you use it. It was seen
at your home address, and in the absence of the evidence to the contrary, I
find that you were the user in law of the vehicle.”
20. The prosecution indicated it wished to withdraw
the second charge, which the Assistant Magistrate allowed, but she indicated
that she would have found that charge proved had she been asked to do so.
The Law
21. Article 62 of the Law confers on the Minister
for Home Affairs, after consultation with the Connétable
of the Parish in which any particular road is situated, to make Orders
prohibiting, restricting, or regulating the use of any road or part of the road
by vehicular traffic, as well as authorising the use of a part of the road as a
parking place for vehicles, subject to such conditions if any as may be
specified in the Order. The
relevant offence for the purposes of this case is set out in paragraph (4) of
that Article, which is in these terms:-
“Any person who uses a vehicle or causes or permits a vehicle
to be used in contravention of any order made under this Article shall be
liable to a fine not exceeding £100.”
22. There is no dispute that (where this particular
vehicle was parked in Grosvenor Street, St Helier), an Order had in fact been
made which permitted parking only if a valid parking card was displayed.
23. The alternative charge with which the
prosecution did not proceed in this case, is to be found in Article 86 of the
Law, which is in these terms:-
“(1) Where an offence is
alleged to have been committed in connection with a vehicle being on a road
–
(a) The owner of the vehicle
shall give such information as the owner may be required by or on behalf of the
Connétable of the Parish or a Centenier to
give as to the identity of the person in charge of the vehicle at the time of
the commission of the alleged offence, and, if the owner fails to do so, shall
be liable to a fine not exceeding £500, unless the owner shows to the
satisfaction of the Court that he or she did not know and could not with
reasonable diligence have ascertained who was the person in charge of the
vehicle as aforesaid; and
(b) Any other person shall,
if required as aforesaid, give any information which it is in his or her power
to give and which may lead to the identification of the person in charge of the
vehicle as aforesaid, and, if the person fails to do so, he or she shall be
liable to a fine not exceeding £500.
(2) In this Article, “owner”, in
relation to a vehicle which is the subject of a hiring agreement, or a hire
purchase agreement, means the person in possession of the vehicle under that
agreement.”
24. We deal first with the offence under Article
62(4) of the Law. The offence is
committed by anyone who either uses the vehicle or causes it or permits it to
be used in contravention of an Order made.
The offence is not framed by a reference to the owner of the vehicle,
nor to the registered owner or registered keeper of the vehicle. It follows that the prosecution must
establish who was using the vehicle, or who has caused or permitted it to be
used in contravention of the Order.
25. In our view, it is clear that the legislature
could not reasonably have intended that those responsible for enforcing
compliance with any Orders made by the Minister under this Article should be
required to watch a parked car indefinitely until the person who was using it
returned to move it, in order that that person could be identified. It would make a nonsense of the controls
which the legislation envisages.
Something else therefore must have been intended.
26. Article 86 of the Law gives some indication as
to how the legislature intended the process to work. That Article shows that the legislature
contemplated that information could be provided to somebody making enquiry by
or on behalf of the Connétable of the Parish
or a Centenier as to the identity of the person in charge of the vehicle at the
relevant time by the owner of the vehicle, or indeed by any other person, who
had information which was in his or her power to give. The reason that the owner is identified
separately is that there is a working assumption that the person who owns the
vehicle will know who had charge of it at any particular time – or if the
owner did not know, could with reasonable diligence find out.
27. The question arises as to whether there is any
other method of ascertaining who was using the vehicle at the relevant
time. Is it really the case that
the Court should construe this legislation as requiring further enquiry
to be made, in every case where a parking infraction takes place, of the
registered owner or keeper of the vehicle as to who might have been using it at
the relevant time? We think that
the States cannot have been intended to mean that. It may well be that it would be sensible
for enquiry to be made of the owner in any contentious case, but there is a
more practical approach which in our judgment needs to be taken as to the
evidence which is necessary to prove parking offences.
28. It is right first of all however to restate, as
the Assistant Magistrate did, that the burden of proof of an infraction under
Article 62(4) of the Law lies on the prosecution and because it is a criminal
matter, the standard of proof is such that the charge must be proved beyond
reasonable doubt. In our judgment,
proof as to the identity of the registered owner, in the absence of any other
evidence to the contrary, is in law capable of amounting to sufficient evidence
that that person is the person who was using the vehicle at the relevant time,
and therefore is guilty of the offence.
It is important to lay emphasis on the words “in the absence of any other evidence”. If there is any other such evidence, it
may well be that the Magistrate could not be satisfied beyond reasonable doubt
that the registered owner or keeper was the person using the car at the
relevant time. It is for that
reason, in defended cases, that the police will want to exercise powers under
Article 86 of the Law to request identification as to who the driver of the
vehicle was at the relevant time.
29. Put another way, a court is entitled to infer
from evidence as to the registered owner or keeper of the vehicle that that
person was using it at any particular time, in the absence of any evidence to
the contrary.
30. We are pleased to note that this common sense
approach has been taken in a number of cases in England and Wales. In Elliott –v- Loake [1983] Crim LR36, the
defendant appealed against convictions for driving without due care and
attention, failing to stop after an accident, failing to report an accident and
failing to give information as to the driver of the vehicle on the relevant
occasion. He appealed on the basis
that the justices were not entitled on the evidence before them to find that he
had been the driver of the vehicle at the material time. The Divisional court found that there
was a prima facie inference that the owner of a car was its driver, and in
support, reference was made to the case of Barnard –v- Sully
[1931] WN180, and Ende –v- Cassidy
[1964] Crim LR595. Although the former authority was a
civil case, the latter was a criminal matter in which the court was faced with
a defendant who had caused an obstruction by leaving his car on a road. The commentary in the Criminal Law
Review is that this was a 1964 decision, and that it might be that in 1982, the
force of the inference will be correspondingly diminished as there was then a
greater likelihood than formerly that a car would be driven by the
owner’s spouse or children.
We agree that that may be the position, but it will depend on what
evidence is produced. If no
evidence is produced as to the person using the car at the time, the inference
stands to be drawn, unchallenged, and in our judgment would be sufficient. By contrast, if there is evidence
produced which indicates that at other times, persons other than the registered
owner or keeper have been using the vehicle, then it may be necessary for the
prosecution to go further.
31. We also note that in R –v- Collins
(George) [1994] RTR 216, the court was considering a charge of conspiring
to supply drugs. Wilkinson’s
Road Traffic Offences, a work to which the Courts of this jurisdiction have
frequently had regard, 23rd Edition Volume 1 at paragraph 1.88
describes the matter thus:
“A most interesting decision
on whether or not a court can infer that an individual was driving from proof
of ownership of the vehicle was handed down by the Court of Appeal in R
–v- Collins (George) [1994] RTR 216.
The allegation was one of conspiracy to supply drugs. The police observed a box containing
drugs transferred to a Saab motorcar.
The Saab was then driven off by a man wearing dreadlocks. The following week the appellant, who
had dreadlocks, was seen driving the Saab.
When he stopped he gave a false name but later he and his brother
admitted that they owned the Saab jointly.
At the trial of the appellant a submission of no case to answer was
rejected. None of the defendants
gave evidence. The judge directed
the jury that they were entitled to draw the inference that an owner of a
vehicle was the driver of that vehicle if he fitted the description of the
driver of the vehicle when it was seen at some place in connection with an
offence. The appellant appealed
against his conviction.
The appeal was allowed and the
conviction quashed. The Court of
Appeal held that where a car was owned jointly a jury should not be directed
that they could infer that one owner was the driver of the car at the time when
it was seen in connection with an offence if he fitted the description of the
driver given at that time without being told that they should bear in mind the
possibility that the joint owner had given permission to a third person to
drive the car.”
32. As is emphasised by the editor of Wilkinson,
inferences can only be drawn if it is reasonable under all the circumstances to
draw them. In assessing
reasonableness, consideration must be given to other explanations or
possibilities. In that case, the
decision takers on matters of fact, included within which was the identity of
the driver of the car at the relevant time, should have considered the
possibility that the other registered owner had given permission to someone
else to drive the car. That is a
different factual matrix from one where the Magistrate is faced with deciding
if a single registered owner can be inferred to have been the driver at the
relevant time in the absence of any other evidence to the contrary. We refer to the extract from Wilkinson
and to the case of Collins for the purpose of emphasising the differences
between that case and the instant one.
33. An amount of time has been taken up in the
Magistrate’s Court in this case and in the papers on appeal with the
apparent distinction between the “registered
owner” and “registered
keeper”. We note that the
Road Traffic Act 1988, as amended in 1991 refers to the expression “the
keeper of the vehicle” and “registered keeper”. In our legislation, references are made
to “owner”,
as indeed is shown by the extract from Article 86 of the Law. If one looks at the registration
document issued by the Driver and Vehicle Standards Department, the description
is of the “registered owner”. It is clear that the registered owner is
not necessarily the legal owner because the issue of a document by the Driver
and Vehicle Standards Department cannot be taken as conclusive indication as to
the civil rights over the vehicle in question of any other persons who are not
the registered owners of the vehicle.
However, the system for registration for ownership does enable the
authorities to ascertain, for the purposes of the legislation which they administer,
who has responsibility as owner for a particular vehicle. For the purposes of Article 86 of the
Law, “owner”
where the vehicle is not the subject of a hiring agreement or a hire
purchase agreement, means the registered owner.
34. The Appellant’s other arguments in
relation to his conviction do not get off the ground. There is no evidence that he did not
receive full disclosure of relevant material. All witness statements which the
prosecution sought to rely upon were provided to him and he confirmed that in
the Magistrate’s Court. There
is no suggestion that there was any other information available which would
have supported the defence, and which was not disclosed.
35. As to the alleged lack of jurisdiction, the
matter is so plainly within the jurisdiction of the Magistrate’s Court
that it is not an argument which requires to be taken further.
36. It is equally obvious that the statutory
offence was created by the Law and that the Appellant is bound by legislation
passed by the States of Jersey and given Royal assent, as he is by the
customary law.
37. As to the allegation that the Assistant
Magistrate did not confirm her oath of office, there was no requirement in law
for her to do so but in any event, the Assistant Magistrate did indicate that
magistrates always operate under an oath of office, and that she had sworn an
oath to administer the law fairly and according to law and she would do so in
every case.
38. As to the question of conflict, this appears to
be based on the fact that the Assistant Magistrate is paid a salary by the
States of Jersey and therefore has a conflict in dealing with the prosecution
under legislation adopted by the States of Jersey. Such a contention is to disregard the
nature of the Magistrate’s appointment. First of all, the Magistrate (which
includes the Assistant Magistrate for the purposes of this judgment) is
appointed by the Bailiff and not by the States. Secondly, the Magistrate holds office
until there is an order of Her Majesty in Council removing the magistrate from office,
and it follows that the Magistrate, in the course of performing his or her
functions, is under no pressure whatsoever to do the bidding of the state. Thirdly, the arrangements for the
constitution of a Magistrate’s court and the appointment of magistrates
are made by the States for the purposes of ensuring that justice can be done
impartially, in respect of the matters where the magistrate has
jurisdiction. The fact that the
States pay the salary of the magistrate for performing those functions does not
lead to any conclusion that the States can interfere in the independence of the
magistrate in reaching a decision in any particular case.
39. The correct test to be applied when considering
an appeal from the Magistrate’s Court is whether the Magistrate concerned
has made an error of law which is fundamental to the decision, or whether there
was evidence on which the Magistrate could properly have come to the decision
she did. If that evidence existed,
even though the Royal Court might not necessarily have come to the same
decision, the Court does not likely interfere with it. For an appeal to succeed on the
evidence, the Court has to be satisfied that there was insufficient evidence
for the Magistrate to have come to the decision that she did, or that she drew
the wrong conclusions and inferences from the evidence before her.
40. In this case we are quite satisfied that the
Magistrate reached the correct conclusions on the evidence before her, and
indeed that she conducted the proceedings impeccably in circumstances, given
this particular Appellant, which were not at all easy. The appeal is rejected and the
conviction, sentence and costs order stand.
41. In addition we order the Appellant to pay the
Respondent’s costs of and incidental to the appeal, if not agreed to be
taxed on the standard basis. As
this order was made in default, we expressly give the Appellant liberty to
apply in relation to this order only.
Authorities
Road Traffic (St Helier)(Jersey)
Order 1996 (as amended).
Road Traffic (Jersey) Law 1956 (as
amended).
European Convention on Human Rights.
Elliott –v- Loake
[1983] Crim LR36.
Barnard –v- Sully [1931] WN180.
Ende –v- Cassidy [1964] Crim LR595.
R –v- Collins (George) [1994]
RTR 216.
Wilkinson’s Road Traffic
Offences, 23rd Edition, Volume 1.
Road Traffic Act 1988, as amended.