Jersey Unreported Judgments

[2009]JRC010

ROYAL COURT

(Samedi Division)

19^th January 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

The Attorney General

-v-

Daniel de Nobrega Goncalves

Defence application for a Costs order.

Crown Advocate J. C. Gollop for the Attorney General.

Advocate D. R. Wilson for the Defendant.

JUDGMENT

THE commissioner:

1.        On 7^th January, 2009, I heard an application for costs by the defendant Goncalves following his being sentenced to a fine of £400 or one month's imprisonment in default for malicious damage to the exit barrier at the Waterfront car park.  The application relates to a charge of taking and driving away which the prosecution had earlier abandoned.  I reserved my decision.

2.        He was sentenced with four other defendants, Volante, Rankin, Doolan and Falle.  On 6^th March, 2008, all of the defendants congregated with others at the lower underground car park at the Waterfront, a popular meeting place.  They spotted a Ferrari parked in an area used by Jet Valeting Services.  It was boxed in behind a Hyundai motor vehicle.  Volante and Rankin ascertained that its keys were in a letter style key box which they damaged so as to get the keys.  Volante then opened and sat in the car.  He and Doolan bounced the Hyundai out of the way so that the Ferrari could be driven out.  Volante then drove the Ferrari out of the car park underneath the barrier which came into contact with the roof of the Ferrari.  Two cars followed to the barrier, in the second of which Goncalves was a passenger.  The driver of the car in front tried to use his ticket to exit the barrier without success and help was called for.  Goncalves got out of his car to assist.  He tried to use the ticket without success and then pushed the barrier up, allowing the two cars to exit.  In that process, the barrier was damaged.  Volante then picked up Falle and drove with the other vehicles to Le Braye slip where he drove the Ferrari round the car park.  He then drove the Ferrari to Noirmont Point.  He experienced difficulty in restarting the vehicle and was undecided what to do.  He was apparently aware that the police knew the car had been taken.  The other youngsters left and he and another male pushed the Ferrari down an incline, apparently to conceal it.  It was then set alight and destroyed.  As a result of lack of evidence as to who set the Ferrari alight, no charges have been brought against anyone in this respect.

3.        Goncalves had originally been charged with the other defendants with taking and driving away the Ferrari, in addition to the charge of malicious damage to the exit barrier.  Mr Wilson advised from the outset that there was insufficient evidence to justify either charge.  Unlike the other defendants, the committal was contested and at the committal proceedings, detailed written submissions were made by the defence in relation to both counts.

4.        In relation to the taking and driving away, it was clear that there was no evidence of Goncalves acting as principal.  As to aiding and abetting, the evidence at its height was that he was present (amongst many other youths) at the Waterfront car park and assisted the second car to exit after the Ferrari had left.  The Court was referred to AG v Clark [1987-1988] JLR 448 which held that the offence of taking and driving away was complete from the moment the vehicle is driven away.  Nothing that Goncalves did after the Ferrari had left the car park could have amounted to participation in the taking and driving away.

5.        In relation to the malicious damage the defence accepted that its case was much weaker.  The concern in this respect was whether it was Goncalves' lifting of the barrier which caused the damage, as opposed to the Ferrari itself.  In due course, the prosecution did produce expert evidence from which Goncalves was able to accept that it was his actions that had caused the damage. 

6.        The Relief Magistrate found that there was a prima facie case and referred it to the Royal Court where conduct of the prosecution was given to Mr Gollop.  Mr Wilson informed Mr Gollop that his client would plead guilty to the malicious damage charge (in the light of the evidence procured by the police) but not guilty to the taking and driving away.  He gave Mr Gollop the written submissions of no case to answer submitted to the Magistrate.

7.        Mr Gollop reviewed the evidence and the prosecution then abandoned the charge of taking and driving away.  In making that decision, there had been no change in the evidence upon which the prosecution were relying.

8.        I was referred to the case of AG v Gouveia [2000] JLR 324, where the Court made the following observations to assist in cases of this kind:-

"(a)     An award of costs would not normally be appropriate with respect to  not guilty pleas accepted by the prosecution at an early stage after discussion with the defence;

(b)       An award would often be appropriate, however, where the prosecution, having had a reasonable opportunity to consider the pleas, decided to proceed with a particular count or counts and there was either an acquittal or the counts were dropped at a late stage after considerable extra costs had been incurred".

9.        Mr Gollop argued that this case fell within the first category, namely a not guilty plea accepted by the prosecution at an early stage after discussion with the defence, whereas Mr Wilson argued that the case fell within the second category.

10.      The following factors seem relevant to me:-

(i)        Of the two charges against Goncalves the taking and driving away was, on the facts of this case, the more serious;

(ii)       Mr Wilson challenged the prosecution at the committal stage, giving the prosecution the opportunity to reconsider at that stage the strength of its case;

(iii)      the charge of taking and driving away was dropped as soon as the case was reviewed again before the Royal Court:- there had been no change in the interim;

(iv)      challenging the charge at the committal stage involved Goncalves in some nine appearances before the Magistrate, including the contested committal;

(v)       the evidence against Goncalves in relation to the taking and driving away was inherently weak.

11.      Taking these factors into account, I have reached the conclusion that this is a case which falls into the second category namely where the prosecution had an opportunity at the contested committal proceedings to reconsider the strength of its case on the charge of taking and driving away and having done so had decided to proceed. 

12.      I therefore award Goncalves his costs (to include the costs of this application) in relation to the charge of taking and driving away on the standard basis.

Authorities

AG v Clark [1987-1988] JLR 448.

AG v Gouveia [2000]JLR 324.