Subject-Matter Index

Accomplice. See Corroboration—accomplices

Admissibility

admission of relevant evidence

prima facie admissible as relevant if makes facts alleged more probable—broad admissibility possible if prosecution case based on knowledge and suspicion, from which court invited to infer proof: Law Officers v. Doyle (Royal Ct.), 2015 GLR 280

conflict of laws. See CONFLICT OF LAWS (Evidence—admissibility)

exclusion of relevant evidence

confession by defendant to probation officer of commission of serious drugs offence, leading to Law Officers bringing prosecution for that offence, excluded under Police Powers and Criminal Evidence (Bailiwick of Guernsey) Law 2003, s.78(1)—public interest in prosecution of serious criminal offence outweighed by public interest in offenders being open with Probation Service: Guilbert v. Law Officers (Royal Ct.), 2022 GLR 45

evidence may be excluded under Police Powers and Criminal Evidence (Bailiwick of Guernsey) Law 2003, s.78(1)—message between nurses accused of gross negligence manslaughter, which might be considered evidence of callous disregard for deceased, probative and relevant—not excluded: Law Officers v. Prestidge (Royal Ct.), 2019 GLR 314

if counts founded on same facts, of similar character, and part of uninterrupted course of conduct, evidence relating to one count unlikely to be excluded even if allegedly prejudicial to other counts, and counts unlikely to be severed: Afonso v. Law Officers (Royal Ct.), 2000–02 GLR N [17]

preferable for trial judge to use discretion under PPACE, s.78 to exclude evidence unfair to accused, rather than considering stay of prosecution—stay rarely granted (permanent stay almost never) in absence of fault in investigating or prosecution authorities or serious prejudice to accused—never granted simply to express disapproval of prosecution’s behaviour: Taylor v. Law Officers (C.A.), 2011–12 GLR 81

relevant evidence may attract public interest immunity, e.g. because identifies informant or person assisting police—prosecution to make application to exclude evidence in presence of defendant’s advocate if issue can be discussed without disclosing material evidence—court to weigh prejudice to defendant from exclusion against public interest in protecting identities and overriding consideration of fair trial: Marsh v. Law Officers (C.A.), 2000–02 GLR 406

expert evidence. See Expert evidence—admissibility

fresh evidence. See CIVIL PROCEDURE (Appeals—fresh evidence). CRIMINAL PROCEDURE (Appeals—fresh evidence)

similar fact evidence. See Similar facts—admissibility

Admissions

request for admissions

party cannot be forced to make admissions: Law Officers v. Prestidge (Royal Ct.), 2019 GLR 314

sentencing information. See CRIMINAL PROCEDURE (Sentence—sentencing information)

Affidavits. See Expert evidence—admissibility. CIVIL PROCEDURE (Affidavits), (Further and better particulars—affidavits)

Assistance from foreign court

letter of request

Guernsey court only to issue letter of request to UK court if (a) would have subpoenaed documents or witness itself if in Guernsey; and (b) reason to suppose UK court receptive to request—when foreign jurisdiction governed by Evidence (Proceedings in Other Jurisdictions) Act 1975, Guernsey court to consider same factors as though equivalent request made of it: Alpha Dev. Ltd. v. Barclays Wealth Trustees (Guernsey) Ltd. (Royal Ct.), 2014 GLR N [4]

need to specify “particular documents” under Evidence (Proceedings in Other Jurisdictions) Act 1975, s.2(4)(b) (as extended by Evidence (Proceedings in Other Jurisdictions) (Guernsey) Order 1980) limits request to evidence directly material to case, prevents requests for documents simply because they might be useful at trial, and prevents “fishing expedition”—requirement satisfied if obvious that particular document must exist even if applicant unable to prove existence: Alpha Dev. Ltd. v. Barclays Wealth Trustees (Guernsey) Ltd. (Royal Ct.), 2014 GLR N [4]

not to make request if documents simply intended to be used to support expert evidence or for gathering information—applicant must intend to present evidence to court in same form in which sought—may refuse to make request if evidence not sufficiently connected to or useful in main proceedings: Alpha Dev. Ltd. v. Barclays Wealth Trustees (Guernsey) Ltd. (Royal Ct.), 2014 GLR N [4]

request to foreign court to subpoena evidence in its jurisdiction—power to issue letter derived from court’s inherent jurisdiction—foreign court under no obligation to comply with request: Alpha Dev. Ltd. v. Barclays Wealth Trustees (Guernsey) Ltd. (Royal Ct.), 2014 GLR N [4]

Assistance in foreign proceedings. See CIVIL PROCEDURE (Disclosure—Norwich Pharmacal order)

Assistance to foreign court

examination of documents and witnesses

European Convention on Mutual Assistance in Criminal Matters 1959 given effect in Guernsey by Criminal Justice (International Co-operation) (Bailiwick of Guernsey) Law 2001—facilitates provision of evidence in foreign jurisdictions—art. 12(1) protects against prosecution of witnesses as result of giving evidence—no circumvention of Convention if person summonsed to give evidence in foreign jurisdiction put at risk of prosecution by doing so and foreign court regards him as “prosecuted person,” since art. 12(1) not then applicable: In re B (C.A.), 2011–12 GLR 694

no inherent jurisdiction to extend foreign statutory bankruptcy procedure conferring powers on foreign trustee in bankruptcy to summon and examine witnesses to help trace Guernsey assets, based on combination of usefulness, generous view of analogy with Guernsey legislation, and reliance on “modified universalism” in insolvency law: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

letter of request

letter of request from English court under Bankruptcy Act 1914, ss. 122–123, or Insolvency Act 1986, s.426, seeking assistance of Royal Court in enabling English trustee in bankruptcy to examine witnesses and documents in tracing bankrupt’s Guernsey assets enables Royal Court to exercise own jurisdiction and English jurisdiction—preferable to “conjuring up” dubious inherent jurisdiction of Royal Court to achieve same ends: In re X (A Bankrupt) (Royal Ct.), 2015 GLR 248

respondent applied ex parte for effect to be given to letter of request from US court for applicants to produce documents—Royal Court granted application and witness summonses served on applicants—following US appeal decision, respondent sought to withdraw application to move letter of request and to set aside summonses—respondent ordered to pay applicants’ costs on recoverable basis: EEA Fund Management (Guernsey) Ltd. v. Coventry Capital US LLC (Royal Ct.), 2022 GLR 145

where subject of request objects to application, better to hold initial hearing inter partes—restriction preventing reimbursement for “execution” of letter of request under Hague Convention on Taking of Evidence Abroad in Civil or Commercial Matters, art. 14 not to include costs for challenge to letter of request, whether during initial or subsequent hearing: Universal Trading & Inv. Co. Inc. v. Bassington Ltd. (Royal Ct.), 2014 GLR N [12]

Background history. See Similar facts—background history

Bad character. See Similar facts—previous offences and bad character

Burden of proof

abuse of process. See CIVIL PROCEDURE (Abuse of process—burden of proof). CRIMINAL PROCEDURE (Abuse of process—burden of proof)

administration orders. See COMPANIES (Administration orders—burden of proof)

affirmative assertions. See CONTRACT (Waiver—burden of proof)

application for hearing in private. See CIVIL PROCEDURE (Hearing—hearing in private)

community parenting order. See FAMILY LAW (Children—community parenting order)

compulsory winding up. See COMPANIES (Compulsory winding up—discretion of court), (Compulsory winding up—grounds for winding up), (Compulsory winding up—locus standi to make application)

contract and waiver. See CONTRACT (Waiver—burden of proof)

defence that unlikely to drive with excess alcohol. See ROAD TRAFFIC (Driving or in charge with excess alcohol—likelihood of driving with excess alcohol)

domicile. See CONFLICT OF LAWS (Domicile—domicile of choice), (Domicile—domicile of origin)

fair trial. See CIVIL PROCEDURE (Dismissal for want of prosecution—delay)

freezing order. See INJUNCTIONS (Freezing orders—burden of proof), (Freezing orders—respondent’s legitimate expenses)

housing appeals. See HOUSING (Appeals—burden of proof)

income tax deductions. See INCOME TAX (Deductions—burden of proof)

incorporation of jurisdiction clauses. See CONFLICT OF LAWS (Jurisdiction—incorporation of jurisdiction clauses)

misconduct by executor. See SUCCESSION (Costs—indemnity out of estate)

ouster order. See FAMILY LAW (Domestic violence—ouster order)

postponement of licitation. See LAND LAW (Co-ownership—termination)

proceeds of criminal conduct

in private law action by beneficiary challenging trustee’s refusal to release funds after suspicious transaction report and no consent by law enforcement, burden on trustee to prove on balance of probabilities holds requisite suspicion, and then on beneficiary to prove provenance of funds: Liang v. RBC Trustees (Guernsey) Ltd. (Royal Ct.), 2018 GLR 189

proceeds of drug trafficking. See CRIMINAL LAW (Drugs—proceeds of trafficking)

proportionality of interference with Convention right. See HUMAN RIGHTS (Proportionality—burden of proof)

provocation. See CRIMINAL LAW (Provocation—burden of proof)

risk of dissipation of frozen assets. See INJUNCTIONS (Freezing orders—risk of dissipation)

safe system of work. See EMPLOYMENT (Safety—breach of statutory duty), (Safety—safe system of work)

self-defence. See CRIMINAL LAW (Self-defence—burden of proof)

servitudes. See PRESCRIPTION (Extinction of rights—servitudes)

stay of proceedings. See CIVIL PROCEDURE (Stay of proceedings—burden of proof)

stay on ground of forum non conveniens. See CONFLICT OF LAWS (Parallel foreign proceedings—stay of Guernsey proceedings)

testamentary capacity. See SUCCESSION (Wills—testamentary capacity)

trespass to goods. See TORT (Trespass to goods—burden of proof)

undue influence. See CONTRACT (Undue influence—burden of proof)

unfair dismissal. See EMPLOYMENT (Termination—unfair dismissal)

unreasonable behaviour. See FAMILY LAW (Divorce—unreasonable behaviour)

witnesses. See Witnesses—calling of witnesses

Character. See CRIMINAL PROCEDURE (Sentence—previous good character)

Circumstantial evidence

weight

if case based on circumstantial evidence fit to be left to Jurats and still available for consideration by them despite defence evidence, rare for conviction to be quashed on appeal—only set aside if “obviously and palpably wrong”: Hardy v. Law Officers (C.A.), 2013 GLR 127

Co-accused

evidence against single co-accused

may be adduced against one co-accused notwithstanding possible prejudice to other co-accused—adequately dealt with by direction to Jurats, relied on to follow direction to consider evidence against only one co-accused: Dodd v. Law Officers (C.A.), 2015 GLR 123

Complaints

credibility of complainant

unused medical evidence held by prosecution need not be disclosed to defence if not directly relevant to proof of case and immediately admissible, and merely designed to lead to further investigation—evidence simply to be used for testing complainant’s credibility (e.g. whether and when complaint made to parent) need not be disclosed: Law Officers v. Alvarez (Royal Ct.), 2011–12 GLR N [28]

Confessions. See Admissibility—exclusion of relevant evidence

Corroboration

accomplices

accomplice evidence to be treated carefully and independent corroboration sought—corroborating evidence connecting or tending to connect accused with crime charged—Jurats’ attention to be drawn to inconsistencies and lies: Law Officers v. Holliday (C.A.), 2000–02 GLR 9

Credibility. See Complaints—credibility of complainant. Witnesses—credibility

Death certificate. See INQUESTS (Death certificate)

Disclosure of relevant information. See CRIMINAL PROCEDURE (Prosecution case—disclosure of relevant information)

Documentary evidence

inspection by court

in application for summary judgment, court may inspect unquestioned documents, e.g. accounts showing balance due or letter promising payment, to determine whether moneys due, or bona fide dispute, and non-payment by defendant not merely attempt to delay: M.G.F. Ltd. v. J.K.F. Devs. Ltd. (Royal Ct.), 2000–02 GLR N [14]

Evidence from foreign jurisdiction. See Assistance from foreign court—letter of request

Exclusion of relevant evidence. See Admissibility—exclusion of relevant evidence

Expert evidence

admissibility

court not obliged by overriding objective (applicable to Evidence in Civil Proceedings Rules 2011 even though not explicitly stated) to take restrictive approach to allowing expert evidence: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2014 GLR N [3]

evidence of opinion not relevant or admissible until basis for it laid by accepted or established fact, or facts assumed for purpose—if relevant opinion can only be based on facts established at trial, expert to be present when factual evidence given—opinion based on facts established pre-trial should state those facts: Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332

expert evidence of relationship between future inflation and earnings, if unchallenged, not to be disregarded merely because based on general economic theory yielding only general data (i.e. not specific to Guernsey)—impossible to stigmatize as imprecise since imprecision inevitable in future prediction: Simon v. Helmot (P.C.), 2011–12 GLR 517

expert evidence to assist court in understanding matters outside knowledge of ordinary people—not to introduce expert evidence which offers no practical assistance to Jurats in determining factual issues of case: Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332

expert’s report may be accepted as expert evidence even if initially submitted as part of affidavit—no requirement that court’s permission obtained before commissioning report—if permission refused after commissioning, party unable to recover costs and may only rely on report as factual evidence, provided report validly lodged as part of affidavit: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2014 GLR N [3]

opinion capable of being expert evidence if (a) subject-matter capable of being subject of expert evidence (i.e. person without instruction or experience unable to form sound judgment without assistance of witness; subject-matter part of sufficiently organized or recognized body of knowledge or experience; and witness capable of giving special acquaintance with body by giving opinion to court); and (b) witness has acquired sufficient knowledge of subject to render opinion valuable in resolving issue before the court: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2014 GLR N [3]

report of nursing expert not admissible in trial for gross negligence manslaughter if impermissibly and erroneously addresses legal issues: Law Officers v. Prestidge (Royal Ct.), 2019 GLR 314

expert witnesses

court’s ordering of joint medical experts’ reports not appropriate exercise of court’s power to foster evolutionary growth of common law: Angenent v. Pring (Royal Ct.), 2005–06 GLR 11

court’s ordering of joint medical experts’ reports not authorized by statute or express provision in Royal Court Civil Rules 1989—no inherent jurisdiction to order because control of parties over calling of witnesses or manner of their evidence substantive not procedural rights—use of inherent jurisdiction cannot change substantive law: Angenent v. Pring (Royal Ct.), 2005–06 GLR 11

expert should state facts or assumptions on which opinion based and not omit any facts which detract from conclusions; make clear if question not within expertise; state if considers data insufficient to reach proper opinion and indicate that opinion provisional; and state in report if cannot assert it is entirely truthful: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2014 GLR N [3]

expert witness’s pre-trial report has status of previous statement—may be referred to by witness-in-chief and in cross-examination or re-examination—expert witnesses to give evidence orally to help parties and presiding judge to identify issues and how case might be settled—expert’s report may later become admitted as agreed statement: Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332

expert witnesses may be witnesses both as to fact and opinion, e.g. giving details of surgical operation and opinion on severity of injuries or prognosis—evidence of opinion not relevant or admissible until basis for it laid by accepted or established fact, or facts assumed for purpose—if relevant opinion can only be based on facts established at trial, expert to be present whilst factual evidence given—opinion based on facts established pre-trial should state those facts: Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332

if experts’ reports not agreed, not to be in Jurats’ pre-trial bundle—if agreed, only included in pre-trial bundle with leave of presiding judge: Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332

no expert witnesses required in determining age of child in prosecution under Protection of Children (Bailiwick of Guernsey) Law 1985, s.3(1)(a) for possessing indecent photographs of child, or to assist court in deciding whether photograph “indecent”: Mauger v. Law Officers (Royal Ct.), 2003–04 GLR N [13]

not necessary in all cases for witness giving evidence of presence of smell, e.g. cannabis, to have formal or paper qualification in detection and distinction of smells—should have sufficient experience of and familiarity with smell for court to give credit to evidence—credibility depends on, e.g. rarity of smell, how distinctive, strength on occasion in question, and length and quality of witness’s experience: Guest v. Law Officers (C.A.), 2003–04 GLR N [1]

opinion should be independent product of expert uninfluenced by litigation—expert to provide independent assistance to court by way of objective and unbiased opinion relating to matters within his or her expertise and never assume role of advocate: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2014 GLR N [3]

photographs, plans, calculations etc. referred to in opinion to be provided to other party—any changes in expert’s view to be communicated to other party without delay and to court when appropriate: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2014 GLR N [3]

joint experts’ reports. See Expert evidence—expert witnesses

proof of foreign law. See Proof of foreign law

purpose

expert evidence more useful than bare assertions made by each party with no aid to credibility—court still required to decide whether to accept opinion or which (if any) competing opinion to prefer: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2014 GLR N [3]

expert evidence should assist court in understanding matters outside knowledge of ordinary people—greater need in Guernsey for expert assistance than in England as Guernsey court normally judges without specialized knowledge, sitting with Jurats: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2014 GLR N [3]

expert evidence should assist court in understanding matters outside knowledge of ordinary people—not to introduce expert evidence of no practical assistance to Jurats in determining factual issues of case: Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332

purpose of expert evidence to help in determination of claim, not to indicate whether claim might succeed—inadmissible if simply attempt to bolster otherwise weak case: EFG Private Bank (C.I.) Ltd. v. B.C. Capital Group S.A. (Royal Ct.), 2014 GLR N [3]

Expert witnesses. See Expert evidence—expert witnesses

Extrinsic evidence. See ARBITRATION (Award—extrinsic evidence). CIVIL PROCEDURE (Judgments and orders—finality). DOCUMENTS (Interpretation—extrinsic evidence). SUCCESSION (Wills—rectification)

Fresh evidence. See CIVIL PROCEDURE (Appeals—fresh evidence). CRIMINAL PROCEDURE (Appeals—fresh evidence)

Fresh evidence on appeal. See CIVIL PROCEDURE (Appeals—fresh evidence). CRIMINAL PROCEDURE (Appeals—fresh evidence)

Hearsay

admissibility

in pursuance of overriding objective to deal with cases justly, court may adjourn trial heavily dependent on hearsay evidence to allow imminent Evidence in Civil Proceedings (Guernsey and Alderney) Law 2009 (abolishing rule against hearsay) to come into force—if transitional provisions permitted, parties might then apply to court for waiver of hearsay rule in proceedings: Hitchins v. Hill (Royal Ct.), 2011–12 GLR N [3]

plaintiff’s evidence has less weight if chooses not to attend trial—Jurats considered would have been reasonable and practicable for her to have attended to give evidence in person and decision not to do so was attempt to prevent proper evaluation: Cooney v. AFR Executors (Guernsey) Ltd. (Royal Ct.), 2016 GLR 18

res gestae

statements admissible if (a) so spontaneous that possibility of concoction or error can be disregarded; (b) statements accompany and explain relevant acts; and (c) statements relate to physical sensation or mental acts: Law Officers v. Prestidge (Royal Ct.), 2019 GLR 325

Identity

Turnbull direction. See Identity—visual identification

visual identification

if prosecution case depends on witness previously unacquainted with accused being able to recall accused’s appearance from previous sighting, may require Turnbull direction—Jurats to be warned of difficulties of recollection and attention to be drawn to any circumstances of previous sighting affecting reliability of subsequent identification: Marsh v. Law Officers (C.A.), 2000–02 GLR 406

no Turnbull direction required if only evidence requiring it very minor part of evidence relied on by prosecution and highly unlikely to be ground on which defendant convicted: Marsh v. Law Officers (C.A.), 2000–02 GLR 406

Inspection by court. See Documentary evidence—inspection by court

Letter of request. See Assistance from foreign court—letter of request. Assistance to foreign court—letter of request

Lies

proof of unlawful conduct

lies and contradictions by respondent as to provenance of property may be sufficient to meet civil standard of proving unlawful conduct to order forfeiture under Forfeiture of Money &c. in Civil Proceedings (Bailiwick of Guernsey) Law 2007, s.13(2): In re Forfeiture of Money in Civil Proceedings Law 2007 (Royal Ct.), 2011–12 GLR 232

Medical evidence. See Complaints—credibility of complainant. Expert evidence—expert witnesses

Notice to admit facts

procedure in Court of Alderney

court empowered by Government of Alderney Law 1987, s.17(2) and inherent jurisdiction to create and develop procedural rules for notices to admit facts and, in their absence, make ad hoc orders regulating them in particular cases—need for procedural certainty not to preclude making ad hoc rules—court to take into account circumstances of case, including complexity, and position in Guernsey/UK: Laughton v. Jackie Main (Royal Ct.), 2000–02 GLR 1

Order of witnesses. See Witnesses—order of witnesses

Overriding objective. See Expert evidence—admissibility

Police evidence. See POLICE (Evidence of officers)

Presumptions

presumption of sanity

testator ordinarily presumed sane with full testamentary capacity—if admitted by person propounding will that testator previously mentally ill, presumption raised against testamentary capacity and proof required that will made after recovery from mental illness or during lucid interval: Brooks v. Allen (Royal Ct.), 2007–08 GLR 410

survivorship in joint account

clear evidence needed to rebut presumption under Husband and wife (Joint Accounts) (Guernsey) Law 1966, s.1(1) that balance passes to survivor on death of one spouse—factors to be considered in ascertaining intention of sole depositor: Macaulay v. Grater (Royal Ct.), 2003–04 GLR 15

Previous convictions

previous convictions of witnesses. See Witnesses—credibility

Previous proceedings

relevance in subsequent proceedings

same facts in issue in criminal and subsequent civil proceedings—Act of Magistrate’s Court showing defendant’s guilt in criminal proceedings admissible in subsequent civil proceedings in Royal Court as showing guilty finding, though not conclusive of guilt: Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332

Privilege

contemplation of litigation

advocate’s confidential instructions to English solicitors to engage in discussions with and obtain information from third parties privileged if for dominant purpose of use in litigation—privilege later waived if information used in making report to court: Thommessen v. Butterfield Trust (Guernsey) Ltd. (Royal Ct.), 2009–10 GLR 102

discovery of legal advice may be refused if advice not relevant to matter in issue—no discovery if no reliance by client on legal advice in making decision, e.g. wife’s decision to enter into judicial separation agreement based on husband’s alleged misrepresentation and controlling behaviour: A v. A (Royal Ct.), 2000–02 GLR 461

discovery of legal advice refused if breaches fundamental principle of privilege between advocate and client—attempts to curtail extent of privilege to be considered cautiously—court to ask itself whether fair adjudication possible without waiving privilege: A v. A (Royal Ct.), 2000–02 GLR 461

instructions to, consultations and discussions with, and opinion from leading counsel privileged if not to be used in evidence and counsel not to be called as witness—privilege not necessarily waived by quotation from opinion in earlier proceedings: Thommessen v. Butterfield Trust (Guernsey) Ltd. (Royal Ct.), 2009–10 GLR 102

privilege in legal advice belongs to client, not lawyer—if privilege waived over one document, right to inspect arises—extent of collateral waiver depends on transaction in respect of which disclosure made—loss of privilege determined by fairness: Morton v. Channel Islands Secs. Exch. Ltd. (Royal Ct.), 2016 GLR N [8]

professional privilege of advocate. See ADVOCATES (Professional privilege)

public interest immunity

decisions safeguarding integrity of criminal investigation (e.g. communications between investigating and prosecution authorities, reports on decision to prosecute) may attract public interest immunity—but prosecution to make claim to immunity and submit documentation to court for it to carry out balancing exercise between disclosure and interests of justice: Taylor v. Law Officers (C.A.), 2011–12 GLR 81

proposed disclosure of relevant evidence may attract public interest immunity, e.g. because identifies informant or person assisting police—prosecution to make application to exclude evidence in presence of defendant’s advocate if issue can be discussed without disclosing material evidence—court to weigh prejudice to defendant from exclusion against public interest in protecting identities and overriding consideration of fair trial: Marsh v. Law Officers (C.A.), 2000–02 GLR 406

“without prejudice” communications

application for discovery of privileged documents expressed to be made under Royal Court Civil Rules 1989, rr. 39, 41 and 43 may be considered under r.43 alone if parties aware of existence of documents—not question of discovery, but whether documents privileged because part of genuine “without prejudice” negotiations: Gilliham v. NRG Distribution (Royal Ct.), 2003–04 GLR 247

communications marked “without prejudice” subject to privilege: In re R Trusts (Royal Ct.), 2017 GLR 381

disclosure of existence (but not content) of “without prejudice” communications allowed: In re R Trusts (Royal Ct.), 2017 GLR 381

exceptions

application by trustees for court’s blessing of decision not exception to “without prejudice” privilege: In re R Trusts (Royal Ct.), 2017 GLR 381

common law exception in Muller applicable in Guernsey in absence of Guernsey authority and no material difference in public policy in England and Guernsey—allows any statement made in course of negotiations for settlement to be given in evidence if relied on without reference to its truth or falsity—in interests of encouraging free discussion in course of making settlement, “without prejudice” principle no longer limited to protecting against disclosure in evidence of admissions or acknowledgements: Barclays Wealth Trustees (Guernsey) Ltd. v. Alpha Dev. Ltd. (C.A.), 2015 GLR 42

estoppel—to be construed narrowly—beneficiary challenging trustees’ application for court’s blessing of “momentous” decision to separate beneficiaries’ interests not estopped from asserting privilege in “without prejudice” communications concerning proposed division: In re R Trusts (Royal Ct.), 2017 GLR 381

labelling document “without prejudice” normally leads to related documents being included in privileged communications—should be express or implied evidence that both parties agreed to communications being “without prejudice”—inequality between parties (e.g. employer/employee) may suggest lack of agreement: Gilliham v. NRG Distribution (Royal Ct.), 2003–04 GLR 247

three possible rationales to Muller—“balancing rationale” especially relevant here since balances public policy of promoting settlements with public interest in full disclosure in litigation—disclosure may be allowed if necessary to resolve issue in case, e.g. impossible to decide whether refusal of offer reasonable without knowledge of terms of offer: Barclays Wealth Trustees (Guernsey) Ltd. v. Alpha Dev. Ltd. (C.A.), 2015 GLR 42

“without prejudice” document allegedly containing unlawful threat admissible as evidence in support of contention that unlawful threat made: Gilliham v. NRG Distribution (Royal Ct.), 2003–04 GLR 247

privilege applies where beneficiary challenging trustees’ application for court’s blessing of “momentous” decision to separate beneficiaries’ interests—privilege in “without prejudice” communications concerning proposed division: In re R Trusts (Royal Ct.), 2017 GLR 381

protection applies to communications following original “without prejudice” communication, even if not marked “without prejudice,” unless clean break in chain: Smith v. Atlantique Holdings Ltd. (C.A.), 2013 GLR 279

Proof of foreign law

matter of fact

if uncontested expert evidence of foreign law given in affidavits sworn for purposes of case and no other matters of primary fact remain for resolution, no necessity for Jurats—judge may himself decide what conclusions to draw from agreed facts detailed in affidavits: Fidelity Management Ltd. v. Royal Bank of Canada (C.I.) Ltd. (Royal Ct.), 2007–08 GLR N [14]

Jersey law normally matter of fact to be proved in Guernsey by expert evidence—with agreement of all parties, Guernsey courts may consider and construe Jersey statute as though Guernsey statute: Investec Trust (Guernsey) Ltd. v. Glenalla Properties Ltd. (C.A.), 2014 GLR 371

Public interest immunity. See Privilege—public interest immunity

Public policy. See Privilege—“without prejudice” communications

Relevance. See Admissibility—admission of relevant evidence. Admissibility—exclusion of relevant evidence

Report of drug trafficking investigation. See Standard of proof—report of drug trafficking investigation

Request for assistance. See Assistance from foreign court—letter of request

Screens. See Witnesses—use of screens

Searches. See POLICE (Entry, search and seizure)

Similar facts

admissibility

admitted if relevant and court considers should be admitted in circumstances—evidence of one victim, as to offence against her, so related to evidence of another victim, about offence against her, that fair to admit first victim’s evidence to support second victim’s evidence, notwithstanding prejudice—evidence of several complainants as to historic sexual offences committed against them by appellant in similar circumstances cross-admissible: Le Page v. Law Officers (C.A.), 2017 GLR 186

similar fact evidence admissible to rebut defence of coincidence or accident—may be adduced before defence raised if clear that defence reasonably available—danger of prejudice inherent in situation requires probative value of similar fact evidence to outweigh prejudicial effect of its admission: Dodd v. Law Officers (C.A.), 2015 GLR 123

similar fact evidence only admissible if relevant, probative value outweighs unfairness and notice given in advance—video evidence of general misconduct of employees 4 years after alleged breach of duty not admissible in proceedings for breach of employer’s statutory duty causing injury—remoteness in time means weak probative value and risks distracting Jurats from material issues: Cosheril v. Felix Shipping Ltd. (C.A.), 2000–02 GLR N [9]

background history

background history of accused’s previous behaviour admissible if relevant to offence charged and admission necessary to avoid distortion of other evidence, e.g. to explain that offence part of chain of relevant circumstances—not inadmissible because includes evidence of accused’s previous similar offences: Law Officers v. Doyle (Royal Ct.), 2015 GLR 280

police officer charged with perverting course of justice by using unlawful means to persuade vulnerable complainant to withdraw rape complaint so as to conceal their previous online relationship—evidence concerning charges of failing to disclose information under Regulation of Investigatory Powers (Bailiwick of Guernsey) Law 2003, namely passcodes for devices, and defendant’s guilty pleas to those charges, admissible at trial as background evidence—evidence before Jurats otherwise incomplete or incomprehensible: Law Officers v. Cusack (C.A.), 2023 GLR N [2]

previous offences and bad character

admissible if go beyond merely showing propensity to commit offence charged and help to establish mens rea: Law Officers v. Doyle (Royal Ct.), 2015 GLR 280

“Special material”. See POLICE (Special material)

“Special measures”. See Witnesses—use of screens

Standard of proof

domicile. See CONFLICT OF LAWS (Domicile—domicile of choice), (Domicile—domicile of origin)

forfeiture of property obtained by unlawful conduct

to obtain forfeiture under Forfeiture of Money &c. in Civil Proceedings (Bailiwick of Guernsey) Law 2007, s.13(2), Crown to show on balance of probabilities that each method by which property obtained sufficient to amount to “unlawful conduct” under s.61(3): In re Forfeiture of Money in Civil Proceedings Law 2007 (Royal Ct.), 2011–12 GLR 232

proceeds of drug trafficking

prosecution to prove on balance of probabilities that relevant expenditure to trigger assumption in Drug Trafficking (Bailiwick of Guernsey) Law 2000, s.4(3)(b) that defendant’s expenditure in 6-year period prior to institution of proceedings met from proceeds of trafficking: Gilbert v. Law Officers (Royal Ct.), 2005–06 GLR N [30]

rectification. See TRUSTS (Rectification—standard of proof)

report of drug trafficking investigation

report designed to calculate benefit obtained by accused under Drug Trafficking (Bailiwick of Guernsey) Law 2000 compiled to meet civil not criminal standard of proof—may incidentally yield information relevant to sentencing but care to be taken with standard: Reynolds v. Law Officers (C.A.), 2003–04 GLR N [5]

Surveillance

hidden camera

location of camera identifying defendant’s criminal behaviour relevant and may be disclosed—location of monitor relaying camera images to official irrelevant and, in any case, disclosure against public interest since runs risk of identifying person assisting police: Marsh v. Law Officers (C.A.), 2000–02 GLR 406

notice to Law Officers

notice of intrusive surveillance to be given to Law Officer under Regulation of Investigatory Powers (Notification of Authorisations etc.) Regulations 2004, reg. 3—no particular format required for notice and may be established by cumulative references to notice in prosecution documentation: Law Officers v. Doyle (Royal Ct.), 2015 GLR 280

Turnbull direction on identification. See Identity—visual identification

Visual identification. See Identity—visual identification

“Without prejudice” communications. See Privilege—“without prejudice” communications

Witnesses

accused as witness. See Witnesses—calling of witnesses

calling of witnesses

at close of prosecution case, court to inform unrepresented accused of right to give evidence, call witnesses, or stay silent—failure to do so may result in quashing conviction unless information correctly given earlier in trial and accused able to take full advantage of opportunity to put case: Burtenshaw v. Law Officers (Royal Ct.), 2011–12 GLR N [1]

no witnesses to be called to establish abuse of process—decision requires judicial assessment of legal submissions as to competing interests involved, not fact-finding requiring evidence to satisfy specified burden of proof: Law Officers v. Taylor (Royal Ct.), 2011–12 GLR 8

parties have substantive and separate rights to call witnesses, with which court not to interfere—no inherent jurisdiction to require calling of witnesses or manner of their evidence, because control of parties over calling own witnesses substantive not procedural rights—use of inherent jurisdiction cannot change substantive law: Angenent v. Pring (Royal Ct.), 2005–06 GLR 11

Clameur de Haro. See INJUNCTIONS (Clameur de Haro—raising Clameur), (Clameur de Haro—registration)

credibility

court entitled to believe witness partially and disbelieve partially—if believes complainant in criminal case in material respects, entitled to convict accused: Allen v. Law Officers (Royal Ct.), 2007–08 GLR N [26]

credibility of witness’s other evidence in criminal trial not necessarily undermined by his giving wrong evidence later corrected: Marsh v. Law Officers (C.A.), 2000–02 GLR 406

evidence of complainant in rape case not incapable of belief merely because internal inconsistencies—open to Jurats to treat inconsistent evidence as genuine attempt to recall details of traumatic experience when under influence of drink and drugs—reluctance to give details of personal sexual history compatible with desire not to give evidence suggesting consent: Pinto v. Law Officers (C.A.), 2013 GLR 83

previous convictions—if court takes account of witness’s previous convictions in assessing credibility, not obliged to mention specifically in ruling: Allen v. Law Officers (Royal Ct.), 2007–08 GLR N [26]

Crown Advocate as witness

no justification for calling Crown Advocate as witness for cross-examination to assure court that duties of search for unused prosecution material and disclosure to defence carried out carefully and conscientiously—court prepared to accept assurance of responsible Crown Advocate that duties properly carried out: Taylor v. Law Officers (C.A.), 2011–12 GLR 81

expert witnesses. See Expert evidence—expert witnesses

Judge as witness

no justification for calling judge as witness for cross-examination about information presented to him if lawfully issues search warrant—lawfully issued if search officers briefed on “special material” and legal professional privilege issues before applying for warrant, and judge issuing warrant given assurances about observance of these conditions and scope of material to be sought by search: Taylor v. Law Officers (C.A.), 2011–12 GLR 81

order of witnesses

plaintiff normally completes case, including adducing expert evidence, before defendant begins—may change order if necessary to accommodate expert called from abroad—counsel to be prepared to open sufficiently to make purpose of hearing evidence in unusual order clear to Jurats: Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332

partner in same firm. See ADVOCATES (Removal of advocate—discretion of court). PARTNERSHIP (Relations between partners—duty of utmost good faith)

right to confront witnesses. See CRIMINAL PROCEDURE (Fair trial—confrontation of witnesses). HUMAN RIGHTS (Right to fair trial—right to confront witnesses)

truthfulness

witness always to give truthful evidence at trial—not to falsify evidence in order to prevent disclosing confidential or sensitive information—if risk of disclosure, e.g. identity of person assisting police, counsel may object: Marsh v. Law Officers (C.A.), 2000–02 GLR 406

use of screens

application for use of screens not limited to applicant witness “declining” to give evidence without screen—sufficient under Practice Direction No. 5 of 2008, para. 6 that “reluctant” to give evidence—sufficient if complainant in rape case fears that seeing and being watched by accused will heighten her emotion and affect freedom to give evidence: Law Officers v. Pinto (Royal Ct.), 2013 GLR 76

court unwilling to engage in law-making by re-writing Practice Direction No. 5 of 2008 (for use of screens) to incorporate overriding principle of “interests of justice” as in Live-Link Evidence (Bailiwick of Guernsey) Ordinance 2008, s.1(2)(c)—court sympathetic to objective but wrong mode of change, if relying on modern English common law reaches same result: Law Officers v. Pinto (Royal Ct.), 2013 GLR 76

in exercise of inherent jurisdiction to regulate procedure, Royal Court has discretion to authorize use of screens or similar devices to protect witnesses if reasonably necessary and interests of justice require it—to consider whether use of screens proportionate response to witness’s concerns, without prejudicing accused’s right to fair trial: Pinto v. Law Officers (C.A.), 2013 GLR 83

not limited to “most exceptional cases” in case of adult witnesses—discretion of court to order use of screens to take account of modern enlightened view of needs of witnesses—risk of prejudice to accused to be considered but no suggestion that use of screens prejudicial per se—ultimate test whether justice promoted by use of screens: Law Officers v. Pinto (Royal Ct.), 2013 GLR 76

ordering use of screens prima facie justified under Practice Direction No. 5 of 2008, para. 6 if witness “reluctant” to give evidence without use of screen—sufficient if complainant in rape case fears that seeing and being watched by accused, families and friends in court will heighten emotion and affect her giving evidence freely: Pinto v. Law Officers (C.A.), 2013 GLR 83

usual to direct Jurats that use of screens commonplace in Guernsey—should be warned that generally available to both parties and use not to reflect on either—use of screens not intended to pre-judge evidence and not to be regarded as prejudicial to accused: Pinto v. Law Officers (C.A.), 2013 GLR 83

witness allowances. See CIVIL PROCEDURE (Costs—litigants in person)

witness out of jurisdiction

if experts called from abroad, may be necessary to call out of usual order of party’s witnesses being called only during his case—counsel to be prepared to open sufficiently to make purpose of hearing evidence in unusual order clear to Jurats: Thompson v. Masterton (Royal Ct.), 2003–04 GLR 332

request for evidence. See Assistance from foreign court—letter of request

witness statements

vital that statement filed and served before trial only contains evidence from witness’s own knowledge—not to contain parts of other witnesses’ evidence or speculation as to what non-witness may have thought or done: Woodbourne Trustees Ltd. v. Generali Worldwide Ins. Co. Ltd. (Royal Ct.), 2011–12 GLR N [6]

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