A FORMER taxi driver who repeatedly taunted a cab driver at the Weighbridge, branding him a “nonce”, has lost her appeal against conviction and sentence.
Erin Bisson was fined £300, ordered to pay £400 costs and given a two-year restraining order after the Magistrate found her guilty of “using words that were threatening or abusive within the hearing or sight of another person likely to be caused alarm or distress” during the incident in March last year.
Ms Bisson appealed to the Royal Court, raising a number of grievances including misgendering by the Assistant and Relief Magistrates and by the complainant, failure to take account of relevant video footage and the fact that a potentially helpful witness had not been called on her behalf.
The case arose following an incident in the evening at the Weighbridge taxi rank when the complainant heard someone being called a “nonce”. Although initially he did not realise this was being directed at him, he looked over and saw Ms Bisson with a young male, and he identified her as the source of the abuse.
After two preliminary hearings, Ms Bisson appeared before the Magistrate on 18 November last year when the man who had been with Ms Bisson had originally been listed as a defence witness but was not subsequently called by Advocate Heidi Heath, who had represented Ms Bisson at the hearing.
The advocate later swore an affidavit explaining that it had proved impossible to arrange a meeting with the potential witness, or to get him to confirm that he would give evidence, neither did Ms Bisson want to compel him to appear.
In his judgment, Commissioner Alan Binnington, who was sitting with Jurats Gareth Hughes and Alison Opfermann, said that the decision not to force the witness to give evidence did not compromise Ms Bisson’s conviction.
“The evidence was not unavailable, given that there was an identifiable witness who was present at the scene (and was indeed a participant in the incident), but not knowing what the witness would say if called to give evidence, one cannot say what impact it would have made on the Magistrate had it been produced. We accordingly find that Advocate Heath’s decision not to compel [the witness] to give evidence, a decision that was accepted by the appellant at the time, did not amount to an error giving rise to a miscarriage of justice,’” he said.
Noting that the Magistrate was, as a result, forced to choose between the evidence of the cab driver and Ms Bisson, the Commissioner continued: “The Magistrate found the complainant to be an honest, accurate and reliable witness, who answered questions fully, explained what happened in some detail and did not shy away from the fact that he had confronted the appellant and the other man.
“In contrast, she found the appellant to be an evasive and argumentative witness who would not expand on what happened and was not willing to be fully cross-examined.
“She found that the word ‘nonce’ was said multiple times and was an abusive word, whether in the complainant’s understanding at the time, as a prison informer, or the other meaning, a paedophile.
“She was satisfied that the appellant used the word many times towards the complainant, that he was within hearing of her and that the use of these words was likely to cause alarm and distress,” Commissioner Binnington said.
In relation to the complaint about misgendering, he said that there was no evidence that the Relief Magistrate or the Assistant Magistrate had made anything other than a slip of the tongue and that, in any event, neither was a decision-maker in the case.
Dismissing the appeal against conviction, the court also rejected the appeal against the sentence passed by the Magistrate, including a restraining order which it said was “entirely appropriate in the circumstances of this case”.
