Court of Appeal
12 November 1998
Before: R C Southwell, Esq.,QC
AG
-v-
Robert John Young
IN THE MATTER OF
an application of ROBERT JOHN YOUNG for an extension of time within which to apply for leave to appeal, and for leave to appeal against his CONVICTION on 26 March 1998 [1998.058], by the Inferior Number, following not guilty pleas to the following charges:
4 counts of inducement to take part in arrangements with respect to the management of property by statements known to be misleading, false or deceptive, contrary to Article 12(c) of the Investors (Prevention of Fraud)(Jersey) Law, 1967: counts 1A, 2C, 3A, 5A, on each of which counts concurrent sentences of 4½ years imprisonment were passed by the Superior Number on 8 May 1998 [1998.094]; and for leave to call further evidence.
(The Appellant appealed against sentence, which was dismissed by the Court of Appeal on 9 July 1998)
Applications by the Appellant:
Advocate A P Begg for the Appellant
C E Whelan Esq., Crown Advocate
JUDGMENT
SOUTHWELL : I do not propose to deliver a lengthy judgment this afternoon. Time does not permit and in any event insofar as I am going to deliver any extended reasons they must be considered and of greater length.
The first matter which Mr Begg raised was whether I should récuse myself on the grounds that I had been a member of the Court of Appeal who had considered Dr. Young’s appeal against sentence. I am bound to say that I see nothing whatever in that point, and I do not consider that it is in any way supported by either of the cases under the European Convention of Human Rights, Oberschlick -v- Austria A.204 1991; G -v- Austria No.15975/90 DR.245 (1991). But I shall be delivering, I hope, a considered judgment in that regard in the course of the week after next when I am sitting in the Court of Appeal. The next question was whether an extension of time was required in order to be able to appeal or to seek leave to appeal. Again, I am not going to set out the matter at length but is seems to me to be abundantly clear that if a written notice of appeal, or of application to appeal, is not sent within the prescribed period of 10 days under Rule 3 of the Court of Appeal Criminal (Jersey) Rules, 1964, the prospective appellant is out of time and requires an extension of time from the Court which the Court can give in appropriate cases. That seems to me to be so abundantly clear as not to be arguable the other way.
I note that in a recent decision Sir Peter Crill, sitting as a Commissioner, AG -v Young (22 October 1998) Jersey Unreported expressed the view that for purposes of a bail application it might have been sufficient for an oral statement to be made by the newly convicted person of his desire to appeal. That is a matter which I wish to consider at greater length and will include in my judgment hereafter.
I then turn to the question whether there should be an extension of time. It is for good reasons that a limited time is given to those who have been convicted or sentenced within which to seek to appeal, or to apply for leave to appeal, from the decision of the Royal Court. The reasons for that are obvious: criminal proceedings should not be allowed to drag on. It is possible within 10 days to decide whether or not to appeal against conviction, or against sentence. That being so, it is clear that in this case conviction having been on 26 March, 1998, and no notice having been given under Rule 3, Dr Young is long out of time. What, in fact, happened was that he was sentenced on 8 May 1998, and then, on the advice of his then advocate, appealed in respect of sentence only. That appeal was rejected on 9 July 1998, and the day following, his then advocate ceased to act for him. It appears that his then advocate had advised him to appeal against sentence only. It also appears that his then advocate did not consider that there were any sufficient grounds to appeal against conviction, and that in any event it would be better for Dr Young to appeal against sentence only. On 13 July 1998, he applied for legal aid in connection with an appeal, or an application, in relation to the conviction. Though that was agreed in principle, he did not find a lawyer ready or able to act for him speedily through no fault of his own. On 17 August 1998, he put in the requisite documents, making clear his wish to obtain an extension of time from this Court and to obtain leave to appeal insofar as that might be necessary. That was, of course, four and a half months after the conviction on 26 March 1998, and some three months since the date on which he was sentenced, 8 May 1998. It is, therefore, necessary for me to consider whether he can satisfy the test for obtaining an extension of time. In La Solitude Farm Limited -v- AG (1985-86) JLR 1, the Court of Appeal indicated, in the course of their judgment, that the correct test was whether there were special circumstances of an important character in relation to the case on the ground of which it would be appropriate to grant an extension of time.
One of the matters which plainly has to be considered, when assessing whether there are special circumstances, is whether the prospective grounds of appeal disclose any sufficiently strongly arguable ground as to justify an extension of time, or consideration of leave to appeal, or an appeal, if that becomes appropriate.
I have been taken to certain grounds of appeal, which it would appear have been prepared by Dr Young and not by Advocate Begg who appears now for him. In relation to some of them Advocate Begg is not in a position fully to address the Court on what underlies the grounds. That is an unhappy position, and if this matter goes forward, Advocate Begg will have to understand that it will be he who is responsible for presenting the grounds of appeal to the Court, and it will be he who will have to have charge of them and only to put forward those grounds which he personally determines it appropriate and proper to argue. I have been referred to some of these grounds but by no means all. The first relates to an argument that, in some way, the section of the statute under which Dr Young was convicted had been repealed, either expressly or impliedly. It seems to me that there is really nothing whatever in that ground. It is plain that the article has not been repealed expressly, and I can see at the moment no basis for saying that it was impliedly repealed. There are, however, other grounds which it seems to me may perhaps be arguable, and reasonably arguable, as and when Advocate Begg has had an opportunity to consider them properly and to put them into a form in which it is appropriate to place them before the Court of Appeal. They are at present prolix to a remarkable degree and are plainly not in a form in which they ought to be placed before the Court in order to persuade the Court as to the matters sought to be raised. Nevertheless, amongst the grounds through which I was taken, I consider that there is sufficient so that if this were a matter arising shortly after conviction at the end of March 1998, and the matter had then come before me as a single judge, I would, in the circumstances, have given leave to appeal.
In all these cases it is necessary to have regard to the particular circumstances of the case in order to see whether there should be an extension of time. It can readily be said against Dr Young that he elected not to appeal against conviction but only against sentence, and then when that appeal had failed, contrary to the advice that he at that stage had been given by his previous advocate, he reversed his course and proceeded to seek to appeal against conviction. Nevertheless, I take the view, in all the circumstances of this case, and having regard to all the matters which have been put before me by Mr Begg, including the way in which Dr Young has been advised in the period since his conviction, that it is appropriate to extend time in the special circumstances of this case and to give leave to appeal.
I wish, however, to reiterate that it is absolutely essential that Advocate Begg prepares proper grounds of appeal which can be put before the Court for the purposes of an appeal against conviction. That is a matter which, as an advocate of this Court, is an obligation upon him, and we must not be in a position, as we were today, of an advocate presenting grounds before me and then saying that he is unable to carry them further because they have been prepared by his client.
There is a further matter. Dr Young was refused bail on 26 August 1998, on and application which he presented on his own behalf. Subsequently the application was renewed and that was rejected by the Royal Court, presided over by Sir Peter Crill as a Commissioner, on the grounds that at that stage Dr. Young was not an appellant, or indeed an applicant, having not yet obtained an extension of time. The matter has been briefly mentioned to me today but I have indicated that as at present advised I see difficulty in my reaching the conclusion today either that the Court of Appeal has jurisdiction to hear an appeal from a decision of the Royal Court refusing bail, or that the Court of Appeal itself may make an order granting bail. Those are matters which, prima facie, should first go to the Court below, for the Court below to consider in the light of the new circumstances, namely, that an extension of time has been granted, and insofar as Dr Young needs leave to appeal, he now has that leave. If any question arises in relation to bail, on which it is sought to argue at greater length and greater particularity, that this Court has either the jurisdiction or the power that I have mentioned, then that is a matter which must be brought before the full Court. It is not appropriate for me, as a single judge, to determine this question apparently for the first time, as it involves major questions of the practice of the Court and of the true interpretation of the statutory provisions by which the Court of Appeal is given its powers. I emphasize that, because the Court of Appeal is created by statute and does not have powers outside those which are given by the statute. Therefore, if Dr Young has any wish to renew an application for bail, he must go back to the Royal Court and renew his application there.
The only other matter I want to mention immediately is that the hearing of the appeal will be in the January sitting of this Court. Already a great deal of time has gone by, and I recall that soon after Advocate Begg became involved, on behalf of Dr Young, he wrote to the Court asking for an early date. In fact, a special sitting of the Court of Appeal was arranged for 23 November, to deal with, amongst other matters, this very application. It is unfortunate that the matter has not been able to be brought on then; but what I do want to emphasise is that the appeal must be heard in January, and there must be no question whatever of the appeal being heard at any later date than then. That means that Mr Begg and his client, must be ready by then and must meet the time limits which have been laid down by the Court of Appeal for the purposes of a hearing in January.
Authorities
Oberschlick -v- Austria A.204 1991
G -v- Austria No. 15975/90 DR.245 (1991)
Drew -v- AG (1994) JLR 1
La Solitude Farm -v- AG (1985-86) JLR 1 CofA
AG -v- Fossey, Burgess (2 December 1982) Jersey Unreported
Lesser [1939] 27 Cr.App.R. 69
Depositors and Investors (Prevention of Fraud) (Jersey) Law, 1967
Banking Business (Jersey) Law, 1991
Smitton & Ors. -v- AG (24 April 1994) Jersey Unreported CofA
Kirch, Lapidus -v- AG (1987-88) JLR N.97; (24 September 1987) Jersey Unreported CofA
Blackstone’s Criminal Practice A1 26
R -v- Mahanjoula (1995) 1 WLR 1348
AG -v- Young (26 August 1998) Jersey Unreported
Young -v- AG (22 October 1998) Jersey Unreported