[2003]JCA158
court of appeal
10th September, 2003.
Before: |
Miss E. Gloster, Q.C., President; J.P.C. Sumption, Esq., Q.C.; and K.S. Rokison, Esq., Q.C. |
George Andrew BARR
-v-
The Attorney General
Applications of George Andrew BARR: (1) for an extension of time within which to apply for leave to appeal against conviction; (2) for leave to appeal against conviction; and (3) for leave to call further evidence, following a guilty plea, entered on 13th December, 2002, to the count set out below;
Application of George Andrew BARR for leave to appeal against a sentence of 9 years' imprisonment passed on him on 16th December, 2002, by the Superior Number of the Royal Court, to which the Appellant was remanded by the Inferior Number on 13th December, 2002, following a guilty plea to:
1 count of: |
being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law, 1999: count 1: diamorphine |
The applications for leave to appeal against conviction to be placed directly before the plenary Court, without first being considered by a Single Judge.
Leave to appeal against sentence was refused by the Deputy Bailiff on 24th January, 2003; and on 30th January, 2003, the appellant exercised his entitlement, under Article 39 of the Court of Appeal (Jersey) Law, 1961, to renew his application to the plenary Court.
[The co-appellant, Peter HAGEN, abandoned his application for leave to appeal on 31st January, 2003.]
Advocate S.E. Fitz for the Appellant;
A.D. Robinson, Esq., Crown Advocate.
JUDGMENT
ROKISON JA:
1. This is the judgment of the Court. On 16 December 2002, the Appellant, George Andrew Barr, was sentenced by the Superior Number of the Royal Court to a term of 9 years' imprisonment on one count of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a Class "A" controlled drug, namely diamorphine, contrary to Article 61(2)(b) of The Customs and Excise (Jersey) Law, 1972, following a guilty plea. He was also sentenced to serve 3 months in prison on a second count of being in possession of a quantity of cannabis, to be served concurrently. This Court is only concerned with the first count, which involved 488.87 grams of heroin, with a purity of 11-13% and a street value of between £146,661 and £219,991.50. It was secreted in 35 Kinder eggs, each wrapped in a balloon, placed within a small grey clay ball, wrapped in a plastic bag, and packed in a ceramic catering oven. As was conceded in the written submissions filed on behalf of Mr Barr in his appeal against sentence, it was a very well-organised planned importation. In the light of the nature, quantity and value of the drugs it was, by any standards, a very serious crime, in which Mr Barr played a not insignificant role.
2. The van containing the oven had been driven by Mr Barr from Glasgow to Portsmouth and delivered by him to Messrs. Huelin Renouf for consignment to Jersey. On Mr Barr's arrival from Portsmouth on the "Commodore Clipper" on the evening of 29 March 2002, his luggage was searched and the relevant consignment note found. On interview with the Customs Officers, Mr Barr's answers were evasive, inconsistent, and, in the light of the evidence which subsequently emerged, largely untrue. The suspicion of the authorities was aroused and the oven was subsequently examined and the drugs found. Bags of sugar were then substituted for the heroin and the oven was in due course collected by one of Mr Barr's accomplices, a Mr Hagen. Subsequently Mr Barr and Mr Hagen were arrested and indicted with 2 others. Eventually, after having reserved their pleas on their earlier appearances in Court, on 12 July, 2002, both pleaded guilty and received sentences of 9 years, which reflected a reduction of 5 years from the unchallenged starting point of 14 years which was the minimum established for the relevant quantity by the guideline case of Rimmer, Lusk and Bade (2001) JLR 373.
3. Following sentence, Mr Barr made prompt application for leave to appeal against sentence on the ground that it was excessive for the part he had played in the crime. His application was refused by the Deputy Bailiff sitting as a single judge of this Court on 24 January 2003, and was renewed to be heard by the full Court at this sitting.
4. However, meanwhile, a significant development occurred. According to Mr Barr, on 17 May, 2003, he found an envelope on the bed in his cell, containing a letter from his co-accused, Mr Hagen, reading as follows:
"My name is Peter Hagen and I wish to set the record straight regarding George Barr's involvement in the crime he was convicted of last December. I am writing this letter to clear my conscience as its been weighing heavily on my mind.
I persuaded George to come to Jersey on the pretext that I needed him to collect a cooker for me which he thought I had stolen. He had no idea that heroin was hidden inside the cooker. I know he would not have got involved if he knew there were drugs in the cooker as he has always been Anti-drugs since I have known him.
The reason I did not come forward with this information before is because of my own selfishness to save my own skin against a longer prison sentence but following the outcome, I feel disgusted with myself for implicating George. I sincerely apologise to the Court and the public of Jersey for the crime I have committed and to George and his family the way I set him up."
5. Mr Barr then took legal advice from Mr Richard Langlois of his current lawyers, Messrs. Carey Olsen, on their next meeting on 21 May, 2003, and asked him if he thought the letter might help his pending appeal. Mr Langlois consulted with Advocate Renouf, and took a proof of evidence from Mr Hagen and then advised Mr Barr that Mr Hagen's evidence, if believed, would amount to a defence to the indictment. Accordingly, on 28 May, 2003, an application was filed on Mr Barr's behalf for leave to appeal against conviction on the ground that "new evidence has been found which will show that I was completely unaware of the importation and therefore not guilty of the offence".
6. Coupled with the Notice of Appeal against Conviction was a notice of Application for an Extension of Time within which to Appeal on the following grounds:
"The circumstances surrounding my role in the importation of the drugs was such that I was unaware that I was importing any type of drug. A witness has only recently admitted that he tricked me into bringing the drugs onto the island and that he knew I was unaware of any importation of controlled drugs."
7. In Mr Hagen's Proof of Evidence, which was put before the Court, Mr Hagen states that he had been paid £1,000 to deliver an oven, which he had been told would contain cannabis, to Jersey, and that he in turn agreed to pay Mr Barr £500 to drive a van containing the oven from Glasgow and put it on the boat. Mr Hagen states that he told Mr Barr that the oven was stolen but deliberately omitted to tell him that it was to contain drugs.
8. Although the application for leave to appeal against conviction and to do so out of time was founded upon the emergence of fresh evidence, that fresh evidence does no more than lend support to the case now being put to this Court on behalf of Mr Barr, to the effect that he did not know that the oven contained drugs until so informed by the Customs Officer after his arrest. That case could of course have been put to the Royal Court at the trial if Mr Barr had not chosen to enter a guilty plea.
9. The importance of the fresh evidence is that it was the catalyst which caused Mr Barr to seek advice from his new lawyers, as a result of which the true legal position was revealed to him, whereas it is Mr Barr's case that at the time when a guilty plea was entered on his behalf and on his instructions, he was under a fundamental misapprehension as to the necessary elements of the offence which would have to be proved against him, thinking at the relevant time that his knowing participation in the importation of the oven (which was found to contain drugs) would be sufficient to establish his guilt, and that, had he appreciated that it would be necessary for the Crown to establish that he was aware that the oven contained drugs (even though not the precise nature or quantity involved), he would not have pleaded guilty.
10. Following the Appellant's application for leave to appeal against conviction statements were taken from the various employees of Messrs. Mourant du Feu & Jeune, (to whom I will refer hereafter simply as "Mourant") who had represented Mr Barr up to the time of his conviction and sentence, namely Advocate Deacon, Advocate Bell, and 2 unqualified legal assistants, Mr Colin Powderhill and Ms Sally Reid, and each subsequently swore an affidavit, which was put before this Court.
11. At the start of the appeal, the Court indicated to Counsel that it considered that the application for leave to appeal against sentence should be dealt with (if at all) after the application for leave to appeal, and, if leave were granted, the appeal against conviction; and that they need not at that stage address the Court either in relation to the application for an extension of time, or the application to rely on the fresh evidence.
12. Counsel were at one in inviting the Court to hear oral evidence from the Appellant, Mr Barr, and from the legal witnesses listed above. They were further agreed that a "guilty" plea did not per se preclude a would-be appellant from appealing against conviction, but, in order to do so, it was for the Appellant to satisfy the Court on a balance of probabilities that he did not appreciate the nature of the charge or did not intend to admit that he was guilty of it. (The test propounded by this Court in its decision in the case of Wood v AG [2003]JCA051 in March of this year).
13. The Court being satisfied that the agreement of Counsel was well-founded, we received oral evidence from Mr Barr and the four individuals named above. We did not hear evidence from Mr Hagen.
14. It was the essence of Mr Barr's evidence that, although he was knowingly concerned in the importation into Jersey of the oven, he did not know that it contained drugs, that he never admitted to anyone that he had such knowledge, and indeed told the 2 legal assistants at his then lawyers, Mourant, Mr Powderhill and Ms Reid, on at least 3 occasions that he did not know.
15. He further states that he was never advised by Mourant of the constituent elements of the offence with which he was charged, and in particular as to the necessary degree of knowledge which the Crown would have to establish, and whether the evidence to be tendered by the Crown would be likely to satisfy the prosecution's evidential burden, and was given no advice as to the basis on which he should decide whether or not he should enter a guilty plea, other than being informed of the likely consequence in terms of sentence of the alternatives open to him.
16. He invites the Court to accept that, in instructing his lawyers to enter a guilty plea on his behalf he was not aware that he was thereby necessarily admitting that he had guilty knowledge of the fact that the oven contained drugs, and that had he known that it was for the prosecution to prove that knowledge, (which he says he did not have) he would have maintained his innocence and entered a plea of not guilty.
17. Although Mr Barr's conduct from the time of his first being questioned by the Customs Officers demonstrated a willingness to lie when he saw this to be to his advantage, and there is some force in the submission made before us on behalf of the Crown that his evidence should be given little or no credit, the further evidence which was filed and given on the issues relevant to this appeal against conviction does not in our view demonstrate that Mr Barr's evidence is incredible, but rather tends to support the case which he now presents.
18. Advocate Bell, who represented Mr Barr on a number of occasions up to the time of his committal before the Royal Court and who entered the "guilty" plea on Mr Barr's behalf, admits to having met Mr Barr briefly on each occasion, but on no occasion does he claim to have informed Mr Barr of the constituent elements of the offence which the prosecution would have to prove, or to have reviewed with Mr Barr the evidence which the prosecution had filed, or to have discussed with him, or to have advised him as to how he should plead. In this regard, according to Mr Bell, he received his instructions from his office in the form of a brief from a legal assistant, and would merely have confirmed with Mr Barr that he was to put forward a guilty plea. The limited extent of Advocate Bell's meetings with his client, Mr Barr, is evident from his contemporaneous notes and manuscript records of his court appearances on Mr Barr's behalf as well as Mourant's time ledger which was produced in evidence.
19. Advocate Clare Deacon, who made the plea in mitigation on Mr Barr's behalf and who was the Manager of the relevant department at Mourant, gave evidence to the effect that the usual and proper practice adopted by the firm would have been for the advocate to meet with his client before the court proceedings, to discuss and explain the elements of the offence, to go through the prosecution's evidence, and to advise the client (although not put pressure on him) as to how he should plead. It is clear that this practice, which we endorse as being the proper practice, was not followed in this case. Mourant's time ledger shows that, on 4 July, 2002, Mr Powderhill, the senior of the 2 unqualified legal assistants with day-to-day responsibility for the case, met with Advocate Bell and requested that he should give his opinion on the plea Mr Barr should enter, before Mr Powderhill met with Mr Barr the following day. Although Mr Powderhill said in his oral evidence that Advocate Bell did give the advice, no written record of such advice appears in the documents. There is no ledger entry referring to any further meeting between Advocate Bell and Mr Powderhill, and Advocate Bell did not suggest in his evidence that he gave such advice.
20. According to the ledger, and the evidence of Mr Powderhill and his assistant Ms Reid, they did go to see Mr Barr the following day to discuss the plea, but do not say that they passed on any advice as to how Mr Barr should plead in the light of the evidence. Mr Powderhill said in his evidence that there was a "possibility" that he had passed on Advocate Bell's opinion, but there was no note taken of the meeting, and Mr Powderhill could not remember what the advice was.
21. We have already referred to Mr Barr's evidence as to the scope and nature of the discussion concerning his plea. He says, in the light of that discussion, his decision to plead guilty, which it is common ground he communicated to his lawyers by telephone after the meeting, was essentially driven by his unwillingness to accept the possibility of a 14 year prison sentence.
22. On the crucial question of whether Mr Barr was advised of the constituent elements of the offence with which he was charged, what the prosecution had to establish and in particular what they had to prove in terms of knowledge, it is not suggested that Mr Barr received any relevant advice at this stage.
23. True, Mr Powderhill who, although not a qualified lawyer, had spent some 24 years in the police force (specialising in fraud cases), said that it was his usual practice at his first meeting with the client to go through the elements of the offence, but he does not remember doing so in this case. In any event, at an early stage Mr Barr was denying all knowledge of or involvement with the importation of the oven. It was not until after Mr Barr was identified at a "confrontation" on 15 May 2002 that his stance changed and attention focussed or should have focussed on the extent of his involvement, and the question of the extent of his guilty knowledge became crucially important.
24. As was submitted on Mr Barr's behalf, the offence is a complex one and it would not be clear to an accused such as Mr Barr, without legal advice, what it is of which he must have had knowledge to satisfy the requirement of "knowingly".
25. The Court is satisfied on a balance of possibilities, that Mr Barr never received that advice, or, even if he did, it was not at a time when he was considering what plea he should enter to the charge.
26. As we have said, Mr Barr's evidence was to the effect that, had the elements of the offence been fully explained to him at the relevant time, and in particular that it was for the prosecution to prove that he knew that there were drugs in the oven, he would not have entered a guilty plea, because he did not have such knowledge.
27. If we conclude that Mr Barr's appeal against conviction should be allowed, and if we order that there should be a new trial on a fresh indictment, the extent of Mr Barr's guilty knowledge will obviously be a potentially crucial issue of fact to be determined by the Royal Court, and we therefore think it undesirable for us to express any conclusion, save to the extent necessary to determine this appeal.
28. In his affidavit filed before the Court, Mr Barr stated that not only did he not have knowledge that the oven contained drugs, but that he told Mr Powderhill and Ms Reid, on at least 3 occasions that he only found out that drugs were contained in the oven when so told by the Customs Officer at the time of his arrest.
29. Mr Powderhill did not recall that Mr Barr ever told him this, but Ms Reid's evidence was inconsistent in this respect - at one point, she agreed that Mr Barr did tell her that he did not know that the oven contained drugs; later, she said he did not; but when asked to clarify her evidence confirmed her recollection that she thought she was told, although there is no written record to this effect. The attendance note of Mr Barr's first interview with Mr Powderhill on 8 April 2002 does record that Mr Barr told him that he had been informed of the contents of the oven by the Customs Officer at the time of his arrest, but, before he was reminded of the content of the note, Mr Powderhill had not recalled this.
30. It was suggested on behalf of the Crown that the plea in mitigation advanced on Mr Barr's behalf by Advocate Deacon in which she said: "... he did not know the nature of the drugs involved or the amount that was contained within the oven ..." impliedly suggests that he at least knew that it contained drugs. But Advocate Deacon accepts that she did not receive instructions from Mr Barr to this effect: she drafted her plea on the basis of a memorandum prepared by Ms Reid the relevant part of which states: "He knew there was something dodgy about the trip but did not know to what extent."
31. It was further suggested that the passage in this memorandum which states: "The client stresses that if he did know it was heroin in the oven, there is no way he would have stayed in Jersey for another 4 days" again implies that he knew that there were drugs contained in it. But it is hard to see what logic there would be in Mr Barr making any differentiation between heroin and other drugs in relation to his decision whether or not to stay in the island, in circumstances where the consequences of detection would be essentially the same, save in relation to the severity of sentence. Further, as we have already stated, Ms Reid accepted that Mr Barr had told her the very opposite to what is now thought to be implied, namely that he did not know that the oven contained drugs.
32. So far as the plea in mitigation is concerned, it was suggested to Mr Barr that, if it were inaccurate, he had, but did not take, the opportunity to correct it. But he says that he had difficulty in hearing all that Advocate Deacon was saying on his behalf - something which we do not find surprising, bearing in mind that he would likely to have been behind her, she has a quiet voice, and the acoustics in the Temporary Court were notoriously bad.
33. Some reliance was placed on the Probation Officer's Social Enquiry Report in which the following passages appear: "These were the circumstances at the time of making the decision to be involved in the importation of drugs into Jersey": and "This is the context in which he agreed to commit the offence for which he appears today", but it must be borne in mind that the Report was produced in circumstances in which Mr Barr had already made and communicated the decision to enter a guilty plea. Significantly, a later passage, in which the Probation Officer records: "He frankly tells me that, although he was told that the item to be delivered was an oven, he 'knew there was something dodgy about it but I didn't want to find out what', purports to be a direct quote of Mr Barr's words, and is remarkably consistent with the terms of Ms Reid's memorandum of 12 December 2002 to Advocate Deacon to which we have already referred: "He knew that there was something dodgy about the trip but did not know to what extent." The affidavit sworn by Mr Richard Langlois of Messrs. Carey Olsen concerning his meeting with Mr Barr after the discovery of Mr Hagen's letter, contains a similar passage: "We did not discuss in any detail at the time his knowledge of what the oven contained but I recall that he used the phrase; "I knew there was something dodgy about it'." In our view none of these statements can be taken to have been an admission of knowledge that the oven contained drugs of some description and indeed they lend some support to Mr Barr's case. The word "dodgy", which appears to have been Mr Barr's own choice of word, does not, so far as this Court is aware, have any specifically drug-related connotation: rather, it is an expression used to describe something which may be dishonest, or illegal, or otherwise not above board, which is consistent with Mr Barr's evidence that he had been told that the oven was stolen.
34. Finally, we should mention a passage in an undated attendance note prepared by Advocate Bell, which he identified as having been attached to the note of his Court appearance on 23 May, 2002, which reads: "What forensic have they got?" The time ledger shows that Advocate Bell did meet with his client on that occasion, but their meeting was on this, as other occasions, extremely brief. Neither the passage, nor the circumstances in which it was written are referred to in Advocate Bell's affidavit, but in his oral evidence he said he thought that it was a question from Mr Barr. But even if this were so, it was a question posed in the context of Mr Barr recently having been identified in a "confrontation" which he considered to have been "unfair", and could well have related to the possible existence of forensic evidence linking him to the oven (of which he had previously denied all knowledge) rather than its contents. The potential significance of this note was not raised until after Mr Barr had given evidence, and was not put to him. But in any event, its possible relevance would only go to the question of guilt or innocence, which, as I have emphasised, this Court does not have the duty of deciding. It does not seem to us to have much relevance to Mr Barr's state of mind in July, when the guilty plea was entered.
35. Taking this evidence as a whole, we think it clear that Mr Barr's plea of guilty was entered on the basis of wholly inadequate legal advice. We are satisfied, on a balance of probabilities, that Mr Barr did not, at the relevant time, understand the nature of the charge and in particular that, to secure a guilty verdict, the prosecution would have to establish to the Royal Court's satisfaction that Mr Barr knew that the oven contained drugs; and that he did not intend to admit that he was guilty of the charge, in so far as it necessarily involved such knowledge.
36. Accordingly, we conclude that the test set out by this Court in Wood has been satisfied.
37. Under Article 25(1) of the Court of Appeal (Jersey) Law, 1961:
"On any appeal against conviction, the Court of Appeal shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgement of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that, on any ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal:
Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
38. This Court concludes that for Mr Barr to have been convicted following a guilty plea entered in the circumstances summarised above, and in circumstances in which, bearing in mind the evidence which we have attempted to summarise, such a plea was by no means inevitable, does constitute a miscarriage of justice.
39. Under Article 25(2) of the Law:
"Subject to the special provisions of this Part of this Law, the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction, and direct a judgment and verdict of acquittal to be entered."
Those "special provisions", as set out in Article 26 of the 1961 Law, do not cover the present case.
40. However, by Article 3(1) of the Court of Appeal (Amendment No. 7) (Jersey) Law, 1998, a new article, Article 26A, was inserted which states:
"Where the Court of Appeal allows an appeal against conviction and it appears to the Court that the interests of justice so require, it may order the appellant to be retried on a fresh indictment to be brought in the Royal Court within the period of two months of the making of the order or such further period for which it may give leave for the indictment to be brought."
41. This Court is of the view that, since the crucial question of the extent of Mr Barr's guilty knowledge should essentially be a matter for the Royal Court, the interests of justice do require us to make an order under Article 26A(1), which Counsel on both sides appeared at the outset to accept as the appropriate course in this case if we were minded to allow the appeal.
42. Accordingly and for these reasons, we grant leave to Mr Barr to appeal against conviction, and leave to make the application out of time; we allow the appeal against conviction and order that Mr Barr should be retried on a fresh indictment to be brought before the Royal Court. We will hear Counsel on the question of whether or not the period of 2 months prima facie set out in the Law which we have just read should be varied.
43. In these circumstances Mr Barr's application for leave to appeal against sentence does not arise; and Mr Barr's conviction and sentence on the second count of possession, against which there was no application to appeal, of course stands. So far as the application to admit fresh evidence is concerned, we have of course referred to that evidence in the course of our judgment and Mr Hagen's evidence will clearly be available to Mr Barr in his defence at the new trial.
Authorities
Wood -v-AG [2003]JCA051.
Whelan -v- AG (10 July 2000) Jersey Unreported; [2000/129].
Rimmer & Ors -v- AG [2001] JLR373.