Jersey Unreported Judgments

[2006]JRC060

ROYAL COURT

(Samedi Division)

20^th April, 2006

The Attorney General

-v-

Andrew Charles Barette

Bail application pending hearing before the Court of Appeal in July 2006.

A. R. Binnington, Esq., Crown Advocate.

Advocate D. P. Le Maistre for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        On 30^th March, Mr Barette applied to this Court for bail pending appeal.  That application was refused on the basis of the grounds of appeal then put forward.  This Court is not willing to re-open that decision.  The Court did however say at the time that it would be willing to receive a further application if this was appropriate following enquiries concerning the position of one of the jurors.  Those enquiries have been progressed, and it is on the basis of those enquiries that this application is brought today, and it is on that matter alone that we are considering the application.

2.        The test for granting bail on appeal is clear.  It was laid down in the English case of R -v- Watton [1978] 68 Cr. App. R. 293, and has been applied in this jurisdiction in the case of Stevenson -v- AG Jersey Unreported 26^th March 1999 (1999/59).  The test is that bail pending appeal is granted only in exceptional circumstances.  In Watton at page 296 the court approved the following as the correct formulation of the law, namely that bail is granted only where it appears prima facie that the appeal is likely to be successful, or where there is a risk that the sentence will have been served by the time the appeal is heard.  It is only the former point which is relevant in this case.

3.        In his submissions made before the Court last time and repeated in the skeleton produced for today, Mr O'Connell, who was then representing the defendant, sought to state the test in a somewhat different way.  He said that the test was that bail should be granted if there was a substantial point which could result in the conviction being quashed.  We have no hesitation in saying that that is a wholly incorrect statement of the applicable test and quite inconsistent with what was said in Watton and Stevenson.  On that analysis bail would be granted routinely where leave to appeal had been granted.  We take this opportunity of firmly restating the test in the way we have described above.

4.        Now what is said in this case is that the appeal is likely to be allowed because of the existence of apparent bias on the part of one of the jurors.  The test of apparent bias is well established and is not disputed.  It is a question of whether the fair minded and informed observer would conclude that there was a real possibility that the juror would be biased. 

5.        Now Mr Le Maistre, who has appeared for the defendant today and put his case most persuasively, referred to a number of circumstances which he says give rise to apparent bias.  It is not necessary for us to go into detail.  The matters are set out in the affidavits before us. 

6.        We would, however, say that we are wholly unimpressed with one of the points, namely the suggestion that apparent bias exists, or could exist, because the juror was in the same class at school for several years as one of the defence witnesses.  That was, of course, all many years ago and there is no suggestion that the juror and witness have since had close contact or that there is any particular animosity between them.  Jersey is a small island and it would be impossible to administer justice if a judge, a jurat or a juror could not sit merely because he had a distant acquaintance with a witness.  More is required than that.

7.        However, Mr Le Maistre relies on more substantial points.  He reminds the Court, which we accept, of the background of high interest and animosity in this case between the farming community and the merchants.  For that reason steps were taken before the trial to try and ensure that no one substantially involved, as the Bailiff put it, in the farming community would sit on the jury.

8.        What Mr Le Maistre says is that the enquiries now carried out show, firstly that one of the jurors does come from a long standing farming family, albeit he himself has never farmed. 

9.        Secondly, it is said that he has been a drinking companion of one of the victims of the alleged fraud in this case, who was of course a farmer.  It is clear that the juror did not realise at the beginning of the trial that this problem might arise because the name of the victim did not appear on the billet because there was a corporate entity involved.  Nevertheless, it did become clear during the course of the trial that the person with whom he had drunk in the past was the owner of a company which was a victim.

10.      As it happens that particular charge was dismissed by the Bailiff at half-time, but as Mr Le Maistre says, the evidence concerning that charge had been fully adduced and Mr Le Maistre submits that there is a clear risk that the juror might have been influenced by such matters when considering his verdict on the remaining charge.  

11.      Thirdly, Mr Le Maistre points out that the prosecution became aware of some of these matters during the course of the trial, but delayed informing the defence of such matters, and indeed did not inform the defence until after the jury had been sent out, when it was too late to do anything about it.

12.      Mr Le Maistre submits strongly that if the matter had been raised immediately with the defence, appropriate applications could have been made and rulings sought from the Bailiff.  One matter that immediately springs to mind is that the juror could have been discharged and the trial could have continued with eleven jurors. 

13.      Mr Le Maistre will argue before the Court of Appeal that all these matters, put together, raise a strong case of apparent bias.  We should emphasise in fairness to the juror concerned that there is at this stage absolutely no suggestion of actual bias; it is merely a question of apparent bias, in other words 'the importance of justice being seen to be done as well as actually being done'.

14.      The points that Mr Le Maistre has raised are clearly arguable points which would justify the granting of leave to appeal, so the Court of Appeal could consider them.  The question we have to consider is whether they go beyond that, and whether they cross the threshold so as to become exceptional in the way we have described earlier.  Having given the matter most anxious consideration we have concluded on balance that they do just cross that threshold, and therefore we propose to grant bail.

15.      It will be on the following conditions.  First, that the defendant, surrender his passport.  Secondly, he is to report to the police once a week.  Thirdly, he is not to leave the Island without the prior written consent of the Attorney General; and fourthly, he is to reside at his home address which must be lodged with the Greffier before he is released.

16.      We are granting this application but we are merely concerned with whether the grounds exist to grant you bail.  We are not determining your appeal.  You will have to argue that before the Court of Appeal.  What you must realise is that it may well fail.  You, and your counsel, clearly believe you have strong grounds and we have accepted that there are grounds, but it may fail.  You must realise that the fact that we are granting bail will not assist you at all.  If your appeal fails then, subject to any appeal against sentence, you will go back to prison and will have to serve the remainder of that sentence.

Authorities

R -v- Watton [1978] 68 Cr. App. R.293.

Stevenson -v- AG 1999/59.