Jersey Unreported Judgments

[2009]JRC038

ROYAL COURT

(Samedi Division)

4^th March 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner, and Jurats Le Brocq and King.

The Attorney General

-v-

Simone Anne Gallichan

S. M. Baker, Esq., Crown Advocate.

Advocate C. M. Fogarty for the Respondent.

JUDGMENT

THE commissioner:

1.        On 16^th February, 2009, the Court granted an application by the Attorney General to extend the time in which the respondent can complete her community service but refused the respondent's application for that service to be deferred. We now set out our reasons.

2.        The representation of the Attorney General contained three brief paragraphs as follows:-

"The Representation of Her Majesty's Attorney General sheweth:

THAT by Act of the Royal Court dated 18^th June 2007, SIMONE ANNE GALLICHAN was ordered to complete a total of 120 hours Community Service.  On the 2^nd May, 2008 this matter was brought before the Royal Court and the period extended to 17^th January, 2009.

THAT information has again been brought to the attention of Her Majesty's Attorney General that SIMONE ANNE GALLICHAN will be unable to complete the Community Service Order within a period of 12 months from the date of the second Order.

IN consequence Her Majesty's Attorney General has the honour to bring the matter to the notice of the Royal Court in accordance with the provisions of Article 6 of the Criminal Justice (Community Service Orders)(Jersey) Law, 2001 so that the Court may consider an extension of time to the 17^th January, 2010 for completion of the Community Service.

W J Bailhache

Her Majesty's Attorney General"

3.        The representation was brought before the Court on Friday 16^th January, 2009.  Miss Fogarty for the respondent, whilst not opposing the application, submitted that the respondent's performance of the community service should be deferred pending  a decision of the Secretary of State under Article 43 of the Court of Appeal (Jersey) Law 1961.  She explained the background as follows:-

(i)        The respondent's case was unique in this jurisdiction in that she was subject to conflicting verdicts of two trial courts on the same issue and on the same evidence as to that issue.

(ii)       The first trial Court heard only a fraction of the evidence concerning the operation of Michel & Co as a whole, the Commissioner having severed the trial such that only one count of the ten (count 4, Morgan Marketing) was heard and determined.  Both the Crown and the Defence argued unsuccessfully against the severance.  The verdict was guilty and was unanimous.

(iii)      The second trial Court heard all the evidence concerning all ten counts.  It heard the evidence from count 4, determined at the first trial, as direct evidence of count 1 at the second trial, and similar fact evidence on all the other counts at the second trial.  The verdict was not guilty, and was unanimous.

(iv)      The only issue for the Court to determine at each trial was whether the respondent knew or suspected that the clients with whom she dealt at Michel & Co were criminals, and that the funds with which she dealt on their behalf were tainted by that criminality.

(v)       There was no doubt at all that each trial Court made its findings conscientiously on the evidence before it.  However, the first trial Court, through no fault of its own, was deprived of the bulk of the evidence because of the severance.  The first trial ran from 3^rd July, 2006, to 11^th August, 2006.  The second trial ran from January 2007, to 14^th May, 2007, when the verdict was delivered. 

(vi)      Given the conflict of verdicts between the two trial Courts, the second trial Court was likely to be right in its findings because it heard all the evidence and not a mere fraction of it.

(vii)     The respondent had exhausted her statutory rights of appeal but had applied in September 2007, to the Secretary of State for the case to be referred back to the Court of Appeal pursuant to his powers under Article 43 of the Court of Appeal (Jersey) Law 1961 which is in the following terms:-

"43.    Prerogative of mercy

Nothing in this Part shall affect the prerogative of mercy, but, as respects the conviction of a person on indictment by the Royal Court or the sentence (other than the sentence of death) passed on a person so convicted, being a conviction of sentence against which an appeal lies under this Part to the Court of Appeal, the Secretary of State may, if the Secretary thinks fit, at any time either -

(a)       refer the whole case to the Court of Appeal, and the case shall then be heard and determined by the Court as in the case of an appeal by a person convicted; or

(b)       if the Secretary desires assistance on any point arising in the case, refer that appoint to the Court of Appeal for its opinion thereon, and the Court shall consider the point so referred and furnish the Secretary of State with its opinion thereon accordingly."

(viii)    The Crown had been content, thus far, to defer performance of the Community Service pending the Secretary of State's decision.

(ix)      It was difficult to see what had changed.  It was true that the Crown could not control the speed at which the Secretary of State exercised his discretion, but neither could counsel for the respondent, so the position in which all parties find themselves could not be attributed to either side.

(x)       Questions the Court might properly ask itself were:-

(a)       Whether it was in the interests of Justice that the respondent should perform a sentence concerning which there was a real issue as to guilt, as manifested by the conflicting verdicts and a proposed second appeal against conviction?

(b)       Whether, desirable as the speedy execution of sentences passed might be for the administration of Justice, the interests of Justice required that the potential appeal against conviction in these unique circumstances should, if successful, be rendered nugatory at least as to sentence?

Miss Fogarty submitted on the respondent's behalf that the answer to both these questions was in the negative.  She further submitted that the respondent was in an invidious position, being simultaneously convicted and acquitted of the same conduct on the same evidence heard in different contexts

4.        Counsel for the Attorney General was not briefed to respond to these submissions and the Court therefore ordered that written submissions should be filed and the matter adjourned for a date to be fixed.

5.        At the hearing on 16^th February, 2009, the Court had the benefit of full written submissions from both the Attorney General and the respondent.

6.        The Attorney General's submissions can be outlined as follows:-

(i)        The Court has power to extend the period in which the respondent must perform her community service so that she does not serve her sentence pending her request for an appeal if to do so is "in the interests of justice".  Article 6(1) of the Criminal Justice (Community Service Orders)(Jersey) Law 2001 ("the Community Service Law") is in the following terms:-

"(1) Where a community service order is in force in respect of any offender and, on the application of the offender or the relevant officer, it appears to the court which made the order that it would be in the interests of justice to do so having regard to circumstances which have arisen since the order was made the court may-

(a)      extend the period described in Article 5(2);

(b)      revoke the order; or

(c)       revoke the order and deal with the offender for the offence in respect of which the order was made, in any manner in which it could deal with the offender if the offender had just been convicted by the court of the offence."

We note that there is no power to defer the performance of community service.

(ii)       The respondent's application should only be granted if the Court finds that there are exceptional circumstances in this case, such that:-

(a)       The Secretary of State is likely to refer the matter to the Court of Appeal; and either (b) or (c) below is satisfied.

(b)       It appears prima facie that the appeal is likely to be successful or;

(c)       there is a risk that the sentence will be served in full before the appeal is heard.

(iii)      The Secretary of State is not likely to refer the matter to the Court of Appeal.  That is because the verdicts are not inconsistent.  Even if they were, it would not render the conviction "a miscarriage of justice", the relevant test for quashing this conviction.

(iv)      The respondent's appeal, if heard, does not appear prima facie to be likely to be successful.  The verdicts are not inconsistent and there has been no miscarriage of justice. 

(v)       This Court must assume the Secretary of State will make a decision within a reasonable time.  The Attorney General proposed that the respondent be given a year to complete her community service.  Given the length of time that has passed since conviction, sentence and application to the Secretary of State, there was no real risk that the sentence will be served before any appeal is heard.

7.        Miss Fogarty took issue with the Crown's view that the verdicts are not inconsistent and that any appeal was likely to unsuccessful.  She produced an e-mail from the Ministry of Justice dated 20^th January, 2009, indicating that a progress report on the respondent's application to the Secretary of State would be produced very shortly but neither counsel had made enquiry of the Ministry of Justice prior to the hearing as to the precise status of the respondent's application. 

8.        Under Article 5(2) of the Community Service Law, the community service must be completed within 12 months beginning with the date of the order, unless extended pursuant to the provisions of Article 6(1).  When, during that period, service should commence is a matter for the Probation Department (Article 5(1)(b)).  Mr Cutland of the Probation Department advised us that if the time for completion was extended to 17^th January, 2010, as requested by the Attorney General, then the respondent would need to commence community service 7 to 8 months beforehand i.e. in May or June of this year. 

9.        As Mr Baker pointed out, if the respondent had been sentenced to imprisonment, then subject to bail being granted pending any appeal, the sentence would have commenced immediately.  Furthermore it was most unlikely that the Court, if it had the power to do so, would grant bail on the basis of a mere referral of the case to the Secretary of State under Article 43.

10.      The fact of the matter is that we simply do not know whether the Secretary of State will decide to refer the matter to the Court of Appeal and if so, when that referral is likely to take place.  We understand the consideration of such matters within the Ministry of Justice can be delayed for many years.  We agree with Mr Baker that there is public interest in having sentences served reasonably proximately to the time they are imposed and the delay has now become unacceptable.

11.      Because the respondent has not commenced her community service as yet with the tacit approval of the Attorney General, fairness dictates that we grant the Attorney General's application for a further extension to 17^th January, 2010.  However, whilst not wishing to impinge upon the powers of the Attorney General, we express the view that this should be the last extension granted at his instance.

12.      There is no power under the Community Service Law to defer performance of community service but, even if we had the inherent power to defer, we would have declined to do so.  The community service must be served within the extension of time now granted at such times as the Probation Department shall direct, which in practice means that the respondent will be instructed (and we expect her to be so instructed) to start in May or June of this year.

13.      Any application for a further extension of time in which to perform community service at the instance of the respondent will need in practice to be made before May of this year and to be accompanied by evidence sufficient to satisfy the criteria put forward by the Attorney General and which we adopt, namely that there are exceptional circumstances such that:-

(i)        The Secretary of State is likely to refer the matter to the Court of Appeal; and either (ii) or (iii) below is satisfied.

(ii)       It appears prima facie that the appeal is likely to be successful.

(iii)      There is a risk that the sentence will be served in full before the appeal is heard.

Because on this application there was no evidence in relation to (i), it was not necessary for us to reach any conclusions as to (ii) and (iii).

Authorities

Court of Appeal (Jersey) law 1961.

Criminal Justice (Community Service Orders)(Jersey) Law 2001.