Jersey Unreported Judgments

[2011]JCA062

COURT OF APPEAL

22^nd March 2011

U

-v-

The Attorney General

Application for extension of time in which to apply for leave to appeal and to appeal against conviction on 11 counts of indecent assault.

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

Advocate O. A. Blakeley for the Appellant.

JUDGMENT

THE president:

1.        On 10^th November 2010 the Appellant was convicted by a jury on 23 counts of indecent assault and was acquitted on one such assault, Count 23.  Counts 1-12 of the indictment charged indecent assaults against a named boy at times when he was aged under 16 years and in respect of which he gave evidence to the court.  Counts 13-24 charged indecent assault against unidentified males under the age of 16 years.

2.        The evidence in support of these charges came from photographs taken by the Appellant as he performed the acts in question.  The photographs were found on a memory-card from the Appellant's digital camera and were seized at the time of his arrest.  The identity of the boys was unknown.  Counts 25-40 were statutory Counts of making indecent photographs of children which fell to be tried by a different tribunal (Inferior Number) and so did not form part of the jury trial.  Sentence was adjourned until the 28^th February 2011.

3.        Following the convictions, on the application of HM Attorney General, the Royal Court ordered on19th November 2010 that Counts 25-40 should lie on the file, not to be proceeded with without the leave of the Royal Court or the Court of Appeal.  The Court is told this morning that leave has now been given to the Crown to proceed in respect of those additional Counts.

4.        Since the Appellant's convictions in November evidence became available to the States of Jersey Police which casts doubt on the reliability of the convictions recorded on counts 13-24.  The evidence was made known to the defence, and is set out as follows.

5.        As a result of the publicity arising from the appellant's convictions, a man contacted the police to say that he may be able to assist in the identification of victims.  On 18^th November 2010 that man disclosed the identity of the sole unidentified victim who featured in Counts 13-24, with the exception of Count 23.  The identity was given as X, that man also identified the victim Y in Count 23 of which the appellant was acquitted. 

6.        X refused to engage with the police, but his identity was confirmed as being shown in the relevant photographs by Y, who was over 16 at the time and was shown in the photograph the subject of Count 23.

7.        The date of birth for X, as confirmed by his mother, and read against the computer data relied on as to the dates on which the evidential photographs were taken leads to the conclusion that X was beyond his 16^th birthday on the dates of the assaults shown on the photographs.  Further enquiries undertaken by the police have not produced any material capable of altering that conclusion.

8.        In the premises and given the refusal of X to engage with the investigation, the Attorney General has concluded that the convictions on Counts 12-14 can no longer be regarded as reliable and should not stand.

9.        The defence were informed, the substance of the new evidence disclosed, and the defence were invited to proceed by way of an appeal against the convictions on counts 12-24 to this Court of Appeal, the appeal would not be resisted and Mr Blakeley appears this morning on behalf of the Appellant.

10.      The Appellant applies for leave to appeal those convictions out of time and for the convictions on Counts 12-24 to be quashed.

11.      We grant leave as requested for this appeal to be heard out of time and on the application of both the Appellant and HM Attorney General we quash those convictions.

12.      We order that the Respondent pay the Appellant's costs.

No Authorities