Jersey Unreported Judgments

Fraud - appeals against conviction and sentence.

[2013]JCA078

Court of Appeal

18 April 2013

Before     :

Sir John Nutting, Bt., Q.C., President; C. Nugee, Q.C., and; R. Collas, Bailiff of Guernsey.

John Tasker Lewis

Ian Michael Christmas

Russell Philip Foot

James Cameron

-v-

The Attorney General

Appeals against conviction and sentence.

Advocate O. A. Blakeley for Lewis.

Advocate S. Chiddicks as Amicus for Lewis.

Advocate R. J. MacRae for Christmas.

Advocate R. Tremoceiro for Foot.

Advocate T. V. R. Hanson, assisted by Advocate C. M. Marr, for Cameron.

Advocate G. Baxter as Amicus for Cameron.

M. T. Jowitt, Esq., Crown Advocate.

JUDGMENT

THE president:

A.  INTRODUCTION  

1.        On 16th May 2012 the Appellants appeared before Mr Commissioner Pitchers and Jurats in the inferior Number of the Royal Court to answer an indictment containing 25 counts of fraudulent inducement to invest or lend money, one count of conspiracy to do so and one count of attempting to do so. On 20th July 2012 the Court retired to consider the verdicts and on 26th July returned and severally convicted the Appellants on 21 of those counts. The Appellant Christmas was convicted of one count involving £100,000; the Appellant Lewis was convicted of 13 counts totalling £785,000; the Appellant Foot was convicted of 13 counts totalling £678,000; and the Appellant Cameron was convicted of 16 counts totalling £943,000. Sentence was adjourned until 4th October 2012 during which day the Crown opened its case for sentencing purposes and the Advocates for the Appellants made pleas in mitigation.  On 5th October the Royal Court imposed terms of imprisonment of 15 months on the Appellant Christmas and 4.5 years on the Appellants Lewis, Foot and Cameron.  Orders for disqualification as directors of companies were also made.

2.        Subsequently the Appellants submitted Notices of Application for Leave to Appeal against both conviction and sentence on a number of grounds. The applications were due to be heard at the November 2012 session of the Court of Appeal. However as a result of changes of advocates for two of the Appellants and the appointment of two amici curiae, an application was made to a Single Judge of this Court on 15th November for a postponement of that hearing. The Judge granted the application and on 21st November the Appellants were granted leave to appeal. A new date for hearing was set down for 21st January 2013. The Full Court heard the appeal over the course of six days between 21st, and 23rd-25th January and 26th and 27th February.

3.        Article 2 Investors (Prevention of Fraud) Investment (Jersey) Law 1967 is to the following effect so far as the counts in this indictment were concerned:-

"Fraudulent Inducement to invest money.

Any person who, by any statement, promise or forecast which the person knows to be misleading, false or deceptive, or by any dishonest concealment of material facts, or by the reckless making (dishonestly or otherwise) of any statement, promise or forecast which is misleading, false or deceptive induces or attempts to induce another person-

(a)(i) to lend to the person, or to any other person, money on terms involving payment of interest or repayment at a premium, or

(ii)...

(b)....

(c) to take part or offer to take part in any arrangement with respect to property other than securities, being arrangements the purpose or effect, or pretended purpose or effect, of which is to enable persons taking part in the arrangements (whether by becoming owners of the property or any part of the property or otherwise) to participate in or receive profits or income alleged to arise or to be likely to arise from the acquisition, holding, management or disposal of such property, or sums to be paid or alleged to be likely to be paid out of such profits or income; or

(d)....      

shall be liable to a fine or imprisonment for a term not exceeding 7 years or to both such fine and such imprisonment."

4.        In the case of Young v Attorney General [1999] JLR 17, this Court approved the summing up of Sir Godfray Le Quesne, sitting as a Commissioner, in respect to offences contrary to Article 2(c), in the following terms:-

"Six things have to be proved. First, that the defendant made the statement, promise or forecast. Secondly, that the statement, promise or forecast was misleading, false or deceptive. Thirdly, that the defendant knew when he made the statement, promise or forecast that it was misleading, false or deceptive. Fourthly, that by the statement, promise or forecast, he induced somebody to take part or to offer to take part in some arrangements. Fifthly, that those arrangements were arrangements with respect to some property other than securities. Sixthly, that the purpose or effect of the arrangements was to enable persons taking part in them to participate in, or to receive profits, alleged to arise from the acquisition, holding, management, or disposal of the property." 

5.        It was common ground at the trial that these ingredients, with appropriate adaptation, were those which the Crown had to prove in respect of the counts in the indictment.

6.        The circumstances which gave rise to the charges occurred between 2003 and 2008. During the material time the Appellant Christmas was the Assistant Magistrate of the Bailiwick, a post which he had held since 2001: he had little experience of business. The other Appellants had worked for several years in the investment industry and each had a number of clients in Jersey.

7.        The vehicles for their fraudulent activity consisted of two companies, De Lec Ltd ("De Lec") and Sunstone Holdings Ltd ("Sunstone"). The former was created out of the first letters of the surnames of the Appellants Lewis and Christmas and a third man, Eric Evans, who, like them, was a director of De Lec, but who resigned in July 2006 after a dispute with the Appellant Lewis as to how the business should be run. Eric Evans gave evidence for the Crown at the trial. The Appellant Lewis started Sunstone with the Appellants Foot and Cameron to take additional advantage of the client base which these three Appellants enjoyed from their investment consultancy business. The three of them were all directors of Sunstone. 

8.        There were 4 counts in the indictment concerning De Lec, Counts 1 - 4. The Appellants Christmas and Lewis were charged in those counts. Count 5 was a conspiracy count against both these Appellants and concerned a company associated with De Lec. Count 6 charged the Appellant Foot alone. The remaining counts, Counts 7 - 27, concerned Sunstone and, generally, involved the Appellants Lewis, Foot and Cameron in various combinations.

9.        The grounds of appeal are extensive. There are few aspects of the case, both factual and legal, from the investigation of the Jersey Financial Services Commission ("JFSC") to the verdict, which do not form the subject matter of some sort of complaint by one or other, or all, of the Appellants. Accordingly it is necessary to discuss the facts in some detail.

B. THE FACTS

10.      In late 2003 the Appellants Lewis and Christmas decided to invest in the American property market. At that time house prices were increasing exponentially: in Florida, for example, where most of the Appellants' property investments were made, the rate of increase was 10-15% per annum. It is apparent from documents found by police at the home addresses of the Appellants Christmas and Lewis that their intention was to reserve off-plan properties, to borrow enough money to acquire a portfolio of about $30 million and then to sell it after three years, making, they hoped, a gross profit of between $9 and $14 million. To this end the Appellants Christmas and Lewis, and the witness Eric Evans, incorporated De Lec in February 2004.

11.      In 2005 the Appellant Lewis set up Sunstone with the Appellants Foot and Cameron. The three of them had been in business together in Jersey as regulated financial advisers, trading under the name of Goldridge Stone. Once Sunstone was established, these three Appellants approached many of their Goldridge Stone clients and successfully persuaded them to switch their investments to property in America through Sunstone. Sunstone functioned, as did De Lec, as a vehicle for property investments of these Appellants in Florida, and also in Colorado.

12.      Between late 2003 and early 2008 the Appellants reserved or purchased a total of 90 properties in those two states. The process of reservation involved payment of only a few hundred dollars which gave the Appellants, at a later stage, the opportunity to purchase the property once it had been built. The properties were reserved or purchased, not in the names of the companies, but rather in the names of the individual Appellants and they raised money to pay for these properties mainly through mortgages from American banks totalling $16.5 million and, to a lesser extent, with money solicited from residents of Jersey.

13.      The problem was that the more property they reserved, or purchased, the more money they needed to pay the associated costs, including mortgage interest, utility and maintenance bills, association fees for the upkeep of golf courses and other leisure facilities (not inconsiderable in a state such as Florida), as well as the profit and interest payable to Jersey investors to whom they had promised returns on their investments.

14.      By late 2005 the property portfolios of the two companies were costing hundreds of thousands of dollars a year to maintain. The rental income from those properties which were let made only a small contribution to reduce this deficit. The costs mounted remorselessly. By the end of 2005 De Lec's operating loss was just under $144,000. By the end of 2006 it had risen to nearly $300,000. Twelve months later it was in excess of $400,000.

15.      Sunstone showed a similar pattern. In 2005, its first year of trading, the operating loss of the company was just under $34,000. By the end of the next year it had risen to almost $468,000. In 2007 it was just under $400,000 and in the last five months of 2008 the loss was $334,500.

16.      The losses would have been much greater had it not been for the money credited to the company accounts which had been fraudulently obtained from investors in Jersey. At the trial a procession of witnesses testified to the misleading nature of the inducements, both oral and written, which the Appellants had used to persuade them to invest. The investors were repeatedly told that their money would be used to acquire property in Florida or Colorado which would entitle them to a direct interest in bricks and mortar. Each was given to understand that the investment would be used to pay for a deposit on a plot of building land or a house.

17.      In fact the money was used by the Appellants for different purposes, including the purchase of properties for other investors whose funds the Appellants had obtained earlier but had spent on other things, or to pay mortgage interest and holding costs on properties which the Appellants had bought previously, or to pay interest on investments or loans of prior investors, or to pay sums to the Appellants themselves, or to pay debts which the Appellants had accumulated on their credit cards.

18.      With the exception of Mrs Tomkins (Count 6), Mr Keeling (Count 12), Mr Derry (Count 14), and Mr Jackson (Count 17), all the victims in this indictment were former clients of one or other of these three Appellants. These clients gave evidence at the trial that they had faith in the judgment of the individual Appellant with whom they had dealt at Goldridge Stone, in many cases over a long period, and trusted him implicitly. Others said that the involvement of the Appellant Christmas and his status as a Magistrate had reassured them.

19.      The links between De Lec and Sunstone were close. The Appellant Lewis was a director of both companies and the purpose of both companies was investment in the American property market. But the ties between the companies had other uses. On at least one occasion a property was "sold" by De Lec to Sunstone at a "profit" so that it could be alleged to the investor that he had made a significant return on the investment. The links, too, between Sunstone and Goldridge Stone were close, and once Sunstone had been incorporated in mid February 2005, the two companies shared offices.

20.      The counts in the indictment focused on 30 investments by 27 investors. But these were specimen counts. The total number of Jersey investors consisted of 57 people who paid a total of £5,337,000 to the Appellants. Of that sum £1,905,000 was paid to the Appellants Christmas and Lewis and their company De Lec. The balance, £3,432,000 went to the Appellants Lewis, Foot and Cameron and their company, Sunstone. Of the total sum invested, £1,137,000 has been repaid. The remainder, £4,200,000, has not been recovered. The principal reason for the size of the default was that the Appellants spent the money on the running costs of the two businesses and on themselves, rather than on the properties which had been identified to the investors as the ones in which they were securing an interest. 

21.      In relation to the De Lec counts, at the close of the prosecution case, the Commissioner ruled that the Appellants Christmas and Lewis had no case to answer on Count 1. The Jurats returned a verdict of not guilty in respect of Count 3 and Count 5, the latter being the conspiracy count. Both Appellants were convicted of Count 2. The Appellant Lewis was convicted on Count 4 on which he was charged alone. 

22.      In relation to the Sunstone counts, the Commissioner ruled that the Appellants Lewis and Cameron had no case to answer on the second particular pleaded in Count 18 and left to the Jurats the first particular pleaded, namely whether the relevant sum had been spent on the property on which the investor had believed she had paid a deposit. This count became Count 18(a). The Commissioner also ruled that the Appellant Foot had no case to answer on Count 22 in which he was charged alone. The Jurats acquitted the Appellants Foot and Cameron of Count 20, in which they were charged without the Appellant Lewis; and acquitted the Appellant Foot of Count 25, in which he was charged alone. The Appellants were convicted of the remainder of the Sunstone counts, although not all the Sunstone Appellants were charged with every count.

23.      In relation to the relevant counts within Counts 2 - 23, whose dates spanned the period late 2004 to mid-2006, and first De Lec and then Sunstone, the Jurats concluded that the Appellants had been reckless in the fraudulent inducements which they had made to investors. In respect of Counts 24, and 26 and 27, which covered the period from late 2006 to early 2008 and which involved Sunstone only, the Jurats concluded that the Appellants Lewis, Foot and Cameron had been dishonest.

24.      The view which the Jurats took of the conduct of the Appellants in the early period reflected the expectation by the Appellants that the American property market would continue remorselessly to rise. No doubt, too, the verdicts of the Jurats on these counts were based on the finding that the Appellants had hoped, increasingly unrealistically, that their untruthful inducements to investors would be forgotten because of the substantial sums of money which everyone would make.

25.      But the American property market did not continue to rise. In 2006 it stalled. In 2007 it stagnated and then crashed. The Appellants found that they could not sell the properties which they had reserved, or purchased, at the prices required to cover their costs, let alone to make a profit. Nor could they re-mortgage the properties to raise the money they needed to service their debts and to pay interests to earlier investors.

26.      The only source of funds which continued to be available to the Appellants was money provided by Jersey investors and, specifically, the clients of the Appellants Lewis, Foot and Cameron at Goldridge Stone. And so, notwithstanding the increasingly difficult market conditions, these three Appellants persisted in duping investors into providing funds on pretexts which became ever more specious and impossible of fulfilment. The view which the Jurats took of the conduct of the Appellants, at a time when they must have known that Sunstone was in terminal financial difficulty, plainly reflected their view that the inducements made in Counts 24, and 26 and 27 were deliberate rather than reckless and the verdicts on those counts were returned accordingly.

27.      The business plan which the Appellants operated on behalf of the two companies was fatally flawed from the outset.  Not only were the individual properties, once built, so heavily geared that any rental income did not cover the outgoings, but the model anticipated no other significant source of income. Although the Appellants endeavoured later to raise capital, they found only one lender of any consequence and his funds made little difference to the cash flow shortfall. As finance became more difficult to raise, the Appellants tried to re-mortgage some of the properties; but the developers had the right, derived from the reservation agreements, to stop this practice, and did so. The result was that almost from the outset the Appellants did not use investors' money for the purposes identified at the time of the oral inducement and confirmed in the Joint Venture Agreement ("JVA") which was given to each investor, almost without exception. These documents played a significant part in the case.

28.      There was an invariable pattern to the process of persuasion. One of the Appellants, usually the one who knew the investor as his client at Goldridge Stone, would approach him/her with a sales pitch about the virtues of investing in the American property market. If the investor indicated a willingness to participate, a JVA would be drawn up recording the parties to the "joint venture." The De Lec JVAs were framed, not in the name of the company, but in the name of the Appellants Christmas and Lewis. The Sunstone JVAs were drawn up showing that company as one of the parties to the joint venture and the investor as the other.

29.      The JVA also identified the property in which the two parties were to have a joint interest and recorded the amount of the contribution of the investor whose funds were said to be going to be used to pay a deposit, or deposits, on the property. The document also recorded the terms under which the money was to be paid and the basis on which the proceeds were to be split when the property was sold. There was space provided in the Sunstone JVAs for the signature of the investor and for those, almost invariably plural, Appellants who signed on behalf of Sunstone. Once prepared, the document was submitted for signature by the parties.

30.      But, as we have observed, the investor's money was not used to pay the deposit on the specified property. Rather was it spent, usually within days, on the immediate needs of the two businesses. None of the investors was told that their money would be used in this way. All believed that it would be invested in the properties specified in the JVAs. All were asked at the trial whether they would have agreed to invest had they known the use to which their money would be put, and all confirmed that they would not have done so, and accordingly, that they had been misled.

31.      Moreover, in many cases the Appellants induced an investor to part with money far in advance of the time when the funds would be required for the purpose specified in the JVA. Indeed in most cases the property was never purchased; but in those instances where it was purchased, the money used for the expenditure was available only because another, later, investor had been induced to part with funds on the promise of investment in an entirely different property.

32.      The evidence at trial revealed that, as time passed, the Appellants were well aware of the peril in which their businesses stood. But they persisted in their activities until they were forced to stop as a result of a civil action brought by one of the investors, Mrs Cynthia Binet (Count 19).

33.      In the summary of the counts which follows, unless otherwise stated, the counts have been laid contrary to Article 2(c) rather than Article 2(1)(a) i.e. to invest, rather than to lend money.

34.      The pattern of inducement occurred in a similar way in all the counts of which the Appellants were convicted. It is necessary to set out the circumstances of Count 2, on which the Appellant Christmas was convicted with the Appellant Lewis in order to demonstrate the process by which these Appellants operated. It is the only count on which the Appellant Christmas was convicted and is therefore the count on which his appeal was based. 

35.      Mrs Cotrel was a widow in her late seventies. She had known the Appellant Lewis since 2000 when, as a client of Goldridge Stone, he became her investment advisor. In total Mrs Cotrel was persuaded to invest £531,000 with De Lec in ten tranches between 2004 and 2006. She recovered just £2,166. Count 2 concerned a sum of £100,000 which she invested in Dec 2004. However, the totality of the evidence on Count 2 has to be set against the evidence on Count 1. This was one of the counts on which the Commissioner instructed the Jurats to return a verdict of not guilty. His decision was based on Mrs Cotrel's failure at trial to be able to recollect what representations had been made to her which induced this particular investment.

36.      It is convenient at this juncture to deal with one of the submissions made on behalf of the Appellant Christmas. Advocate MacRae claimed that the fact that his client had been acquitted of Count 1 meant that the Jurats should, thereafter, have been instructed by the Commissioner to ignore it in considering Count 2. No submission could have been made on behalf of the Appellant Christmas at the outset of the trial to sever Count 1 from Count 2. No submission could have been made on his behalf at the close of the prosecution case that the Commissioner, having ruled as he did on Count 1, should release the Jurats from giving a verdict on Count 2 and order a retrial, by way of a separate trial, for this Appellant on that count. On any view the counts were properly joined, as Advocate MacRae conceded. With or without a count to reflect the evidence encompassed in Count 1, the evidence to which it referred was relevant and admissible on principles of similar fact on Count 2. The acquittal, based as it was on the paucity of evidence of the representations which founded the particulars of the Count 1, did not affect the other matters relevant to the count which could be proved by material other than Mrs Cotrel's evidence. Thus, albeit that Mrs Cotrel was unable to remember the circumstances of the inducement to invest, there was evidence on Count 1 in the form of a JVA and the tracing of her investment through the De Lec bank account. This evidence was admissible against the Appellant Christmas and, for that matter, the Appellant Lewis. The events to which these matters related occurred in July 2004, five months prior to the events of Count 2.

37.      The JVA for Count 1 evidenced a contract between Mrs Cotrel and the two Appellants, both of whom signed it. The frontispiece is to this effect "Jersey this 20th day of July 2004. Agreement by and between Marie Therese Cotrel and Ian Michael Christmas and John Tasker Lewis." The agreement stipulated that, jointly with Mrs Cotrel, the two Appellants would purchase a property in Florida called Botanical Place and that the property "shall be purchased in the name of Ian Christmas." The JVA which Mrs Cotrel signed was, with slight modification, the same document which all the investors signed to record their agreements with the Appellants for investment in American property.  

38.      Although this was not a point taken by the Crown, in the view of this Court the identification of the Appellants on the JVA at a time when the JVA was drafted is important. The Crown were obliged to prove that each investor was induced to "take part in an arrangement with respect to property" for the purposes of Article 2(c). During the trial the Commissioner ruled that it was open to the Jurats to find that the process of "taking part" lasted at least until the time when the investor signed the JVA. The Appellants submitted to this Court that this ruling was wrong, a submission which we shall need to explore later. But the timing of the involvement of any Appellant in the actual inducement is significant because the inducement contained in the JVA was, prima facie, as important as the oral inducement which preceded it. If there was a permissible inference that an Appellant must have agreed to allow his name to be used as a party to the agreement, or as a purchaser of the property, before the JVA which incorporated those details was drafted, plainly such an Appellant had prima facie knowledge of the inducement made to that particular investor at an early stage.  

39.      This typed and formal document also stipulated "that the parties are required to pay an initial deposit......." and "that MTC [Mrs Cotrel] had agreed to provide the initial deposits of $50,000 on the terms hereinafter set out...." The JVA made provision for the rights to which Mrs Cotrel was entitled when the property was sold at some future unspecified date, including how the profit should be split between her and the two Appellants and in what order of priority.

40.      On the same day, 20th July 2004, Mrs Cotrel arranged for the sum of $60,000, rather than the sum stipulated in the JVA (for reasons which need not concern us), to be transferred from her bank to De Lec. On 6th August 2004 the two Appellants arranged by letter, which they both signed, for the $60,000 to be transferred from the De Lec account with the Gerrard Private Bank in Jersey to an account in the Appellant Christmas' name with the Wachovia Bank in Miami, Florida. It is clear that the Appellants did not need Mrs Cotrel's money to pay the "initial deposits" on Botanical Place for many months. The uncontradicted evidence at trial given by an accountant from Grant Thornton, Mr Sowden, who had analysed the bank accounts of both De Lec and Sunstone, was to the effect that the credit of Mrs Cotrel's money was, in fact, instrumental in enabling the Appellants, with other funds, to pay a deposit on a different property in Florida, 1304 Bellavista, in late August 2004. During the course of that month it is apparent from email traffic that the Appellant Christmas was extensively involved in arranging the payment for the deposit on 1304 Bellavista through his personal American bank account.

41.      Thus, having spent Mrs Cotrel's investment on a different property, it was obvious to both Appellants that they need to raise money from another, later, investor in order to meet their obligations on Botanical Place when payment for the initial deposit fell due. Certainly De Lec had no sufficient income at the relevant time to pay such a sum. As the witness Eric Evans confirmed in evidence at the trial, De Lec's only effective source of income for the running costs of the business, including interest on the mortgages on its American properties, as well as fees, utility bills and other costs, consisted of money obtained from investors.  Indeed in September 2004, mid-way between the events of Counts 1 and 2 and before going into hospital for an extended period, Mr Evans warned the two Appellants of the dangers of the business plan which they were pursuing. 

42.      On 13th September 2004, he sent an email to them both in the following terms ".....My greatest fear is that we have no cash flow, only investors' cash and loans on which we have given each other overwhelming trust in signing joint and several guarantees. I have no problem with this providing we manage each issue with a sensible plan written down, agreed upon and a date put upon completion......I spoke to John [Lewis] on Sunday following the email asking is [sic] we would consider a sale of the first house in Naples [a development in Florida].This is timely as we have to either inject funds ourselves to cover overheads or sell assets to fund the company in a professional manner. Using the cash from investors would, if we had accounts, show a shortfall in real terms and robbing Peter to pay Paul is not in our best interests." The Appellant Christmas recognised in an email sent to his co-directors that same month that the JVAs sent to each investor did not reflect the true position and needed amendment if the investors were not to be misled by it.

43.      And so to Count 2. Mrs Cotrel gave evidence that in December 2004, the Appellant Lewis visited her at her home and persuaded her to part with a further sum, £100,000, to be invested in more American property, identified as 104 and 203 Hawthorne. These two houses were also situated in Naples, Florida. She gave evidence from which the Jurats were entitled to infer that the Appellant Christmas was present at the meeting, though from the totality of her evidence it was not clear whether, in fact, he attended that meeting or another, later, one. The Jurats found, and so indicated through the Commissioner on 5th October, 2012, that notwithstanding their verdict of guilty, they could not be sure that the Appellant Christmas had been present at the relevant meeting with Mrs Cotrel.

44.      Her evidence was that she signed the JVA, dated 1st December 2004 and detailing this transaction, on the same day on which the Appellant Lewis came to see her to persuade her to purchase the Hawthorne properties. At some, unspecified, time the two Appellants also signed. The frontispiece of the JVA recorded the place and date "Jersey this 1st day of December 2004", and the names of the three parties to the joint venture agreement "Marie Therese Cotrel and Ian Michael Christmas and John Tasker Lewis".  The JVA also recorded that Mrs Cotel's funds were going to be used to pay for the initial deposits to buy from the developer the two properties which "shall be purchased in the name [sic] of Ian Christmas and John Lewis."  A copy of the JVA, signed by all parties, was recovered later from the home of the Appellant Lewis. Mrs Cotrel said in evidence that, at the request of the Appellant Lewis, she had returned both JVAs to him a considerable time after the events of the summer and winter of 2004.

45.      Mr Sowden gave evidence that on receipt of Mrs Cotrel's £100,000, most of which was paid on 2nd December 2004, the two Appellants were both active in signing cheques and issuing instructions to dispose of the money. They applied the funds, not to the initial deposit on the two Hawthorne houses, but for the purpose of paying the mortgage on 1304 Bellavista, the very property which had been purchased in the Appellant Christmas' name using the $60,000 which had been invested by Mrs Cotrel in July 2004 ostensibly to pay the deposit on Botanical Place. They did this by using the Appellant Christmas' Wachovia account, to which they credited a proportion of Mrs Cotrel's $60,000. They used the same account to defray mortgage payments on other Florida properties. They then used the remainder of Mrs Cotrel's investment, via the De Lec account in Jersey, to pay for repairs to a Jersey property at St John's Court, to reduce a loan which the two Appellants had obtained from a Jersey businessman for the benefit of De Lec, to pay the Appellant Lewis himself the sum of £10,000 as a commission for having secured Mrs Cotrel as an investor, to reduce the Appellant Lewis' credit card accounts and to pay other more general expenses of De Lec.

46.      The two Hawthorne properties were eventually purchased, but not until Mrs Cotrel had been persuaded by the Appellant Lewis to hand over a further £206,000 of her savings. In fact only a small proportion of this sum was needed to secure these properties. The balance was used instead to pay other debts incurred by De Lec in the same way in which previous sums provided by Mrs Cotrel had been spent.

47.      Count 4, the other count which concerned De Lec, related to a variant of the way in which the investors had been induced to part with their money. The count concerned the Appellant Lewis alone. The investor was Mr Michael Evans (not of course to be confused with Eric Evans), who was a client of the Appellant at Goldridge Stone.

48.      The background to the count was as follows. In 2004 a pension policy to which the Appellant had advised Mr Evans to subscribe had matured. The Appellant suggested to Mr Evans that he should invest the sum in the American property market through De Lec. In September 2004, Mr Evans agreed to invest £13,500. His JVA, dated 8th September 2004 and signed by the investor and by the Appellant Lewis, agreed that his money would be used directly to secure a property at Botanical Place in Florida, the same development in which Mrs Cotrel had been induced to invest. None of Mr Evans' money was used for this purpose.

49.      The Botanical Place investment fell through in March 2005. The developer, who had written previously to request the return of a signed contract and payment of the deposit, lost patience and, in accordance with the relevant paragraph of the Reservation Agreement, cancelled De Lec's/the Appellant Lewis' reservation on this property. The Appellant did not tell Mr Evans, or Mrs Cotrel, of the cancellation. In June 2006, Mr Evans asked to be paid out on his investment. By this time De Lec's financial problems were severe. The flow of new investors had reduced to a trickle and the Appellant Lewis knew it. The following month, July 2006, he admitted in an email, circulated within the company, that De Lec's short term cash flow problems were acute: in that month its operating loss was $45,000. The Appellant could not afford to repay Mr Evans his £13,500. So he duped Mr Evans into keeping that sum invested by telling Mr Evans that he had made a profit of £3,712 for him on his investment. Mr Sowden gave evidence that the Appellant paid this sum to Mr Evans out of some of the money provided by Mrs Cotrel.

50.      As a result of this false assertion, Mr Evans was persuaded to increase his investment with a further sum of £11,500. The investment of this sum was expressed to be by way of a loan. Thus Count 4 charged the Appellant with obtaining a loan from Mr Evans, contrary to Article 2(i)(a) by falsely pretending that Mr Lewis had made a profit on his earlier investment and by concealing the true position in relation to Botanical Place.

51.      In late 2004, shortly before Sunstone was formed, Mrs Jill Thompkins, Count 6, approached the Appellant Foot for investment advice. She had been introduced to the Appellant through a mutual friend who was a Goldridge Stone client and who, with the Appellant's encouragement, had invested in property in Florida. In this count this Appellant was charged alone with fraudulent inducement to lend money, also contrary to Article 2(a)(i). The Appellant Foot persuaded Mrs Tompkins to lend him £20,000 to invest in the Florida property market on the basis that he was expecting to be able to achieve for her a very significant rate of return on her investment. A JVA was prepared by the Appellant. It is dated 1st September 2004. It was signed by Mrs Tompkins and by the Appellant. As soon as he had received the money, the Appellant used £3,800 of it to clear his personal overdraft and £16,000 to pay off his credit card debts. Mrs Tompkins lost the entirety of her investment.

52.      The remaining counts concern Sunstone and the Appellants Lewis, Foot and Cameron. All three Appellants were directors of Sunstone. All three had an indistinguishable interest in raising money from investors.  The Crown decided to charge substantive counts in relation to a number of investors selected from those Jersey residents who had been induced to invest.

53.      The way in which the three Appellants operated Sunstone demonstrated a clear pattern, the same pattern which the Appellants Lewis and Christmas used to operate De Lec. One of the Appellants, Lewis himself, or Foot, or Cameron, would approach an investor whom he knew, usually because the investor was a client of that particular Appellant at Goldridge Stone. Having made an oral presentation of the advantages of the American property market and having won the investor's interest (some expressed a cautious interest, some were more enthusiastic), the Appellant and the investor decided on the sum which the investor would provide. Shortly afterwards the investor would be given a JVA.

54.      In many cases in the Sunstone JVAs, as with De Lec, the ownership of the property was expressed to be in the name of one of the Appellants, sometimes in the name of the Appellant who had approached the investor initially, sometimes one of the other two. The JVA would invariably be signed by the Appellant who had made the oral presentation. But, invariably too, the JVA would be counter signed by another Appellant, sometimes the one in whose name the property had been or would be reserved or purchased, sometimes by the third Appellant who had hitherto played no apparent part in the inducements. In respect of most of counts 7 - 27, the JVA exhibited at trial was produced to the police by the relevant investor. These JVAs contained the signatures of all those concerned, lending support to the conclusion that they had been signed/countersigned on behalf of Sunstone by the Appellant/Appellants at, or by the time when, the investors had signed and retained them, or by the time when they had been sent to the investors for signature and retention. This factual aspect of the case was to assume an importance in the submissions made by the Crown in this appeal.

55.      The Crown's approach was to charge any Appellant who had played a part in the circumstances which resulted in an investment with a count reflecting that investment. Thus, in some Sunstone counts all three Appellants were charged, in some only two of them. The case for the Crown was clear. Any association by an Appellant with an inducement which had led to an investment fixed that Appellant with responsibility for that investment. The Crown asserted that the nature of the revolving roles which the Appellants had played in securing the investments (depending which Appellant in any case played the lead role), as well as the pattern of evidencing the agreement with a JVA, made it possible for a tribunal of fact to conclude that all three Appellants were familiar with the process of inducing investors. Moreover, the Crown claimed, each Appellant was a party to inducing an individual to invest if he had made the initial oral inducement, or if he had been present when it was made, or if he had countersigned the JVA later brought into existence to evidence it. In addition, the Crown asserted, each Appellant was well aware, in respect of any investment, that the business model of Sunstone prevented the money invested being preserved for spending on the investment when required, but rather would be used, because needed, to defray the immediate running costs of the business. Finally, the Crown asserted, all the Appellants knew that when the deposit on the specified property was required to be paid, the funds would need to be provided by another investor because the earlier funds had long since been spent. 

56.      By way of example, in Count 7, the three Appellants, Lewis, Foot and Cameron were charged in relation to the inducement in May 2005 which led Miss Sarah Waye to invest £30,000 in a Florida property. She was a client of the Appellant Lewis at Goldridge Stone. It was he who made the oral inducements and provided Miss Waye with a JVA dated 26th May 2005.  Miss Waye signed it, according to her evidence, at the Sunstone offices and took it home with her. By that time it must have been counter signed by the Appellants Foot and Cameron because it was later produced by Miss Waye to police in that state during the course of the police investigation  In the JVA the parties to the agreement were described as "Miss Sarah Waye" and "Sunstone Holdings Ltd." The agreement recorded, in terms similar to the JVAs of De Lec, "That the parties have agreed that by way of joint venture they shall jointly purchase.......the property known as Unit 3102, Building 30, Carmel, for $354,990.....in the development known as 'Lely Resort'........situated in Naples, Florida, USA"..........."That the parties are required to pay a deposit (hereinafter described as the 'Initial Deposit') to secure the property"........"That SAW [Miss Waye] has agreed to provide an Initial Deposit of £30,000 [US$54,600]......." and that "The property shall be purchased in the name of John Lewis [the Appellant Lewis]".  In fact, none of Miss Waye's money was ever spent on 3102 Carmel, which was not purchased by the Appellant Lewis, nor by Sunstone. Miss Waye later recovered only £5,000 of her investment.

57.      The inference that all the Appellants had signed Miss Waye's JVA before she signed was reasonably clear in her case. Such an inference was, of course, capable of being rebutted by any specific evidence to the contrary, such as Mr Rolland's evidence (Count 23) that the Appellant Foot's signature had been added later. But it was not an inference which the Jurats would be obliged to consider was rebutted, as was relied on in submissions to this Court, by evidence from Mr Eric Evans that he had on one occasion signed a JVA later than the investor had signed it; nor by evidence, for example, from Mrs Nicholls (Counts 10 and 11) that she could not remember whether, when she signed her JVAs, the documents had already been signed and countersigned on behalf of Sunstone.

58.      Counts 8 and 9 concerned Mrs June Hoe and the Appellants Lewis and Cameron. The background was as follows. The Appellant Cameron was Mrs Hoe's financial adviser at Goldridge Stone. Having sold a house in Jersey, Mrs Hoe visited him in June 2004 for advice on what to do with the proceeds. He encouraged her to invest in a property in Florida called Hideaway Harbour. She did so. A year later he told her that the property had been sold and that he had made a profit for her of £15,000. In fact the profit was notional. Hideaway Harbour was "sold" by De Lec to Sunstone at a "profit". The profit was merely a book entry in the accounts of the two companies.

59.      But the appearance of profit pleased Mrs Hoe and so when, in May 2005, the same Appellant advised her to invest money in two more properties, one in Colorado and one in Florida, she accepted with enthusiasm. The JVAs recorded the Appellant Cameron as the purchaser of the properties. Mrs Hoe paid over a total of £95,000 in two instalments on 5th and 20th June 2005. These two investments were reflected in Counts 8 and 9. The JVAs for the two properties were dated 5 July 2005. The reason why the JVAs were dated a month after Mrs Hoe had paid her first instalment was because the properties in which she was going to invest were not identified until the time when she signed the JVAs. She said in evidence that she expected, not unreasonably, that her money would be preserved in the Sunstone bank account until such time as the properties had been named, at which time, she anticipated, her money would be transferred to America to pay the deposits on the two properties as forecast in the two JVAs. Both were signed by the Appellants Lewis and Cameron on behalf of Sunstone and by Mrs Hoe. Both were produced by Mrs Hoe to police signed by all the parties. She hoped, of course, that the eventual sale of the two properties would yield the same sort of profit which she had been told by the Appellant Cameron that she had made on Hideaway Harbour. The property in Colorado was bought in June 2006. The property in Florida was never acquired.

60.      Counts 10 and 11 charged the Appellants Foot and Cameron with fraudulently inducing an investment from a couple called Nicholls. They were persuaded by the Appellant Cameron, who had previously advised Mrs Nicholls as a client of Goldridge Stone, to pay deposits totalling £100,000 on two properties, one identified as 69 Lindon Lane, Breckenridge, Colorado and one in Florida. Mrs Nicholls said in evidence at the trial that she had responded to the Appellant Cameron's suggestion that they should make these investments "If you think that's the best thing for us to do, we're in your hands."

61.      In the JVA dated 10th July 2005, the Colorado property was to be purchased in the name of the Appellant Foot. Significantly, the Florida property, as described in the relevant JVA also dated 10 July 2005, was 3102 Carmel, the very property for whose deposit Miss Waye had been induced to part with £30,000 six weeks before and which she believed she was buying in partnership with the Appellant Lewis and Sunstone (Count 7). The Nicholls JVA for this property indicated that the property was allegedly to be purchased in the name of the Appellant Lewis. The JVAs, incorporating the agreements between the Nicholls and Sunstone in respect of the two properties, were signed by the Appellants Foot and Cameron on behalf of the company. Both JVAs were produced to police by Mrs Nicholls signed by all parties.

62.      The property in Colorado was, in fact, not purchased until a year later with money, as revealed by the Sunstone bank account, provided by Mr Rolland (Count 23) who believed he was making an investment in an entirely different property. The Florida property was never purchased, either for the benefit of Miss Waye, or for the benefit of Mr and Mrs Nicholls. In June 2007, two years to the month after the Nicholls made their investment, they enquired of the Appellant Cameron what had happened to the two properties in which they believed they had invested. He replied by letter two months later, and, by way of reassurance, insisted that their money was held in an escrow account. That was a lie, as he admitted in evidence at the trial.

63.      The events relating to these counts, Counts 8 and 9, and 10 and 11, occurred in May and June 2005. The total sum defrauded from these investors, the Hoes and the Nicholls, during these two months by the Sunstone Appellants amounted to £225,000. The Appellants spent the whole of this sum on holding costs on other American properties, paying debts in respect of other properties and in defraying the office costs of Sunstone. They then awarded themselves what was left, nearly half of it. The Appellant Lewis' share was £27,000, Foot's was £38,000 and Cameron's £42,000.

64.      Count 12 charged the three Appellants in the summer of 2005 with fraudulently inducing Mr Alan Keeling to pay £44,000 as the deposit on 69 Lindon Lane, Breckenridge, the same property in Colorado on which Mr and Mrs Nicholls believed that they had paid the deposit the previous June (Count 10). In Mr Keeling's JVA relating to this property, dated 28th September 2005, the property was again described as being purchased in the name of the Appellant Foot. The Crown opened to the Royal Court that the Appellant Cameron had made the relevant representations to Mr Keeling. The Appellants Lewis and Foot countersigned the JVA on behalf of Sunstone.  Mr Keeling produced his copy of the JVA to police signed by all parties. He invested a further £51,000 in Florida property, bringing his total investment to £95,000.

65.      The three Appellants used the money, not for the purpose defined, but rather, partly, to purchase, on behalf of Sunstone, a property from De Lec. Once the payment had been transferred from Sunstone to De Lec, the Appellant Lewis, wearing his De Lec hat, used the money in the De Lec account to fund mortgage payments on Jersey property owned by De Lec and also to pay invoices in respect of De Lec's office costs. He also used it to pay himself £20,000, and the Appellant Cameron £8,000. Meanwhile what remained of Mr Keeling's money in the Sunstone account was used to pay other debts of Sunstone, including debts in respect of properties unrelated to the property described in Mr Keeling's JVA. 

66.      In chronological order the next counts are counts 13, 21 and 14.

67.      Count 13 charged the Sunstone Appellants with fraudulently inducing Mrs Geraldine Bailey to invest £30,000. The Appellant Lewis was her financial adviser at Goldridge Stone and had sold her various pension and savings plans some time previously. In the autumn of 2005 he visited her and suggested that she should encash her Scottish Widows pension and invest in property in Florida instead. The early encashment of her savings plan resulted in a £5,000 penalty. The Appellant persuaded her that she would recoup that sum and make significantly more if she accepted his advice. By way of reassurance he told her that he had invested his own money in property in Florida. The Crown suggested that this claim was at best disingenuous.

68.      Mrs Bailey's JVA dated 27th October 2005, as she confirmed at trial, recorded the details of the discussion which she had had with the Appellant Lewis and the proposed investment between herself and Sunstone. According to the JVA, the identified property, for which she had agreed to pay the deposit, was to be purchased in the name of the Appellant Foot. He signed the document, as did the other Appellants Lewis and Cameron, on behalf of Sunstone. Mrs Bailey paid a cheque for £30,000 made out to the company on 1st November 2005. The property, for which she was induced to part with her money, was never bought. Her £30,000 was spent on the running costs of Sunstone.

69.      Count 21. The Count concerned the Appellants Foot and Cameron. The latter was the financial adviser to Mr Alan Jarrett. One day in the autumn of 2005 he telephoned Mr Jarrett and told him that his pension, which the Appellant had arranged, was not performing as well as he had hoped. The Appellant suggested an encashment and reinvestment in property in Florida, where, he suggested, Mr Jarrett could expect to obtain a return of between 20-30% on his money. The Appellant Cameron also asserted that he had invested personally in the Florida property market, a claim which the Crown repeated was at best disingenuous. He also told Mr Jarrett that Sunstone were making a good return on properties which they had sold in America. This was untrue: at that time they had sold no property at all. Mr Jarrett agreed to invest £60,000 as a deposit on a specific property and paid this sum in early November 2005. However, shortly afterwards, he asked to be repaid £10,000 of his investment. This sum was returned to him by the Appellant Cameron. 

70.      The JVA, recording the agreement between Mr Jarrett and Sunstone to invest the lesser sum of £50,000 as payment for the deposit, was sent to Mr Jarrett after 25th March 2006. Count 21 related to this sum and the JVA identified the same property in which Mr Jarrett had agreed to invest the greater sum a few months earlier. Accordingly he signed it. The agreement included this clause ".....The Property shall be purchased in the name of Russell Foot [the Appellant Foot]. The property was acquired in the name of Russell Foot and cannot be changed and it is understood that Russell Foot holds this properties [sic] for and on behalf of Sunstone Holdings Ltd and Alan and Geraldine Jarrett." The JVA was signed by the Appellants Foot and Cameron on behalf of Sunstone and later produced by Mr Jarrett to police. The £60,000 which Mr Jarrett paid, and which was credited to the Sunstone account on 3rd November 2005, was not spent on the property identified in the JVA, which was never in fact purchased.

71.      Count 14 was a count against the Appellants Foot and Cameron. Mr Stuart Derry was introduced to the Appellant Cameron by a colleague in the ambulance service. He, too, was persuaded to invest in property in Florida as a result of assurances by the Appellant, which included the false assertion that he had invested his own money in similar property. Mr Derry was induced to invest £70,000. The JVA incorporating the agreement between Mr Derry and Sunstone, dated 23rd November 2005, identified the property in which the Appellant Cameron told Mr Derry that he and Sunstone would be making an investment. The property was expressed to be purchased in the name of the Appellant Cameron who would hold it on behalf of Sunstone and Mr and Mrs Derry. The JVA was signed, on behalf of Sunstone, by the Appellants Foot and Cameron and it was later produced to police by Mr Derry, signed by them. Mr Derry paid £70,000 on 25th November which was credited to the Sunstone bank account on 28th November. The property was never acquired either by the Appellant Cameron or by Sunstone.

72.      The funds from Mrs Bailey, Mr Jarrett and Mr Derry totalling £150,000 were credited to Sunstone's bank account in November 2005, and were used by the three Appellants for a number of purposes none of them associated in any way with the purposes for which the Appellants, on behalf of Sunstone, were contracted to spend the money. They spent this sum, instead, on paying interest to other investors, making mortgage payments and defraying holding and other costs of properties in America. Two sums, of £13,000 and £10,000, were paid to the Appellant Cameron.

73.      Counts 15-17 can be usefully bracketed together. All three counts concerned the Appellants Lewis and Cameron. (Mr and) Mrs Sandall, Counts 15 and 16, and Mr (and Mrs) Jackson, Count 17, were friends. The Sandalls invested £200,000 on the basis of oral inducements by the Appellant Cameron, who was Mrs Sandall's financial adviser. These inducements were made to her during a visit to her house on an occasion when the Jacksons were present. The Appellant Cameron told the three of them about the American property market and identified his co-Appellants involved in the business, including the Appellant Christmas, whom Mrs Sandall knew to be the Assistant Magistrate. Mrs Sandall was keen to participate but had second thoughts when she discovered that she would have to pay a £20,000 penalty to redeem the Norwich Union bond which she wanted to use to fund the property investment and which the Appellant Cameron had advised her to buy some time before.

74.      On 24th November 2005 Mr and Mrs Sandall attended the Goldridge Stone offices to discuss the matter further. There they met the Appellant Cameron and also the Appellant Lewis, who expressed himself as being very enthusiastic about investment in the American property market. The two Appellants persuaded the Sandalls to pay the penalty and to switch their investment to property developments in both Colorado and Florida. Mr and Mrs Sandall understood that their money would be used "to pay for the developments that we owned." On this basis Mrs Sandall signed the JVAs that day evidencing the agreements between herself and her husband, and Sunstone, for the properties concerned. The Colorado property was to be purchased, according to the JVA relating to it, in the name of the Appellant Lewis and the Florida property was to be purchased in the name of the Appellant Cameron. Both Appellants signed the JVAs on behalf of Sunstone which were later produced to police by Mrs Sandall, signed by all parties.  Six days after they had been signed, on the last day of November, Mrs Sandall transferred £200,000 to the Sunstone account.

75.      Within 24 hours the three Appellants had spent this money. They used £159,000 of it to complete the purchase on Hideaway Harbour, the property in which Mrs Hoe believed she had invested in June 2004 and on which, according to what the Appellant Cameron told her in May 2005, she had made a profit of £15,000 when the property had been sold (but sold, of course, only in the sense that Sunstone "bought" it at an inflated price from De Lec.) The rest of Mrs Sandall's money was spent on holding costs on the De Lec property portfolio and on the Appellants personally. The Appellant Cameron paid himself £5,000 and the Appellant Lewis paid himself £2,500.

76.      In the meanwhile, encouraged by what he had heard at the meeting between the Sandalls and the Appellant Cameron, Mr Jackson, Count 17, attended a meeting on 2nd December 2005 at the offices of Goldridge Stone with the Appellants Lewis and Cameron. On the strength of the information which they gave him, including the advantage of investment in bricks and mortar, he decided to invest and paid over a cheque for £60,000 that day because the two Appellants told him that they needed to send the funds to America without delay to take advantage of the favourable exchange rate. A few days later, Mr Jackson received a JVA, dated 6th December, relating to a property in Florida for which he believed he was paying the deposit. The JVA, which had already been signed on behalf of Sunstone by the Appellants Lewis and Cameron, recorded that the property had been acquired in the name of the Appellant Cameron and that he was holding it on behalf of Sunstone and Mr (and Mrs) Jackson. He produced the JVA to police.

77.      Once the cheque had cleared Mr Jackson's account, the Appellants spent the whole sum on matters unconnected with the property in which Mr Jackson believed his funds would be invested. It was spent, instead, on property holding costs in America, mortgage interest on Jersey property in Sunstone's name, and interest payments to prior investors. The Appellants Lewis paid himself £8,436 and Cameron £5,000 from the credit in the Sunstone account resulting from Mr Jackson's cheque. 

78.      In early 2007, the Sandalls and the Jacksons became concerned about their investments. Mr Jackson attended a meeting with the Appellant Lewis who told him the same lie which the Appellant Cameron had told Mrs Nicholls in similar circumstances, namely that his funds were held in escrow. Mrs Sandall lost a total of £182,000 of her £200,000 investment. Mr Jackson lost his £60,000 investment in its entirety.

79.      Count 19, the next in date sequence, concerned the Appellant Foot alone. He was the financial adviser of the investor in this count, Mrs Cynthia Binet. She was induced by this Appellant to invest a total of £327,000 with Sunstone. Count 19 related to the investment of part of the total, a sum of £50,000, in a specific property in Florida. In November 2005 the Appellant Foot telephoned her repeatedly about this property encouraging her to invest and telling her that unless she acted quickly she would be out of time to pay her share of the property. Mrs Binet agreed and paid the £50,000. Despite frequent requests to the Appellant for written documentation recording the agreement, she received nothing. None of the £50,000 was spent on the property concerned. The option on it, which Sunstone purchased on 13th February 2006, was cancelled because the Appellant Foot had failed to complete on it. Mrs Binet's £50,000 was used to clear the credit card balances of the three Sunstone Appellants and to pay Cameron the sum of £35,000.

80.      Count 18a concerned Mrs Jayne Fisher and the Appellants Lewis and Cameron. In late 2005, Mr and Mrs Fisher met the Appellant Cameron. Having persuaded them to invest in a specific Florida property, he accepted £55,000 for immediate investment in that property. The JVA dated 17th January 2006, recorded the name of the property, the fact that Mrs Fisher's money would be used to pay the deposit, and that the property was being purchased in the name of the Appellant Lewis, who would hold it on behalf of Mrs Fisher and her husband and Sunstone. Mrs Fisher said in evidence that she had relied on the Appellant Cameron to select a property at an appropriate price for them to invest in. The JVA was signed by both Appellants. No sooner had Mrs Fisher's money been credited to the Sunstone account on 18th January 2006 than the Appellants spent it on Sunstone office costs and mortgage payments on Jersey properties. The Appellants Lewis and Cameron also paid themselves £3,000 and £18,000 respectively.

81.      Count 23 related to the Appellants Foot and Cameron and another investor, Mr Eric Rolland. He invested £64,000, as he believed, in a particular property in Florida on the basis of oral inducements by the Appellant Cameron, confirmed in a JVA dated 23rd July 2006 signed by both the Appellants Cameron and Foot. Mr Rolland gave evidence that the Appellant Foot had, in fact, signed the JVA after that date. The money which Mr Rolland paid to Sunstone on 1st June 2006 was used in part to complete the purchase in Colorado of 69 Lindon Lane, Breckenridge, the same property on which Mr and Mrs Nicholls believed that their money had been used to pay the deposit in July 2005, almost exactly a year before (Count 10), and on which Mr Keeling believed his money had been used to pay the deposit in September 2005 (Count 12).

82.      The remaining counts were those on which the Jurats returned verdicts on the basis that the three Appellants had knowingly induced investors. The dates of the counts reflect the period of late 2006 onward. By that time Sunstone's finances were in a parlous state. By the end of 2006, the company had amassed an operating deficit of $500,000 for that year and required tens of thousands of dollars each month to service its debts. The American property market had stagnated. The Appellants had not sold any property much less made any money doing so. They had re-mortgaged those properties on which second mortgages were available. Their only hope of further funds lay in inducing more investors from Jersey to part with their money.

83.      All the Appellants were well aware of the financial peril of the company. In an email on 21st November 2006 from the Appellant Lewis to the other two he wrote: "We have a fiduciary obligation to our investors and I believe we must take some action or their money is at risk." The Appellant Foot pointed out graphically in an email on the 19th December 2006, that Sunstone and the Appellants "were running on fumes."

84.      Notwithstanding his recognition of the critical position of the company at that time, a week before this email, the Appellant Foot persuaded Mrs Pauline Soper, a 61 year old widow who had relied on him for financial advice for many years, to lend Sunstone £80,000 on certain terms, Count 24. This count was laid contrary to Article 2(i)(a). The Appellant Foot was aware that Mrs Soper had inherited £100,000 from her parents and that this bequest was all the money she possessed. To induce her to lend he showed her a piece of paper indicating Sunstone's alleged assets but concealing from her any information about Sunstone's indebtedness, including the millions owed to investors and the cost of running a business whose cash flow, since its inception, had depended on using investors' capital to pay overheads. According to her evidence at trial he had told her that Sunstone was doing "brilliantly." She said: "I knew that I could leave everything to him because I trusted him so much." She handed over to the Appellant Foot a total of nearly £60,000 in three tranches over a period of eight months: she paid just under £23,000 on 19th December 2006, just over £26,000 on 19th January 2007 and in excess of £10,000 on 9th July 2007. During those eight months Sunstone's financial situation deteriorated further. On 19th February 2007 the Appellant Foot emailed the Appellant Lewis: "We are really struggling now and various standing orders are being cancelled too." On 26th March 2007 the Appellant Cameron emailed the Appellant Lewis (in response to a request from the Appellant Foot): "We have no money and everyone looks at me as if to say 'when are we getting some in.'" The Appellant Foot used Mrs Soper's money to pay holding costs, mortgage interest and interest on other investors' loans and, over the relevant eight month period, paid himself a total of £18,000.

85.      By late 2007 Sunstone's position had worsened further as the American property market continued its downward spiral. On 24 August 2007 the Appellant Foot emailed the Appellant Lewis: "The market is pants....Taking enough of a beating at present unless we can raise money other than sale of property we can't afford any more." On 18th September 2007 the Appellant Cameron emailed the Appellant Foot: "I don't know where all this is heading but staying strong when you can't think straight is hard. So is trying to do business when you are one step from disaster." By October 2007, the American banks had begun to foreclose on some of the Appellants' properties in Florida.

86.      That is the background to Counts 26 and 27. The two counts charged all three Appellants in respect of their dealings with Mr Andrew Varney. In early December 2007 Mr Varney, who had taken investment advice previously from the Appellant Cameron, met him by chance in St Helier. As a result of a discussion, Mr Varney later called at the Goldridge Stone offices, Count 26. The Appellant Lewis was present, as was the Appellant Foot and both contributed to the discussion, albeit only to a limited extent. The Appellant Cameron told Mr Varney that Sunstone had grown substantially, was worth several million dollars and that its products were good investments. Mr Varney indicated he had £60,000 to invest and was interested in buying bricks and mortar rather than making a loan. He left the office to consider the mattter and a few days later indicated his willingness to participate in a property investment. 

87.      Shortly after that, on 17th December 2007, the Appellant Cameron sent to the Appellants Lewis and Foot an email bewailing the parlous state of the company, referring to a conversation he had had with the Appellant Foot about the prospect of them all going to prison and alluding to the properties they owned as "millstones around our neck." He ends: "If all we want to agree is that it goes tits up tomorrow then let's do it and save me the trouble of doing all this feking work and wasting another friendship by losing another guy's money after everyone else's." The reference to "another guy's money" was a reference to Mr Varney and his investment. 

88.      The next day, 18th December, Mr Varney came to the office and was offered a copy of a JVA which he signed, as did the Appellants Foot and Cameron on behalf of Sunstone, recording his share of an investment in Hideaway Harbour in return for the payment of £60,000. Mr Varney's £60,000 was credited to the Sunstone bank account on 20th December and was spent on servicing Sunstone's immediate debts. The Appellant Cameron took £7,000 of it for himself.

89.      In late December the Appellant Christmas resigned from De Lec. The remaining Appellants had discussions in early 2008 what to do with that company. They decided to transfer the properties in De Lec, with all their accumulated indebtedness and running costs, to Sunstone. The holding costs of the two companies amounted to $128,000 per month. Now the Appellants needed cash more than ever.

90.      And so early in the New Year, the Appellant Cameron contacted Mr Varney and suggested another investment with Sunstone, Count 27. This Count charged the Appellants Lewis, Foot and Cameron with an attempt to induce Mr Varney to invest £100,000 in an arrangement, the purpose, or pretended purpose, of which was to enable Mr Varney to participate in the resultant benefits. The Appellant Cameron told Mr Varney that Sunstone had an opportunity to buy properties from banks in America at knock down prices. The statement was false. He also failed to reveal the use to which the directors of Sunstone intended to put the money, namely for the purpose of buying a little more time for their company. The particulars of Count 27 reflected the falsity of the inducement and the concealment.

91.      The Appellant Cameron also told Mr Varney that the Appellant Christmas had made just such an investment. This reassured Mr Varney. The Appellant also said that the Appellant Lewis had another client who was interested in making an investment but that he would much prefer it if Mr Varney became the investor. When Mr Varney agreed to provide money for investment in three such properties, the Appellant Cameron rang Lewis and told him of Mr Varney's decision, and emailed the Appellant Foot to the same effect. Mr Varney understood that his money would remain in the Sunstone account until the properties had been chosen.

92.      He paid the money on account in three tranches, £20,000 on 30th January, 2008, £60,000 on 7th February and £20,000 on 10th March. He gave evidence at trial that he expected the money to be held to his account in Sunstone's bank until the properties had been chosen. And during that period he called at the officers of Goldridge Stone on several occasions. On none of those occasions did any of the Appellants, who were regularly present, disabuse him of the lies told to him to obtain his money or reveal to him the use to which they were putting his funds.

93.      The Appellants spent each tranche within days of its receipt in various ways, including bankrolling holding costs, paying office expenses and trying to stave off foreclosure proceedings on property in America. The Appellant Lewis paid himself £2,500 and the Appellant Cameron, £8,140.

94.      By early March 2008 the JFSC had started its investigation and, as a result, some of Mr Varney's investment was recovered and returned to him. Nonetheless he lost £140,000. The Commission had been alerted as result of Mrs Cynthia Binet's civil action to recover her investment. Later a police investigation was launched.

95.      In a prepared statement to Jersey Police dated 1st July 2910, the Appellant Christmas pointed out that because the properties in Florida had been put in his name and that of the Appellant Lewis, the problems of being unable to service mortgages and the subsequent repossession of the properties were visited on him and Lewis. He expressed regret that the investors had lost money but blamed everything on the collapse of the American property market, as did the other Appellants.

96.      In truth of course, as the Crown observed at trial, it was not the sub-prime crash which had caused the Appellants to mislead investors between 2003 and 2008: the crash simply exposed the fact that they had done so.

97.      The Appellant Lewis was interviewed under caution in June and September 2010. He denied that the businesses were run on the basis of 'robbing Peter to pay Paul' and claimed that "everybody who got an agreement, whatever they put into that agreement, that money will have been spent on that particular property, [a claim which was plainly a lie as we have seen]." When asked why he continued to trade despite the obvious problems which the companies faced, he said: "I don't think anyone had the choice to stop; we had to keep moving forward." 

98.      The Appellant Foot was interviewed under caution in July 2010. He made no comment. In an open letter to investors two years earlier he had blamed the JFSC for their intervention, the Police for their investigation, the Jersey Evening Post for the publicity given to the matter and Mrs Cynthia Binet for suing them.

99.      The Appellant Cameron left the island at some point having been made aware of the Police investigation. He was traced to Malta where he was arrested. He did not contest extradition and was returned to the Bailiwick on 28th July 2011.

100.   In the meanwhile the other three Appellants had been indicted at the Royal Court.

C. THE GROUNDS OF APPEAL

101.   The test which this Court is enjoined to apply in considering appeals against conviction derives from Article 26(1) Court of Appeal (Jersey) Law 1961:-

".....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 judgment of the court before which the Applicant was convicted should be set aside on the grounds 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 the 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."

102.   Some of the grounds of appeal concern the same point and involve identical considerations. Some grounds are specific to an individual Appellant and require to be applied to the facts of his case. Some concern only one Appellant.

103.   Although some of the matters appealed were limited to particular counts, all the Appellants appealed on all the counts of guilty recorded against them on some point or other. The grounds are extensive and may be conveniently divided into those which relate to matters "pre-trial", those which occurred "at trial" and those which concern the "verdicts." In relation to "pre-trial" matters, the Appellant Lewis and the Appellant Cameron complained that the prosecution witnesses had been coached during their witness interviews ("Coaching").

104.   In respect to matters which occurred "at trial", all the Appellants appealed against the ruling of the Commissioner at the close of the Crown case on the ambit of the conduct which is capable of constituting taking part in arrangements for the purposes of Article 2(c) of the Law ("Taking part in arrangements"). All Appellants appealed on the issue of joint enterprise ("Joint enterprise") and the Appellant Lewis on an allied ground ("Secondary parties").  All submitted that some or all of the counts against them should have been withdrawn from the Jurats at the close of the Crown case ("No case"). All submitted that in his summing up the Commissioner had misstated the issues in dispute ("Element 4").

105.   The Appellants Lewis, Foot and Cameron submitted that the Commissioner had failed to direct the Jurats on the issue of the co-mingling of monies in the respective company bank accounts ("Common pot").  The Appellants Lewis and Cameron submitted that the questioning of certain witnesses by the Crown Advocate at trial was oppressive ("Oppressive questioning of witnesses"). The Appellant Lewis complained that the cross examination of himself was oppressive ("Oppressive questioning of Appellant Lewis"). This same Appellant submitted that there was exhibited at this trial an inequality of arms between the Crown and defence which resulted in unfairness ("Inequality of arms"). This latter ground constitutes a mixed salad of different points and unrelated topics.

106.   The Appellants Lewis and Cameron alleged that the Press publicity during the trial prejudiced the Jurats ("Unfair publicity").

107.   The Appellant Lewis complained through Advocate Blakeley and the Appellant Cameron through Advocate Baxter, his amicus, neither of whom appeared below, that the representation afforded to them at trial fell below an acceptable standard ("Representation").

108.   The Appellant Foot contended that, in relation to some of the counts in the indictment which concerned him, the conduct alleged against him may have occurred after the dates particularised in the count ("Date").

109.   In relation to the "verdicts", the Appellant Lewis submitted that the verdicts were unreasonable ("Unreasonable verdicts"). The Appellant Foot submitted that the verdicts of guilty recorded against him on Counts 6, 19 and 24 were unreasonable and were not supported by the evidence. In respect of Counts 2, 8 and 9, 12 and 18(a), Advocate Blakeley submitted that the verdicts were also wrong in law because a verdict of recklessness was not available in relation to the conduct of a secondary party ("Reckless"). The Appellant Christmas joined his co-Appellant in making similar submissions in relation the unreasonableness of the verdict on Count 2 and made the same submission on recklessness. 

110.   Thus in summary the Appellant Christmas appealed the single count on which he was found guilty, Count 2. The Appellant Lewis appealed on all 13 counts against him on various grounds; as did the Appellant Foot on a similar mix of grounds in respect of all 13 counts on which he was convicted. The Appellant Cameron appealed, through Advocate Hanson, on Counts 7, 12 and 13, and through his amicus, on all counts of which he was convicted.

111.   It is convenient to deal with these grounds of appeal seriatim.

D.  THE GROUNDS

1.  PRE TRIAL

COACHING

112.   It is important to start upstream of this argument in order to understand its context. The Crown asserted that the JVAs were part of the process of taking part in the arrangement with respect to property for the purposes of Article 2(c). The Appellants contended that the JVAs were irrelevant because in every case the process of taking part i.e. of investing, had occurred before the JVA had been signed. Advocate Blakeley went further and submitted that in the interview of Mrs Fisher, once she had indicated that she had received a copy of her JVA after she had made her investment, the interviewer should have halted the interview because no further questions were relevant. The submission called to mind the Judges Rules where, during an interview under caution, once a suspect had admitted the crime, no further questions could be asked by police: the defendant had to be charged forthwith. Interviews of a suspect under caution and interviews of a victim with a view to discovering what he can say about the crime are not analogous and depend on an entirely different set of rules and procedures, purposes and objectives. Not even the brio of Advocate Blakeley's delivery could lift this point onto the trajectory required for it to find its mark. 

113.   But the point which he endeavoured to make underlined the importance which the Appellants attached in the court below, and in this Court, to the oral inducements rather than to any inducement contained in a JVA, because, the Appellants submitted, they should have been acquitted of any count where their role post-dated the moment when the investor decided to invest. They submitted that this moment occurred when, as a result of the oral inducement, the investor, to use Advocate Blakeley's phrase, said in effect 'Count me in.' On this basis, Advocate Blakeley argued, the counter signatures on the JVAs were irrelevant. They added nothing. The crime had already been committed. The signatures had been applied after the investor, having responded to the oral inducement, had taken part for the purposes of Article 2(c). 

114.   We will rule on this matter below but, suffice for present purposes to say that  the Commissioner gave a direction that the Jurats were entitled to conclude on the evidence that the JVAs did have a significance in that they "enshrined the rights of the investor" in the agreement of which they, and the preceding oral representation, were a part. It was also intrinsic to the Crown case that the JVAs incorporated the oral inducement, albeit that on many occasions they also refined it by identifying the actual property to which the investors' money would, allegedly, be applied and the details of the "arrangement with respect to property" in which the investor was to have a share, including the percentage and priority of the profit split when the property was sold. The Appellants, in downplaying the importance of the JVAs, claimed that they were no more than "aide memoires" to the oral representation.  

115.   As indicated above, each investor who gave evidence at trial was interviewed during the police investigation. Many of them were able to produce the JVA, or where applicable the JVAs, in respect of the investments which they had made. As is usual in this jurisdiction, a prosecution lawyer was present at the interviews, often Miss Johnson, a member of the English Bar, who was seconded to the preparation of this case and who acted as Crown Advocate Jowitt's junior throughout the trial. 

116.   Advocate Blakeley for the Appellant Lewis made the point that during the course of each interview it was important that the investor was allowed to give his account of what had caused him or her to make the investment and that "it was incumbent on those carrying out the interviews to exercise caution and not to lead or coach the witness to give a particular answer...." That is a proposition which brooks no dissent. But he continued to assert at para 105 of his Contentions dated 14th December 2012: "In the case of many of the interviews, those investigating the offences did not exercise such caution and in effect fed the answer to the witness. That answer was then incorporated and recorded into a statement which then operated (or at the very least there was a real danger that it could have operated) on the mind of the witness thereby influencing the evidence eventually given to the court at trial." We have to say that we have struggled to find examples in the interviews where this sort of thing occurred. 

117.   Advocate Blakeley criticised the investigators for showing the relevant JVAs to the witnesses during the interviews. Whether or not the JVAs were merely aide memoires for the purposes of the processes which led to the investors taking part in the relevant arrangements, as contended by Advocate Blakeley, or whether they had a greater significance, as contended by the Crown, the JVAs were certainly, prima facie, aides memoires or memory refreshing documents for the purposes of giving evidence. They were contemporaneous and they had been signed. Any investor or Appellant, who had affixed his signature to a JVA was plainly entitled to refresh his memory from it in the witness box. If it was permissible for the Crown to show such a document to a witness at trial, a fortiori, it was permissible, indeed perhaps imperative, for an interviewer to put it before a witness during interview in order to obtain the witness' evidence on the circumstances in which he/she signed it, as well to invite the witness to comment on its contents.  

118.   Advocate Blakeley cites other examples by way of complaint. He referred the Court to the interview of Mrs Fisher and suggested that her evidence had been extracted in part by leading questions. We have read the interview with care. It has to be said that there are very few questions which are leading in any meaningful sense of the term. And in so far as Mrs Fisher was referred to a specific topic, albeit without suggesting an answer, she did not respond positively. By way of illustration, at one stage, Miss Johnson asked: "Did you ask anything about Sunstone, the company, and whether it was regulated, for example?" to which Mrs Fisher answered "No". And later: "Can you remember anything else that was said, anything that might or might not have encouraged you to invest in property?", to which Mrs Fisher replied "No, just that obviously investors have free use of the properties."

119.   What the Appellant's submissions appear to ignore is that the investigators had no real knowledge or understanding what any of the interviewees would say in answer to questions. The situation was quite different from a trial where the presence of a statement signed by the witness reveals to the questioner what the witness is likely to say on a given topic. In such a situation, asking a question which suggests an answer gives the witness an opportunity to give evidence in accordance with his statement rather than his memory, and that, sometimes, produces an answer which is not truthful, depending on the nature of the pressure which the witness might have been under when the statement was taken. But since Advocate Blakeley disavowed any suggestion that Miss Johnson, or anyone else who attended the interviews, acted out of any mischievous intent or bad faith (see para.136 of his Contentions), it is clear that this Court can assume that at all times the interviewers were doing their best in circumstances of some ignorance to adduce what the witnesses would be likely to say on any given subject.

120.   A further illustration of impermissible conduct in the interviews, as alleged, occurred during the interview of Mrs Fisher when Miss Johnson asked whether the witness at any stage had received any pictures or brochures of the property in which she was contemplating making an investment. Advocate Blakeley submitted that such a question should not have been asked. It is difficult to understand why not. How were the investigators to know the sequence of events of Mrs Fisher's association with the Appellants and with Sunstone unless they directed her mind to issues or events which may have been relevant to her investment? And why should Mrs Fisher's answer to such a straightforward question be in any way unreliable? Mrs Fisher's answer to the question was "No".  There is nothing in these complaints.

121.   This Court has found it no easier to understand the objection Advocate Blakeley made to the detailed questioning of this same witness by Mr Sowden, who was also present, the purpose of which was plainly to clarify what the witness was saying about a particular aspect of her evidence. There is no indication that the witness was induced to say anything which did not accord with her memory, still less anything which was false. The transcript indicates plainly what she could remember and what she could not.

122.   In relation to the interviews with Mrs Cotrel, Advocate Blakeley took issue with Miss Johnson for the way in which she questioned Mrs Cotrel on the contents of the JVAs which the witness had signed notwithstanding that she had not read them at the material time. We do not take Miss Johnson to task on account of the course she took. Mrs Cotrel had invested more than half a million pounds with De Lec in ten tranches over a period of two years and it was important for the investigators to glean as much information from her as possible at to the circumstances surrounding her investments. There is no indication from the transcripts of the interviews that Mrs Cotrel was led to say anything which she did not want to say or that she was deterred from saying anything relevant to her dealings with De Lec and the first two Appellants.  And in so far as Mrs Cotrel or any other witness said anything different during the interview compared to the statement, which was taken later to encapsulate the interview, or anything different again at the trial, the Appellants had all the material at their disposal with which to cross examine.

123.   The issues raised on appeal about the way in which the witnesses were questioned were quintessentially matters for the tribunal which heard the witnesses. It was for the Jurats to make up their minds on issues of credibility and reliability. Unless the Jurats reached a decision on any count which can be demonstrated to be "plainly wrong", which, as we shall see, is the test which this Court must apply, this Court must resist the temptation to substitute its own conclusions of the witness' testimony for the conclusions reached by the Jurats. It is only right to say that on this ground, having read all the material which Advocate Blakeley put before us including the transcripts of the interviews with Mrs Fisher, Mrs Cotrel, Miss Waye, Mr Keeling, and Mrs Hoe and including his written submissions, we have found no reason to doubt that the witnesses' account of their involvement was extracted from them in interview so as to permit them to develop their account on relevant matters in a way which was conducive to truth and accuracy and we reject Advocate Blakeley's criticisms.

124.   Advocate Blakeley had a final point on the issue of "coaching." This related to the circumstances surrounding the refreshing of the memory of witnesses before they entered the witness box at trial. It has long been the practice in criminal trials for witnesses, if they wish, to refresh their memories from statements made about the events to which their evidence relates. In R v Richardson (1971) 2 W.L.R. 889, Sachs LJ summarised the position thus:-

"First it is to be observed that it is the practice of the courts not to allow a witness to refresh his memory in the witness box by reference to written statements unless made contemporaneously. Secondly, it has been recognised in a circular issued in April 1969 with the approval of the Lord Chief Justice and the judges of the Queen's Bench Division (the repositories of the common law) that witnesses for the prosecution in criminal cases are normally (though not in all circumstances) entitled, if they so request, to copies of any statements taken from them by police officers. Thirdly, it is to be noted that witnesses for the defence are normally, as is known to be the practice, allowed to have copies of their statements and to refresh their memories from them at any time up to the moment when they go into the witness box..." 

125.   In R v Stephen Westwell (1976) 62 Cr. App. R. 251 the Court reviewed the applicable principles: "In most cases and particularly where, as often happens, there is a long interval between the alleged offence and the trial, the interests of justice are likely to be served and witnesses will be more fairly treated if, before giving evidence, they are allowed to refresh their recollection by reference to their own statement made near to the time of the events in question." It is to be noted that whereas Richardson imposes no limit on the date of the statement with which the witness may refresh his memory, Westwell limits the permission to a statement "made near to the time of the events." 

126.   It was said by the Supreme Court of Hong Kong in Lau Pak Ngam v R (1966) Crim L.R. 443, in passages quoted with approval by the Court in Richardson:-

"Testimony in the witness box becomes more a test of memory than truthfulness if witnesses are deprived of the opportunity of checking their recollection beforehand by reference to statements or notes made at a time closer to the events in question......Refusal of access to statements would tend to create difficulties for honest witnesses but would be likely to do little to hamper the dishonest witnesses."

The judgment continues:-

"We have all from time to time seen the plight of an apparently honest witness, subject to captious questioning about minor differences between his evidence in the witness box and the statement he made long ago and has never seen since, although his tormentor has it in his hand and has studied it in detail. Although such cross-examination frequently generates in the jury obvious sympathy with the witness and obvious irritation with the cross-examiner, it must leave a witness who has come to Court to do his honest best with a smarting sense of having been treated unfairly."  

127.   The Court in Westwell (op. cit.) also addressed the question of the prosecution's duty if a witness has refreshed his memory:-

"Our attention has been called to the decision of the Divisional Court on February 13, 1976 in Worley v Bentley.....in which the same point arose. The court held that it was desirable but not essential that the defence should be informed that witnesses have seen their statements. We agree. In some cases the fact that a witness has read his statement before going into the witness box may be relevant to the weight which can properly be attached to his evidence and injustice may be caused to the defendant if the jury was left in ignorance of that fact..." 

128.   The difference highlighted by Sachs LJ between refreshing memory outside court and doing so in the witness box, is well recognised in this jurisdiction and elsewhere. A clear illustration of the difference occurred during the evidence of Mr Keeling in this case. Because of the apparent collapse of Mr Keeling's memory, the Crown Advocate sought leave, impermissibly, to refer him to the witness statement which he had made some years after the event. The Commissioner refused the application but did permit Mr Keeling to refer to the JVA which he had signed and which was dated the same day as the cheque which he had paid for the property in which he believed he was investing.

129.   It may be that in some court judgments on this question, the issue of contemporaneity has become elided, so that both the document to which the witness may refer when in the box and the document to which he may refer before entering it, are said to require an measure of concomitance. Certainly neither in Richardson (op. cit.), nor in the April 1969 circular, nor in Lau Pak Ngam (op. cit.), is there any indication of a time limit set on the period after the event which qualifies the statement as one from which the witness may refresh his memory out of court. We consider that in this jurisdiction, for reasons which we will justify below, witnesses should be allowed to refresh their memories out of court, in accordance with the judgment of the Supreme Court of Hong Kong, from "statements or notes made at a time closer to the events in question," rather than from statements, as per Westwell (op.cit.), "made near to the time of the events in question." The first gives permission to refer to documents which are open ended in time. The second imposes an apparent, albeit undefined, limit.         

130.   Advocate Blakely submitted firstly that, unlike in Westwell where the statement had been made on the day after the event, the statements in the instant case were made some years later. Secondly, he pointed out that the Appellants were not warned at trial by the Crown Advocate that witnesses had been afforded the opportunity to refresh their memories from witness statements, although he acknowledge that the fact that some of the witnesses had done so was adduced in evidence at the trial. But he said at para 148 of his Contentions: "The result of allowing the witnesses to refresh their memories from those statements is obvious: Jurats listening to the evidence would have been unaware that the witnesses refreshed their memories; they would have been unaware that the witnesses had had difficulty in recalling salient points during interview; they would have been ignorant of the fact that answers were spoon-fed to witnesses in interview; and by all accounts would have been under the impression that the witnesses' evidence was cogent and clear." 

131.   For our part we do not accept that the process of interview of these witnesses could fairly be thus characterised. But one of the points of cross-examination was to elicit for the Jurats' benefit what differences existed in the case of any witness between his interview, his subsequent statement and his evidence in chief. In any event as was said in Westwell (op. cit.) "If the mere fact that the prosecution had not volunteered the information were a bar to conviction, this would be an artificial and arbitrary rule more appropriate to a game or a sporting contest than to a judicial process."  The practice of allowing witnesses to refresh their memories out of court is so wide spread and so well recognised by practitioners that it would not be appropriate for this Court to allow an appeal because prosecuting counsel had failed to advise his opponent that a Crown witness had availed himself of the right to remind himself of the contents of his witness statement before giving evidence.   

132.   Advocate Blakeley submitted that the danger of contamination was present in a different sense in relation to Mrs Sandall and Mr Jackson because of the close friendship between the two couples. He said neither of them should have been allowed to refresh their memories from their statements because of the risk that they had spent time in advance of the trial ensuring that their evidence corresponded.

133.   He cited another passage from the same judgment of Sachs LJ in Richardson(op.cit.):-

"The courts, however, must take care not to deprive themselves by new, artificial rules of practice of the best chances of learning the truth. The courts are under no compulsion unnecessarily to follow on a matter of practice the lure of the rules of logic in order to produce unreasonable results which would hinder the course of justice. Obviously it would be wrong if several witnesses were handed statements in circumstances which enabled one to compare with another what each had said."

The judge continues:-

"But there can be no general rule (which, incidentally, would be unenforceable, unlike the rule as to what can be done in the witness box) that witnesses may not, before trial, see the statements which they made at some period reasonably close to the time of the event which is the subject of the trial. Indeed, one can imagine many cases, particularly those of a complex nature, where such a rule would militate very greatly against the interests of justice." 

134.   Advocate Blakeley contended, finally, that in relation to Mrs Sandall and Mr Jackson, the Crown should have asked themselves whether these particular witnesses required to refresh their memory from their statements.

135.   In relation to Mrs Sandall and Mr Jackson, Advocate Blakeley pointed to nothing which either witness had said which demonstrates, or even hints at, a conspiracy between the two witnesses to tailor their evidence to fit the accounts which each had given independently in interview and recorded independently in statement form. Nor did Advocate Blakeley suggest that the statements were supplied to them before they gave evidence in circumstances which would have given them the opportunity to do the things contemplated by Sachs LJ. As to the suggestion that the Crown should have asked themselves the question recited above by Advocate Blakeley, it is not what the Crown might suppose the witness required, but rather whether the witness, having been advised of the right, wished to access his statement in advance of the hearing.

136.   As to the generality of Advocate Blakeley's submissions on this topic, while we accept that the statements in this case were made some years after the event, we consider that there is something illogical and artificial about allowing a witness out of court to refresh his memory of the events in question from a statement made within a week of the event but not from a statement made a year later. To restrict the permission so as to depend on the timing of the police investigation is inappropriate. There may be a number of reasons, wholly outside the control of the witness, which resulted in a delay to the investigation. Moreover, the witness may have made a number of statements, some proximate to the events, some not so proximate. It would be irrational to allow the witness to refresh his memory from some of his statements but not others. Memory fades gradually according to the significance and impact of the events, the age or health of the witness and the quality of his memory. It is unreasonable to hold that any particular time frame should qualify or disqualify a witness from refreshing his memory out of court.  

137.   The object of the trial process is to ensure that a witness gives as good an account as he can of the events in question, subject to the right of the cross-examiner to expose inaccuracies, inconsistencies, omissions or lies: and the cross-examiner should always have disclosed to him everything which the witness has said about relevant matters within the knowledge of the prosecution, in whatever form, to enable him to cross-examine to best effect. But it is usually the case that a statement made in circumstances conducive to a calm and reflective recollection of the matters in question, however long after the event, will have provided an honest witness with the best opportunity to record what he remembers of the event before he gives evidence at the trial, which is likely to occur, all too frequently nowadays, many months, if not years afterwards. There may, of course, be cases, as contemplated in Westwell (op.cit.), where "there is reason to suppose that the witness has some sinister or improper purpose in wanting to see his statement and it is in the interests of justice that he should be denied the opportunity." In such a case if the Crown have such suspicions, they should deny the witness the opportunity and inform the defence. If the defence have such suspicions they should bring the matter to the attention of the Crown and if the Crown wish, nonetheless, to show the statement to the witness, the matter should be referred to the trial judge for a ruling. 

138.   Moreover, in the judgment of this Court, there is nothing wrong with the prosecutor, absent the situation described in Westwell (op. cit.), telling the witness of his right to refresh his memory if he so wishes. And we see no reason why a police officer or prosecutor should feel obliged to exercise a discretion in the matter unless, either he has reason to doubt the integrity of the witness or his account, or he is put on notice by the defence that they do not wish the witness to refresh his memory until the trial judge has ruled on the matter. It is important that the witness is told that he has the right to refresh his memory, if he so wishes, lest he be ignorant of the right.  Furthermore we do not think it is helpful to impose an obligation on the Crown to inform the defence in every case of those witnesses who have exercised the right and those who have not. The defence should assume that any witness for the prosecution has been told of the right, and if the defence wish to know in advance of cross-examination whether a witness has exercised the right, they should make enquiries of the prosecution.   

139.   Without being too prescriptive about the procedure which should obtain in this jurisdiction, we hope the following observations will be helpful to judges and practitioners:-

(i)        As a general rule before giving evidence a witness has a right to refresh his memory from any statement or note relating to the events in question, whenever made. 

(ii)       The witnesses should be advised by the prosecution of the right in a timely fashion before they give evidence.

(iii)      Care should be taken by the prosecuting authority that the circumstances in which the statement or note is provided to the witness to refresh his memory does not allow the witness to collude, qua the document, with another witness giving evidence about the same events.

(iv)      The defence, having been served with all such documents, should assume that any witness for the prosecution has been told of his right to refresh his memory from such documents.

(v)       If the defence wish to know in advance of the trial whether a particular witness has exercised that right, they should make enquiries of the prosecution.

(vi)      In any case where the prosecution have reason to believe that the witness will, or may, not give evidence at trial in conformity with a previous statement or note, and if, notwithstanding these matters, the prosecution still intend to call the witness, the prosecuting advocate should inform the defence to enable the defence to object to the witness reading any such document before giving evidence. 

(vii)     If the defence wish to object to a prosecution witness reading any such document, for any reason, they should notify the prosecution so that, if necessary, the prosecution, having refrained from showing the document to the witness, can obtain a ruling on the matter from the trial judge.

140.   We reject Advocate Blakeley's submissions in respect to "Coaching".

141.   The Appellant Cameron associated himself with his co-Appellant on this ground through his amicus, Advocate Baxter. He accused Miss Johnson of coaching Mr Rolland (Count 23) and in the examples he gave in his undated Contentions, he quoted passages from the Rolland interview and recorded Miss Johnson as the questioner. In fact an examination of the transcript reveals that it was not Miss Johnson who conducted this interview but PC Hamon. The accusation against Miss Johnson is false. The Appellant also suggested that Mr Varney (Counts 26 and 27) was also coached in his interview.  We have read that interview as well.

142.   The matter was raised at trial between this Appellant and his advisors. We note that Advocate Preston, the Appellant Cameron's trial advocate, asserted in his affidavit dated 25th January 2013 that certain points raised by the Appellant Cameron at a meeting on 25th April 2012 "were considered but they were not such as to persuade me there was anything in the allegation of coaching. I have still seen nothing to substantiate that assertion." On 31st May 2012 he emailed the Appellant: "There is not as much to be made in these interviews as you suggest. I have said this on a number of occasions."        

143.   We have read all the interviews with the investors to which this Appellant referred us in his undated Contentions. It is clear that the Appellant Cameron was advised at the time of the trial that there was nothing in these allegations.  We have found nothing to substantiate them.  We reject the Appellant Cameron's submissions on this issue.

144.   Before we leave this topic there is one matter which we should mention. The statement which Mrs Fisher signed contained significant differences, and indeed contradictions, of some of the material in her witness interview. The Appellants had copies of both so that, in fact, these discrepancies could be, and were, exploited at trial. It is not easy to understand, otherwise than in circumstances of considerable carelessness, how the statement could have been thus mis-compiled. Plainly Mrs Fisher's statement should have reflected the detail of her interview. We express the hope that such a situation will not recur.   

2. DURING THE TRIAL

TAKING PART IN ARRANGEMENTS

145.   Article 2(c) of the Law predicates an act by the "inducer" i.e. the making of:-

"any statement, promise or forecast which the person knows to be misleading, false or deceptive, or by any dishonest concealment of material facts, or by the reckless making (dishonestly or otherwise) of any statement, promise or forecast, which is misleading false or deceptive..."

And an act by the person induced i.e:-

"to take part.......in any arrangement with respect to property....being arrangements the purpose or effect, or pretended purpose or effect, of which is to enable persons taking part in the arrangements (whether by becoming owners of the property or any part of the property or otherwise) to participate in or receive profits or income alleged to arise, or to be likely to arise from the acquisition, holding, management or disposal of such property, or sums to be paid or alleged to be likely to be paid out of such profits or income;......"

146.   It is common ground that the Article creates a "result crime." The inducement must produce a reaction: the inducer must cause the person induced to take part in an arrangement with respect to property. Once the inducement has resulted in the investor taking part in such an arrangement, the offence is complete.

147.   As we have observed, the Appellants contended that the offence was complete once the oral inducement had been made and the investor had indicated his willingness to invest, and that neither the JVAs nor payment subsequently of any sum of money, were relevant to the commission of the offence. It followed from this proposition, said Advocate Blakeley who made the lead submission on the point, that the only Appellant who could be guilty of any of the offences in this indictment was the Appellant who had made the oral inducement because, in each case, the investor indicated a willingness to invest once that inducement had been made. Alternatively, the Appellants contended, the payment of money constituted "taking part" for the purposes of the Law because the payment was an act by the investor which committed him to participate for the purposes of Article 2(c). The essence of both submissions was the irrelevance of the JVAs in so far as they could have been said to have played any part in the completion of the offence. The same submissions were made to the Commissioner. He rejected them. He held that there was indeed a purpose for the JVAs. He ruled, as we have pointed out above, that the Jurats were entitled to conclude that the JVAs were designed to "enshrine the rights of the investor" in a document which bound the two parties, the investor and the Appellants/Sunstone, to an agreement to invest within the meaning of Article 2(c).

148.   The Commissioner's ruling in part reflected the Crown's submissions. Advocate Jowitt had argued that, on the contrary, there was indeed a purpose to the JVAs, that they were not superfluous to the oral inducement and that they were designed to achieve, inter alia, the following ends:- 

(i)        "to enshrine the rights of the investor" in a written contract which recorded his/her obligations and entitlements i.e. to invest a certain sum of money for a specific purpose for a specific property and to participate in the profit when the property was eventually sold;

(ii)       to bind the Appellants/Sunstone to invest the money concerned in the specified property, to pay the investor the sums of money identified in the agreement and to split the proceeds of sale of the property in accordance with a formula described in the JVA;

(iii)      to give confidence to the investor in respect to the purposes for which he/she had handed over a substantial sum of money, inter alia, by defining the nature of the joint venture which he was undertaking with the Appellants/Sunstone and which included defined obligations on the Appellants/Sunstone to do things in relation to the property in which both parties had an interest.

The question for this Court is whether this was a proper approach, what the Jurats could conclude was the effect of the JVAs and what the JVAs added, if anything, to the original oral inducements which had necessarily preceded them.

149.   It is a fact that in many cases the JVAs added significantly to the nature of "the agreement to take part in an arrangement with respect to property." The Jurats were entitled to look at the detail of the JVAs to assess their general significance, for example, at the schedule of payments attached to the JVA of Mr Michael Evans (Count 4) dated 8th September 2004, to the manuscript additions to Mrs Sarah Waye's JVA (Count 7) dated 26th May 2005, and to the differences in the percentage division of profits predicted in different JVAs, plainly the result of discussion between the parties subsequent to the oral inducement: these divisions of profits varied considerably between investors.

150.   The fact that the JVAs added to the oral representations is also apparent from the evidence of Mrs Hoe (Counts 8 and 9). She told the Royal Court that at the time of her discussions with the Appellant Cameron when he discussed with her a property investment in America, she specifically remembered that there was no mention of the property to which her investment would be applied. Indeed during the discussion she said that the Appellant promised that he would find a property for her to constitute her investment as part of the joint venture with Sunstone. She said ".....we didn't actually decide until Mr Cameron had seen where the money could go." From this evidence it would have been open to the Jurats to conclude that Mrs Hoe did not "take part.... in any arrangements with respect to property..." until that property had been identified, as it was later, in a JVA.

151.   It was central to the proof of the prosecution case that the Jurats had to be satisfied that the inducement was one which fell within the requirements of Article 2(c). We have set out the Article above: it is both detailed and specific. The language of each oral inducement had, long since, been lost in the ether. But in the case of each investor, the JVA set out the nature of the "arrangement with respect to property" in which the investment had been made. In the view of this Court the Jurats were entitled to look at the JVAs to decide what was the nature of the arrangement which the investors made and whether the "arrangements" fell within Article 2(c). In short the JVAs were important evidence of the arrangement.  In the Article the nature of the arrangement is defined as "to participate in or receive profits or income alleged to arise or be likely to arise from the acquisition, holding, management or disposal of such property, or sums to be paid or alleged to be likely to be paid out of such profits or income." Since the JVA defined the detail of how each investor would participate, it was open to the Jurats to conclude that an investor did not participate until he, or she, had signed up to the agreement as defined in the JVA.   

152.   The circumstances when an inducement to take part in such an arrangement is complete, and the time when the investor has taken part, depends on the facts of an individual case. But we reject the argument that, in the circumstances of this case, the Jurats were obliged to conclude that the mere expression of a willingness to invest in response to an oral inducement constituted taking part, in an arrangement of the kind defined by Article 2(c). The indication by an investor of a 'willingness to take part' is not synonymous with 'taking part', just as a decision to buy a house is not usually co-terminous with buying one. The process of taking part may well be delayed for a period of time and may involve intermediate steps by either side including, by way of example in this case, the drawing up of a JVA and its signature by both parties.

153.   We therefore conclude that both the oral representations and the JVAs formed part of the process by which the investor came to take part in the arrangements for the purposes of Article 2(c). We reject the submission that the offence is complete once the investor has decided to invest. On the contrary the offence is complete when the investor has taken part in an arrangement of the kind defined.

154.   This conclusion is supported by the judgment of Lord Diplock in R v Markus (1976) AC 35. This was a case charged contrary to an English statute, Section 13(1)(b) Prevention of Fraud (Investments) Act 1958, which, for the purposes of this analysis, is indistinguishable from the Article of Law under which the instant case was prosecuted.  In Markus the inducement and resulting payment of cash or cheque took place in West Germany, but the processing of the payment and the issue of the certificate in the fraudulent fund took place in London. The question for their Lordships was where the crime had been committed.

155.   Lord Diplock, who gave the leading speech, said at p 62 A-C:-

"Taking part in arrangements is not confined to a single act which can only be done at a single point in time. Depending on the nature of the arrangements, it may include a whole variety of acts done over a period...... Anything that a person does to enable him to participate in or receive such profits or income thus constitutes taking part in the arrangements...."

He concluded at page 63D:-

"I would therefore hold that, by what was done on their behalf in London, investors who acquired shares in the 'Agri-fund' did take part there in the arrangements and that the offence of fraudulently inducing them to do so was accordingly committed in England and justifiable here."

156.   Had their Lordships concluded, as the Appellants contended, that the offence is complete by a mere expression of a willingness to invest, the offences in Markus would have been complete and concluded in Germany and would not, therefore, have been justiciable in England.

157.   To circumvent this barrier to his argument, in a bold submission, Advocate Blakeley submitted, firstly that the House of Lords, being anxious to uphold the conviction of an international criminal, reached a conclusion out of expediency; secondly, that, however persuasive, no House of Lords decision is binding on this Court (see Channel Islands Knitwear Co. Ltd. v Hotchkiss [2001] JLR 570); and thirdly, that we should follow the decision of Sir Godfray Le Quesne, sitting as a Commissioner, in the Jersey case of Young v A.G. [1998] JLR 17.

158.   Sir Godfray had to construe the same Article of the Law with which this case is concerned. The Crown had submitted in that case, as reported by him at p. 42:-

"that if a victim, having once made an investment, simply left his money in the scheme being traded, he was continuing to take part in the arrangements and the offence continued from day to day." 

Sir Godfray rejected that approach. He said, p. 43:-

"It is important to remember that the offence is the offence of the inducer. If, as a result of his fraudulent inducement, his victim puts money into a scheme which is supposed in due course to yield profits, the inducer commits the offence under para. (c). It is hard to see in what sense he continues to commit the offence while the victim simply leaves his money in the scheme and waits for the profits.......If, therefore, as a result of a fraudulent inducement, the victim does something which gives him a part in arrangements of the kind described.......the inducer's offence is complete and terminates."

Sir Godfray considered the application of the principles outlined by Lord Diplock in Markus (op. cit) and, having quoted the passage from Lord Diplock's speech set out above, he continued at p. 44:-

"Lord Diplock's reference to 'a whole variety of acts done over a period' was a reference to acts involved in the acquisition of the units. He describes them (ibid., at p. 63) as 'steps in the processing of an investors' application for share units.' The question whether the offence continued to be committed after the acquisition of the units had been completed did not arise. It is clear that Lord Diplock never had it in mind."

159.   Advocate Blakeley invoked the support of a dissenting judgment in Markus from the former Attorney General and later Lord Chancellor, Lord Dilhorne. However this Court, having recognised that a decision of the House of Lords, however persuasive, is not strictly binding in this Bailiwick is wholly persuaded by the reasoning advanced by Lord Diplock, supported, as he was, by Lord Wilberforce, Lord Kilbrandon and Lord Salmon. We gratefully accept it and apply it to a case whose factual matrix is not dissimilar from the situation which fell for consideration in Marcus. Lord Diplock made clear in the passage quoted above at p. 62 that the circumstances in which a person takes part in any arrangement of the kind envisaged by Section 13(1)(b) of the Act (or by extension to this jurisdiction, Article 2(c) of the Law) is fact specific. In the instant case there was evidence from which the Jurats could conclude that the process of taking part in the arrangements, as envisaged by the Appellants, involved "steps in the processing of the investors' application...," as described by Lord Diplock, which involved "a whole variety of acts done over a period", including in the instant case, as a minimum, the completion and signing of a JVA.

160.   Nor does it seem to this Court that Sir Godfray in Young said anything to contradict the force of this proposition. The Appellants' submission that the judgment supported their assertion that the offence is complete once the investor has indicated a willingness to invest is misconceived. Sir Godfray was not concerned when the investor could be said to have taken part in the arrangements, nor did his judgment define or limit the factual extent or duration of the inducement. Rather was he concerned whether, once the investor had taken part, the offence of the inducer continued "from day to day."

161.   Advocate Blakeley submitted that the Commissioner had ruled in this case, contrary to what Sir Godfray had said in Young, that the offence under Article 2(c) was a continuing one. He did not. He ruled that the operative duration of the inducement and its part in assisting the Appellants' objectives was a question of fact for the Jurats. The case of Young at first instance is authority for the narrow proposition that the offence does not continue for as long as a person continues to take part in the arrangement once he had done what was necessary to take part. Sir Godfray did not purport to limit the concept of taking part to any particular factual scenario, nor did he consider the question of inducement in the context of joint enterprise.   

162.   We reject the submissions of the Appellants that the offence was complete at the time of the oral inducement if the victim indicated his willingness at that time to invest. We also reject the submission that the Commissioner erred in inviting the Jurats to consider and adopt, if they thought appropriate, the Crown's assertion that the process of taking part potentially involved a series of acts including the drafting, signing, and presentation of the JVA for the purpose of enshrining investors' rights.

JOINT ENTERPRISE

163.   The Appellants submitted:-

(i)        that they did not understand that the case was being put against them as a joint enterprise, and that the basis of the Crown's case changed at the close of the Crown case.

(ii)       that the proper approach to the evidence was one which treated the person who had made the oral inducement as a principal and that those who had signed the JVAs were at best secondary parties, and

(iii)      that since the offence was complete once the principal had orally persuaded the investor to invest, the secondary parties were guilty of nothing since no action of theirs contributed to the commission of the crime.

164.   As to the first submission we have read the Crown's opening with some care. Although it is true that Advocate Jowitt did not use the phrase 'joint enterprise', he did set out in respect of each count the evidence on which he relied, including the detail of the JVAs and the signatures on them. We do not mention that in any spirit of criticism; but it is a fact that the opening lasted a period of three days. The counts in the indictment in which two or more Appellants were charged, were joint charges. Listening to the opening no one could have imagined from what Advocate Jowitt was saying that each Appellant, in any count in which he was jointly charged, had acted in a vacuum separate from the activities of the person/persons with whom he was jointly charged.

165.   Certainly the idea that the Crown were putting their case on the basis of joint enterprise came as no surprise to the Commissioner who, at the close of the Crown case and on the assumption that that was how the case was being advanced, asked first Advocate Pearmain, who was then appearing for the Appellant Lewis, and then Advocate MacRae, who appeared in the Royal Court as he did in this Court for the Appellant Christmas, to address him on the point because he was anxious to understand the impact of joint enterprise on their submissions that the offence was complete when, in response to the oral inducement, the investor had indicated a willingness to invest.

166.   We do not consider that Advocate Jowitt can necessarily be criticised for a failure, if failure it was, to use the phrase "joint enterprise" or to divide responsibility for the commission of these offences into principals and secondary parties when he opened the case for the Crown. It was implicit from the way in which he outlined the evidence that the Crown were contending that an Appellant bore joint responsibility for an inducement which had resulted in an investment if that Appellant had participated either as an oral inducer or as a party to the JVA. As was said by the Court of Appeal in R v Mendez (2010) EWCA Crim 516: "Participation in a joint criminal venture involves mutual encouragement and assistance." Nor are we persuaded that, by asserting that he was indeed putting his case on the basis of joint enterprise at the close of the Crown's case, Advocate Jowitt changed the way in which he was presenting the case. None of those appearing for the Appellants suggested that he had done so at the time. In the view of this Court, Advocate Jowitt's exposition of his case during submissions at the close of the Crown's case did not constitute a change but rather an amplification of his case.

167.   The second and third submissions of the Appellants, essentially relate to the point in time when the offence is concluded. The Appellants submitted that the Appellants who did not make the oral inducement should be regarded as secondary parties and that if, on a correct interpretation of their activities, their actions post-dated the moment in time when the investor "took part", no action of theirs induced the offence.

168.   We have outlined above our interpretation of the law on the issue of the duration of the offence. That interpretation depends, in part, on an analysis of the principles which Lord Diplock outlined in Markus (op. cit.) and their application to this case. We emphasise two features described by Lord Diplock which have a particular resonance to the arguments advanced by the Appellants. The first is that "depending upon the nature of the arrangements, it (the taking part) may include a whole variety of acts done over a period" and secondly, that the payment of money pursuant to the oral inducement, which had a coincidence in time in Markus and were both done in Germany, is not conclusive of the moment when the investor "takes part" and the offence is concluded. Neither of these two principles is consistent with the Appellants' approach. 

169.   The aspect which complicates this case is that, depending on the investor concerned in the count, the roles of oral inducer and counter signatory varied. In those counts in which an individual Appellant knew the investor as a client beforehand, that Appellant made the oral inducement, usually but not invariably, alone. In such a situation the active role of the co-Appellants was sometimes apparently limited merely to counter signing the JVA. If the indictment had been limited to one count, the identity of principal and secondary party would have been clear and would, perhaps, have had an impact on sentence. What differentiated this case was that there were 27 counts and the roles of principal and secondary party became so interchangeable as to render the distinction otiose, which was why the Crown asserted that it was appropriate to regard the Appellants as co-principals for the purpose of this indictment.

170.   Since it has long been the practice to make no distinction in an indictment between principals and secondary parties, the Appellants' argued that they were unable to derive from the verdict on any count whether they had been convicted as a principal or as a secondary party. They argued that the Commissioner should have asked for a special verdict from the Jurats to identify the basis of conviction on each count. We will return to this argument later but in our judgment it is artificial. There are cases of violence, involving murder for example, where it is important to understand for the purposes of sentence what role the defendant played in an attack on a victim where the evidence revealed two routes to conviction. In such a case a special verdict is necessary to reflect the nature of the finding of the tribunal of fact in deciding the sentence to be imposed. But this was not such a case. Because of the revolving roles played by the Appellants, their mutual interest in attracting as many investors as possible and the similarity of the inducements used by them, it mattered not for any relevant purpose whether the Appellants were treated as principals on some counts and secondary parties on others. Certainly in sentencing, the Royal Court, rightly in the view of this Court, made no distinction between the Sunstone Appellants.

171.   Thus the distinction between principal and secondary party has an element of artificiality about it in this case. The agreement made between the Appellants predicated that qua each investor, one Appellant would play the lead role and the others a subsidiary one. There was evidence from which the Jurats could conclude that throughout the period of the indictment there was a mutuality of interest among the Appellants in attracting as many investors as possible, amounting to a general process of collective assistance and encouragement. This was apparent not only from the revolving nature of the roles regularly played by the Appellants, sometimes oral inducer, sometimes purchaser of the property, sometimes counter signatory; but also from the similarity of the inducements, whether oral or incorporated in the JVAs, the pro forma nature of the JVAs themselves, and the early and invariable dispersal of the investments to pay existing debts rather than to invest in the defined properties.

172.   This mutual assistance and encouragement arose because of the fact that, as directors of the company, the Appellants were answerable for the income and the indebtedness of the company, the glue of corporate responsibility. The Jurats would have been entitled to conclude that each Appellant, as a director, would naturally wish to have the support of his co-directors in the attempts which he made to raise money for the company. Eric Evans spoke, as we have seen in his email of 13 September 2004 of the "overwhelming trust" between the Appellants. By 2007 the debts which the company owed to individual investors named in the indictment involved, in each case, many tens of thousands of pounds. 

173.   In such circumstances it would be only natural for an individual director not to wish to feel out on a limb in relation to his particular clients from Goldridge Stone whose relatively safe investments he had been instrumental in exchanging for a wing and a prayer in the Florida property market. It was open to the Jurats to conclude that by regularly counter signing the JVAs of each other's clients, the Appellants were mutually associating themselves with the company liabilities incurred by each of them. The Jurats were also, in this context, entitled to take account of the fact that (whereas the De Lec JVAs were drafted in such a way as to cause the agreements to be between the Appellants Christmas and Lewis personally and the investor), the Sunstone JVAs were drafted as to make the company the other party to the agreement. The Jurats cannot have failed to notice that the counter signatures were affixed subject to the subscription "In witness whereof the parties have heretofore set their hand the day and year first above written.......Signed by and on behalf of Sunstone Holdings Ltd."    

174.   In Simester and Sullivan's Criminal Law: Theory and Doctrine (4th Edition p. 205), there is a useful summary of participation in a criminal offence, which:-

"may occur in the following ways: (i) as principal (the person who carries out the offence); or (ii) as a secondary party: (a) through assistance or encouragement - by aiding and abetting, counselling and procuring the commission of that offence; or (b) through membership of a joint enterprise that led to the offence."

Plainly the role carried out by the secondary party may constitute a blurring of the distinction between (a) and (b) in that the nature of the secondary party's role in the joint enterprise may consist of a greater or lesser degree of assistance, or of express or implied encouragement."  

175.   The law on joint enterprise has long been established and is wide in scope. In so far as liability for the commission of the offence is concerned, if it is clear from the evidence that A was the prime mover and B was a secondary party, B's liability will depend on his knowledge of what A intended to do during the commission of the crime. But knowledge in this context is interpreted as both express and implied. It is not limited to what was agreed to be the nature of the enterprise, but also includes foresight of the real possibility that A will act with the intent required and with that intent will commit another offence. Thus if A and B plan a robbery in the course of which A kills with the requisite intent for murder, B, like A, is guilty of robbery but he is also guilty of murder if he participated in the robbery knowing that there was a real possibility that A might kill during the course of the joint enterprise to rob. Chan Wing-Siu v R (1985) AC 168 (PC) and Hui Chi-Ming v R (1992) 1 AC 34 (PC).

176.   In the former case, Sir Robin Cooke in giving the Advice of the Board said:-

"The case must depend rather on the wider principle whereby a secondary party is criminally liable for acts by the primary offender of a type which the former foresees but does not necessarily intend. That there is such a principle is not in doubt. It turns on contemplation, or, putting the same idea in words, authorisation, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight."

Thus, in so far as agreement to participate in a joint enterprise to commit an offence has not included discussion of everything a principal will, or may, do to carry out the agreed crime successfully, the secondary party is liable if what the principal did to commit the crime was a foreseeable consequence of its commission even if what the principal did constituted another, more serious, crime.

177.   Just as in England and Wales in an indictment involving joint participation in the commission of crime, it is no longer the practice to distinguish liability for principal and lesser parties, or primary and secondary parties, in Jersey the Criminal Offences (Jersey) Law 2009 codified the law and practice in this area and enacted by Article 1(a) that a person who "aids, abets, counsels or procures the commission of a statutory offence....is guilty of an offence and is liable for the same penalty as a person would be for the statutory offence."

178.   In relation to the counts in this Indictment the following ingredients were present in almost all cases: oral statement (false); decision to invest; JVA (false); payment of money. However these events were not necessarily in the same order. In counts where the sequence involved oral statement, followed by the decision to invest, followed by the drafting of the JVA (including the identity of any participant), followed by the countersigning of the JVA by the other signatories and presentation to the investor, followed by the payment of money, the guilt of those who had made the oral statement and those who were parties described within the JVA, or who counter signed it, may well be easy to establish. All were parties to false statements, whether oral or in writing, which induced, and/or continued to induce, the investor, until the moment came when he "took part in the arrangement" and the offence was completed.

179.   Nor could any problem realistically arise if the sequence was oral statement, followed by decision to invest, followed by payment of money, followed by drafting and counter signing the JVA, followed by presentation to the investor. The presentation of the signed JVA to the investor, prima facie, constitutes the making of false statements by those who were named within it or had signed it, and, so long as this played some part in inducing the investor himself to sign the JVA, the completed document may, again prima facie, have induced him to "take part in an arrangement" for the purposes of the Law, since it was plainly open to a tribunal to find that the act of "taking part" included the investor's act of signing the JVA.

180.   A difficulty may, however, arise if the sequence ends with the signature of the person (or persons) signing on behalf of the company i.e. false statement followed by decision to invest, followed by payment of money, followed by the signing of the JVA by the investor, followed by the counter signing of the JVA. In such a case the JVA contains false statements, but the adoption of those false statements by the counter signatories, if that is the extent of their involvement, does not cause the investor to do anything because he has signed the JVA before they do.

181.   In such a case, as it seems to this Court, plainly the person who makes the oral statement, and who repeats it by proffering the JVA for the investor to sign, containing written assurances about the use to which the money will be put, prima facie, commits an offence. The basis of the liability of a countersignatory will depend on the extent of his involvement otherwise, i.e. the extent of the joint enterprise, and whether his participation as countersignatory derived from mutual encouragement and assistance.  In such circumstances the matters we have discussed above may be relevant.

182.   Thus, on the evidence in this case, was it open to the Jurats to conclude, as the Crown submitted, that the Appellants had each given express or at least implied authority, one to another, to raise money from any available investor, knowing the nature of the inducement that would be offered and knowing what they would do with the money?   

183.   The answer may be easier to answer in a case such as this. By contrast, difficulties can arise in cases where there is limited evidence of planning, where there is no course of conduct, and where only one offence is committed. Less difficulty arises, as here, where the element of planning is apparent and the evidence of it extensive and repetitive, where a large number of offences are committed according to a consistent pattern, and where the main and subsidiary roles revolved among those involved depending whose client from Goldridge Stone was being recruited as an investor at any given moment.  

184.   So what was the evidence of joint enterprise in this case? What was its potential ambit?  In the view of this Court there was evidence from which the Jurats could conclude:-

(i)        that the Appellants were jointly responsible for the running of two property businesses in which they were all principals and which had the communality of the Appellant Lewis' directorships, as well as the closest links;

(ii)       that the business plans of the two companies were indistinguishable, and that each Appellant had a similar understanding how their respective businesses would operate vis-a-vis the investors;

(iii)      that the Appellants had a mutual interest in persuading as many investors as possible to invest in their property ventures, particularly because honouring obligations to earlier investors depended on the provision of cash by later investors;

(iv)      that the Appellant Christmas relied on the Appellant Lewis to find investors for De Lec and that the Appellants Lewis, Foot and Cameron relied on each other to utilise the client base, which each had built up in Goldridge Stone, to persuade historic clients to change their existing investments and to invest in American property;

(v)       that all the Appellants had agreed the basis on which investors would be approached and persuaded to invest, whether they were present or absent when the oral representations were made; and that they had agreed that if a client of Goldridge Stone was to be approached, the Appellant who had had prior dealings with that investor would take the lead in persuading that investor to participate;

(vi)      that, in each case, the Appellants had agreed to provide the investor, once the investor had indicated his willingness to participate, with a pro forma JVA, confirming in a written document what the investor had been told orally about the investment, enshrining the investor's rights and obligations in the agreement, and binding the investor to a joint venture agreement either between the Appellants and the investor (the De Lec counts) or between the Appellants/Sunstone and the investor (the Sunstone counts).

(vii)     that all the Appellants were aware that each JVA would incorporate the details of the oral inducement, albeit that there might be variations, including additions, inserted into any particular JVA;

(viii)    that any Appellant, who was described in the JVA as a party to the agreement or a as purchaser of the named property, had agreed, or would be willing, to be a party or a purchaser, at the time when the agreement was drafted or signed;

(ix)      that as part of the joint enterprise, each Appellant was willing to countersign the JVA in order to associate himself with the agreement in his capacity as a co-director of the company.

(x)       that the enterprise involved mutual assistance and encouragement in that each Appellant knew that when his turn came to approach a potential investor with inducements to invest, his co-Appellants would be willing to demonstrate their support for those inducements, just as he had shown his support for them when they had acted in that capacity;       

(xi)      that in so far as the evidence revealed that the JVA had been signed by an Appellant before the investor signed, that Appellant had associated himself with the representations before the investor "enshrined his rights" in the agreement;

(xii)     that in so far as the evidence revealed that the signature of an Appellant had been added after the investor had signed, the counter signature was added pursuant to the joint enterprise to underline the Appellant's support and association with the representations made orally and in the JVA;

(xiii)    that all the Appellants were aware from an early stage that the very nature of the business plan of the two businesses rendered the inducements to investors, whether oral or in writing, misleading, false or deceptive;

(xiv)    that all the Appellants were aware that the funds of the investors would not usually be required for the purposes defined in the JVAs for many months;

(xv)     that all the Appellants were aware that the business plan made it impossible for the funds of the investors to be treated as capital and preserved in the account until required for the purpose defined in the JVAs, but would be used, instead, to fund the day to day cash requirements of the businesses;

(xvi)    that all the Appellants were signatories to the bank accounts of the two companies in which the funds of the investors were placed; and that all were parties to the expenditure of the investors' funds once those funds had been credited to the relevant company account.

185.   Thus, in summary, there was evidence from which the Jurats could conclude, in each case, that the Appellants had formulated a joint plan by which investors would be induced to invest, either via De Lec or Sunstone, by virtue of a process which included in each case an oral inducement followed by the completion of a JVA. Provided the Jurats were satisfied that the Appellants, B and C, who counter signed the JVA in question, knew in advance the general nature of the oral inducements which would be made to the investor by the Appellant A, and repeated in the JVA, and had been willing for Appellant A to express those inducements, they were entitled to conclude that Appellant A was assisted or encouraged. The Jurats were also entitled to conclude that the assistance or encouragement consisted in the knowledge that Appellant A had the backing of Appellants B and C to the agreed plan before he went to see the investor, and that B or C, or both of them, would sign the JVA either before the investor was invited to sign, or later, and that, by signing, the Appellants B and C were confirming their association with those inducements. As was said in R v Stringer (2011) EWCA Crim 1396 @ para 51 "It is for the Jury, applying their common sense and fairness, to decide whether the prosecution have proved to their satisfaction on the particular facts that P's act was with D's assistance or encouragement."

186.   It was submitted that, on the basis of the joint enterprise suggested by the Crown, the Appellants Lewis, Foot and Cameron could all have been charged in all the Sunstone counts. That may be so. But if the Crown forbore to indict the Appellants in that way, it was to the Appellants' advantage rather than to their disadvantage. The Crown's policy of fixing an individual Appellant with responsibility in respect of an individual investor with whom he could be proved to be associated, either by oral inducement or because he had signed the relevant JVA, was a permissible and sensible way of identifying culpability in these specimen counts. Moreover the revolving nature of the main role of making the oral inducements, now the Appellants Lewis, now Foot and now Cameron depending on the historic relationship with the investor concerned, provided ample scope for the Jurats to conclude that each Appellant knew what would be said in general terms to each investor both orally and in the JVAs.

187.   The Appellants also argued that the Crown were unable to prove the moment in time when the JVA had been signed by the investor or the Appellants, as the case may be. We have already reviewed some of the evidence on this aspect of the case and the inferences which the Jurats were entitled to draw from the fact that in many instances the JVAs, signed by all relevant parties, were recovered by the police from the files of the investor concerned. But, as is plain from the principles we have defined above, we are not persuaded that the time when the JVA was signed is material. The Jurats were entitled to take into account, firstly, that the oral inducement and the drawing up and completion of the JVA constituted a series of acts done over a period of time as part of a deliberate process by which the Appellants had agreed how each investor was to be induced to take part in an arrangement with respect to the property; and secondly that an Appellant who had signed the JVA after the investor had signed it was doing so as part of a collective arrangement to associate himself with the representations previously made both orally and in writing.

188.   One or two investors admitted in evidence that, having been persuaded orally to agree to invest in an American property, they had no memory of reading the JVA subsequently presented to them.  Mrs Cotrel (Count 2) was an example.  The Appellants argued that in such circumstances an Appellant who was associated with that investor only because he had countersigned the relevant JVA bore no responsibility for the inducements made to that investor.  The argument is unsound.  It was open to the Jurats to conclude, as we have identified above, that an Appellant who played no part in the originating oral inducement but who subsequently countersigned the JVA did so as part of a joint enterprise which, to his knowledge, involved a staged process consisting of an oral inducement by one of his co-Appellants, and then, in no certain order, the identification of the co-Appellant in whose name the defined property is to be purchased, the drafting of a JVA recording, and if necessary amplifying, the oral inducement, countersignature by himself and one or more of his co-Appellants, presentation to the investor for signature, and payment of a cheque by the investor of the relevant sum.

189.   Nor does the fact that an investor had not read the JVA affect the procedure for taking part since it was open to the Jurats to conclude that the template for taking part included the staged process identified above and that, whether he read the JVA or not, the investor's signature on the document "enshrined his rights" in an "arrangement with respect to property" in accordance with Article 2(c).

190.   Advocate MacRae sought to make much of the fact, as alleged, that the Appellant Christmas was in no different position qua the business than the prosecution witness, Eric Evans. The assertion may or may not be so in certain respects, although it should be emphasised that Mr Evans was not in the same position as the Appellant in relation either to Counts 1 or 2 since he was not a named party to either JVA and no American bank account of his (even supposing he had one) was used to disburse funds for purposes not disclosed to Mrs Cotrel. Whether or not, in the light of the prosecution of this Appellant, Mr Evans was fortunate not to be prosecuted himself is as irrelevant to our consideration of the case as it was to the Jurats', though it should be pointed out that no accomplice warning was given to the Jurats about his evidence by the Commissioner. The prosecution chose to prosecute the Appellant Christmas, and the only relevant consideration in respect to Count 2 is whether there was evidence on which a reasonable panel of Jurats, properly directed on the law, could convict.

191.   With that in mind, we turn to the only remaining issue, on this part of the appeal, whether, in his summing up, the Commissioner adequately directed the Jurats in accordance with the principles we have outlined. He invited the Jurats to consider these matters thus (including in his written directions):-

"What if a Defendant was not there at the time of the inducement? A Defendant can still be part of a joint enterprise if his role was to encourage another person to commit the crime and he, the encouraging Defendant, plays a part in it. In this situation the Defendant does not have to know the exact details of the crime. It is enough that he knows the type of crime he is encouraging, in this case fraudulent inducement to invest or loan money.

Was the signing of the JVA properly to be regarded as part of the joint plan? On the evidence relating to each count, were the oral inducements, the handing over of the money and the entering into the JVA all different parts of one transaction in which different people might play different roles? You will want to consider such matters as what the investor said about the JVA, what oral inducements were made which differed from the JVA and the gap in time between the handing over of the money and the signing of the JVA......

If the JVA was properly to be regarded, in your view, as part of one transaction with the oral inducements and the handing over of the money, you need to consider the state of mind of the signatory. What would the Defendant signing the JVA know about what had happened before or after? Are you sure that the Defendant signing the JVA would be aware of the way the business was being conducted and, in general terms, would know what had gone before and what would come after? Are you sure that anyone signing the JVA knew that the money that had been obtained from the investor would not be spent on the property named but would go to meet general bills? 

Although you must look at each individual count to decide what inducements were made to each investor, in a more general way, what have the prosecution established the general state of knowledge of a JVA signatory would be as to what others would have told the investor, and the extent to which at that time the inducement would have been false, misleading etc and either knowingly made or recklessly made? As I've already said, if you're sure about these matters, the Defendant does not have to know the exact details of what was said by his co-Defendant making the oral inducements. It's enough that he knows when he signs that the transaction which he's taking part in includes the elements of the offence, even if he does not know exactly what has been said."

192.   We find nothing to criticise in this approach of the Commissioner. Nor did any of those appearing for the Appellants suggest to the Commissioner that he should amend this part of his direction before the Jurats retired. We reject the Appellants' submissions that only the oral inducer could be guilty of these offences.

SECONDARY PARTIES

193.   In the light of our ruling on the applicability of joint enterprise to this case, it is unnecessary for us to deal with the Appellants' general arguments about secondary parties and their potential liability. Nonetheless we must deal with a specific criticism made of the summing up by Advocate Blakeley in this context.

194.   He submitted that the Commissioner, having invited the Jurats' attention to the way that the Crown had suggested they should approach the issue of joint enterprise, confused the issue by giving a direction more applicable to secondary parties. The matter arose in this way. The Commissioner said at one point:-

".....it is necessary to consider the principle of joint enterprise. A Defendant may be guilty because he himself did the illegal act or because he assisted the person who did the illegal act......what though if one person is present when another person commits the offence but neither says nor does anything? Mere presence alone is not enough. The Defendant must intend to encourage by his presence, and that presence must provide actual encouragement to the main actor......However, voluntary presence and the absence of any dissent from what was going on, when you would expect such dissent to be voiced, is capable of being cogent evidence of encouragement."

195.   There were occasions in evidence where this had happened, for example the Appellant Lewis (and the Appellant Foot) were present when the Appellant Cameron discussed an investment of £60,000 with Mr Varney (Count 26). What was required in this summing up, as in any summing up, was assistance to laymen who might well have been troubled about the position of one of these Appellants who had been present at a meeting between a co-Appellant and an investor but who did not know the investor concerned. How, in such circumstances, should the Jurats approach the culpability of the Appellant who attended the meeting but said little or nothing? In the view of this Court the assistance which the Commissioner gave to the Jurats in his directions quoted above cannot be faulted and we reject the submissions of Advocate Blakeley on this point.

NO CASE      

196.   The basis of the submissions to the Commissioner by all the Appellants, count by count, was that the offence was already complete by the time the individual Appellant had signed the JVA and that his actions could not therefore found any basis for liability, (taking part). We have ruled on this matter above. The submissions to this Court on a number of counts by the Appellants Lewis, Foot and Cameron are based on the same submissions made to the Commissioner. They are founded on the same erroneous interpretation of Article 2(c) and the same misunderstanding of the nature and effect of the joint enterprise in this case, (joint enterprise).   On the basis of the rulings we have already made on these issues, we do not accept the validity of the basis on which these applications were made either in the court below or to this Court.

197.   However, in this context, on some counts it has been submitted to us that, on any view of the legal principles which we have discussed above, the Commissioner should have ruled that there was no case to answer. In such circumstances it is necessary to understand what were the jurisprudential constraints imposed on the Commissioner in considering an application of such a kind.

198.   The seminal authority is Galbraith 73 Cr. App. R. 124. In that case the Court of Appeal reviewed the earlier authorities and, in giving guidance as to the proper approach, laid down the following principles:-

"(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty - the judge will stop the case.

(2) The difficulty arises where there is some evidence but it is of a tenuous character, for example,because of inherent weakness or vagueness or because it is inconsistent with other evidence.

(a) Where the judge concludes that the prosecution evidence, taken at its highest, is such that a jury, properly directed, could not properly convict on it, it is his duty, on a submission being made, to stop the case.

(b) Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness' reliability, or other matters which are generally speaking within the province of the jury, and where on one possible view of the facts there is evidence on which the jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury." (per Lord Lane LCJ @ p. 127).

199.   This test for submissions of such a kind was held to be the applicable test in this Bailiwick by the Bailiff in A.G. v Capuano [2003] JLR 623.

200.   There are a number of authorities which have flowed from the decision in Galbraith, adding to the jurisprudence on the point. One is a decision at first instance, R v Shippey [1988] Crim. L.R. 767, in which Turner J held that the requirement to take the prosecution evidence at its highest did not mean "picking out all the plums and leaving the duff behind." He held that the trial judge should assess the evidence and if the evidence of the witness upon whom the prosecution case depended was self-contradictory and "out of reason and all common sense", then such evidence was tenuous and suffered from inherent weakness. He said that he did not interpret the judgment in Galbraith as meaning that if there are parts of the evidence which go to support the charge, then that is enough to leave the matter to the jury no matter what was the state of the rest of the evidence. It was, he said, necessary to make an assessment of the evidence as a whole. It was not simply a matter of the credibility of individual witnesses, or of evidential inconsistencies between witnesses, although those matters may play a subordinate role.

201.   The test for an appellate court is whether the trial judge's decision was reasonable. In Thomas and Others [2009] EWCA Crim. 1682, a case where the Crown sought to appeal a trial judges' decision that there was no case to answer, Hallett LJ said:-

"The test is whether the trial judge's decision was 'reasonable'. The fact that we have found this a finely balanced decision makes our task straightforward.....It is common ground that Pitchford J applied the right test and directed himself in an appropriate fashion......Given the gravity of this case the decision to rule that the accused had no case to answer is not one that he, (or indeed we), would take lightly."

202.   In Bhojwani v AG [2011] JCA p. 034, and in reflection of these authorities, this Court at para. 113 emphasised:-

"We must be conscious again of the limits of our jurisdiction as an appellate court.......(and para. 115)...we have to remind ourselves that we are not the Commissioner. Our task is to decide whether the Commissioner could reasonably determine that there was a case fit to go to the Jurats, not that we ourselves might not have assessed the case in the same way......the test is whether the judge's decision was reasonable....The high hurdle of a submission of no case is doubly high at the appellate level."

203.   Against that background, we turn to consider the evidence on Count 2 against the Appellant Christmas who submitted to this Court that the Commissioner was wrong to decline to uphold a submission of no case.  At the close of the Crown case the evidence against this Appellant included the following matters:-

(i)        In July 2004 a JVA was drafted, as we have described above, with the Appellant's details on the frontispiece recording him as being a party to a joint venture agreement between himself, the Appellant Lewis and Mrs Cotrel. The JVA contained details of the terms of the agreement, including the identity of the property which was to be purchased in the name of this Appellant. In the circumstances it would be reasonable to infer that he was a party to the agreement from an early stage, and that he must have been aware of the approach to Mrs Cotrel by the Appellant Lewis, perhaps before the latter visited her to persuade her to invest a significant sum in US$ in the joint venture, and certainly before Mrs Cotrel signed the JVA. There would seem to be no reason why the Appellant Lewis should have concealed, at any stage, the details of this transaction from the Appellant Christmas who was an important party to it.

(ii)       The Jurats could therefore conclude that the Appellant was aware that a sum of money was being obtained from Mrs Cotrel and that it is likely that it had been represented to her that her investment would be used to pay the initial deposit on a Florida property called Botanical Place.

(iii)      He had signed a JVA dated 20th July 2004, which recorded that the three signatories to the document, including himself, would jointly purchase the property with initial funding to be provided by Mrs Cotrel. 

(iv)      Within a few days of receiving Mrs Cotrel's money, he was directly involved in arranging to make use of those funds for a different purpose than that contemplated in the JVA, by facilitating the transfer of Mrs Cotrel's investment through his account with the Wachovia Bank to pay the deposit on 1304 Bellavista, not on Botanical Place.

(v)       In view of the way De Lec was run as a business, this Appellant was aware that future funds to pay for the deposit on Botanical Place would have to be obtained either by raising more money from Mrs Cotrel or by obtaining money from other investors.

(vi)      This practice of "robbing Peter to pay Paul" was causing dismay to his co-director, Eric Evans, who drew this Appellant's attention to the risks to the investors associated with running the business in this way in his email dated 13th September 2004. Mr Evans gave evidence that he had also voiced his concerns in conversations at the time with this Appellant, and the Appellant Lewis, and that the absence of cash flow in De Lec was resulting in De Lec's debts being paid out of investors' funds, contrary to the representations which were being made to investors. The Appellant had himself recognised in the same month in an email to his co-directors that the JVAs did not reflect the true position.

(vii)     The Appellant signed a JVA dated 1st December 2004 (Count 2) recording a joint venture between himself, the Appellant Lewis and Mrs Cotrel to buy two properties in a development called Hawthorne with a deposit of £100,000 provided by her.

(viii)    In a way exactly similar to the JVA which had been drawn up in July 2004, this JVA was pre typed and specified the Appellants Lewis and Christmas and Mrs Cotrel as being the parties to the agreement on the frontispiece. It stipulated that the properties were to be purchased in the names of both Appellants. The last page of the JVA bore all three signatures and recorded that all three of them i.e. the two Appellants and Mrs Cotrel "have set their hand the day and year first written above." That date is recorded on the frontispiece of the JVA as 1st December 2004, the same day that Mrs Cotrel said that she had signed it and the same day on which the Appellant Lewis, possibly accompanied by the Appellant Christmas, had visited her house to encourage her to invest in Hawthorne.

(ix)      The Appellant was instrumental in using his Wachovia account to spend Mrs Cotrel's investment in Hawthorne on mortgage payments and other costs of 1304 Bellavista, the same property on which he had spent Mrs Cotrel's initial investment of $60,000 the previous July. He also authorised other payments from Mrs Cotrel's £100,000 investment to pay other debts at that time owed by De Lec.

204.   Whether or not this Appellant was present when the Appellant Lewis made representations to Mrs Cotrel about this investment on 1st December 2004 (as to which the evidence from Mrs Cotrel was somewhat contradictory), and whenever he may have signed this JVA (as to which it was suggested, but not in any sense proved, that the Appellant may not have signed till a later date), the Commissioner was plainly right to leave to the Jurats the drawing of any inferences on Count 2 against the background of the events of the previous July and August. These inferences include the following matters:-

(i)        that, prior to any oral approach to Mrs Cotrel, he and the Appellant Lewis had agreed, as part of a joint enterprise, to obtain this further investment of £100,000 in December 2004 from Mrs Cotrel;

(ii)       that, in furtherance of the joint enterprise, the Appellant Christmas had again allowed his name to be typed onto a JVA identifying him as a party to the joint venture agreement and as a co-purchaser of the properties, on this occasion in advance of the visit by his co-Appellant to Mrs Cotrel, in circumstances not dissimilar to what had happened the previous July in relation to Mrs Cotrel's purported investment in Botanical Place;

(iii)      that, on this occasion, the investment in which both Appellants had agreed in advance, as per the JVA, to request Mrs Cotrel to invest in, related to a purported joint investment in the Hawthorne development, and that the Appellant Lewis took the JVA with him to the meeting with Mrs Cotrel;

(iv)      that having lent his name to this joint venture between himself and the Appellant Lewis and Mrs Cotrel (assuming his absence at the meeting), the Appellant Christmas must have known that the Appellant Lewis, at the very least, might repeat to Mrs Cotrel orally the assurances as to the destination of her investment which were specified in the JVA;  

(v)       (again assuming the Appellant Christmas' absence at the meeting) that, as part of the joint enterprise, the Appellant Lewis was encouraged and assisted in making representations to Mrs Cotrel on 1st December 2004 in the knowledge that the Appellant Christmas was already a party to the agreement, as recorded in the JVA, and would later formally record his participation by signing it, if he had not already done so; 

(vi)      that the Appellant Christmas would again agree to make use of his Wachovia bank account, if necessary, to pay those of De Lec's debts and obligations which were extant in December 2004 and January 2005 with the £100,000 investment provided by Mrs Cotrel, which is indeed what happened.

205.   In the light of the above there was evidence from which the Jurats could conclude that the Appellant Christmas played a part in a joint enterprise to make statements to Mrs Cotrel which, either to his knowledge were misleading, false or deceptive, or that he was reckless as to whether the statements were misleading, false or deceptive. In the view of this Court the Commissioner's decision to reject Advocate MacRae's application was a reasonable one and we reject this ground of appeal.

206.   Advocate MacRae further submitted that at the close of all the evidence the Commissioner should have withdrawn the case from the Jurats and directed them to acquit. The legal basis for such a course is to be found in the case of R v Boakye, Court of Appeal, March 12 1992 (unreported). In that case Steyn LJ said:-

"Mr Jones has made a submission to us that it was not appropriate to make a submission of no case to answer at the end of the defence case. In our judgment a judge is entitled, even at that late stage, if no evidence is available on a count, or if there is no evidence on that count which upon which a reasonable jury could convict, to rule that there is no case to go before a jury. The contrary proposition would be a startling one. It would contemplate that a judge might be powerless to prevent a real miscarriage of justice in a case where there was a sudden change in the strength of the prosecution case as a result of cogent evidence emerging in the defence case." 

207.   Axiomatically, Steyn LJ's rubric applies if such evidence emerges during the case of another defendant.

208.   The principle in Boakye was confirmed by the Court of Appeal in R v Brown (Jamie) [1998] Crim. L.R. 196 in which the Vice President, Rose LJ, said:-

"It seems to us that throughout the trial, the judge has a responsibility not to allow a jury to consider evidence upon which they could not safely convict......if at the conclusion of all the evidence a trial judge is of the view that no reasonable jury, properly directed, could safely convict he should generally speaking, whether a submission of no case has been made at the conclusion of the prosecution case or not, raise that view for discussion with counsel in the absence of the jury. If having heard submissions he remains of that view, then he should, in our judgement, withdraw the case from the jury."

209.   In following this principle, Longmore LJ in R v Brown (Davina) (2002) 1 Cr. App. R. 5 added by way of emphasis:-

"No doubt this is a power which should be very sparingly exercised and only if the judge really is satisfied that no reasonable jury, properly directed, could, on the evidence, safely convict."

210.   We have no hesitation in saying that, in respect of the evidence against the Appellant Christmas on Count 2 at the close of all the evidence, the Commissioner was right not to exercise the power to invite the Jurats to acquit. This was a count to which none of the circumstances envisaged by Steyn LJ applied. It could not be said that there was no evidence available at the close of the evidence; nor was the state of the evidence such that no reasonable panel of Jurats, properly directed, could convict; nor was this a case where there had been a sudden change in the strength of the prosecution case as a result of evidence given by the defence. The Appellant Christmas did not give evidence in his own defence. The evidence given by the Appellant Lewis was not evidence which the Commissioner was obliged to treat as evidence which the Jurats had to accept, and accordingly that he was obliged to direct the Jurats to return a verdict of not guilty. 

211.   However in this context the Appellant Christmas submited, that, even if the case should have been left to the Jurats at the close of the prosecution case or at the close of all the evidence, the nature of the evidence given by the Appellant Lewis should have caused the Jurats to acquit the Appellant of Count 2 and that their verdict on Count 2 was unreasonable. For reasons which we will discuss in detail when we deal with submissions made by other Appellants on the justification for the verdicts returned against them, the circumstances in which this Court can quash a verdict of the Royal Court in criminal matters on a basis which involves weighing the veracity of one witness against another, are very strictly circumscribed. Since we have concluded that there was a case to answer on this count and since the Appellant Christmas did not give evidence, in order to quash the conviction on Count 2, this Court would be compelled to order an acquittal essentially based on the evidence of the Appellant Lewis. Lewis was convicted of a substantial number of counts including Count 2 and, axiomatically, he must have been disbelieved on his oath by the Jurats. In so far as any evidence given by that Appellant on Count 2 was inconsistent with the verdict of guilty on that count, the Jurats must be taken to have rejected it.

212.   Since we did not see or hear the Appellant Lewis give evidence in chief or being cross examined, we have no hesitation in refusing to overturn the findings of the Jurats and to indulge in the exercise requested of us. To make any judgment of the truthfulness or otherwise of the evidence of the Appellant Lewis would be an impossible and impermissible task for this Court to undertake. It is one which would require us to contradict the findings of fact by the Jurats, who heard the witness, and to pick and choose in an entirely arbitrary fashion between the possible plums and the probable duff of his evidence in a way and to an extent which has been forbidden to this Court in a series of cases, as we shall see, including cases in the Privy Council.

213.   In his submissions Advocate MacRae invited our attention to a number of matters on which the Appellant Lewis gave evidence in favour of the Appellant Christmas and about which he was not cross examined by the Crown. The inference which Advocate MacRae apparently wished this Court to draw is that such evidence ought to be accepted as truthful by this Court, as it should have been thus accepted by the Jurats. Anything which a Defendant says about a co-Defendant in a criminal trial, whether to his detriment or to his advantage, is habitually looked at with caution by any fair minded tribunal of fact. Moreover to be compelled to regard something which the Appellant Lewis said in favour of the Appellant Christmas as truthful merely because the Crown forbore to cross-examine on the point is a proposition which we view with real scepticism. Indeed we know of no rule of law or practice which would cause any tribunal to adopt such a startling obligation and, in so far as Advocate MacRae was inviting us to pursue this line of reasoning, we decline to do so or to hold that the Jurats were under any duty to do so themselves during their deliberations. We shall have something more to say about the Appellant Lewis' attitude to his co-Appellant Christmas during the trial later in this judgment.  

214.   It is important not to confuse the duties of prosecuting and defending advocates. In many criminal trials, since neither the witnesses for the prosecution, nor the tribunal usually know in advance what areas of evidence are in dispute, nor the basis of the dispute, defending advocates, being aware in advance the details of the Crown's case, are obliged, generally, to put their cases to the prosecution witnesses. The reason for this is twofold, first to give those witnesses the opportunity to give their evidence on the issues raised, and secondly, to apprise the tribunal of the nature of the matters in dispute. This is a requirement of a defending advocate throughout the British Isles but not, for example, in the United States, at least not uniformly.  

215.   The obligations of the prosecuting advocate are different. By the time of cross-examination of a defendant, the issues are, or should be, clear. The Crown witnesses have given evidence as has the defendant in chief. The prosecuting advocate has a discretion, particularly in long and complicated trials, to decide on which topics he is required to take issue with the defendant. If he was obliged to cross examine about every matter apparently in dispute between the defendant and the prosecution witnesses, his cross-examination would be likely to become tedious or interminable or both. Still less should a prosecuting advocate feel obliged to take issue with a defendant on evidence which the defendant has chosen to give for or against a co-defendant. The advocate may do so; but no inference should be drawn from the fact that he chooses not to do so, still less the conclusion that such evidence has to be taken by the tribunal to be true.       

216.   The Appellant Christmas submitted, finally, that the Commissioner's direction to the Jurats to acquit on Count 1 was inconsistent with a verdict of guilty on Count 2. This submission is unsustainable: there was nothing inconsistent in the two verdicts. At the close of the Crown's case the evidence on Count 1 was limited. Mrs Cotrel's memory was restricted to the fact that in July 2004 she had been told that her $60,000 investment would be put into a property investment in Florida: she could not remember the name of the property. She said she had not read the JVA. Although there was evidence from Mr Sowden that her money was used to contribute to the purchase of a property in America, but not the property defined in the JVA, the Crown conceded, rightly, that Mrs Cotrel's failure of memory was fatal to the Count which contained a specific averment as to the detail of the property to which Mrs Cotrel had been told that her investment would be applied. There was no evidence, therefore, to show that Mrs Cotrel had been misled by a misleading, false or deceptive statement, an essential element of the offence. The absence of evidence on Count 1 and the presence of significant evidence on Count 2, which we have summarised above, involved no inconsistency.

217.   We now turn to the submissions in the context of "no case" of the Appellant Lewis. Advocate Blakeley submitted that on all counts in respect of which this Appellant played a subsidiary role, where the victim was not his client from Goldridge Stone and where he merely counter signed the JVA, the Commissioner should have ruled that he had no case to answer. These counts include Counts 8 and 9 (Mrs Hoe), Count 12 (Mr Keeling), Count 18(a) (Mrs Fisher), and Counts 26 and 27 (Mr Varney). In the main, the basis of Advocate Blakeley's submissions depend on an interpretation of the concept of taking part in an arrangement for the purposes of Article 2(c), which we have rejected above, and his analysis of joint enterprise, which we have also rejected.

218.   However we have explored the detail of evidence on these counts and consider that on each of them, in accordance with the principles we have defined above, there was evidence from which the Jurats could find, generally:-

(i)        that the Appellant Lewis was party to a joint enterprise in that he had formulated a plan with the Appellants Foot and Cameron whereby investors would be induced to invest;

(ii)       that it was inherent in the joint enterprise that a meeting would be arranged with a prospective investor during which he/she would be persuaded to invest, followed, either at the meeting or later, by a request to the investor to sign a pro forma JVA drafted in similar terms to ones which he, the Appellant Lewis, had himself used in similar circumstances; and, specifically,

(iii)      concerning Counts 8 and 9, that since, for example, he was a party to spending the £95,000 which Mrs Hoe had invested before he counter signed her JVA, he had associated himself with the inducements put to Mrs Hoe by the Appellant Cameron to invest in two American properties, as described in the particulars of the Counts; and 

(iv)      concerning Count 12, that since he had counter signed the JVA which contained inducements to Mr Keeling to invest £51,000 in a specific property at a meeting at which Mr Keeling had also signed the JVA, he had associated himself with the inducements which were described in the particulars in the Count; and 

(v)       concerning Count 18(a), that since he had allowed his name to be used as the purchaser of the property for which Mrs Fisher was induced to make her loan to Sunstone, he had associated himself with the inducements which were described in the particulars of the Count.

219.   In ruling on the submissions of no case by the Appellants Lewis, Foot and Cameron, the Commissioner expressed the general aspects of the evidence described above, in the following passage:-

"Since this was the way the business was run, the only possible inference is that this general way of getting money in and spending it must have been agreed between the parties, and it would have been obvious to anyone (viz any Appellant signing a JVA) this process had taken place and would take place thereafter. This was the agreed business model."

We agree and reject the Appellant Lewis' submissions on these counts.

220.   The Appellant Foot made similar submissions on counts on which it was plain from the evidence that he did not play a leading role i.e. the investor concerned in the count was not a client of his from Goldridge Stone. These counts included Count 7 (Miss Waye), Counts 10 and 11 (Mrs Nicholls), Count 12 (Mr Keeling), Count 13 (Mrs Bailey), Count 14 (Mr Derry), Count 21 (Mr Jarratt), Count 23 (Mr Rolland), and Count 26 and 27 (Mr Varney). The Appellant Cameron made similar submissions on Counts 7 (Miss Waye), Count 12 (Mr Keeling) and Count 13 (Mrs Bailey). We propose to deal with Counts 26 and 27 below; and with Count 12 against the Appellant Cameron separately.

221.   We reject the submissions by these two Appellants in respect of Counts 7, 10, 11, 13, 14, 21 or 23.  In none of these counts was the Appellant Foot or Cameron the oral inducer of the investment, but in respect of each count there was evidence, generally, from which the Jurats could infer against these two Appellants, mutatis mutandis, the matters described in the first two general points above in para 218; and, in relation to both of them, either that one or other of them had agreed that the property in question should be purchased in his name by the time that the JVA was drafted or signed; or that (because of the production of the JVA to the police by the investor signed by all parties), one or other or both had signed before the investor had signed; or that (in so far as the Jurats concluded that the JVA was, or may have been, signed by either Appellant after the investor had signed), the relevant Appellant had added his signature as part of the agreed plan to lend support to the co-Appellant who had master minded the investment concerned.

222.   We now consider the submissions of all three Sunstone Appellants on the Varney counts. In relation to Count 26, the evidence which Mr Varney gave at trial implicated all the Sunstone Appellants. The Appellants Lewis and Foot, who played lesser roles were both said to have been present at the meeting where discussions took place between Mr Varney and the Appellant Cameron during which the latter sought to persuade Mr Varney to invest £60,000 in American property. It was open to the Jurats to find, as they did find (see Sentencing Remarks of 5^th October 2012) that the Appellant Foot was present and encouraged the representations by his presence.  As to the Appellant Lewis, Mr Varney said that the proposal to draft the JVA relating to that investment came from that Appellant during the course of the meeting. The Appellant Lewis was well aware from the Appellant Cameron's email of 17th December 2007 that it was the author's view that Mr Varney would lose his investment because of the financial peril in which the company stood at that time.  The next day the Appellant Lewis signed Mr Varney's JVA.

223.   And in relation to Count 27, the details of which we have set out above in our recital of the facts of the case and which occurred the following month, it is important to remember that the count alleged that Mr Varney had been persuaded to invest £100,000 on the pretence that his money would be used to purchase cheap repossessed American properties and that this inducement had two elements, firstly, a mis-statement as to the use to which his money would be put, and secondly, the dishonest concealment of the fact that the Sunstone Appellants intended to use Mr Varney's investment to pay Sunstone's existing debts. On the three occasions when Mr Varney went to the Sunstone office to pay the tranches of the £100,000, he met the Appellants who, on none of these occasions, corrected the falsity of the representations, or revealed the truth. Furthermore Mr Sowden gave evidence that all three Appellants played their part in spending Mr Varney's money on mortgage arrears, distress payments to prevent properties going into foreclosure, holding costs, payments to other investors and personal payments to the Appellant Cameron.

224.   We now deal with the submission of Advocate Hanson, on behalf of the Appellant Cameron in relation to Count 12 (Mr Keeling).  In short form the particulars of the indictment pleaded that the Appellants Lewis, Foot and Cameron had made a misleading, false or deceptive statement to Alan Keeling namely, that the sum of £44,000 would be used to purchase 69 Lindon Lane, Breckenridge, Colorado. When Mr Keeling gave evidence in chief his brain went into a skid: a situation which is not unusual when an elderly nervous witness gives evidence of a distressing and personal kind. Apart from remembering that he had a conversation on some unspecified date about property investments with the Appellant Cameron to whom he had been introduced through a mutual friend, he could remember nothing of the circumstances which led to his parting with his money. He said "I thought I was completely au fait with all of this and I had it in my mind but my mind just seems to have gone blank since I walked into court." He was then referred, quite properly, to the contemporaneous JVA which he had, of course signed, incorporating the ingredients of the particulars of the count.

225.   The JVA was also signed by the Appellants Lewis and Foot but not, importantly for the purposes of the instant submission, by the Appellant Cameron. The document "rang bells" in Mr Keeling's mind but not of sufficient clarity to assist in his recall of any of his conversation with the Appellant Cameron which had obviously preceded it. All he could say in chief was that he must have had a discussion with Mr Cameron about "investing in property in America....they were getting involved......and it seemed an opportunity for me to be involved in that via a company..." He made it clear that his only memory of the investment was referable, but was strictly limited, to what was recorded in the JVA. He repeated that he had no memory of what the Appellant Cameron had said. 

226.   Mr Keeling paid two cheques for two separate investments in respect of two separate properties, only one of which was charged as a count. The two JVAs and the cheque for the total amount were dated the same day. This fact is relevant to the exchanges which occurred in cross-examination. He was cross-examined shortly by Advocate Pearmain for the Appellant Lewis and then by Advocate Tremoceiro for Foot, in answer to whose questions Mr Keeling seemed to gain confidence in his power of recall. He confirmed to Advocate Tremoceiro that the discussion he had had with the Appellant Cameron had been about investing in property, that he had told the Appellant that he wanted a short term investment because of the state of his health, and that the Appellant had said that the investment could not be guaranteed because no one could know that the property market would continue to grow. He was then asked this question "These properties that you eventually invested in, how was the choice made?" The witness replied "They were put to me that this was an opportunity to enter the market, if you like in America, and they showed me documentation of similar properties.......and they showed me details of the site, the sites that were available, and this particular site.....this is all from memory, but this particular site was one of the better ones in the proposed development and they convinced me that it was a good investment."

227.   Advocate Tremoceiro who was concerned to deflect attention away from the Appellant Foot, whose counter signature was affixed to the relevant JVA, then asked: "Do you remember who showed you those photographs?" to which Mr Keeling replied: "I suppose it must have been Mr Cameron. I don't recall who showed them to me. But I have copies of all of them." Advocate Tremoceiro asked whether Mr Keeling was aware that the properties were to be brought in the names of an individual rather than the company, Sunstone, to which Mr Keeling replied "I can't remember the name but I do specifically remember that it was said that they were going to be bought by one person...." Later Mr Keeling added: "I understood that the money I had invested, the £95,000, would be invested, I can't remember exactly. There was £44,000 or whatever in one and the remainder in another, just those two properties, no others."

228.   In the light of this cross-examination, Advocate Preston, for the Appellant, sought to jog the witness' memory further and established from him that there were two meetings, one at which the Appellant Cameron was present during which he had encouraged the witness to invest, and one during which the JVA was signed by the Appellants Lewis and Foot. The Appellant Cameron was absent at the later meeting. Advocate Preston asked Mr Keeling to confirm that at the "Cameron" meeting he had been given information by the Appellant about a number of matters not directly germane to the particulars in Count 12. 

229.   Since there were two meetings, one at which the Appellant Cameron was present having an unspecified conversation and one during which the JVA was signed at which he was not, it was crucial that there was evidence from which the Jurats could conclude that the detail of the particulars mentioned in the count were offered by the Appellant Cameron as an inducement to persuade Mr Keeling to invest at the first meeting. The details were, of course, described in the JVA which the two co-Appellants had signed. There are three important considerations:-

(i)        Notwithstanding the improvement in the witness' memory as his time in the witness box lengthened, Mr Keeling did not assert, at any stage, that the Appellant Cameron had mentioned the specific property or the specific sum required for investment in it.

(ii)       During the cross-examination of Advocate Tremoceiro, the witness repeatedly refers to "they" rather than "he" in relation to discussions about the events surrounding his investment, which creates uncertainty whether he was referring to the "Cameron" meeting, where the Appellant Cameron alone was present or the later one which the two other Appellants attended. 

(iii)      He said that at some stage he had been shown a photograph, "I suppose it must have been by Mr Cameron", of a property similar to one of those in which he was persuaded to invest. There might well be a justified inference from this that the two properties, including 69 Lindon Lane, were therefore being discussed at the meeting with this Appellant. However he goes on to add "I don't recall who showed them to me", which so qualifies his identification of a particular individual as to render it at best uncertain and at worst meaningless.

230.   In the view of this Court the evidence against the Appellant Cameron on this Count was not of sufficient quality to allow it safely to be left to the Jurats. We agree that the Commissioner should have withdrawn it from the Jurats' consideration and we quash the Appellant Cameron's conviction in respect of it. 

ELEMENT (4)

231.   During the course of his summing up, the Commissioner identified the matters which the Crown was obliged to prove in this case. He defined them as:-

"(1) that the Defendant charged made a statement or promise, (2) that the statement or promise was misleading, false or deceptive, (3) that when he made the statement or promise, either (a) he knew that it was misleading, false or deceptive, or (b) was reckless as to whether it was misleading, false or deceptive, (4) that by that statement he induced somebody to take part in a financial arrangement within the law, and (5) that the purpose or effect of the arrangements was the one set out in the counts. Elements (4) and (5) are not in dispute, it's elements (1), (2), and (3) that will be engaged when you're considering the facts."

232.   The Appellants complained that the last sentence was not accurate. They pointed out that Element (4) was in dispute, and Advocate Blakeley, who made the running on the argument, said that this was a fatal error by the Commissioner, that it must have misled the Jurats and has led to a miscarriage of justice in respect to the whole indictment. It is a curious feature of the case that not one of those present at the time, responsible for ensuring accuracy in the summing up, noticed it, neither the two advocates for the prosecution and none of the eight lawyers for the defence.

233.   Nugee JA raised the question in argument whether what the Commissioner may have meant was that in each case plainly something had persuaded the investor to invest: that was not in dispute. The issue was what had induced them. The Commissioner may or may not have expressed himself appropriately: the question for this Court is whether the Jurats were left in any doubt that they had to decide on each count whether the Crown had proved what it was that had caused the investor to invest, or whether, on the contrary, they were misled by what the Commissioner had said, albeit that none of the lawyers had been themselves misled. To that end it is important to read the summing up as a whole. 

234.   The summing up, as is usual in this jurisdiction, constitutes directions in law and a brief summary of the prosecution and defence cases. It is transcribed between page 56-79 of the relevant transcript. The Commissioner referred to the issues in dispute in his summing up at p. 64:-

"The charges on the indictment are quite specific; inducing investors to part with their money by making false or misleading statements, either knowing them to be false or misleading or being reckless as to whether they were false or misleading. Now you will find that a number of factual questions will arise regularly in relation to each count. Just to state what those are though it is clear from the elements of the offence that have to be proved. Firstly what was the nature of the inducement? Secondly, was the inducement false or misleading? Thirdly, if it was, was it made either knowingly or recklessly?"

235.   At p. 67/68, he said: "What the different parties understood the JVA to mean is one of the issues in the case." and then referring to the business model as the "common pot", the Commissioner continued:-

".........central to its lawful operation was the need to ensure that those investing were not misled as to the nature of their investment and what would be done with their money and this last point is of some factual dispute in the case which you will have to examine in considering each of the individual counts.......Turning to the more specific questions, firstly the nature of the inducement. Now that is a matter of fact for you in each count. You will decide at each count what was said and done to induce each investor to invest.........."

The prosecution case in relation to what was the nature of the inducement is, they say, the oral inducements never made clear that the money was not going directly to fund the acquisition of the nominated property. The JVA on its face did not describe what was actually going to happen. Investors were misled into believing they would immediately acquire an asset backed by bricks and mortar, or at least land, where in fact they were acquiring no such thing, but their money was going to fund the running costs of the business with the hope that all being well they might later acquire some interest in real property.

The defence case on this issue is there was no obligation on the defendants to ring fence the money. The JVA did not specify a timescale for the investment of the money and, manifestly, it would not be spent immediately on the closing deals because they did not fall to be closed for some time after the investment. Provided, say the defence, that the defendants did in the end intend to acquire the property named in the JVA, it did not matter that they had applied the actual funds to the general running expenses of the business. The investors would either have been told that or would have understood that was the plan. If they misunderstood, then that is not the fault of the defendants and, say the defence, there is a possibility here that with the benefit of hindsight investors have misled themselves into believing that they put a stress on the JVA which, in reality, at the time they did not."

236.   He again emphasised the requirement of the Jurats to resolve the issue what had caused the investors to invest when he dealt with the question of joint enterprise on p. 60 and he also emphasised the requirement of proof in relation to the "loan" counts in directing that the Jurats must be sure that the prosecution had proved the same Elements, including Element (4), as those he had defined in dealing with the counts contrary to Article 2(c).    

237.   Moreover, the Jurats listened to the cross-examination of the witnesses during which the issues between the witnesses for the prosecution and the Appellants were ventilated, as well as the closing speeches of the advocates, which made clear what was in dispute in the case and the reasons for deciding, in respect of each Appellant, whether the Crown had discharged the burden of proof. It is apparent from the length of time of the Jurats' retirement, as well as from their decision to acquit on some counts, and from the fact that they differentiated between counts on the issue whether the statements, which induced the investments/loans, had been made recklessly or dishonestly, that they were not misled by this error of the Commissioner, which passed unnoticed by all present in court. We are satisfied that no miscarriage of justice resulted from it.   

THE COMMON POT

238.   Complaint is made by the Appellant Lewis through his amicus, Advocate Chiddicks, and by the Appellant Cameron through his amicus, Advocate Baxter, that, the Commissioner, having indicated at an earlier stage that he would direct the Jurats on the effect of the co-mingling of monies (referred to throughout the trial as the "common pot"), the Commissioner had failed to do so in his summing up. They are supported in this ground of appeal by the Appellant Foot who cites it with specific reference to Count 19 (Mrs Binet).

239.   If the investors' funds had been paid as deposits for the properties identified in the JVAs, or otherwise used for purposes specified therein, the evidence of what was done with the funds would not have supported the assertion that the investors had been misled. But that was not the evidence.

240.   The matter initially arose from a discussion on 22nd May 2012, shortly after the trial had started in the absence of the Jurats, between the Commissioner and Advocate Tremoceiro, who expressed an anxiety about the inference which the Jurats might draw, as to the falsity of the inducement, from the fact that the sums which the investors had made payable to Sunstone had not immediately been applied to the purpose defined in the JVAs. In the exchange which followed the Commissioner emphasised that the nature of the inference depended on timing and illustrated his point by a comparison between the immediate application of the funds and a delay, measured in years, which might be thought "to call for an explanation." Advocate Tremoceiro then said: "What I object to is the impression being created.......that there is something immediately improper in not using the funds, a particular set of funds, immediately." The Commissioner responded, unsurprisingly, with the reassurance that in his view: "the fact that it [the sum induced] is not automatically applied to that purpose does not mean that they [the Appellants] have automatically committed the offence." Mr Tremoceiro replied "You have got the point, Sir. What I am concerned is that the tribunal of fact gets the point, and in reaching its conclusion is not influenced by language which is inappropriate." To which the Commissioner responded ".....in some weeks' time, I shall be telling them in open court what the point is."

241.   Time, and the evidence, and indeed the issues in the case, moved on in the two months between that exchange and the summing up. By the latter date matters had crystallised. Mr Sowden, the accountant, had given evidence as to the movements of funds in the bank accounts of both companies. All the Appellants, with the exception of the Appellant Christmas, had given evidence in their defence. The Commissioner summarised the issues for the Jurats thus:-

"The prosecution case, in relation to what was the nature of the inducement, is, they say, (that) the oral inducement never made clear that the money was not going directly to fund the acquisition of the nominated property......Investors were misled into believing they would immediately acquire an asset backed by bricks and mortar or at least land where, in fact, they were acquiring no such thing, but their money was going to fund the running costs of the business with the hope that, all being well, they might later acquire some interest in real property. The defence case on this issue is there was no obligation on the Defendants to ring fence the money. The JVA did not specify a timescale for the investment of the money and, manifestly, it would not be spent immediately on the closing deals because they did not fall to be closed for some time after the investment. Provided, say the Defence, that the Defendants did, in the end, intend to acquire the property named in the JVA, it did not matter that they had applied the actual funds to the general running expenses of the business. The investors would either have been told that or would have understood that that was the plan."

242.   In the view of this Court, this clear exposition of the two cases, including an earlier direction on the burden of proof (coupled with the implication of a finding by the Jurats that a defence case was, or might be true), rendered unnecessary any direction to the Jurats concerning the evidential scenario canvassed two months earlier. Neither the victims, nor the Appellants suggested that there was any question of the funds being held in escrow. The issue was not where the funds would be held pending disposal. The issue was whether the victims had been informed of the use to which the funds would be put and had, in fact, been put. To return to the exchange between Advocate Tremoceiro and the Commissioner, the inference to be drawn in the event that "a particular set of funds" was not "immediately" applied to the purpose identified in the JVA was no longer "the point." If the Crown proved their case, the verdict was guilty. If the defence, summarised by the Commissioner, was or might be true, the Appellants must be acquitted. The Crown had not asserted that a failure to ring fence any particular sum predicated guilt. The defence had not asserted that any sum had been ring fenced.

OPPRESSIVE QUESTIONING OF WITNESSES

243.   The Appellant Lewis submitted through his amicus, Advocate Chiddicks, that the Crown had pursued "inappropriate and oppressive lines of questioning to witnesses giving evidence which was leading so as to contaminate the evidence being given which was unduly influential on the learned Jurats examining the evidence." Examples are cited from the examination in chief of Mrs Cotrel. Question: "Do you remember whether they said anything about the precise purpose of using your money, what it was going to be paid on, on a mortgage or what? Do you remember?" And, later, question: "If you had known that, Mrs Cotrel, that in fact the money was not going to be used in the purchase of the two Hawthorne properties, would you have given them your money?" And, later, question: "What I want to know from you is if, in fact, your money was used not to buy the properties but for some other purpose entirely, would you have given them £100,000?"

244.   This Court does not consider that this questioning can be described as "inappropriate." In so far as the questions were designed to elicit why Mrs Cotrel had parted with her money, we consider they were relevant and proper. In so far as they were designed to discover whether Mrs Cotrel would have parted with her money had she known the use to which the money would be put (and had been put according to the evidence of Mr Sowden, which was not in dispute), we also consider that they were relevant and proper.  Moreover to describe such questioning as "oppressive" would be to stretch the meaning of the adjective to breaking point and far beyond. The suggestion that the questions were "leading" has only marginally more substance. The first question could have been improved without the words "on a mortgage or what?" But the point of the last two questions was to direct the witness' mind to a particular scenario and, once it is decided that the questions were admissible, it is not easy to see how that could have been achieved without asking the questions in the form in which they were expressed.          

245.   The Appellant, also through Advocate Chiddicks, gave similar examples from the transcripts of the Crown Advocate's questioning of other witnesses including Mr Michael Evans (Count 4), Miss Waye (Count 7), Mrs Hoe (Counts 8 and 9), Mr Keeling (Count 12), Mrs Bailey (Count 13), Mrs Sandall (Count 16), Mr Jackson (Count17), Mrs Fisher (Count 18), and Mr Varney (Counts 26 and 27). In each case these investors were asked whether they would have invested had they known the fate of their funds. In the judgment of this Court, the questioning of these witnesses along those lines was no more objectionable vis-a-vis them than it was with Mrs Cotrel.

246.   The Appellant Cameron also appealed on this ground through his amicus, Advocate Baxter. He made allegations of similar "oppressive" questioning of prosecution witnesses by the Crown Advocate. We have been no more persuaded of the merits of his submissions on the point than we were by the submissions by the Appellant Lewis.  

OPPRESSIVE QUESTIONING OF THE APPELLANT LEWIS

247.   A subsidiary point raised in this connection by the Appellant Lewis, again through Advocate Chiddicks, was that the cross examination of the Appellant himself was conducted in an "oppressive" manner by Mr Jowitt. We have read the extracts to which para. 26 of his Contentions refer. We are satisfied that the Appellant was able to give evidence in his defence in as much detail as he wished. None of the questions, by reference to topic, duration or content, can be described as "oppressive". No application was made at the time to the Commissioner by Advocate Pearmain to stop the questioning for the good reason that there would have been no justification for such an application. It is true that the Commissioner intervened on a number of occasions in the extracts to which we have been referred to ensure that the Appellant had said all he wanted to say, but this was done out of an abundance of caution to ensure that every relevant matter was put before the Jurats. One of the Commissioner's roles at the trial was to allow nothing relevant to be left unsaid. Occasionally the Crown Advocate was plainly too ready with his next question: that is in the nature of the forensic process. But in the view of this Court, nothing occurred which could be described as "oppressive" to the Appellant. It is also asserted as part of this ground that the way Advocate Jowitt closed his case was "inappropriate and oppressive" (see para 27 of the Contentions). We have read the extracts which are said to support this proposition. They speak for themselves. We do not agree that the Crown Advocate's submissions can be thus described. We reject both these grounds of appeal. 

INEQUALITY OF ARMS

248.   This ground, which breaks down into a number of discrete topics, was again advanced by the Appellant Lewis through his amicus. 

(1) Re Mr Sowden

249.   The first point is that the accountant, Mr Sowden, should not have been allowed to give evidence in instalments. The position, of course, was that Mr Sowden had analysed the way in which the funds of each investor had been dispersed as a result of the Appellants' instructions to the companies' bankers after their cheques had cleared. There were 21 different victims of these frauds and the frauds lasted over a period of 4 years. The Crown were anxious to allow the Jurats to consider as much evidence relating to each count, or pair of counts, as was convenient in a compartmentalised time frame. The Appellant complained that the Commissioner should not have allowed the Crown to do this. He cites Advocate MacRae's objection, made at the time, that for Mr Sowden to give evidence 20 times added undue weight to his evidence.

250.   We do not agree. It has always been the responsibility of Counsel to present the case in some sort of order whether chronological, topical, even alphabetical; and the longer the trial the more necessary it is, for the tribunal's benefit, to restrict the case to its logical compartments so far as possible. In long Jury trials it is now customary in England and Wales to call the evidence, relevant to a particular topic or count, as close together in time as the constraints of convenience will allow, especially expert evidence or evidence given by professional people. Disputed medical evidence on an issue like diminished responsibility is often heard back to back during the prosecution case at a time convenient to the medical witnesses. It is much easier for the Jury to follow such evidence if the issues about which the experts are applying their expertise is fresh in the mind of the tribunal. The most effective way to achieve this is to allow the tribunal to hear all the evidence on the issue all together. In other cases where the evidence of an expert is relevant to a number of counts in the indictment, a professional witness is frequently allowed to give his evidence in compartments. In such cases the witness may have to give evidence several times. This is expensive for the party calling the witness and time consuming for the witness. But it is a view widely held nowadays by judges and practitioners alike that the benefits to the jury are outweighed by the disadvantages.

251.   This Court accepts, of course, that the instant case involved trial by Jurats, not Jury, and that Mr Sowden was giving evidence of debit and credit entries in bank accounts rather than something more complicated or wholly outside the tribunal's knowledge or experience. Nonetheless the advantage to the Jurats, as the Commissioner foresaw, would be considerable if they could hear evidence from each investor including the inducements which had led them to part with their money, immediately followed by evidence of what was done with the money once it had been credited to the De Lec/Sunstone accounts. In any event, the evidence of Mr Sowden was not challenged by any of the Appellants and it is, therefore difficult to visualize in what way the Appellants were prejudiced by the course which the Commissioner permitted.

252.   The Commissioner forecast that the Appellants would not be disadvantaged by such a course. Nothing happened in the trial which called that forecast into question.  We conclude that the course permitted by the Commissioner was conducive to the interests of justice. We reject this ground of appeal.

(2) The late disclosure of "13,000 emails."

253.   What was disclosed by the Crown was a schedule of emails listing the date, the author and the email itself, if the email was short, or a summary of the contents, if long. These were disclosed as unused material just before the trial began. The reason for late service by the Crown was the realisation of the possibility of a cut throat defence developing between the Appellants Lewis and Christmas, an expectation which, in fact, proved groundless. There were understandable protests at this late service from defending Advocates and sympathy expressed by the Commissioner.

254.   On 31st May 2012 the Court rose at lunchtime and did not sit again until Wednesday 5th June. The matter was raised with the Commissioner on 30th May and 7th and 12th June. Despite the pressure which the Advocates for all Appellants, and the Appellants themselves, were under, the job of digesting the material was completed. That is to the credit of all concerned. None of the defending advocates suggested that they required more time than the weekends and Bank Holidays (two at that time of year) allowed. Thus it is difficult to identify circumstances in which this Court could exercise its powers under Article 26(1) Court of Appeal (Jersey) Law in respect of this ground of appeal. In the event, we were told, only a handful of these emails were produced by the defence.

255.   Points (3), (4), (5) and (6) related, in summary, to the failure by the Commissioner to appreciate the workload of the defence during the trial and the inequality of the resources available to the defence compared to the Crown.

256.   We have also found some difficulty in identifying the basis on which our powers under Article 26(1) could be activated in respect to this ground. Reliance is again placed on the late service of the schedule of 13,000 emails, and the disproportionate amount of time available for preparation to Mr Sowden compared to the accountant, Mr William Bowyer, instructed later, on behalf of the Appellants. No application was made to the Commissioner to allow this potentially important witness for the defence more time to review his conclusions. In the event he was not called on behalf of any of the Appellants and, in fact, we understand that the reason was not because he was insufficiently prepared for the witness box but because the conclusions which he had reached on the Sunstone company accounts were unhelpful to the Appellants' cases. There is no doubt that the advocates' workload in this case was substantial, but, we venture to think, no more substantial than a case of this kind ordinarily requires. Certainly no one applied for an adjournment of the trial on these grounds. 

257.   The representations made to this Court in this context contain the assertion that the Crown had limitless resources of manpower and money at its disposal to prosecute this case, whereas the defence were significantly fettered. The Appellant Cameron, who associated himself in this ground through his amicus, Advocate Baxter, complained that "a team of forensic accountants and the resources of an entire police department" were mobilised against him.  Comparisons between David and Goliath spring unbidden to the brain. This submission wholly fails to understand the nature of the prosecution process in this jurisdiction. In fact any prosecution in Jersey or on the mainland (with one or two anomalous exceptions of which this is assuredly not one), is constrained by the number of policemen and lawyers who are assigned to the case and who are deputed to investigate the crime and to present it in court. Budget restrictions invariably play a significant part in this allocation process. In this case, we were told, the prosecution team consisted of one police officer acting full time as well as two liaison officers who were responsible for the prosecution witnesses, and a forensic accountant supported by a junior member of his practice. The Crown were represented at trial by two lawyers, Crown Advocate Jowitt, who led for the prosecution, and his junior, Miss Johnson, who had no rights of audience in a Jersey court.

258.   We do not consider that such a team was in any way disproportionate to the number of defendants, the volume of paper generated in the course of this investigation, the extent of the issues, the period of years during which the fraud flourished, the length of time the trial took and the burden of proof. Certainly it is not disproportionate to the facilities afforded to the defence, who were also granted the services of a forensic accountant and a team of two lawyers per Appellant.

259.   We should add that in relation to the "13,000 emails", the Appellant Cameron's submissions add nothing to the arguments of his co-Appellant. Indeed he suggests, contrary to the facts, that the Commissioner permitted the Crown to "adduce" evidence of the emails at a late stage and that the Commissioner erred in doing so. In fact the Crown, as we have seen, disclosed the emails, an activity in which the Commissioner played little part. 

260.   We reject the submissions of both these Appellants on this aspect of the case.

UNFAIR PUBLICITY

261.   The Appellant Cameron sought to pursue this ground in his undated Contentions, and advanced through this amicus, Advocate Baxter. He said that the Press coverage of the trial was unfair and selective. He does not detail any of the coverage about which he complained. He exhibited no articles. He did not disclose what aspect of the reporting impacted on his case or how that Press coverage prejudiced the minds of the Jurats. Indeed most of his claims in paras 93 et seq of his Contentions relate not to him but to the Appellant Christmas, who did not raise this as a ground of appeal. He went so far as to submit that the Commissioner should have barred the Press from the court room and that the Attorney General should have intervened in the proceedings of his own volition. We know of no case where such draconian steps have been taken by any judge or by any Attorney General of his own volition.  

262.   The reporting of allegations of a criminal nature can be distressing and unpleasant for the person in the dock, particularly if he is a person of hitherto good character. But the press is free to report the evidence as it unfolds and to be selective, if it wishes, about those parts of the trial to which it gives prominence and to those parts which it does not. The Jurats, on the contrary, were present at the trial on a daily basis. They heard all the evidence. They listened to the speeches. They had access to the transcripts.

263.   Moreover there is something so immediate about proceedings in a criminal trial and the evidence given at first hand that a second hand report has very limited impact on the tribunal. What Lawton LJ said in R v Kray (1969) 53 Cr. App. R. 412 at page 414 is applicable, by analogy, in the context of this case:-

"The drama.....of a trial almost always has the effect of excluding from recollection that which went before." 

264.   The circumstances in which an appellate court can intervene in cases involving publicity during the course of a trial are very strictly circumscribed. Courts of first instance are generally considered capable of dealing with any unfair Press publicity within the trial process itself. If, of course, the Press reveal a matter of a seriously prejudicial kind, not adduced in evidence, such as the criminal record of one of the defendants, the trial judge may be compelled to order a retrial. As we have understood it, no such prejudicial infringement of the trial process is alleged here. 

265.   Appellate courts are more usually concerned with cases involving prejudicial pre-trial publicity. The Kray trial cited above is one example. The Rosemary West case, as it came to be known, is another: it is reported as R v West (1996) 2 Cr. App. R 374. The essence of the decision of the Court of Appeal in that case is that, however prejudicial and lurid the pre-trial publicity may have been, the trial process itself and the trial judge's ability to guide the jury is usually sufficient to ensure that the minds of the jury are focused on the evidence given within the trial. Lord Taylor LCJ said:-

"To hold otherwise would mean that if allegations of murder are sufficiently horrendous so as inevitably to shock the nation, the accused cannot be tried. That would be absurd."    

266.   The Taylor Sisters case, reported as R v Taylor and Taylor 98 Cr. App. R 361, is an example of an appeal being allowed, albeit that there was another more cogent ground of appeal, on the issue of prejudicial publicity during the trial. But in that case the publicity was described by the Court as "unremitting, extensive, sensational, inaccurate and misleading." On any view this was a wholly exceptional case both in terms of the extent of the publicity and in terms of the melodramatic and irresponsible way in which it was reported. No material has been put before this Court to allow us to suppose that adjectives of such a kind would be appropriate to describe the publicity given to this case.     

267.   Inevitably, one way of making an assessment of the impact of any publicity, pre-trial or contemporaneous to the trial, is to examine the verdicts and the time taken to return them. Such an examination may tend to reveal whether the response of the tribunal to the evidence was so obviously biased by publicity given to the trial that there are grounds for concluding that the tribunal did not fairly apply its mind to the evidence and to the issues. In this case the Jurats took a week to consider their verdicts and convicted on some counts and acquitted on others. This provides no encouragement, still less justification, for concluding that trial publicity had such an impact on the Jurats' deliberations of the kind or quality necessary to warrant the verdicts against this Appellant being quashed on this ground. In any event, in the absence of a clear understanding of the detail of the publicity which is said to have poisoned the minds of the Jurats such that a miscarriage of justice has occurred, it is not easy to see how Article 26(1) can be engaged.           

REPRESENTATION: Generally

268.   Complaints are made against Advocate Pearmain, who appeared at the trial for the Appellant Lewis and Advocate Preston, who appeared for the Appellant Cameron. The grounds are advanced by Advocate Blakeley for Lewis and by the Appellant Cameron through his amicus, Advocate Baxter. Although there are common features of the two complaints, it is necessary to consider them separately. The complaint against Advocate Pearmain includes both specific complaints and a more general one that she failed to press the case for her client with conviction. The complaint against Advocate Preston also contains specific and more general allegations.

269.   It is important to assess the significance of these complaints against the authorities. There is limited jurisprudence in this jurisdiction; but there are two strands of authority emanating from appellate courts in London and elsewhere in recent years concerning cases of alleged incompetence by Counsel during the course of a trial. The first strand evaluates the nature of the incompetence. The second focuses on the effect of the incompetence on the verdict. In regard to the first, in R v Donnelly [1998] Crim L.R. 131, the Court of Appeal in London held that nothing less than flagrant incompetence would do. In R v Day (2003) EWCA Crim 1060, the Court held that the single test was one of safety and that the appellant has to show that the incompetence led to identifiable errors and irregularities in the trial, which themselves (in accordance with the test on appeal in English statute law in respect of a criminal conviction) rendered the verdict unsafe or unsatisfactory.

270.   It is clear that in the mainland jurisdiction the second strand of authority is now to be preferred. In R v Clinton 97 Cr. App. R. 320 the Court held that since the sole issue is the safety of the conviction, a qualitative assessment of Counsel's alleged ineptitude is less helpful than an assessment of its effect on the verdict; see also Teeluck v State of Trinidad and Tobago; John v Same (2005) 1 WLR 2421 where the Privy Council held that the appellate court ought to focus on the impact which Counsel's errors had on the trial and the verdict, rather than to attempt to rate his conduct in accordance to a scale of ineptitude.

271.   It is clear, however, from Clinton (op.cit.) that decisions made by counsel in good faith after proper consideration of the competing arguments and, where appropriate, after due discussion with the defendant, will not, without more, render the conviction unsafe even though the Court of Appeal may disagree with those decisions. It is also clear from Lord Woolf's judgment in the Hong Kong Court of Final Appeal in the case of Chan Fat Chu Raymond v HKSAR (2009) HKCFA 23, that:-

"the initial responsibility is on the appellant to place before the court material on which the court can conclude that an injustice has occurred which justifies its intervention.....It is not sufficient for an appellant to show that in a particular aspect of the proceedings the lawyer has fallen below the required standard. It must also be shown that what has happened resulted in unfairness or injustice..."

272.   The English test for a successful appeal is "unsafe or unsatisfactory." The test in Hong Kong is "grave and substantial injustice." The test in this jurisdiction is that of "a miscarriage of justice." Notwithstanding the different tests, we see no reason why the principles to which we have referred in those two other jurisdictions should not inform the jurisprudence of the Bailiwick. Accordingly, and against the background of these principles, we turn to deal, initially, with the specific complaints against Advocate Pearmain.

REPRESENTATION: Advocate Pearmain

273.   The first, and potentially the most significant of them, is that she failed to cross examine Mrs Cotrel in accordance with the Appellant Lewis' instructions, having allowed Advocate MacRae to cross examine before her. It is suggested that this failure had a serious impact on the Appellant's case. The Appellant Lewis set out his allegations in an undated affidavit in contemplation of these proceedings made available to all parties sometime prior to the hearing on 21st January 2013.

274.   The matter arose in this way. During the course of Mrs Cotrel's evidence in chief, it became apparent that she was having difficulty remembering the detail of the events which had occurred during the latter part of 2004. Although she had made a statement to police about these matters on 24 November 2010, a combination of her age and her distress at recalling the events which had caused her to lose half a million pounds (a sum which, as she later explained in her Victim Impact Statement, constituted the "lion's share of my investments"), resulted in her having limited recall of the events associated with Count 1 and only a poor recollection of the events of Count 2.

275.   These counts constituted half of the number of counts in the indictment with which the Appellant Christmas was charged. Furthermore, on any view, the Appellant Christmas had played a lesser role vis-a-vis Mrs Cotrel than the Appellant Lewis, whose investment client she was. In the light of Mrs Cotrel's evidence, Advocate MacRae was not unhopeful that he might be able to persuade the Commissioner at the close of the Crown case that there was no case for his client to answer. The Appellant Lewis, on the contrary, was charged in 17 other counts in the indictment and, realistically in the light of the evidence surrounding Mrs Cotrel's investments via De Lec, had little expectation of making a successful submission on Count 2, even if he might succeed on Count 1.

276.   It is clear from the affidavits before us that there was a further complication. In relation to the events of the winter of 2004 (Count 2), the Appellant Lewis had given instructions to his Advocate that he was alone when he visited Mrs Cotrel at the time when she had been persuaded to part with £100,000 to invest in two properties in Florida leading to the drafting of the 1st December 2004 JVA. His proof confirmed that the Appellant Christmas was present on a later occasion when he had visited the witness. Mrs Cotrel gave evidence in chief that the Appellant Christmas may, in fact, have been present on the first occasion. If Advocate MacRae could shift Mrs Cotrel's apparently imperfect memory on the point, his half time submission would be significantly strengthened.

277.   Thus it was agreed between the two Advocates that Mr MacRae would cross examine first and that a council of war would be held after he had done so to determine the course of action to be pursued by Advocate Pearmain. Accordingly when Advocate MacRae had finished his short but deft cross-examination of the witness, Advocate Pearmain applied for, and was granted, a short adjournment to consider her next step. According to her affidavit dated 18th January 2013 she was in something of a dilemma. The Appellant Lewis' case (the same case he claimed in respect of all the investors whom he had induced) included the suggestion that, contrary to Mrs Cotrel's account, he had not misled her, that he had explained to her that her investment would be paid into the 'common pot', that the money would not be required immediately to pay the deposits on the properties, and that some, or all of it, might be used to meet Sunstone's immediate expenses.

278.   Of course there was just a possibility that Mrs Cotrel would concede in cross examination that she had not been misled, that the Appellant Lewis had indeed made clear to her that that her money would not be needed for many months and that, in the meanwhile, it would be paid into a 'common pot' and probably used to meet other company expenditure. But, absent such a sudden somersault in Mrs Cotrel's recollection, there was a perceived risk, at least in Advocate MacRae's mind, that any further cross examination of Mrs Cotrel, particularly in relation to the events leading to 1st December 2004, might cause her to recollect more firmly the presence of the Appellant Christmas at that important meeting where the inducements were, allegedly, made to her by the Appellant Lewis.

279.   On the other hand, if Mrs Pearmain failed to put the Appellant Lewis' case, in the event that he later gave evidence about the matter, she would expose him to cross-examination as to why, if his evidence was true, the matters had not been put to Mrs Cotrel.

280.   During the brief adjournment there was a discussion among those most nearly concerned, including both Advocates and both clients. At the meeting it is clear that Advocate MacRae, on behalf of his client, asked that no more questions should be put to the witness by Advocate Pearmain. According to the memory of Advocate MacRae's assistant, Miss Nicola Moore, her leader said that he was concerned that any further cross examination might introduce into evidence material which the Crown had not adduced in chief which would benefit neither client. He and his team then withdrew leaving Advocate Pearmain to discuss matters with the Appellant Lewis.

281.   What took place thereafter is the subject matter of dispute. The only persons present were the Appellant Lewis and Mrs Pearmain and her assistant Adam Harrison. The meeting was brief, consistent with the reluctance of the Commissioner to grant more than a few minutes adjournment in view of Mrs Cotrel's age and frailty and because he had given a break to all those present in court a short while before. No contemporaneous notes were made of what was said during those few minutes and, more regrettably, no note was made thereafter.

282.   In his affidavit the Appellant Lewis does not appear to remember that there were two distinct discussions at two distinct meetings with different persons present. Indeed he admits that he cannot be certain that he can recall the events "totally accurately." He says that in the light of Advocate MacRae's insistence that Mrs Cotrel had not "come up to proof" and that if she was further cross examined she might "start saying all sorts of things that that would be unhelpful", he remembers Advocate Pearmain asking him what he thought. The Appellant says he replied that if Mrs Cotrel had not given the right evidence he supposed matters should be left where they were. In his affidavit he says: "I also remember distinctly saying that I thought Mrs Cotrel had been through enough. She is very elderly and I was content for her to be allowed to leave it if that was possible." He adds: "However, I have to say that I was oblivious to all the legal niceties that were involved. I relied and took advice from Advocate Pearmain. While I know Advocate Pearmain is to act on my instructions. I can't be expected to know (and I did not know) the ramifications of not cross-examining Mrs Cotrel." In a later affidavit sworn in the light of Advocate Pearmain's account, he is emphatic that his advocate did not warn him of the risk of not cross examining Mrs Cotrel.

283.   Advocate Pearmian's account is detailed and different. She says:-

"At the end of Advocate McRae's cross-examination, I was aware of the predicament that if I cross examined Mrs Cotrel, I might prejudice Mr Christmas, which I had been told by my client not to do. I needed to ensure that he knew the predicament and I asked for an adjournment ensure that the Appellant knew what he wanted me to do. I went with my client and AH (Adam Harrison) to our room, but I was followed in by Advocate McRae who asked me not to cross examine Mrs Cotrel as he was hopeful of making a successful application for no case to answer, which might be prejudiced if I cross examined. I said that I needed to cross examine her to protect the Appellant but that I would take instructions. Advocate MacRae withdrew and I, in the presence of AH, advised the Appellant that if I did not cross examine Mrs Cotrel her evidence would remain unchallenged and to the detriment of his defence. Count 1 seemed fine, but Count 2 was not. He was emphatic that I was to leave her evidence unchallenged, despite my telling him the consequences. I was astonished and disappointed that I was unable to convince him that this was not a line of action he should take. His loyalty overcame my advice. That was his choice."

284.   Advocate Pearmain qualified as a barrister in 1971. She has been in practice in the courts of the Bailiwick since 1975. In 2011 she was elected Bâtonnier of the Jersey Bar. She specialises in criminal and family law and has done so for many years in the litigation department of, first Bedell Cristin, and latterly Applebys. This Court has no doubt that she is conversant with her duties and responsibilities both to her clients and to any court in front of whom she is instructed to appear. We are satisfied that she could have had no motive for neglecting to do her duty both to her client and to the court in respect to Mrs Cotrel's evidence in this case; and we conclude that she would have failed to put her client's case to that witness, a task which could have been completed in a few questions, only if she had clear instructions not to do so.

285.   In the view of this Court the key to the dispute between Advocate Pearmain and the Appellant lies in the suggestion by Mrs Pearmain that the Appellant was concerned to protect his co-accused Christmas. The Appellant Lewis can have been under no illusion as to the volume and strength of the evidence against himself compared to his co-director of De Lec. It is plain from all that we have heard in this case that there was a perceived sense of unfairness and injustice in the contrast between the way in which Mr Eric Evans had been treated by the prosecuting authorities compared to the Appellant Christmas. In all the circumstances it comes as no surprise to this Court that the Appellant Lewis should have shared that view and instructed his advocate to do nothing which would harm the case of the Appellant Christmas.

286.   Indeed Advocate Pearmain's assistant, Adam Harrison, makes this plain in the affidavit which he swore touching on these matters on 23rd January 2013. In that affidavit he deals generally with the instructions which the Appellant Lewis had given to his lawyers relating to the Appellant Christmas. "In terms of the approach at trial Mr Lewis wanted to avoid causing difficulties for Mr Christmas." He then relates an incident in relation to Mr Richards, the investor in Count 3 and continues: "Mr Lewis stated that he did not want us to bring Mr Christmas into the case if possible. I recall Advocate Pearmain stating to Mr Lewis that she was concerned that Mr Lewis was allowing his loyalty to Mr Christmas to cloud his judgment in relation to his own defence. Indeed the result of Mr Lewis' change of mind in respect of those instructions was that he had to take back in evidence in chief what he had had us put to Mr Richard in cross examination."

287.   Mr Harrison was, of course, the only other witness to what was said during the conversation after Advocate MacRae and Miss Moore had left the room. His account of events after they had left is as follows:-

".....I went through my notes of Mrs Cotrel's evidence at this stage and I cannot therefore say what Advocate Pearmain and Mr Lewis were saying to one another. I recall that I thought that a submission of no case to answer might succeed. I also shared Advocate McRae's concern that if we started putting Mr Lewis' case to Mrs Cotrel she would reject it and that would strengthen the prosecution case. I cannot remember exactly what I said but my contribution to the discussion would have been along these lines. I think Advocate Pearmain was of the view that she should cross examine Mrs Cotrel. After some discussion Advocate Pearmain agreed not to cross examine Mrs Cotrel on the basis of Mr Lewis' instruction that if Mrs Cotrel had not given the correct evidence we should leave it......I know that I discussed the consequences of leaving evidence unchallenged with Mr Lewis, however, I cannot specifically remember discussing it during this meeting."

288.   On the evidence before us we have no hesitation in finding:-

(i)        that Advocate Pearmain understood her obligations to put her client's case to Mrs Cotrel unless instructed not to do so;

(ii)       that at the time when the Commissioner granted her time to take instructions she intended to cross examine Mrs Cotrel;

(iii)      that the Appellant Lewis' priority was to avoid doing anything to damage the chances of the Appellant Christmas being acquitted on any count;

(iv)      that the Appellant was influenced significantly by Advocate MacRae's view that he had an opportunity of making a successful submission of no case to answer in respect of Counts 1 and 2 on the Appellant Christmas' behalf at the close of the Crown case;

(v)       that the Appellant was persuaded that there was a risk that any further cross examination might jeopardise that opportunity;

(vi)      that Advocate Pearmain warned him that his case might be prejudiced if she did not cross examine;

(vii)     that, notwithstanding that knowledge, he instructed her not to do so.

289.   In the view of this Court the Appellant's willingness to lie in the witness box about the nature of his dealings with Mr Richards, and in particular his willingness to state on oath matters contrary to his clear instructions to his lawyers in order to protect the Appellant Christmas (as revealed by Advocate Harrison) says a great deal about his respect for the truth and his determination to assist his co-Appellant. We consider that the decision not to cross examine Mrs Cotrel was made "in good faith after proper consideration of the competing arguments and.....after due discussion with the defendant" in accordance with the principles of R v Clinton (op.cit.).

290.   In any event, when the Appellant was asked by the Crown Advocate at trial about his advocate's failure to cross-examined Mrs Cotrel, it was not suggested to him that he had recently invented his account of his conversation with her. Rather did the Crown Advocate seek to explore the reasons why Advocate Pearmain had failed to cross examine. Questioning a defendant in this wise is doomed to intervention on grounds of legal professional privilege and the Commissioner was quick to stop Mr Jowitt from pursuing this line and indicated, in the presence of the Jurats, that whosoever's failure it had been, no responsibility could attach to the Appellant. And with a claim by Advocate Pearmain to the confidential nature of the discussions which she had had with her client on the topic, the matter proceeded with the Appellant being allowed, unimpeded, to give a detailed account of his conversation with Mrs Cotrel. 

291.   Advocate Blakeley laid considerable stress, in particular, on the fact that the Appellant's case had not been put to Mrs Cotrel in relation to the "common pot." Even if, contrary to our conclusions, Advocate Pearmain had failed in her responsibilities in this regard, there is nothing in the evidence which Mrs Cotrel gave to lend support to the notion that she would have adopted the suggestion that she had been told about the "common pot." She did not mention the concept in her witness interview, nor in her statement, nor in her evidence in chief. Indeed she said in clear terms in relation to Count 2 that she expected that her investment would be used for the purchase of the property. 

292.   This Court is satisfied that no prejudice attached to the Appellant Lewis in relation to this ground of appeal and we reject it.

293.   We now consider the other matters of complaint against Advocate Pearmain. These include that she was under prepared at the trial and that "she forgot things, couldn't locate documents and made errors in factual references"; that she failed to prevent the Crown Advocate from putting JVAs before witnesses without laying a proper foundation for their admissibility; that in general she failed to cross examine prosecution witnesses; that she failed to pursue allegations that the witnesses had been, and had allowed themselves to be, coached by the police in interview; and that her closing submissions were "all over the place." We refer to these allegations seriatim.

(1) Lack of adequate preparation for trial.

294.   The allegation is not particularised in any way. Advocate Pearmain says in her affidavit in response: "We commenced acting for the Appellant in February 2011. There were PDHs to prepare for and attend. The trial started on 16th May 2012 and the verdict was given on 26th July 2012. There were peaks and troughs of work. Some weeks I would not do any work on the file and in others I worked more than full time. In May and June I regularly worked for in excess of 10 hours a day on the case plus weekends and in one three day period I worked 52 hours on the case." We have read the cross examination by Advocate Pearmain of all the victims and the examination of her client in chief. We have found nothing to suggest that the Appellant's case suffered from any lack of attention to detail or preparation by his advocate.

(2)  Failure to prevent the Crown from showing the JVAs to witnesses during their evidence in chief.

295.   An analysis of the evidence shows this allegation to be wholly misconceived. As we have already pointed out any JVA which had been signed by a witness was plainly an admissible document in the hands of that witness from which the witness was entitled to refresh his memory in the witness box. In the view of this Court, the Crown would have been entitled to ask the witness, once sworn, to look at the JVA which he had signed, without preamble, and then to ask questions about the document. It is important that a sense of reality pervades the examination in chief of any witness who, during the course of time since the events in question, as here, has been subject to a long police interview, later fully transcribed and made available to the defence, who has subsequently made a written statement to police incorporating the evidence given at the transcribed interview, also copied to the defence, and who has been afforded an appropriate opportunity, before giving evidence, of reading his witness statement and familiarising himself with the contents of any document produced or referred to by him in the statement. Any application to prevent a JVA, signed by the witness in question, being shown to the witness during evidence in chief ought to have been given short shrift by the Commissioner. And on the occasion when objection was taken, in the judgment of this Court, the Commissioner was more generous to the defence than he need have been. There is nothing in this ground of appeal. 

(3) General failures to cross examine.

296.   Some of Advocate Blakeley's allegations about Mrs Pearmain's failures in cross examination related to his erroneous interpretation of the law and in particular his submissions about the timing of taking part in the arrangements on which we have ruled above, (see, for example, his references to Advocate Pearmain's allegedly inadequate cross examination of Miss Waye, Count 7, and Mrs Hoe, Counts 8 and 9).  Some related to Advocate Pearmain's alleged failure to cross examine witnesses to confirm what was apparent from their evidence in chief (i.e. that they had had no dealings with the Appellant Lewis) which this Court regards as mere repetition and, as such, constitutes no failure at all, (see Advocate Blakeley's references to the cross examination, or lack of it, of Mrs Hoe and Mrs Fisher, Count 18).  Some related to questions, the relevance of which Advocate Blakeley did not appreciate (see, for example his references to Advocate Pearmain's cross-examination of Mrs Waye and Mr Bailey, Count 13), which reflect the fact that Advocate Blakeley was not himself the trial advocate and was not instructed by the Appellant Lewis at that stage. And some related to an alleged failure by Advocate Pearmain to take the lead in cross examining witnesses in respect of whom, because of their closer association with another Appellant, it was agreed that the advocate representing that other Appellant would go first, (see, for example the Sandalls, Counts 15 and 16 and Mr Jackson, Count 17). 

297.   It seems to this Court that for Advocate Pearmain to permit Advocate Preston to take the lead in cross examining these witnesses was a sensible course which had the added advantage of allowing Advocate Pearmain to underline the point that, although first on the indictment, her client was not involved in every count and that, in some cases, although charged in respect of a particular count, he had played a more peripheral role. Moreover, allowing Advocate MacRae to cross examine Mrs Cotrel first was a prudent, not to say a canny, concession. There must have been a risk, however much the Appellant Lewis wished to protect the Appellant Christmas, that the latter might succumb to the temptation to underline the greater involvement of his co-Appellant in Counts 1 and 2. Allowing Advocate MacRae to go first protected the Appellant Lewis from this possibility. Some advocates seek the limelight in a case whatever the extent of the involvement of their client. Advocate Pearmain, to her credit, is not, apparently, one of them.

298.   She made full advantage of this tactic in relation to Mrs Sandall. Advocate Blakeley took her to task in this Court for failing to cross-examine this witness and Mr Jackson, about an unspecified collusive agreement between them concerning their evidence at trial. Mr and Mrs Sandall were friends and clients of the Appellant Cameron. Mr and Mrs Jackson were friends of the Sandalls and were by chance present, it will be remembered, on the occasion in mid-November 2005 when the Appellant Cameron called on Mrs Sandall to persuade her to swop the investment which he had previously arranged for her through Goldridge Stone (and which had declined in value), and to invest, instead, via Sunstone in property in Florida. No doubt in part to emphasise the Appellant Cameron's greater involvement in Counts 15, 16 and 17, Advocate Pearmain encouraged Advocate Preston to cross-examine first, which he did. 

299.   Since the occasions when the Sandalls and the Jacksons decided to invest were separated in time, and since the properties in which they, allegedly, invested were different properties and were evidenced by different JVAs, it is not clear to us on what basis the Sandalls and Mr Jackson might be said, credibly, to have colluded in the evidence which they gave or how this impacted on the Appellant Lewis, who had, on any view, played a subsidiary role in these counts. It was this subsidiary role which Advocate Pearmain sought to exploit.

300.   Advocate Preston, cross-examining first, was obliged to put his case to Mrs Sandall, with all its inherent improbabilities as to what the Appellant Cameron claimed he had said by way of inducement to invest which were, he alleged, vague, unspecific remarks about American property. They were contradicted, of course, by the precise details of defined properties in the JVAs which both parties had signed.  Advocate Pearmain, cross-examining second, then sought to emphasise the depth of the friendship between the Sandalls and the Appellant Cameron and, by implication the unsuccessful investments which he had encouraged them to make, contrasted by the efforts which the Appellant Lewis, a comparative stranger, had made later in the story, to retrieve Mrs Sandall's situation by endeavouring to obtaining a lien on a property to protect her investment. We venture to think that it is possible that Advocate Pearmain's actual cross-examination was more successful than the one Advocate Blakeley criticised her for failing to undertake.     

301.   If the test is the safety of the convictions, as it must be, this Court is unable to find that, in so far as Advocate Pearmain failed to cross examine about some specific matters which another advocate might have explored, such failure calls into question the justice of the convictions recorded against this Appellant. In any trial there must be a wide margin of discretion given to an advocate to conduct the case as he/she thinks fit. The strategy and tactics which an individual lawyer might adopt in defending his client, especially one as deeply involved as this Appellant was in this case, necessarily varies from advocate to advocate. It is not for an appellate court to second guess that strategy and those tactics, unless what the advocate did, or failed to do, can be said with confidence to have had a definite effect on the verdict or verdicts.

302.   Advocate Blakeley fairly conceded that cross examining a witness in circumstances where the advocate is ignorant of the answers which the witness may give, involves "a judgment call." We consider that this concession was properly made and, in our judgment, the examples which he gives of Advocate Pearmain's alleged failures in cross examination, if failures they were, fall a long way short of what is required to convince this Court that those "failures" had such an impact in this case that the justice of the convictions can be called into question.

(4) Failure to show that witnesses had been coached.

303.   We have discussed this ground of appeal above in the context of the allegation that there were grounds for finding that the witnesses were coached during their police interviews. We found it wanting. Notwithstanding this conclusion, it is apparent that all the Appellants attached significance to it at trial. It is also clear that their advocates carefully considered the evidence of the coaching of witnesses and estimated how many bricks could be made with this wholly inadequate and indifferent supply of straw. They decided, rightly and wisely in the view of this Court, that the allegations lacked any credible evidential foundation and, once the Commissioner had ruled, "forcibly" (as Advocate Blakeley concedes) in response to the submissions made by Advocate McRae in respect to the alleged coaching of Mrs Cotrel, they decided that no more forensic bricks could be baked in this particular kiln.

(5) Making a closing speech which was inadequate to the task in hand.

304.   We have read Advocate Pearmain's speech. We do not agree with this criticism. It has no substance. As a matter of common sense, the JVAs reflected the oral inducements. The falsity of the inducements recorded in the JVAs were plainly recorded. The notion, as the Appellant Lewis testified, that he had told each of the victims that their money, notwithstanding his insistence that the cheque be paid immediately (sometimes on the pretext of taking advantage of a favourable exchange rate), would not, in fact, be required for many months (for the purposes of the objectives defined in the JVAs) and that their money would be used, instead, to pay the immediate debts of the company both here and in Florida, was almost risible. It is fanciful to imagine how any investor, however trusting, would not have queried, at least the timing, if not the wisdom, of investing immediately many thousands of pounds with Sunstone in such circumstances.  Yet none, apparently, did so and, significantly, the Appellant Lewis did not even allege that any had done so.

305.   Against that background, it is not perhaps surprising, during the course of her speech, that Advocate Pearmain sometimes appeared to be on two wheels rather than four as she rounded some of the tighter corners of her argument. Indeed Advocate Pearmain acknowledges this explicitly and realistically in respect of one or two counts of the indictment in her affidavit dated 21st January 2013.

306.   Her task was made no easier by the fact that the Commissioner had made it clear that he was not willing to confine "taking part in arrangements" to the moment when the investor responded positively to the inducement by agreeing in principle to invest. Nor did it help that the Commissioner had also told the advocates before speeches that he intended to leave the issue of joint enterprise to the Jurats on a wide basis both qua participation and qua timing. The trial Advocates had all pinned their hopes on persuading the Commissioner to construe "taking part" narrowly and to confine it in contemplation of time to the immediate response of the investor to the oral inducement, rendering irrelevant what took place thereafter, including the signatures on the JVA, and any notion of joint enterprise associated with those signatures.

307.   Advocate Pearmain was also criticised for the way she dealt with the documentary evidence produced by the Crown which had been found in the Appellant's home. This criticism is entirely misplaced. That documentation was presented by the Crown to indicate that this Appellant was a greedy man with a ruthless avaricious mentality. The evidence was not easy for a defence advocate to deal with. In reality it proved very little against the Appellant but it was capable of turning the Jurats' mind against him. Advocate Pearmain achieved the difficult feat of making the prosecution appear to be clutching at evidential straws, of using the hopes and dreams and aspirations of "a bluff, gregarious Yorkshireman",which he had set down on paper purely for his own consumption and interest, to mock and deride him for wanting to better himself.  In our judgment Advocate Pearmain used the documents and their contents against the Crown in a piece of advocacy which was subtle, persuasive and effective.  

308.   The foundation for the rest of the allegations which the Appellant sought to make of Advocate Pearmain's speech can only be described as trivial. Indeed at certain points the allegations begin almost to part company with reality. To take Advocate Pearmain to task, for example, for encountering difficulty in reading, without hesitation, a manuscript document to the Jurats during her speech, which the Jurats had in front of them, and to seek to exploit, as errors of Advocate Pearmain, what are in fact, and plainly, errors of transcription by the shorthand writer (errors, it should be said, which litter the pages of the transcript), did nothing to advance the case that her performance fell "so far below the required standard" per Lord Woolf (op. cit), that  a miscarriage of justice within the meaning of Article 26(1) of the 1961 Law has resulted.

309.   In the view of this Court there can be no doubt that the Appellant Lewis' defence was fully before the Royal Court. He gave evidence over several days. The Jurats could have been in no doubt that he claimed that he had never misled anyone, that the JVAs were not drafted as a guarantee that the investors' money would be used to pay the deposits on the properties described therein, that he always intended to honour the promises which he had made to investors, that there was nothing wrong with the "common pot" approach to the receipt and retention of the investors' money because he believed from first to last that he would be able to honour his commitments to investors, and that he had been unable to do so only because the market had crashed and because the Jersey authorities had intervened to stop him and his co-Appellants from trading.

310.   Since the authorities to which we have referred suggest that it is right to look at the results of the trial (as identified above), it is pertinent to point out that Advocate Pearmain secured the acquittal of her client, on the Commissioner's direction, on two counts and persuaded the Jurats to acquit on another two. She pointed out that that was the "best" result which any of the Appellants achieved. Moreover in line with other Appellants, her client was convicted on the basis of recklessness rather than dishonesty on 11 out of the 13 charges of which he was convicted.

311.   We reject the criticisms made of Advocate Pearmain. 

MISREPRESENTATION: Advocate Preston.

312.   The Appellant Cameron through his amicus, Advocate Baxter, alleges that his trial counsel, Advocate Preston was not sufficiently qualified or experienced to take on the responsibilities of the defence in this case and he gave a number of examples of Advocate Preston's alleged shortcomings.

313.   Advocate Preston qualified as a solicitor in England in 1991. He returned to Jersey in 1993 and qualified as an Advocate of the Jersey Bar in 1999. He was made a partner of his firm in 2000. He boasts a broad litigation practice ranging from high profile criminal cases to significant commercial and trust matters. He had the advantage in this case of being one of four defending advocates, the sum total of whose acumen and experience represented a formidable opposing force to the Crown Advocate. Moreover since no Appellant sought at trial to cut another Appellant's throat, as distinct from emphasising the greater part played by one Appellant compared to another vis-a-vis an individual investor, the defending advocates were able to work as a team. We have read significant parts of the transcript relating to the part played by Advocate Preston in the trial, including the transcripts of the evidence of witnesses he cross-examined, his examination in chief of the Appellant Cameron and his final speech. We have found nothing to substantiate the generality of the Appellant's allegations.

314.   The Appellant made a number of specific allegations.

(1) Failure to obtain disclosure of accountancy material.

315.   The Appellant Cameron's Contentions dated 14th December 2012 are insistent that at trial he claimed to his legal team that an analysis of the books of account of Sunstone would show a different picture of the solvency of the company to that asserted by the Grant Thornton Report compiled by Mr Sowden. He claimed that the company "Quickbooks" were not produced to the Appellants until late and then not in a form in which all of them were readable.  In his affidavit dated 20th December 2012, Advocate Preston does not demur that the Appellant did indeed make such a claim during the preparations for trial and during the trial, but he insists that the Appellant consistently failed to indicate in what way the Grant Thornton Report was inaccurate or incomplete. Moreover all the Sunstone Appellants signed admissions to the effect that, in essence, the Grant Thornton evidence was not in dispute. 

316.   The Appellants had been granted legal aid for the services of a forensic accountant. Mr William Bowyer was engaged by Advocate Tremoceiro's firm. He is a director of BDO LLP. He prepared a detailed analysis of a number of financial issues relevant to this case, based on certain specific questions which he had been requested to answer. He made use of the Sunstone accounts. He did not complain that he lacked access to all the relevant material; nor, apparently, did he claim that he lacked the necessary funds to fulfil his task. He checked the Grant Thornton figures. He duly reported to the Sunstone defence teams. His conclusions were not considered sufficiently favourable to the Appellants to warrant calling him. Any one of the advocates for the defence could have used him as a witness in the presentation of the case for the defence. None did so. It is not for us to explore the reasons for this decision unless those reasons have been vouchsafed to the Court. They have not been vouchsafed. We can only assume, therefore, that the decision not to call him was deliberate and collective and was done in the interests of the Appellants. 

(2) Failure in cross-examination to exploit the coaching of prosecution witnesses.

317.   To Advocate Preston's request for further and better particulars of this allegation, he was informed by Advocate Hanson that the Appellant Cameron was alleging that he had failed, in particular, to demonstrate through witnesses that Mr Rolland (Count 23) had been coached during his police interview. We are not surprised that Advocate Preston did not cross examine Mr Rolland or DC Hamon who conducted his witness interview. We have referred to this matter under the heading "Coaching." We have read the interview. There is no material within its 51 pages with which to found any allegation that Mr Rolland had been coached in what to say. The transcript reveals that Mr Rolland was encouraged to give an account of the events in question at his own pace and in his own way. 

(3) Failure to cross-examine Mr Faudemer of the JFSC

318.   The Crown were willing to tender this witness. The Appellant wished to expose him and the JFSC for the "catalogue of incompetence and malicious intervention in matters beyond their remit and comprehension and their unlawful involvement [which] contributed to the collapse of a company which was at that time [2007/2008] employing its best endeavours to protect the investors....." (Appellant Cameron's undated Contentions, para 36). Advocate Preston was of the view that Mr Faudemer could only do harm to the defence. In his affidavit of 20th December 2012, he exhibits a memorandum dated 7th June 2012 in which he sets out the advice which he had consistently given to the Appellant to the effect that, however much responsibility the JFSC bore for closing down Sunstone's business, as the Appellant claimed, the actions of its officers had no bearing on what had been said to the investors by the Appellants between 2003 and 2008 to induce them to invest and what their money had actually been spent on.

319.   It is apparent that before this Appellant left Jersey for Malta at the time of the subsequent police investigation, he had been interviewed by the JFSC and had given, as he acknowledged, incriminating answers to Mr Faudemer's questions. But the prosecution did not seek to make use of any of the interviews which these Appellants had given to this regulatory body at their trial. On his return from Malta, the Appellant Cameron was not interviewed by the police, no doubt because the extradition arrangements under which he was returned from Malta did not permit such a course. Thus the Crown advanced no evidence at trial which was the product, in particular, of any interview of the Appellant Cameron. One of the Appellant's complaints under this heading was that Advocate Preston failed to request the Crown to tender Mr Faudemer so that the Appellant's incriminating answers in his JFSC interview could be cross-examined into the trial with the object of demonstrating that the Appellant had given the answers, as he alleged, under duress. Our researches in this case do not tend to reveal that this Appellant is a man who would readily succumb to pressure to say things which he did not wish to say. Unsurprisingly, Advocate Preston, with his client's interests uppermost in his mind, required to be persuaded of the benefits of such a tactic. 

320.   Thus, at the time, discussions were held about the wisdom of building this sandcastle in order to knock it down. In his contemporaneous memorandum dated 7th June 2012, Advocate Preston addresses in detail a number of other issues about which the Appellant wished Mr Faudemer to be questioned. Mr Preston concludes: "If he is called he can only do you harm either by bringing into play those JFSC interviews that are currently not part of the case, or by emphasising the reasons that he felt justified in referring this case to the Attorney General's Office. He is an experienced witness who will relish the opportunity to do you harm. He cannot do that if he is not called." The memorandum is three pages long. It is cogent and compelling. It provides an overwhelming case for not requiring the Crown to tender Mr Faudemer. It is signed by the Appellant as confirmation of his instructions and dated (7th June 2012). There was a further meeting that evening. Advocate Preston compiled a note of this meeting that same night. He recorded the Appellant as having said "Take your advice (on Faudemer). Was always going to, just needed a reason." The contents of the memorandum and the note dispose of this ground of appeal.

(4) Failure to call Mr Nicholas Bone

321.   The Appellant alleged that Advocate Preston failed to call a witness, Nr Nicholas Bone, who, he suggested, was a witness potentially helpful to his case. Mr Bone is a chartered accountant who works for a small firm of Jersey accountants called BBA Ltd. He audited Sunstone's accounts and had dealings mainly with this Appellant. The Appellant claimed that Mr Bone would have attested to the intrinsic soundness of Sunstone up to the moment when the Appellants were forced by the JFSC to cease trading. It is, of course, important to remember that these Appellants were not charged with fraudulent trading but with inducing clients to invest money by false or misleading statements. It is apparent from the Appellant's Contentions that this is a point which he consistently ignores.       

322.   However, in order to understand the merits of this ground, it is necessary to return to the email traffic among the Appellants, during the course of 2006 and into 2007. These emails, as we have seen, bewailed the financial problems which the company was facing during that year. In December 2006 the Appellant Foot described the business as "running on fumes." In February 2007 he warned that standing orders were being cancelled by the bank. In March 2007 the Appellant Cameron himself complained: "We have no money and everyone looks at me as if to say 'When are we going to get some?'" In August 2007 the Appellant Foot emailed: "The market is pants.....we can't afford any more." In September 2007 the Appellant Cameron admitted: "We are one step from disaster." And in December 2007, referring to Mr Varney (Counts 26 and 27), he lamented the prospect of "wasting another guy's friendship by losing another guy's money after everyone else's." The Appellant sought to explain away these emails by suggesting that the Crown took them out of context. 

323.   Advocate Preston also exhibited to the same affidavit to which we have referred above, the statement of Mr Bone, dated 9th December 2012.  Mr Bone suggested in his statement that Sunstone's business model was untenable from the outset and revealed that, on 29th November 2006, he had concluded that the Appellants "were struggling to meet their mortgage commitments.....However I should add that at all times they presented a rosy picture of their progress in America." A year later, on 8th November 2007, he warned the Appellants Lewis and Cameron that they were "likely to be insolvent and that they ought to see the Viscount with a view to declaring themselves en désastre. They appeared to be unable to meet their liabilities as and when they fell due."  

324.   It seems to this Court that calling Mr Bone would have been likely to reinforce the impression created by the Appellants' emails. This would not have been of benefit to the Appellant, nor to his co-Appellants, and would be likely to have caused dismay in the defence camp. The Appellant also contended that, if called, in so far as Mr Bone might have given evidence adverse to him, he would only have done so because, in a long interview with the JFSC (an interview deliberately designed by the JFSC, according to the Appellant, "to prevent Mr Bone from ever giving evidence"; see his undated Contentions para 18), he had been persuaded to cast aspersions on the Appellants and Sunstone. Even if this was true, and the Appellant offered no evidence to substantiate the allegation, it would not have been open to Advocate Preston to cross-examine his own witness with a view to establishing the truth of this allegation. 

325.   Any one of the Sunstone Appellants could have called Mr Bone as part of his case.  The question whether to call him as part of the Appellant Cameron's case was considered by those concerned. A decision was made that he should not be called. There were, plainly, sound reasons for this decision. This is confirmed by an email sent by the Appellant to Advocate Preston on 25th May 2012. He said qua the advisability of calling Mr Bone: "I have looked at the responses you have provided and I thank you for taking the time to explain to me that which I had not grasped at the time, but most certainly do now."       

326.   There is nothing in this ground of appeal.

DATE       

327.   Advocate Tremoceiro, for the Appellant Foot, submitted that in relation to Count 7 (Miss Waye), Counts 10 and 11 (the Nicholls), Count 13 (Mrs Bailey), Count 14 (Mr Derry), Count 21 (Mr Jarrett) and Count 23 (Mr Rolland), there was no evidence that the conduct which caused him, allegedly, to be part of the joint enterprise i.e. counter signing the JVAs, had occurred within the times particularised in the counts. If we may say so, this point has more bark than bite. In relation to Counts 7, 10, 11, 14, and 21, the submission ignored the fact that in each case the JVA concerned was produced to police by the relevant investor, signed by the Appellant Foot, leading to the inference that he had already signed it by the time it came into the possession of the investor for signature. And in relation to Counts 10, 13, and 21, the submission ignored the additional fact that the Appellant Foot was described in each JVA as the purchaser of the relevant property, leading to the inference that he had agreed to participate in that particular transaction at an early stage and certainly before the investor had "enshrined his rights" by signing the JVA. In both instances the Appellant Foot's activities fell within the dates described in the counts.

328.   But, in any event, this submission concerning the materiality of the dates in these counts cannot succeed. "From time immemorial a date specified in an indictment has never been a relevant matter unless it is an essential part of the alleged offence"; R v Dossi (1918) 13 Cr. App. R 158 per Atkin J. In the instant case dates were not an essential element of the case and did not constitute a material averment.

VERDICT

UNREASONABLE VERDICTS

329.   All Appellants rely on this ground in relation to some or all of the counts in the Indictment. We have already rejected the Appellant Christmas' arguments on this aspect of his appeal under his submission that the Commissioner should have ruled he had no case to answer (see No Case above). We will address the arguments of each Appellant under this ground separately.

330.   In respect of the Appellant Lewis, this ground appears in para 43.8 of his personal Contentions dated 14th December 2012 and are therefore pursued through his amicus, Advocate Chiddicks. He insisted that, in relation to all the counts on which he was convicted, Counts 2 (Mrs Cotrel), Count 4 (Mr Evans), Count 7 (Miss Waye), Counts 8 and 9 (Mrs Hoe), Count 12 (Mr Keeling), Count 13 (Mrs Bailey), Counts 15 and 16 (Mrs Sandall), Count 17 (Mr Jackson), Count 18(a) (Mrs Fisher), Counts 26 and 27 (Mr Varney), "the Learned Jurats misconstrued evidence and/or took into accounts factors which they ought not to have taken into account, and/or did not take into account factors which they ought to have taken into [sic] in reaching their findings and, in particular, the Learned Jurats would not, and could not, have found the Applicant guilty on all and/or any counts for at least the reason that he was not reckless or had knowledge at the time he or anyone made any inducing statement to investors and/or signed any Joint Venture Agreement that any statement or document was misleading and/or concealed material facts..." In short the Appellant submits through his amicus that the verdicts cannot be supported having regard to the evidence.

331.   It is important for this Court to bear in mind what are the constraints which Article 26(1) imposes on this Court in the exercise of its duties of reviewing the verdict of the Royal Court and the jurisprudence which has followed. In Aladesuru v R [1956] AC 49, the Privy Council was obliged to construe a statute in similar terms to Article 26(1) Court of Appeal (Jersey) Law 1961. Lord Tucker at p. 54 said that the statute conferred the right only to "a limited appeal which precludes the court from reviewing the evidence and making its own evaluation thereof." In AG v O'Brien [2006] JLR 133, Lord Hoffman quoted Lord Tucker's words with approval and emphasised that questions relating to the credibility of witnesses were for the Jurats. He said: "It is not the function of the Court of Appeal to say that the evidence of the accused should have been accepted."

332.   Lord Hoffman also recorded the fact that the researches of Counsel had not been able to find any reported case since the establishment of this Court in 1961 where a verdict of Jurats had been set aside solely on the ground that the verdict was unreasonable. Such a lack of precedent would not deter this Court from quashing the conviction of this Appellant if there were grounds to justify such a course.  The Crown pointed out in argument to us, that the reason why such an event in Jersey appears to have been not merely exceptional but heretofore unknown, is because Jurats are not chosen at random from among members of the public but are men and women, as was said by the European Court of Human Rights in Snooks v United Kingdom [2002] JLR 475 at para. 19, who have been ".........elected by a special electoral college whose members include the Bailiff, the Jurats, advocates and solicitors of the Royal Court and members of Jersey's legislature, the States Assembly. Jurats do not necessarily have a legal qualification but are usually individuals with a known history of sound judgment and integrity, which has been consistently demonstrated throughout a lengthy professional, business or civic life." As Le Quesne JA observed in Tilley v Law Officers (Guernsey C.A. Judgments 88) "Jurats are holders of judicial office and are far more experienced in the affairs of law and legal procedure than the normal juryman in the United Kingdom."

333.   The approach to the responsibilities of Courts of Appeal identified by Lord Hoffman has a long history. As Lord Goddard said in R v Hopkins-Husson [1949] 34 Cr. App. R. 47 @ p. 49, a case decided at a time when the appellate process in England and Wales was subject to a statutory regime indistinguishable from that which still applies in Jersey, ".....the fact that some members or all the members of [this] Court think that they themselves would have returned a different verdict is....no ground for refusing to accept the verdict of the jury, which is the constitutional method of trial in this country. If there is evidence to go to the jury, and there has been no misdirection, and it cannot be said that the verdict is one which a reasonable jury could not arrive at, this Court will not set aside the verdict of guilty which has been found by the jury."

334.   These dicta, as the Crown Advocate reminded us, have been followed in a number of cases including Styles and Others v AG [2006] JCA 095. At paras. 34 and 35, this Court said:-

"Lord Hoffman's remarks are a salutary reminder that we must not stray beyond our limited role........Advocate Tremoceiro drew our attention to twenty respects in which he contended that the prosecution was weak, flawed or inconsistent. In our view, in the light of Attorney General v O'Brien, it would not be appropriate for us to sift through those points and attempt to evaluate them."

Added emphasis was given in Hamilton v AG [2010], JCA 136A, where, at para. 51, this Court said:-

"In (O'Brien) the Privy Council emphasised the limitations of the scope of this Court's function in appeals against conviction in criminal cases. Lord Hoffman made it clear that in considering whether the verdict 'cannot be supported having regard to the evidence' we must be careful not to usurp the function of the Jurats."

335.   However in O'Brien Lord Hoffman opened the door to a change of Jersey law so that the Bailiwick could become more closely aligned to the appellate situation which now obtains in England and Wales. Lord Hoffman said at para. 25:-

"In England the test laid down in R v Hopkins-Husson was found to be somewhat too restrictive and was replaced by Section 2 of the Criminal Appeal Act 1968 with a duty to allow an appeal where 'under all the circumstances of the case (the verdict) is unsafe or unsatisfactory.' No such change has been made in Jersey, but their Lordships would not exclude the possibility of a more liberal interpretation of the old statutory language."

336.   In Bhojwani v AG [2011] JCA 034, Beloff JA, in giving the judgment of this Court, discussed the marker laid down by Lord Hoffman, which the appellant in Bhojwani had invited the Court to take up. Refusing to do so, Beloff JA said at para. 203: "We......reject this invitation for a number of reasons. This Court has consistently and recently approached its role in a way which recognises the difference between the Jersey and English statute: e.g. Hall v AG [1995] JLR p.102. (notably it has been observed that the 'unsafe and unsatisfactory verdict' is no part of Jersey Law), and Baylis v AG [2004] JLR p. 409."  Citing the passages quoted above from Styles and Other v AG (op. cit.) and Hamilton v AG (op. cit.), and also citing Waite v AG [2007] JCA 170 at page 2 and Barton v AG [2007] JCA 172, Beloff JA noted that the traditional approach had also recently been followed in the case of Taylor v Law Officers of the Crown in the Court of Appeal in Guernsey (GLR 2007/8 p. 207). He continued: "If the States wished to align Jersey to mainland law in this area, they could have done so. Our researches suggest that the issue of reform has never been seriously raised: the record shows that, even if it had been raised, it was rejected."

337.   Although the case of Taylor (op. cit.) derives from another jurisdiction we think it appropriate to follow the guidance which the judgment provides in defining this Court's duty when considering submissions of the kind under review. In that case Beloff JA set out the following propositions and principles concerning appeals against conviction which we gratefully adopt:-

"(i) The jurisdiction of this Court is defined by the 1961 Law... (ii) The powers of this Court are therefore more limited than those enjoyed by the Court of Appeal (Criminal Division) in England and Wales which incorporates the concept of an 'unsafe' verdict, and, by judicial gloss, that of a lurking doubt, (iii) Where an appeal is from the verdict of Jurats, who are not 'speaking' i.e. do not disclose the reasons upon which the verdict is based, 'if the summing up is sound the court may well not be able to interfere unless the verdict is obviously wrong' (Guest v The Law Officers; [2003] GLR N-7.......... (vii) In assessing the rightness or wrongness of the verdict, the Court of Appeal must at all times bear in mind that the function of fact finding has been left to the lower court and that, particularly where credibility is in issue, the lower court, notoriously, has the advantage, denied to the Court of Appeal, of seeing and hearing the witnesses including, most importantly, the defendant." 

338.   In paras.43.8.1 - 43.8.18 of his Contentions dated 14th December 2012, the Appellant Lewis set out the particular factors which he submits should have been taken into good account by the Jurats in compelling them to return verdicts of not guilty on the counts in which he had been charged. These submissions predicate an underlying assumption that the charges which the Appellant faced related to the solvency of his two companies. They did not. The charges related, of course, to the statements oral and written which he had made, or was a party to making, to investors to induce them to invest money, and a comparison between what the Appellant had said he would do with the money and what he actually did or was a party to doing.

339.   The Appellant also relied on his Contentions dated 9th November 2012. In paras 22 - 99, he summarised the evidence which he gave from the witness box on each of the counts on which he was convicted and invited this Court to consider his account and to prefer it to the evidence given by the witnesses for the Crown. For the reasons which we have set out above, this would be a wholly impermissible exercise for us to undertake and we decline so to do. We echo the principles expressed in Taylor (op. cit.) that fact finding is for the lower court and that issues of credibility, especially where a defendant is concerned, are for them to resolve.

340.   Moreover, all the points which the Appellant contended should have influenced the Jurats to acquit him were, so far as this Court can assess, available to be canvassed at trial. All of them, insofar as they were relevant, could have been explored with witnesses competent to deal with them. Indeed the Appellant himself raised most of them, sometimes more than once, in the evidence which he gave on his own behalf.

341.   The Appellant did not suggest in what ways the Jurats "misconstrued" the evidence. Nor did he explain what was the evidence which the Jurats took into account which was irrelevant or what were the matters which they had failed to take into account which were relevant. In obedience to Lord Hoffman in O'Brien (op. cit.), it would be not be possible for this Court to prefer the evidence of the Appellant to that of other witnesses even if we had been inclined to do so, a course, be it said, which we have not been tempted to take. Nor, in obedience to Lord Goddard's strictures in Hopkins-Husson (op. cit), would it have been possible for this Court to quash the verdicts against this Appellant even if we had concluded, which we did not, that if we had been trying the case at first instance, we would have reached different verdicts. It is not for this Court, any more than it was for the Court in Styles (op. cit.), to "sift through" this Appellant's 18 points "and attempt to evaluate them." Indeed, in accordance with the principles in Hamilton (op. cit.), which we must uphold, we are satisfied that the submission that the verdicts cannot be supported having regard to the evidence is not sustainable. Neither in respect of the test which we must apply under Article 26(1), nor indeed under the test now applicable on the mainland, do we find that the arguments on this ground have been made out.

342.   The Appellant Foot submitted that the convictions recorded against him on Count 6 (Mrs Tomkins), Count 19 (Mrs Binet), and Count 24 (Mrs Soper) should be set aside on the ground that each verdict on these counts constituted a miscarriage of justice. We have set out the facts of these counts above. 

343.   The assertion concerning Count 6 involves a comparison between the account of the circumstances in which Mrs Tomkins made her investment, as given by Mrs Tomkins herself, and the account of the same conversation given by the Appellant, as well as what the Appellant did with the money. Mrs Tomkins claimed that she had lent the Appellant £20,000 for investment in unspecified property in America. The Appellant denied that he had given any assurance to Mrs Tomkins as to the use to which he would put her loan, but that, in any event, he had in fact spent a significant part of it in paying off debts on his credit cards associated with his business activities in America, including flights there and back, which enabled him later to charge his credit cards with deposit payments on American property.

344.   The Appellant insisted that the Jurats should have accepted what may be described as his 'denial and avoidance' of the particulars in the count. We do not agree. What was said during the crucial conversation which led Mrs Tomkins to invest were matters of fact for the Jurats, just as it was for them to determine, if they accepted her version of the conversation, whether what the Appellant did with her loan could be interpreted as investing in American property in the spirit and letter of that conversation. The Jurats resolved both issues against the Appellant. We can find no reason for describing the Jurats' conclusions, in accordance with the principles of Guest (op. cit.) as "obviously wrong."

345.   Advocate Tremoceiro advanced a second, subsidiary, point in relation to this count which, we have to state plainly, has even less merit than his main point. This involved the proposition that Mrs Tomkins had not been induced by the promise of investment in American property but rather by a promise of a good return on her money. We feel bound to say that this submission ignored the evidence that Mrs Tomkins actually gave. On two or three occasions in cross examination, Advocate Tremoceiro tried to persuade Mrs Tomkins to agree that she was indifferent as to what the Appellant did with her money provided he obtained a good return. On each occasion Mrs Tomkins contradicted him and insisted that it was because the Appellant had such confidence in American property, and the Florida property in particular, that she agreed to make the loan.

346.   Thirdly, Advocate Tremoceiro pointed to some interventions by the Commissioner during the evidence on this count which, he submitted to us, had resulted in a miscarriage of justice. We have considered all the passages in the evidence on 25th May and 5th July 2012 to which we were referred in his skeleton argument. The high water mark of the point consisted in some interventions made by the Commissioner during the Appellant's evidence. Advocate Tremoceiro's examination in chief relating to Count 6 covers 47 pages of transcript. During the course of it he explored in considerable detail the way in which the Appellant had spent Mrs Tomkins £20,000 loan. At one stage he said, by way of apology to the Royal Court: "......these amounts are small amounts and I am conscious of the fact that I am taking up the Court's time." In the circumstances, this remark almost invited a judicial response and it got one. The Commissioner observed "Well, I mean you can probably do it quicker, can't you?" 

347.   The exchanges which then followed between Advocate Tremoceiro and the Appellant can have given no comfort to his listeners that Advocate Tremoceiro intended to accept the Commissioner's invitation: a few questions later Advocate Tremoceiro was back among the restaurant bills. After a few more questions from Advocate Tremoceiro, the Commissioner wondered aloud whether "we have to look at every payment....at every expenditure..." since, as he pointed out, it was clear that it was the Appellant's case, according to the Appellant's understanding of the terms of the loan agreement, that he was entitled to spend Mrs Tomkins' money howsoever he desired, provided he repaid her the capital and interest in 2007. Moreover, as the Commissioner said, the nature and extent of the expenditure appeared to be common ground between Crown and defence as per the evidence of Mr Sowden. However Advocate Tremoceiro stood his ground, as he was entitled to do, and the Commissioner said "If it's relevant of course you must go on. I'm not trying to stop you...." It is said that this exchange so prejudiced and denigrated the Appellant's case that the Jurats were prevented from undertaking a balanced perspective of the issues on this count. 

348.   The seminal authority of R v Hulusi and Purvis (1973) 58 Cr. App. R 378 establishes that judicial intervention during the course of a criminal trial will lead to the quashing of a conviction (a) when the judge has invited the jury to disbelieve the evidence in such strong terms that the mischief cannot be cured by the common formula of the summing up that the facts are for the jury and that they may disregard anything said about the facts by the judge with which they do not agree; (b) when the judge has made it impossible for defending counsel to do his duty; (c) when he has effectively prevented the defendant or a witness for the defence from telling his story in his own way. In R v Matthews and Matthews 78 Cr. App. R. 23, the Court of Appeal explored the issue further and held that in considering the effect of interventions made by the trial judge the essential issue was the quality of the interventions, as they relate to the attitude to the judge as observed by the jury, and the effect that the interventions have had on the orderly, proper and lucid presentation of the defendant's case by his advocate.

349.   There is nothing to prevent a judge in a criminal trial from asking questions which are designed to clarify an issue, especially if the issue is one which is important to the case as a whole; nor indeed should a judge feel inhibited from ensuring that a witness keeps to the point and answers the question which he has been asked; nor should he be deterred, in appropriate circumstances, from suggesting a course of questioning to counsel if such a course might save time. A judge in criminal proceedings is not present as a silent witness to events until the time comes for him to make a judicial ruling or to sum up the case. He is there to ensure the smooth functioning of the trial process which includes keeping order in his court, ensuring that time is not unduly wasted, deciding matters of law and seeing that justice is done to all parties. 

350.   In relation to the instant complaint, the Commissioner was entitled to echo Advocate Tremoceiro's apparent anxiety that the course of questioning on which he was embarked was taking up too much time. The Commissioner was also entitled, in reflection of the nature of the issues involved on this aspect of the evidence, to suggest a short cut to save time. But the Commissioner was probably prudent to allow Advocate Tremoceiro to proceed as he wished, notwithstanding the latter's earlier expressed anxiety that he might be testing the patience of the court, including, of course, the Jurats'. By reference to the principles of Hulusi and Purvis (op. cit), at no stage did the Commissioner suggest that the Jurats should "disbelieve" the Appellant's evidence in any terms, let alone in the terms contemplated by the Court of Appeal in that case; at no stage did the Commissioner make it impossible for Advocate Tremoceiro "to do his duty" to his client or his client's case; at no stage did the Commissioner prevent the Appellant "from telling his story in his own way". Furthermore by reference to the considerations in Matthews and Matthews (op. cit), the Commissioner's interventions had no effect on the "orderly, proper and lucid presentation of the defendant's case". There is nothing in this point and we reject it.        

351.   The Appellant Foot also appeals the verdict on Count 19 on the basis that since some money was spent, albeit much later, on the property in which Mrs Binet believed she was buying an interest, the Appellant can only have been convicted on this count on the basis that the Jurats considered that the Appellant had failed to utilise the very sum provided by Mrs Binet to invest in the property. Advocate Tremoceiro prayed in aid the alleged failure by the Commissioner adequately to deal in his summing up with the "common pot" issue, discussed above. The essence of this "failure" is that the Commissioner failed to direct the Jurats that "the fact that the investors' money was not automatically applied to [the] purpose [in the JVA] does not automatically mean that they [the Appellants] had automatically committed the offence." 

352.   The Crown did not advance its case on the basis that it was wrong for the Appellants to operate one bank account, thereby co-mingling the investors' money in a common pot, much less that the Appellants had committed an offence against Article 2(c) by doing so. On each count the Crown case was a factual one. On each count the Crown led evidence which clearly demonstrated that investor funds came into the De Lec and Sunstone bank accounts and were thereafter quickly dissipated, often in their entirety, on matters quite unconnected with the property identified in the JVAs. Furthermore, insofar as money was spent on the property named in the JVA many months later, the expenditure was only possible because funds had been raised from another investor.

353.   The key to this issue is the pressure which the Appellant put on Mrs Binet in November 2005 to hand over £50,000 for the property investment which she believed she was making in Florida. She travelled to Florida with the Appellant Foot and visited the development site where building work was progressing. The Appellant told her in November 2005 that he required her money quickly because, absent immediate payment, she would not be in time to make the investment. As a result Mrs Binet at once paid a cheque to Sunstone for £50,000. Accordingly the Jurats were entitled to conclude that the Appellant had made a false statement to Mrs Binet in the terms of the count i.e. "that the sum of £50,000 would be used in the purchase of a property [and the property is then specified] knowing the said statement.......to be misleading, false or deceptive, or being reckless as to the same, thereby inducing the said Cynthia Binet to invest the sum of £50,000...." 

354.   As in so many of the counts in this indictment, the Jurats were obliged to determine what was said to the investor and to compare what was said to induce the investment with what was done with the money. Since Mrs Binet's money was not used for the purpose described in the count, and was asserted by the Appellant to be urgently needed for that purpose, and was used instead to pay the Appellant Cameron £35,000 and the balance to clear the credit card debts of all three Appellants, the Jurats were plainly entitled to convict.

355.   Finally, Advocate Tremoceiro submited that the verdict on Count 24 cannot be supported having regard to the evidence. An analysis of the argument reveals that Advocate Tremoceiro was inviting this Court to retry the evidence, all of which was heard by the Jurats, and to substitute a different verdict to the one returned by them because, having failed to persuade the Jurats of the force of those very same points, he submited that this Court should be persuaded of them and react accordingly. 

356.   Advocate Tremoceiro also relied on the premise that some of Mrs Soper's answers were elicited by leading questions which were inadmissible. The questions were designed to understand how Mrs Soper would have reacted if she had known that what she had been told by the Appellant Foot was not true. No objection was taken to the questions by Advocate Tremoceiro at the time. No application was made later to the Commissioner to give advice to the Jurats as to any different weight which they might attach to the answers in view of the form of the questions which had elicited them. In the judgment of this Court, notwithstanding that the questions might with advantage have been phrased differently, questions which are designed to allow the Jurats to know how an investor would have reacted to the inducement if he or she had known the truth, were not inadmissible questions.  

357.   The verdict on this count reflected the simple issue whether the Jurats were sure what it was that the Appellant Foot had said to persuade Mrs Soper to invest and whether what was said actually induced her. The Jurats heard the evidence and having considered it, returned a verdict of guilty. The issue turned on memory and credibility. It was quintessentially a matter for them. We cannot say that the conclusion which they reached on the count was, in accordance with Guest (op. cit.) "plainly wrong."    

358.   The Appellant Cameron submitted through his amicus, Advocate Baxter, that there was "insufficient evidence adduced during the trial upon which the Jurats could properly convict." He then suggested that the evidence of Mr Sowden, the evidence of the investors themselves and the evidence of certain email correspondence adduced by the Crown, to some of which we have referred in our recital of the evidence above, was insufficient to record convictions against him. We do not agree. There was a wealth of evidence on which the Jurats could find proved the particulars in the counts in which this Appellant was charged.   

359.   He complained that because of the absence of definition what role he had played, whether as secondary party or principal, he does not know on what basis he was convicted. He submitted, through Advocate Hanson, that the Commissioner should have felt obliged to request the Jurats to define his role on each count. He submitted that he was not aware whether all the Jurats were agreed on the role he played and, he submitted, if they were divided on the nature of his role, he should have been acquitted. He drew an analogy to the requirement for a tribunal to be unanimous on at least one of the particulars of a number of misrepresentations in a count of fraud. 

360.   In the judgment of this Court the analogy is not apt. A misrepresentation in a count of fraud is part of the pleading and, as such, there is authority for the requirement for unanimity; see R v Kevin Brown (1984) 79 Cr. App. R. 115. But there is no requirement for a distinction to be made in the pleading of a count where there is, or maybe, a distinction between principals and secondary parties in a joint enterprise; see Article 1(a) Criminal Offences (Jersey) Law 2009, cited above.  In this indictment, the facts of each count spoke for themselves. The tribunal gathered for sentence was quite capable of making an assessment of the role of this Appellant on the counts on which he was convicted for the purpose of deciding the appropriate sentence.      

RECKLESS      

361.   The essence of this submission, made by Advocate Blakeley for the Appellant Lewis in respect of Count 2 (Mrs Cotrel), Counts 8 and 9 (Mrs Hoe), Count 12 (Mr Keeling) and Count 18(a) (Mrs Fisher), was that since this Appellant can only have been convicted as a secondary party, the basis on which the verdict was returned i.e. that his conduct and that of the principal was reckless, was wrong in law. He was joined in this submission in relation to Count 2 by Advocate MacRae on behalf of the Appellant Christmas. The submission appeared to be based on the premise that it is impossible for a secondary party to aid and abet the commission of an offence by a principal where the principal has been convicted on a "reckless" basis. Leaving aside the Appellant Lewis' inclusion of Count 2 which would not appear to this Court to qualify for a submission of this kind so far as he is concerned, (since on this count the Appellant Lewis was a plainly principal), the verdicts on all these counts was returned on the basis that the Appellant Lewis was part of a joint enterprise.

362.   The same consideration applies to the Appellant Christmas on Count 2. The claim that on these counts the role of each Appellant was subsidiary relies on the assertion that in each case the Appellant did not make the oral inducement, and may not have been present when it was made, and that, in each case, he may not have signed the relevant JVA until after the victim had signed (non constat that in Counts 8 and 9, and 12, the JVA was produced to police by the relevant investor signed by all parties).   

363.   It has long been settled law in the commission of crime generally that it is sufficient for the prosecution to establish guilt, as a secondary party or accessory to an offence, if the accessory foresaw that the principal might commit an offence in the course of the enterprise and with that foresight did something intentionally to aid of encourage the principal. Thus, in the context of the instant offences the guilt of a secondary party may be established if the secondary party foresaw that the principal might make a statement to an investor recklessly, which the accessory realised might be misleading, false or deceptive, and realised, too, that the investor might be induced as a consequence to invest, and, with those matters in mind, the accessory did something intentionally to aid or encourage the principal. For the reasons which we have explained under the heading "joint enterprise" above, there was ample evidence on which the Jurats could be satisfied that the necessary ingredients existed to found a conviction of guilt for the subsidiary role which the Appellant Christmas played in Count 2 and which the Appellant Lewis played in Counts 8 and 9, 12 and 18(a). In the judgment of this Court there is no reason in law why the Appellant who played a subsidiary role in any of the counts on which they were convicted in that capacity should not have been convicted on the basis that their state of mind was one to which the label "reckless" was appropriate.  

C.  CONCLUSION

364.   In summary, save for the conviction of the Appellant Cameron on Count 12 which we formally quash, we reject the appeals of all these Appellants. Although we have endeavoured to deal with the salient points made by each of them, in so far as there may be points which we have not specifically identified in this judgment, we wish to make it clear that we have considered carefully everything written or said by their advocates, and by themselves and, where appropriate, by their amici. We have not been persuaded in respect of the verdicts of guilty on any count against any Appellant, save in respect of the Appellant Cameron on Count 12, that such verdict constituted a "miscarriage of justice" in accordance with the precepts of Article 26(1) of the 1967 Law.   

E.  APPEAL AGAINST SENTENCE   

365.   We now turn to the appeals against sentence. The powers of this Court derive from Article 26 of the Court of Appeal (Jersey) Law 1961.  Article 26(3) enacts that:-

"On any appeal against sentence, the Court of Appeal shall, if it thinks that a different sentence should have been passed on the appellant in the proceedings from which the appeal is brought, quash the sentence and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as it thinks ought to have been passed, and in any other case shall dismiss the appeal."

366.   The Appellant Christmas appealed against the sentence of 15 months passed on him in respect of Count 2. The Appellant Lewis abandoned his appeal on 26th February 2013. The Appellant Foot did not appeal. The Appellant Cameron sought leave to appeal out of time the sentence of 4.5 years passed on him in respect of all the counts on which he was convicted, through his amicus Advocate Baxter. On 26th February 2013, we granted him leave. Thus, we now give judgment in respect of the two Appellants, Christmas and Cameron.

367.   The Royal Court made no distinction in respect of the total sentences passed on the Sunstone Appellants. As we have related above, at trial the Jurats convicted the Appellants of recklessly inducing investments in respect of Count 2, (Lewis and Christmas, a De Lec count), Count 6 (the Appellant Foot alone), and on most of the Sunstone counts,  Counts 7 - 23 (except Counts 1, 3, 5, 20, 22, and 25). On these latter counts the Appellants were acquitted, either by direction of the Commissioner at the close of the prosecution case, or by verdict of the Jurats at the end of the trial. However the Sunstone Appellants were also convicted of knowingly inducing investments, or attempting to do so, by representations which were misleading, false or deceptive, in respect of the last three Sunstone counts, Counts 24 (the Appellant Foot alone) and 26 - 27 (all three Appellants). 

368.   The Royal Court decided to distinguish for sentencing purposes between the counts on which the Sunstone Appellants had been convicted on the reckless basis and those on which they had been convicted knowingly. Thus, materially in respect of the Appellant Cameron, the Royal Court passed a sentence of 2.5 years in respect of Counts 7 - 18, 21 and 23; and 4.5 years in respect of Counts 26 and 27. The sentences were ordered to run concurrently.   

369.   We bear in mind, of course that we have quashed one of the counts of which the Appellant Cameron was convicted. Therefore the review which we have undertaken of his sentence has concerned 15, not 16 counts. In assessing whether the sentence imposed on him was, as he submitted, unduly harsh, we have ignored the fact that the Appellant Lewis decided to abandon his appeal in respect of the same sentence imposed for fewer counts and that the Appellant Foot did not appeal his sentence at all. If we had come to the conclusion that the Appellant Cameron's sentence should be shortened for reasons also applicable to the Appellants Lewis and Foot, we would have invited them to appeal and given leave to both of them to do so.

370.   In this case the Crown put forward to the Royal Court certain Conclusions for Sentence. In relation to the Appellant Christmas, Advocate Jowitt moved for a sentence of imprisonment because, he submitted, the circumstances in which Mrs Cotrel was induced fraudulently to invest £100,000 of her savings caused the custody threshold to be passed. And on the basis of sentencing authority, both in this and the mainland jurisdiction, he submitted that the appropriate sentence was one of 15 months, making allowance for the absence of previous convictions, and  having regard to the fact that the offence was committed on a single occasion, and that it was committed recklessly, not knowingly. 

371.   In the same Conclusions the Crown Advocate addressed the question what was the appropriate sentence for the Sunstone Appellants. He submitted that plainly the offences were so serious that a period of immediate imprisonment was the only appropriate sentence. He concluded that in so far as each Appellant was concerned, there was "no reason to distinguish between them in terms of their involvement or the extent of their culpability." On the basis of sentencing authority to which he referred the Royal Court, he moved for a total sentence of 4.5 years imprisonment on each, including the Appellant Cameron.

372.   One of those sentencing authorities was that of R v Barrick (1985) 7 Cr. App. R. (S) 142. In that case the Court of Appeal in London, Lord Lane LCJ presiding, took the opportunity to lay down guidelines for sentencing in cases involving fraud, as here, where the offender is in a position of trust: Barrick was a former policeman who had obtained substantial sums of money from his employer by theft and deception. Lord Lane emphasised that such cases invariably contain certain mitigating features, including good, indeed often impeccable, character, the fact that the offender is unlikely to offend again and the certainty that the offender will never be able to obtain similar employment to that which resulted in the breach of trust.

373.   Lord Lane concluded at page 146:-

"In general a term of immediate imprisonment is inevitable, save in very exceptionable circumstances, or where the amount of money obtained is small. Despite the great punishment that offenders of this type bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in certain cases provide a powerful guide. Where the amounts cannot be described as small but are less than £10,000 or thereabouts, terms of imprisonment ranging from the very short up to about eighteen months are appropriate (see, for example Weston (1980) 2 Cr. App. R. (S.) p. 391). Cases involving sums of about £10,000 and up to about £50,000 will merit a term of about two to three years' imprisonment. Where greater sums are involved, for example those over £100,000, then a term of three and a half to four and a half years' imprisonment would be justified (see, for example, Strubell (1982) 4 Cr. App. R. (S.) p. 300)......The terms suggested are appropriate where the case is contested."    

374.   In determining what the sentence should be in any given case, Lord Lane suggested that the sentencing court should consider a number of relevant matters including: "(i) the quality and degree of trust reposed in the offender including his rank; (ii) the period over which the fraud or the thefts have been perpetrated; (iii) the use to which the money or property dishonestly taken was put; (iv) the effect upon the victim; (v) the impact of the offences on the public and public confidence; (vi) the effect on fellow employees or partners; (vii) the effect on the offender himself; (viii) his own history; (ix) those matters of mitigation special to himself...." The court then identified additional matters to be taken into account, including those which might have been a contributory cause of the offence such as illness or stress, and factors like delay in bringing the case to trial, and assistance given to the police.

375.   In AG v Renouf (2001/125), the Deputy Bailiff, as he then was, emphasised the relevance of the Barrick guidelines in so far as they are useful in pointing to those matters which aggravate and mitigate the offence "....it is not of assistance to this Court in deciding on the right quantum of sentence because we adopt our own policy for sentencing in cases of breach of trust and financial fraud." This Court accepts the limitations on the assistance which any guideline case in another jurisdiction can provide in these Bailiwicks whose independence in sentencing matters was recently emphasised in a five judge Court of Appeal case in Guernsey, Burton v The Law Officers, 6th February, 2012, and subsequently cited with approval in a seven judge Court of Appeal, whose constitution included the Bailiff of Jersey, in the case of Wicks, Sharp and Towers v The Law Officers, 22nd March, 2012. 

376.   In imposing sentence in this case, the Commissioner, on behalf of the Jurats, identified a number of matters, some in the Appellants' favour, some against them, which the Jurats had taken into account, generally:-

(i)        that the Appellants had not been tried, and were not being sentenced, for investing imprudently; nor because the investors had lost substantial sums of money;

(ii)       that the scheme, however flawed from the outset, was one which the Appellants hoped and believed would make money for all those concerned; 

(iii)      that all the Appellants were men of good character and that any prison sentence would fall particularly heavily on their families; but

(iv)      that many of the flaws in the scheme flowed from the fact that the Appellants' property investments in America were supported by no other source of income to meet increasing expenditure, except for a single loan and the funds provided by the investors. "Each new investor's money had to be put towards the overall expense of acquiring property to fulfil the promises made to other investors and to keep those promises afloat";

(v)       "that the investors in the scheme believed they were getting an interest in bricks and mortar and that gave them a sense of security; but they were not getting an interest in bricks and mortar: they would only acquire that interest if everything went well for a significant period of time"; 

(vi)      that the Appellants had done little or no research into the difficulties which might arise from investing in American property, including difficulties which might be, and were, encountered in re-mortgaging or selling property in a stalling market, that they had failed to inform themselves of the lack of obligations on builders to complete building work, and that they had failed to make allowance for capital gains tax, or for changes in the exchange rate;

(vii)     that when the market stalled, and then collapsed, the Appellants continued to operate in exactly the same way;       

(viii)    that the inducements to investors were made recklessly from the beginning, but that, as time passed, the degree of recklessness increased as the financial position of both companies worsened.

377.   Again in relation, to the Appellants generally, the Commissioner, by way of endorsement of the Crown's sentencing Conclusions, said that the Jurats "have carefully considered whether there is any alternative to a custodial sentence in this case and I have to tell you, at once, that in each case they have concluded that there is no such alternative." Addressing the Appellant Christmas, specifically, the Commissioner went on to explain that the Jurats recognised the impact of a custodial sentence "on a man such as yourself" but that they had concluded that "it would be quite wrong in principle to suspend what is beyond question the appropriate sentence." 

378.   He said that the Jurats considered that in the email which the Appellant Christmas had written in September 2004, between the occurrence of Count 1 and Count 2 (and written during the same month as Eric Evans wrote his "robbing Peter to pay Paul" email), the Appellant Christmas had explicitly acknowledged, according to the Jurats' interpretation of the email, that he understood that the JVA document submitted to each investor "did not reflect the true position and needed amendment if investors were not to be misled by it."

379.   The Commissioner also said that the Jurats had taken into account that the Appellant Christmas had ignored Eric Evans' warning, given to him verbally by Eric Evans shortly before he resigned from De Lec, of the problems of the company at that time and the consequential dangers of his exposed position as a Magistrate. The Commissioner made clear that the Jurats had taken into good account that the Appellant Christmas' role in the fraud was less than the part played by the other three, and less than that of the Appellant Lewis in Count 2, albeit that in July 2006 the Appellant Christmas had boasted of the "huge investment in time and commitment" which he had devoted to the business.    

380.   Before dealing further with these two appeals, we desire to say something about the investors in this case. This consideration reflects the fourth relevant feature of Lord Lane's list in Barrick (op. cit.). None of the investors in this case was financially sophisticated. Many were elderly. Some were infirm. Most gave evidence that they trusted implicitly the individual Appellant by whom they were initially approached to invest. Very few had any experience of business. Their occupations reveal their ignorance of the financial world and underline their reliance on the investment judgment of these Appellants. By way of example, the victim in Count 13 was a receptionist and her husband a plumber; in Count 14, the victim was a retired ambulance man, in Count 21, a postman and in count 18, an office administrator.  There can be no argument that many of them were induced to invest sums of money which they could not afford to lose. All have suffered considerable financial loss. One has been left destitute.

381.   Of those counts in the Indictment of which the Appellants were found guilty, the total sum defrauded was £1,207,000. It is true that there was no evidence that the Appellant Christmas enriched himself. Nor is this a case where the Appellants enjoyed extravagant lifestyles or that they squirrelled away the proceeds of the fraud: there are no yachts or Swiss bank accounts. The Commissioner made it clear in sentencing that the Jurats accepted this position as a basis for sentence, which, of course, was the third feature mentioned by Lord Lane.  

382.   Nonetheless, over the three year period of the fraud, in relation to the total sum defrauded in the indictment, the Appellant Lewis paid himself £83,502; the Appellant Foot benefited personally to the extent of £117,249; and the Appellant Cameron awarded himself £123,389. The total of these individual amounts is £324,140 or 27% of the sum defrauded. Materially for the purpose of these sentencing appeals, it must be noted that, in relation to the Appellant Christmas, none of the £100,000 which he was convicted of fraudulently inducing Mrs Cotrel to invest was ever recovered. In the case of the Appellant Cameron he was convicted of recklessly misleading 11 investors into parting with £783,000 and knowingly misleading one investor into parting with £160,000, making a total of £943,000 of which only £90,000 was recovered. 

383.   The Crown asserted in the documents, prepared in advance of the sentencing hearing on 4^th/5th October 2012, that the Sunstone Appellants, in utilising their Goldridge Stone clients, "knew well what funds their clients had and all three of them, we say, exploited that knowledge and the trust those clients had in them, to persuade them to switch money out of otherwise relatively safe and regulated investments into their entirely unregulated US property scheme." It is difficult to gainsay the force of this comment. In the view of this Court that exploitation is a factor which significantly aggravates the gravity of these crimes in relation to the conduct of all the Sunstone Appellants including the Appellant Cameron.

384.   In relation to the Appellant Christmas, any conclusion as to sentence must take into account what Mrs Cotrel said in her Victim Impact Statement, in accordance with the fourth relevant feature of such a case identified by Lord Lane: "I have lost over £500,000 through my investments with Mr Lewis and Mr Christmas. That money would have allowed me to have a much better flat than the one I currently live in.......The £500,000 was the lion's share of my investments."

385.   On behalf of this Appellant, Advocate MacRae made a number of complaints. One of his principal assertions was that the documents, the Statement of Facts and the Conclusions for Sentence prepared by Advocate Jowitt for the sentencing hearing, were unfair and inaccurate. At that hearing Advocate MacRae devoted a good deal of time to setting the record straight, as he saw it. During the course of his address to this Court, in pursuance of the same object, he cited the cases of Cooper v AG 2001/6 and Caboz v AG [2004] JLR 80, by way of encouragement to us to call Advocate Jowitt to account. Despite the melancholy and dispiriting afternoon which this Court had to endure on 26th February 2013 as allegation and counter allegation were made by Advocate MacRae and Advocate Jowitt, we do not propose to adjudicate on the rights and wrongs of the Crown's documents to which Advocate MacRae took such exception.

386.   What is important, so far as this Court is concerned, is not so much the Crown's muscular assertions or Advocate MacRae's sensitivity on behalf of his client, but rather whether the Jurats' conclusions and the basis on which they sentenced this Appellant, as evidenced by what the Commissioner said in his Sentencing Remarks, can be called into question. Accordingly, we propose to deal only with Advocate MacRae's complaints in so far as they impact on the sentence imposed on his client as revealed in the reasons given for the imposition of that sentence.

387.   Picking our way through this Appellant's grounds, the first relevant point is the assertion that the Royal Court failed, because the Crown had failed, to set a starting point for sentence. This was said to be contrary to the five judge case of Harrison v AG [2004] JLR 111. It is correct to say that Harrison encourages the Crown to define a starting point in its Sentencing Conclusions and suggests that it is desirable for the Royal Court to do so where possible. But the Court concluded:-

".....what we have said does not constitute a direction that the Royal Court must perform this function"

and added:-

"We accept that the key to the effective operation of sentencing as between this Court and the Royal Court is not for this Court to impose a sentencing straitjacket which forces the Royal Court to determine sentences according to a fixed and immutable set of rules, but rather to ensure that whatever route is chosen by the Royal Court, the journey is well mapped and signposted. Provided the reasoning of the Royal Court is clear, the necessary discretion which the lower court possesses in sentencing matters will not easily be questioned or overturned." 

388.   In Barrick (op. cit.) Lord Lane recognised the variability of cases of the instant type. "It is" he said "....dangerous to generalise where the circumstances of the offender and the offence may vary so widely from case to case." This was a point made by the Bailiff in AG v Speck [2004] JRC 100. "Breach of trust cases" he said "are so variable." We consider it understandable that the Royal Court should have approached its sentencing task in this case by weighing up all the considerations, which it considered relevant, and then deciding on the sentence which it considered appropriate. Moreover the Commissioner in an eleven page judgment delivered on the 5^th October 2012 set out with considerable care the matters which the Jurats had taken into account. The Jurats had to bear in mind that the Appellant Christmas was not being sentenced in a vacuum and that the sentence which they imposed on him, necessarily different from the sentence passed on his co-Appellants, had to bear a clear relationship to their sentences.  

389.   Advocate MacRae's second point was that the Jurats must have been influenced by the inappropriate remarks made in the Statement of Facts and Sentencing Conclusions about the Appellant's status as a Magistrate.  He cited a number of passages which he subjected to rigorous criticism. The basis on which the Jurats viewed the relevance of this Appellant's role as a Magistrate is clear from the Sentencing Remarks. The Commissioner said: "It is quite true, and this is something that the Jurats have taken account of, that your position as a Magistrate was not used to induce Marie Cotrel to invest but that does not mean that the situation that you occupied is wholly irrelevant to sentence. Particularly high standards are rightly required of those who hold important public office and you fell below those standards in committing Count 2. It is also relevant to the consideration of the impact of your undoubtedly excellent character before these events that, in the course of these events, you did begin to become involved in the business in a way that was inappropriate for somebody holding the office that you did." Assessing the evidence in this case we consider that this passage sets the Appellant's role as a Magistrate in precisely the correct context and reflects the first and fifth features of Lord Lane's list. In the judgment of this Court the approach which the Jurats took in regard to the relevance of the Appellant's role as a Magistrate cannot be faulted.

390.   The third point concerned Count 1. Advocate MacRae asserted that for the Crown to have "dwelt on matters relating to Count 1 in relation to which Mr Christmas had been acquitted....was improper." The relevance of Count 1 was that, as the Commissioner said, addressing the Appellant: "you knew that anybody in respect of whom the JVA had been signed would have been promised an interest in property because that was agreed to be the way that the business would be conducted...." The evidential foundation for that assertion was, in no small measure, the relevant and admissible material which was adduced against this Appellant (and the Appellant Lewis) on Count 1, albeit that, because of Mrs Cotrel's inability to remember the circumstances in which she was induced to invest $60,000 in July 2004, both Appellants were acquitted of that count on the direction of the Commissioner. As we have insisted in our judgment rejecting the Appellant's appeal against conviction (see above), this material could, and should, have been adduced in any prosecution of these two Appellants as relevant and admissible evidence on Count 2, whether or not there had been a count to reflect the evidence separately, and whether or not consideration of that evidence, assuming the presence of such a count, had resulted in a conviction or an acquittal.    

391.   The fourth point related to the warning which Mr Eric Evans gave to the Appellant about the risks of continued association with the Appellant Lewis. Advocate MacRae submitted that it was "inappropriate and unnecessary" to include reference to it in the Statement of Facts. The Jurats were entitled to consider that this Appellant's failure to heed a friendly warning given by one of his co-directors was a demonstration of this Appellant's reckless conduct in continuing to be associated with a business which was raising money on the basis of half-truths and lies. Advocate MacRae submitted that because Mr Evans was apparently willing to agree in cross-examination that the conversation may not have happened, the evidence was equivocal. We do not agree.  

392.   Advocate MacRae submitted, fifthly, that the Crown was wrong to inform the Royal Court that the Florida property, the subject matter of Count 1, according to the JVA relating to it, had been purchased in the Appellant Christmas' name. Advocate MacRae complained that the Crown were impliedly asserting that the Appellant had advantaged himself by purchasing what was, in fact, a De Lec property. Many of the properties, as we have seen, were described in the JVAs as having been purchased in the names of individual Appellants. We do not consider that the assertion, which reflected the documentation, misled the Jurats into believing that the Crown was alleging that this Appellant was lining his own pocket. In any event, the Commissioner made clear: "We also approach the case, in fairness to the defendants, on the basis that this [sic], although it did involve the defendants', certainly the main three defendants', withdrawing money for themselves, this is not a case of high living."  

393.   Advocate MacRae sixth complaint was that the Jurats should not have interpreted the Appellant's September 2004 email as any more than a suggestion to the Appellant Lewis, to whom it was addressed, that "additional funds were needed from investors in order to pay running costs." The interpretation of the email was a matter for the Jurats. The Commissioner made clear in his Sentencing Remarks how they had interpreted it. They rejected the meaning accorded the document by Advocate MacRae. As we have already related the Commissioner said: "The sentencing court has had placed before it, as was the trial court........, an email from Ian Christmas indicating that he understood that the joint venture agreement, the JVA, did not reflect the true position and needed amendment if investors were not to be misled by it. No amendment was ever made." We have read the email. We have to state plainly that we find nothing to criticise in the Jurats' interpretation. 

394.   Advocate MacRae's seventh ground of complaint is that the Jurats failed to give sufficient account of the Appellant's years of public service. The difficulty with this argument is that it is double edged. It is often the case in incidents of fraud involving breach of trust, especially where the trust involves a public trust rather than that of a more private type, that the service rendered is claimed as a mitigating feature and the betrayal of trust as an aggravating one. So, in this case, if the Appellant's public service is a mitigating feature, the fact that he betrayed that position by becoming "involved in the business in a way that was inappropriate for somebody holding the office" that he did (to repeat the Commissioner's words), might be thought significantly to dilute the effect of the service associated with "holding the office." We have already given it as our opinion that the way that the Jurats approached this aspect of the sentencing process cannot be faulted.

395.   The eighth ground related to delay. It is true that the case took four years to come to trial. In April 2008 the police commenced their investigation. That investigation involved locating a large number of witnesses including investors. It involved analysing thousands of pages of business records including a large number of documents from America. In the nature of things, these documents, banking records, mortgage application forms and statements, could only be acquired for a prosecution in this jurisdiction as a consequence of time consuming Letters of Request to the American authorities. A forensic accountant had to be briefed to analyse a significant number of bank accounts tracing the movement of money. All this took many months. By the summer of 2010 the police were ready to interview the Appellants Christmas, Lewis and Foot under caution. In September 2010 the case was passed to the Attorney General's Department. In late January 2011 the Attorney General announced his decision to prosecute and these three Appellants were indicted directly in the Royal Court on 18th February 2011. On 28th July 2011 the Appellant Cameron was returned from Malta under an extradition arrangement which he did not contest.  On 2nd September 2011 he was indicted in the Royal Court. On 26th March 2012 preliminary arguments were heard by the Commissioner and the trial began on 16th May 2012. 

396.   It is not apparent to this Court that there was any culpable delay in the chronology which we have outlined. The Appellants can hardly be heard to complain that the case took time to investigate. This was a large scale fraud of which they were the principals. It is true that the Appellant Christmas was acquitted on three out of the four counts of which he was charged. But the count on which he was convicted was a significant allegation and involved the sum of £100,000 which Mrs Cotrel never recovered. We do not consider that the time taken to bring this case to trial was a feature of the case in reflection of which any Appellant, including the Appellant Christmas, was entitled to a reduction of the term of imprisonment to be served on anything other than de minimis principles.

397.   The Appellant submitted to this Court an affidavit dated 3rd October 2012, and an accompanying statement of means, revealing the state of his finances. The Appellant was not legally aided at his trial nor at this appeal. It is clear that he owes a great deal of money, principally to his lawyers. However, we regret that his indebtedness cannot be a factor in our assessment of the appropriateness of the prison sentence passed by the Royal Court. Nor do we think it is a factor which we can legitimately take into account in reviewing his sentence.     

398.   We have carefully considered the whole basis on which this Appellant was sentenced. It has been said on countless occasions that sentencing is an art and not a science. Those who sentence defendants in criminal cases develop an experience and a feel for deciding what is the right sentence in any given case. The Commissioner who tried this case had just such experience, as did the Jurats. It is no part of our task to substitute for the sentence which the Royal Court passed, the sentence which we would have imposed had we been presiding at the sentencing hearing. This Court exists under statute not to retry the case but to review it. In performing that task we must make an assessment, not whether we would have passed the same sentence, but whether the sentence under review is one which was reasonably within the discretion of the lower court to pass.

399.   We have considered what the Commissioner said relevant to this Appellant in his Sentencing Remarks which we have summarised above. We have considered the features identified in Barrick which have a bearing on this Appellant. We have considered all the points advanced on his behalf by Advocate MacRae. We have read the letters submitted in support of his mitigation. We have assessed the sentence ourselves in the light of all the aspects of this case which have been brought to our attention. We have compared the relative culpability of this Appellant and his co-Appellants and the sentences passed on them. We have considered whether the sentence was wrong in principle and whether it was unduly harsh. 

400.   We have concluded that the sentence was an appropriate sentence and can be faulted by no canon against which we have tested it. It was a sentence well within the discretion of the Royal Court to pass and if anything was on the lenient side.  We say that because if the Appellant Christmas had pleaded guilty, on the basis of the sentence which the Royal Court imposed, he would have been entitled to a reduction which would have brought the sentence down to a level which in our view would have been too low for the crime which he had committed.  In the result the Appellant Christmas' appeal against sentence is dismissed.

401.   The Appellant Cameron appealed through his amicus, Advocate Baxter. We are grateful for the succinct way in which Mr Baxter summarised the Appellant's arguments. 

402.   So far as the Appellant Cameron is concerned the following observations and comments of the investors in the counts on which he was convicted have to born in mind. The effect of the fraud on the victims is, as we have pointed out, the fourth feature identified by Lord Lane in Barrick (op. cit).

Miss Waye, (Count 7), who lost £25,000 of her £30,000 investment said "The loss of this money has had a devastating effect on me. This was......the only money I have ever had and I have lost it all." 

Mrs Hoe, (Counts 8 and 9), who is now 63 years of age and who lost £130,000, said: "Mr Cameron was aware that this money amounted to the vast amount of our spare funds......We trusted Mr Cameron and now feel our trust was totally misplaced....This loss has had a profound and long term effect on our lives." 

The Nicholls, (Counts 10 and 11) who lost £77,000 of their £100,000 investment said: "We feel betrayed by Mr Cameron. He was our financial adviser and we trusted him. The money we've lost has had a significant impact on our lives. My husband has had to continue to work beyond the age of 65 when he should have retired". 

Mr Keeling, (Count 12), who lost the entirety of his £95,000 investment, said: "I feel totally let down and betrayed by Mr Cameron. We trusted him with our money in good faith and he has not told us the truth." 

Mrs Bailey, (Count 13), said: "We were not wealthy and were risk averse......we no longer have any real savings." 

Mr Derry, (Count 14), said: "I feel totally betrayed by Mr Cameron whom I trusted as a friend and financial adviser......we are forced to live from day to day, saving where we can." 

Mrs Sandall, (Counts 16 and 16), said: "I feel Mr Cameron abused our friendship and trust......The loss of this money (£182,000) has had a catastrophic effect on our finances." The current financial situation of her and her husband, as revealed in her Victim Impact Statement, can only be described as pitiful. 

Mr Jarrett, (Count 21), who lost the bulk of his investment as a result of the Appellant's inducements, said: "I cannot overemphasise the trauma that we have gone through as a result of the loss of our money. It has been devastating." 

Mr Rolland, (Count 23), said: "I feel mistreated and misled by Mr Cameron......This was the only inheritance I was ever likely to get and I was putting it aside for my future. I am now in a much more precarious position." 

Mr Varney (Counts 26 and 27), the last investor in the indictment, said of his £140,000 loss: "This is a significant sum of money to me...... The damage to me personally is incalculable and irretrievable. The life plans I had are no longer achievable.....My financial future has now become extremely uncertain..."

403.   In moving for a sentence of 4.5 years in its Contentions the Crown emphasised that this Appellant remained defiant and has expressed no remorse for his actions, that the Appellant's case involved a serious breach of trust and that although there was no evidence of "high living", nonetheless this Appellant, like the other two Sunstone Appellants, had rewarded himself from the proceeds of the fraud. In justifying the recommendation of the total sentence of 4.5 years the Crown compared the sentence of 3.5 years imprisonment imposed on the defendant in AG v Renouf  (op. cit.) and the sentence of 4.5 years imposed in AG v Young (op. cit). 

404.   In Renouf the offender had pleaded guilty to 15 counts of knowingly inducing investors fraudulently to lend money to him to invest in select cars. The total defalcation was nearly £180,000 of which a little over £40,000 was recovered. The investors were not financially astute. The breach of trust was described as gross. The defendant had not gained personally from the fraud and was given full credit for his guilty pleas. In Young the offender was convicted of similar offences totalling $6.5 million. This Court said that the sentence which the Commissioner had passed was on the low side and that 6 years would not have been appealable.  

405.   Advocate Baxter's summary of the Appellant's arguments repeated in essence the misapprehension as to the whole basis of the prosecution case against him which resonated throughout the documentation of the Appellant's personal appeal against conviction. He was not charged, tried or convicted, and was not sentenced, for failing in a business venture which must be blamed on the collapse of American property market and the JFSC, as he consistently asserted. The relevance of that collapse and the JFSC's investigation was that it exposed the deceptions which he and his co-Appellants practised to raise money from investors. 

406.   The Appellant bewailed certain unspecified inaccuracies in the Crown's documentation filed with the Royal Court at the sentencing hearing. He made the valid point, which the Royal Court accepted, as this Court accepts, that "it was never the intention of the founders of Sunstone Holdings to lose its clients' money." He submitted that he lost money himself in the property collapse and that he always had the interests of the investors uppermost in his mind. He pointed out that he and his co-Appellants have been ostracised in Jersey and that he has been unable to obtain employment due to the collapse of Sunstone.  He said that he has been living under a "Sword of Damocles for four and a half years." He claimed that the sentence of 4.5 years imprisonment was excessive and that he has been already "sufficiently punished for his role in the failure of the company." 

407.   He also prays in aid the effect which the trial and sentence has had on his wife which are detailed in para. 14 of the Contentions of his amicus, Advocate Baxter. There can be no doubt that the collapse of Sunstone, the trial process, and the sentence which he is now serving, have all had a most distressing effect on both their lives. We have nothing but sympathy for Mrs Cameron. This is a matter which it is right for any sentencing tribunal to bear in mind and is emphasised, if emphasis is needed, under the seventh feature in Lord Lane's list. However the extent to which it can legitimately affect the length of the sentence which this Appellant must serve must be balanced against the effect this fraud has had on the victims who have suffered considerably, as revealed by their Victim Impact Statements.     

408.   We have referred above extensively to what the Commissioner said in his Sentencing Remarks generally. In specific reference to Sunstone and to this Appellant, he made the point in relation to recklessness, as found by the Jurats, that:-

"The degree of recklessness increased as the financial position of De Lec and then Sunstone got worse. However there came a point where the businesses were so mired in debt, and the position with the US authorities so hopeless, that it was out and out dishonesty to take money from anyone and that was reflected by the Jurats at trial by no longer convicting of offences of reckless misleading statements, but convicted of knowingly making misleading statements. From late 2006 there is a series of emails which have been placed before us by the Crown, as they were before the trial court, passing between the three defendants, Lewis, Cameron and Foot acknowledging in colourful terms the hopeless financial situation they were in, but still they took investors' money. By the end no honest representation could be made to an investor because had it been that investor would have run a mile, so the defendants had no option if they wanted to continue to bring in money but to lie and that was what they did."

409.   This analysis of the inter-relationship between the "reckless" counts and the "knowingly dishonest" counts is important because the sentence of 4.5 years was passed to reflect the increased gravity of these later counts; and since the sentences on the "reckless" counts were made concurrent to the sentence passed on Counts (24 and) 26 and 27, that sentence determined the length of sentence which this Appellant has to serve.    

410.   In relation to Counts 26 and 27 the Commissioner said:-

"When it came to the final counts, your 'fleecing' of Andrew Varney was as dishonest as it would have been if you had held up a bank to get the money. The Jurats were satisfied in the trial that all three of you were present at the meeting that Andrew Varney had in some of the offices that you were all then occupying, and that the other two of you were aware of what was going on when Cameron was speaking to him." 

411.   As in the case of the Appellant Christmas we have reviewed all the relevant material in relation to the Appellant Cameron which was before the Royal Court and those additional submissions which were put before us. We have to say plainly that we regard this case, and particularly the parts played by the Sunstone Appellants, as one of particular gravity as did the Jurats. The culpability of those three Appellants was persistent and extensive and in the view of this Court there was no reason to distinguish between them for sentencing purposes. Their cynical disregard for truth, the gross betrayal of trust which they exhibited towards their Goldridge Stone clients, the calculated way in which they deceitfully manipulated unsophisticated and trusting men and women of modest means to invest all, or a significant part, of their savings in off plan foreign property, by representations which were false and misleading, was nothing short of disgraceful. Their failure properly to investigate the associated risks and problems of doing so, to which we have referred above, demonstrated a careless, not to say a callous, disregard to their responsibilities in transferring the investments of their clients out of a regulated and into an unregulated environment.

412.   The financial integrity and the financial reputation of this Island is crucial to its success. Those who commit fraud on the scale and over the period evidenced in this case put that integrity and that reputation in jeopardy. They must expect to be treated severely by the Courts of this Island. The Appellant Cameron claimed that the sentence of 4.5 years passed on him was unduly harsh. In our view it was not too long by so much as a single day.         

413.   Accordingly his appeal against sentence is also dismissed.   

Authorities

Investors (Prevention of Fraud) Investment (Jersey) Law 1967.

Young v Attorney General [1999] JLR 17.

Court of Appeal (Jersey) Law 1961.

R v Richardson (1971) 2 W.L.R. 889.

R v Stephen Westwell (1976) 62 Cr. App. R. 251.

Lau Pak Ngam v R (1966) Crim L.R. 443.

R v Markus (1976) AC 35.

Prevention of Fraud (Investments) Act 1958.

Channel Islands Knitwear Co. Ltd. v Hotchkiss [2001] JLR 570.

R v Mendez [2010] EWCA Crim 516.

Simester and Sullivan's Criminal Law: Theory and Doctrine (4th Edition).

Chan Wing-Sui v R (1995) AC 168 (PC).

Hui Chi-Ming v R (1992) 1 AC 34 (PC).

Criminal Offences (Jersey) Law 2009.

R v Stringer (2011) EWCA 1396.

Galbraith 73 Cr. App. R. 124.

A.G. v Capuano [2003] JLR 623.

R v Shippey (1988) Crim. L.R. 767.

Thomas and Others (2009) EWCA Crim. 1682.

Bhojwani v AG [2011] JCA 034.

R v Boakye, Court of Appeal, March 12 1992.

R v Brown (Jamie) (1998) Crim. L.R. 196.

R v Brown (Davina) (2002) 1 Cr. App. R. 5.

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R v Taylor and Taylor 98 Cr. App. R 361.

R v Donnelly (1998) Crim L.R.131.

R v Day [2003] EWCA Crim 1060.

R v Clinton 97 Cr. App. R. 320.

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Waite v AG [2007] JCA 170.

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R v Hulusi and Purvis 58 Cr. App. R 378.

R v Matthews and Matthews 78 Cr. App. R. 23.

R v Barrick (1985) 7 Cr. App. R. 142.

AG v Renouf (2001/125).

Burton v The Law Officers, 6th February, 2012.

Wicks, Sharp and Towers v The Law Officers, 22nd March, 2012.

Cooper v AG 2001/6.

Caboz v AG [2004] JLR 80.

Harrison v AG [2004] JLR 111.

AG v Speck [2004] JRC 100.

R v Kevin Brown (1984) 79 Cr. App. R. 115.