J. A. Clyde-Smith, Esq., Commissioner, sitting alone.
The Attorney General
S. M. Baker, Esq., Crown Advocate.
Advocate D. M. Cadin for the Defendant.
1. The defendant seeks his costs in relation to those counts for which he was acquitted on 15th April, 2014, and those which were earlier stayed and not pursued.
2. The Indictment originally preferred against the defendant contained seventeen counts and concerned four complainants:-
(i) Complainant B (Counts 1-6): regular, repeated indecent assaults, some leading to ejaculation, committed over a period of years between 1961 and 1963 and charged by way of specimen counts;
(ii) Complainant C (Counts 7-12): regular, repeated indecent assaults between 1965 and 1973, culminating in a rape in 1974 that caused her to fear that the defendant was the father of her child;
(iii) Complainant A (Counts 13-16): four separate and discrete incidents, carried out over a period of weeks of indecent assaults comprising touching of her vagina; and
(iv) Complainant D (Count 17): a single incident of indecent assault by touching her naked bottom with his penis.
3. Count 17 concerning Complainant D was discontinued at the pre-trial review on 1st October, 2013, and the costs of that count were reserved.
4. The Indictment was subsequently amended to include new Counts 17 and18 of procuring an act of gross indecency by causing complainant A to touch his penis over clothing.
5. On 28th March, 2014, following a contested hearing, the Court stayed Counts 1-6 concerning Complainant B and adjourned the defence application for costs.
6. On 15th April, 2014, the defendant was acquitted of Counts 1-6 concerning Complainant C and convicted of Counts 7-12 concerning Complainant A. The costs of Counts 1-6 were adjourned.
7. It is the case of the defendant that in terms of the relative importance of the various counts of the Indictment, he was convicted of the least serious counts only; had he been convicted of the counts concerning Complainant B and Complainant C, he would have received a substantially greater custodial sentence than the three years he actually received.
8. It was, Advocate Cadin submitted on behalf of the defendant, an exceptionally difficult case involving numerous extremely serious allegations going back an exceptionally long time to 1961, involving four separate complainants. Advocate Baker, for the prosecution, had referred to the complexity of the investigation involving third party records that would be held by a wide variety of agencies in Jersey and in England. The Court had acknowledged that defending such a case would be difficult, with the credibility of the complainants being key to the defence case. That would involve a careful scrutiny of a wide range of available material in relation to complaints that spanned many years. Viewed objectively, Advocate Cadin said that the defence had substantially succeeded in relation to this complex and difficult trial and should therefore have its costs in relation to the counts concerning Complainants B, C and D.
9. Advocate Baker, for the prosecution, submitted that there should be no order for costs. The defendant had pleaded not guilty to all of the counts brought against him and the Court had ruled that the evidence of each of the Complainants B, C and A were mutually admissible. The fact that the counts involving Complainant B were stayed did not mean that less work had to be done by the prosecution or that more work had to be done by the defence than was always going to be the case, given that her evidence was cross admissible on the counts involving Complainants C and A. The fact that the complaint in relation to Complainant D was withdrawn did not mean that less work had to be done by the prosecution or more work had to be done by the defence than was always going to be the case. The work to be done by the defence involved analysing Complainant D's papers, given that her complaint was said in part to have triggered the complaint of her mother, Complainant A. It is the case that up to the trial the defence sought and obtained various formal admissions about Complainant D's character and mental health in order to challenge the evidence of her mother, Complainant A, a challenge which was unsuccessful.
10. This was a case, Advocate Baker submitted, where there had been both convictions and acquittals and therefore an award of costs to the defence was inappropriate. The criminal process had been properly engaged and the defendant was ultimately convicted of offences.
11. Article 2 of the Costs in Criminal Cases (Jersey) Law 1961 ("the 1961 Law") provides that:-
"(1) Subject to the provisions of this Article, where any person is prosecuted or tried before a court to which this Article applies, the court may ...
(c) if the accused is discharged from the prosecution or acquitted, order the payment out of public funds of the costs of the defence ...
(8) Where a person committed for trial is not ultimately tried, the court to which the person is committed shall have the same power to order payment of costs under this Article as if the accused had been tried and acquitted."
12. The starting point is that an accused who is acquitted of all of the charges against him should only be denied his costs in exceptional circumstances, such as when his own conduct has brought suspicion upon himself and has misled the prosecution into thinking that the case against him is stronger than it is (see Romeril v AG  JLR No 16). In this case however, the defendant has been acquitted of some charges but convicted on others.
13. This was considered in AG v Gouveia 2000/182, 15th September. In that case, the defendant faced twelve counts of cruelty to a child. He pleaded not guilty to all counts but on the last working day before the start of the trial, indicated a willingness to plead guilty to one count which plea the Crown accepted. The Court held that Article 2(1)(c) did not require a complete discharge or acquittal from all charges faced by the accused but was to be read as referring to individual charges. The prosecution accepting a not guilty plea was held to be equivalent to an acquittal or discharge from the prosecution. Following AG v McMahon (Jersey Unreported 9th December 1991) and the English Practice Direction on Costs in Indictable Offences (1982/3) All ER 1152), Birt, Deputy Bailiff, said this at paragraph 27:-
"Ultimately the Court has a discretion and...the Court must make whatever order seems just having regard to the relative importance of the charges and the conduct of the parties generally".
In that case, no costs were awarded to the defendant as the court found that they had been incurred because the defendant pleaded not guilty to all of the counts brought against him right up to the eve of the trial. Birt, Deputy Bailiff, made this general observation at paragraph 26:-
"26 Where there is a trial with a number of counts and there are convictions on some and an acquittal on others, an award of costs would be unlikely to be appropriate in the ordinary case where the evidence was found sufficient on some but not on others. But if, for example, in the case of an assault, the defendant pleaded guilty at an early stage to common assault but the Crown insisted on proceeding on a count of grave and criminal assault which was not ultimately successful (either because of an acquittal following a trial or a late decision to accept the not guilty plea), justice would be likely to demand that the defendant should be awarded his costs, because they would have been incurred only because of the decision of the prosecution to go ahead on that single issue."
14. This was applied in AG v Troy  JRC 099, where the defendant was charged with one indecent assault and one common assault upon the same complainant in one incident. He was acquitted of the indecent assault but convicted of the common assault. In rejecting an application by the defence for costs Sir Philip Bailhache, Bailiff, said at paragraph 13:-
"13 Viewing the matter in the round it seems to me that there is a positive reason for not making an order in favour of the applicant in this case. That positive reason is essentially that set out in the judgment of the Deputy Bailiff in Attorney General -v- Gouveia. I agree that in an ordinary case where an accused is acquitted on some counts but convicted on others an award of costs is unlikely to be appropriate. The underlying rationale is that the criminal process was properly engaged and the applicant was ultimately convicted of an offence. The applicant had at no time accepted any criminal liability nor offered a plea to any offence."
15. Advocate Cadin submitted that in exercising its discretion, the Court should take into account the fact that any order will not directly benefit the defendant, but will assist Bedell Cristin who acted for him under a Legal Aid certificate; the defendant having made no contribution to his legal costs. Over the last eighteen years, he said the Courts have become more aware of the Legal Aid burden on Jersey lawyers and of the partnership that exists (and must exist) between the various stakeholders to ensure the adequate provision of Legal Aid.
16. In this case, Bedell Cristin had accrued over 1,000 hours' work. It had been substantially successful, and its work had been commended by the Court (which indeed it was). It had received no contribution towards its costs from the defendant, and yet everyone else involved in the case had been paid.
17. As much as I may sympathise with such an argument, I think it is inappropriate for the Court to start looking beyond the interests of the parties before it, namely the Attorney General and the defendant and to intervene in the administration of the Legal Aid scheme by concerning itself with the remuneration of the lawyers acting for the defendant under that scheme. As the Court of Appeal made clear in Flynn v Reid  (2) JLR 226, albeit in the context of costs in civil cases, the Court is concerned with the interests of the parties only and not with that of their legal representatives. In my view that principle applies equally to criminal cases. In that case, the fact that, because of the operation of the Legal Aid scheme, a particular award of costs to one party may benefit only that party's advocate (but without disadvantaging that party) was found to be no reason for not making an order which was otherwise justified. In this case, the fact that an award of costs would only benefit the defendant's lawyers is equally not a reason for making such an order. As the Court of Appeal noted, the Judicial Greffier has a discretion to make ex gratia payments to lawyers acting under the Legal Aid scheme payable out of the "Court and Case Costs Fund" where they have undertaken an unduly onerous Legal Aid obligation.
18. Whilst the counts in relation to Complainants C and A were not as closely related as those in the case of Troy, this was one trial in which the Court had ruled that there was cross admissibility of evidence so that the evidence of Complainant B could support the evidence of Complainant C and A and the evidence of each of Complainants C and A could support the other. The defendant maintained his plea of not guilty to all of the counts throughout the trial, at no time accepting any criminal liability or offering a plea to any offence, and therefore, following Gouveia and Troy, this is not a case where, in my view, a costs order should be made arising out of the acquittals in relation to Complainant C. While the counts involving Complainant C were more serious, the counts in relation to Complainant A of which the defendant was convicted were still serious and gave rise to a substantial sentence of imprisonment. The criminal process had been properly engaged.
19. Nor is this a case in which the defendant should have his costs in relation to the one count involving Complainant D, which was not pursued by the prosecution, and this for the reasons put forward by Advocate Baker.
20. Nor for the same reasons should the defendant have his costs in relation to complainant B save to this extent. The defendant successfully argued that the counts in relation to Complainant B should be stayed, an application resisted by the prosecution. Although that application was for a stay of the entire prosecution, I take the view that the defendant was substantially successful and justice dictates that he should have his costs of and incidental to the whole of that application pursuant to Article 2(8) of the 1961 Law (on the basis that these were counts for which the defendant was not ultimately tried) out of public funds to be taxed on the standard basis if not agreed.
Costs in C riminal Cases (Jersey) Law 1961.
Romeril v AG  JLR N 16.
AG v McMahon (Jersey Unreported 9th December 1991).
Costs in Indictable Offences (1982/3) All ER 1152.
Flynn v Reid  (2) JLR 226.