Jersey Unreported Judgments

Appeal against conviction and application for leave to appeal costs order.

[2014]JCA237

Court of Appeal

28 November 2014

Before     :

Jonathan Crow, Q.C., President; Sir David Calvert-Smith, Q.C., and; Robert Logan-Martin Q.C.

W

-v-

The Attorney General

Application for leave to appeal by W against a conviction by the Inferior Number of the Royal Court on 15th April, 2014 and application for leave to appeal against a costs order made by the Royal Court on 14th August, 2014. 

6 Counts:       Indecent assault upon a child.

Advocate D. M. Cadin for the Appellant.

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

JUDGMENT

Calvert-Smith JA:

1.        This is the judgment of the Court.  This is an appeal against conviction and an application for leave to appeal against sentence.  On 15th April, 2014 the appellant, W, was convicted at the Royal Court (Commissioner Clyde-Smith and Jurats le Cornu and Olsen) of four counts of indecent assault and two of gross indecency.  On 20th June, 2014 he was sentenced to 3 years' imprisonment.  His application that he be awarded the costs of defending himself in respect of counts which either did not proceed to trial or of which he was acquitted, was refused and is the subject of the application for leave to appeal against sentence. 

The history of the case

2.        The appellant was born in 1938 in England and is now 76 years old.  In 1957 he came to Jersey.  By 1959 he was living on the island with a woman named E.  E already had four children, one of whom was a daughter, B, who had been born in 1948.  In 1959 the appellant and E had a child together - C.  B, who had been placed in care since she was 4 years old came to live with the appellant and E in 1960-1 and then again from 1962-1964.  After an incident in March 1964 which resulted in the appellant being arrested and charged, but acquitted, of three indecent assaults on B, B went to live with foster parents.  In 1967 B, by now 19, moved back to live with the appellant and E for a year or so.  That year she had a child - A - by a man whose identity A has only recently discovered. 

3.        Eight years later in 1975 B and the appellant began a relationship.  He left E and moved in with B.  They had a daughter - D born in 1978 - but separated in 1992. 

4.        The investigation which eventually resulted in the indictment before the Royal Court was triggered by a visit by A in 2012 to Social Services.  A, by then herself the mother of two children, was referred by Social Services to Victim Support, and by Victim Support to the police.  Her reason for approaching Social Services had been concerns that the appellant may have committed offences against her own daughter D. 

5.        The indictment at one time contained 19 Counts. 

(i)        Counts 1-6 alleged indecent assault upon B between 1961 and 1963.  These counts were stayed by the court before the trial. 

(ii)       Counts 7-12 alleged five indecent assaults and one rape in respect of C between 1965 and 1974.  The appellant was acquitted of these counts. 

(iii)      Counts 13-18 alleged four indecent assaults and two acts of procuring acts of gross indecency in respect of A in or about 1974.  The appellant was convicted of these counts. 

(iv)      A count 19 alleging indecent assault against A's daughter D was not pursued by the Crown. 

6.        The trial was due to start on 13th November, 2013.  However, following a successful application in October on behalf of the appellant the date was vacated.  The case was then listed on many occasions between November 2013 and March 2014.  The eventual trial which lasted from 7th-15th April, 2014 was preceded by and contained within it a large number of legal arguments and rulings some of which form the basis of the Grounds of Appeal.  One such pre-trial judgment was a ruling that Counts 1-6 concerning B should be stayed. 

Grounds of appeal against conviction

7.        Grounds 1 and 2  submit that the judge was wrong, having stayed the counts in respect of B to allow B to give evidence of alleged assaults upon her in the trial of the appellant on the remaining counts, and that having done so he misdirected the jurats concerning this and the evidence of C in his summing up. 

8.        Ground 3 submits that the Court should also have acceded to a submission to stay the counts in respect of A. 

9.        Ground 4 submits that the Court was wrong to allow a late amendment of the counts in respect of A. 

10.      Ground 5 submits that even if no individual ground is sufficient to render the conviction unsafe, the cumulative effect of them is such as to do so, strength being lent to this ground by alleged inconsistencies in a statement made after the trial by A for the purpose of the sentencing hearing. 

11.      We have thought it best to consider the grounds chronologically in the context of the trial process. 

GROUND 3.

12.      On 14th March, 2014 the learned Commissioner heard the application to stay.  On 28th March, 2014 he ruled on the application.  The submissions were based upon the linked pillars of the passage of time and alleged problems of disclosure.  He used as the standard by which to decide the applications, the statement of principle of the Privy Council in Warren v AG [2011] JLR 424:-

"The Court had power to stay proceedings for abuse of process in two distinct categories of case: first, where it would be impossible to give an accused a fair trial; and secondly, where it offended the court's sense of justice and propriety to be asked to try an accused in the particular circumstances of the case (to avoid confusion, the issue in the second category should not be framed as whether it would be "fair" to try the accused). In the first category, if the court concluded that an accused could not receive a fair trial, it would stay the proceedings without more. No question of balancing competing interests would arise. In the second category, the court was concerned to protect the integrity of the criminal justice system. A balance had to be struck between the public interest in ensuring that those accused of serious crimes should he tried and the competing public interest in ensuring that executive misconduct did not undermine public confidence in the criminal justice system and bring it into disrepute. An infinite variety of cases could arise. Among the factors frequently taken into account by the court when conducting the balancing exercise were the seriousness of any violation of the accused's (or a third party's) rights; whether the police acted in bad faith or maliciously, or with improper motive; whether the misconduct had been committed in circumstances of urgency, emergency or necessity; the availability of a direct sanction against those responsible for the misconduct; and the seriousness of the offence with which the accused had been charged. Whether it could be said that "but for" an abuse of executive power an accused would not have been before the court at all was a factor for consideration but it would not always or even in most cases necessarily determine whether a stay should be granted. Proceedings should not be stayed for abuse of process merely to punish prosecutorial or police misconduct."

13.      In the event the Commissioner ruled that the counts concerning B should be stayed on the ground that it was now not possible to determine whether the allegations made by her in the same period as the offences now alleged in counts 1-6 which had resulted in the acquittal of the defendant were the same as one or more of the allegations now charged.  Hence it was possible that he was now indicted in respect of an offence or offences of which he had already been acquitted. 

14.      In respect of the second complainant C named in Counts 7-12 which alleged offences committed between 1963 and 1974, the submission was:-

(i)      That the long delay between the alleged offences and the trial made a fair trial impossible,

(ii)     that medical, Social Services, police and other records concerning her were unavailable thus leaving open the possibility that material which might exonerate the defendant or weaken the evidence of the complainant could not be placed before the Court.  

(iii)    that the defence had obtained evidence from an expert suggesting that the complainant suffered from a disturbance of mind which was capable of generating false complaints. 

That submission was rejected on the bases that:-

(i)      the delay was not sufficient to prevent a fair trial,

(ii)     the prosecution had thus far carried out its duty of examining material in its possession with a view to possible disclosure and would continue to do so, there being no evidence of any deliberate failure to reveal or disclose relevant material. 

(iii)    That the expert evidence could be placed before the Jurats for their consideration. 

15.      The defendant submitted in the case of Counts 13-18 concerning A that he should succeed in his application under:-

(i)      The conduct alleged had occurred some 40 years ago. 

(ii)     In addition her complaint had only been as the result of a complaint made by her daughter.  This latter allegation had originally been the subject of a count on the indictment but was abandoned by the Crown because of concerns for her medical condition.  Any attack on the credibility of A would, it was submitted, reveal to the Jurats the existence of the complaint by her daughter, now not pursued, and thus unfairly prejudice the defendant. 

(iii)    The submission concerning the absence of contemporaneous material which might have undermined the complainant's evidence, or at the very least provided additional material for cross-examination, was repeated in respect of these counts. 

(iv)     In support of that submission he referred in particular to the case of R v J.A.K. (1992) Crim LR 30, a case tried at first instance by Ognall J on 24th October, 1991 (and therefore before the decision of the Court of Appeal in Attorney General's Reference No 1 of 1990 [1992] QB 630). The short report in the Criminal Law Review contains the following words:-

"Held,...In the instant case the period of the delay of itself, and the agreed absence of any evidence capable of corroborating the complaint, led to an inference that a fair trial would be impossible. In addition the defence would be unable to explore the reasons for the complainant's delay in making her allegation without the circumstances of the daughter's allegations being adduced in evidence and thus the jury would be denied the opportunity evaluating her explanation for the delay. The fairness of a trial had been so seriously eroded that it would be oppressive for the prosecution to be allowed to proceed."

16.      The Commissioner ruled that the mere fact that a complaint made by one complainant was instigated by knowledge of another complaint cannot of itself make a trial so unfair as be an abuse of the process.  There are ways of managing trials so as to avoid unfairness, by discussions between the parties as to the scope of examination and cross-examination, by legal rulings as to admissibility, and by clear directions to the jurats in summing up as to what evidence in the trial is relevant to their decision.  In any event the defendant would have the chance at the close of the Crown case to submit that it should go no further.  Accordingly he declined to stay these counts. 

17.      The application was referred to again, although not in the end renewed, during the trial, when there was argument between the parties as to whether, and if so how, the Crown should be allowed to adduce evidence from A as to what had, indirectly, triggered her first report to the police, namely the allegation made to her by her daughter D.  After hearing argument the learned Commissioner refused the Crown's application.  The witness was informed outside court that she would not be asked by the Crown in chief about this.  Advocate Cadin was then careful not to ask questions which would have provoked an answer from the witness about it. 

Ground 3 The law

18.      We have been referred to a number of cases additional to those cited to the Royal Court.  It is common ground that in this area English and Jersey law are the same.  Most recently the principles governing abuse of process in England and Wales were set out by a 5 judge Court of Appeal presided over by the Lord Chief Justice Lord Judge in R v F(S) 2011 EWCA Crim 1844.  In a postscript to his judgment Lord Judge said:-

"47 When abuse of process submissions on the grounds of delay are advanced, provided the principles articulated in Galbraith and Attorney General's Reference (No. 1 of 1990) are clearly understood, it will no longer be necessary or appropriate for reference to be made to any of the decisions of this court except S(SP) and the present decision.  These four authorities contain all the necessary discussion about the applicable principles.  Their application, whether in the Crown Court or in this court, is fact-specific, and is to be regarded, unless this court in any subsequent judgment s=expressly indicates the contrary, as a fact-specific decision rather than an elaboration of or amendment to the governing principles.  In this court, but not the Crown Court, the separate question of the safety of the conviction, if there is one, may also arise for decision.  Again, however, the issues which may arise are illustrated by B (Brian S) and Smolinski.  No further citation of authority is needed.

48 We draw together the headlines to our principal conclusions.  Reference must nevertheless be made to the full terms of our judgment:

(i)        an application to stay for abuse of process on grounds of delay and a sub mission of "no case to answer" are two distinct matters.  They must receive distinct and separate consideration.  See [39]-[40];

(ii)       an application to stay for abuse of process on the grounds of delay must be determined in accordance with Attorney General's Reference (No. 1 of 1990).  It cannot succeed unless, exceptionally, a fair trial is no longer possible owing to prejudice to the defendant occasioned by the delay which cannot fairly be addressed in the normal trial process.  The presence or absence of explanation or justification for the delay is relevant only insofar as it bears on that question.  See [38]-[40];

(iii)      an application to stop the case on the grounds that there is no case to answer must be determined in accordance with Galbraith.  For the reasons there explained, it is dangerous to ask the question in terms of whether a conviction would be safe, or the jury can safely convict, because that invites the judge to evaluate the weight and reliability of the evidence, which is the task of the jury.  The question is whether the evidence, viewed overall, is such that the jury could properly convict.  See [36]-[37];

(iv)      there is no different Galbraith test for offences which are alleged to have been committed some years ago, whether or not they are sexual offences.  See [41];

(v)       an application to stay for abuse of process ought ordinarily to be heard and determined at the outset of the case, and before the evidence is heard, unless there is a specific reason to defer it because the question of prejudice and fair trial can better be determined at a later stage. See [43]-[45]."

19.      The principles for the court were helpfully set out by Advocate Cadin in his helpful skeleton argument, drawn from A-G's Reference No 1 of 1990 [1992] 1 QB 630, R v Stephen Paul S [2006] EWCA Crim 756, R v Frank Joynson [2008] EWCA Crim 3049 and R v F(S) (above):-

(i)      Even where a delay is unjustifiable, a permanent stay should be the exception rather than the rule. 

(ii)     There being no limitation period on the institution of proceedings, there is no elapse of time of itself sufficient to provoke a stay of proceedings. 

(iii)    Where there is no fault on the part of the complainant or the prosecution it will be rare for a stay to be granted. 

(iv)     No stay should be granted in the absence of serious prejudice to the defence such that no fair trial is possible. 

(v)     When assessing possible serious prejudice the judge should bear in mind his or her power to regulate the admissibility of evidence and that the trial process itself should ensure that all factual issues arising from the delay will be placed before the jury for their consideration with appropriate directions for the judge. 

(vi)     If, having considered all these factors, a judge's assessment is that a fair trial will be possible, a stay should not be granted. 

(vii)    The burden of proof rests upon the defence on a balance of probabilities. 

20.      The appeal on this point, as on all others, is not a retrial or rehearing.  Our duty is to examine the arguments again and to intervene only if we conclude that no judge faced with the arguments advanced could reasonably have ruled as this one did.  

21.      Advocate Cadin repeated before the arguments he made before the Commissioner.  Advocate Baker did likewise. 

22.      While accepting that delay itself cannot justify a stay Advocate Cadin referred the court to two Jersey authorities at first instance and a number of English authorities both at first instance and the Court of Appeal or House of Lords.  It is perhaps worth stressing that the story over the last 50 years or so of abuse of process in the English courts has not always been entirely consistent.  Such factors as:-

(i)      the transfer of responsibility from the police for instituting and maintaining prosecutions to the Crown Prosecution Service; and

(ii)     improvements in the system designed to ensure that unused material in the hands of the Crown which might assist the defence or undermine the Crown case is disclosed and

(iii)    the recognition, stimulated by recourse to the European Convention on Human Rights, that the complainant and the public at large, as well as the accused, have rights and that therefore cases should not be stayed simply to "punish" the police or Social Services for a lack of proper diligence,

have meant that a time when many cases in which there was something unavailable or even potentially unavailable generated applications - sometimes successful - to stay proceedings as an abuse of the court's process is now long past. 

23.      The additional Jersey cases cited are both cases decided at first instance.  

(i)      AG v R [1995] JLR 315 a case before the Royal Court in which the principles applicable to this type of case, in which it is commonplace for allegations to be made many years after the events they concern, were discussed.  

(ii)     Steel and Powell [2003] JLR 172.  This was another first instance case in which, on particular facts, the culpable absence of some CCTV evidence which may have thrown some light on the events in question was held not to prevent a fair trial. 

24.      The English cases to which we were referred were:-

(i)      R v J.A.K. referred to above,

(ii)     R v Turner (Transcript 27 March 2000), a case in the English Court of Appeal, in which the police's routine destruction of papers from many years earlier had prevented proper inquiry into the possibility have suggested that at that time the complainant had alleged an indecent assault, but not the rape currently before the court, at a time when that more serious offence had, allegedly, already taken place.  The appeal was allowed. 

(iii)    R v B [2003] EWCA Crim 319, where the Court of Appeal, presided over by Lord Woolf LCJ, allowed an appeal against conviction in a case with a single complainant.  The court accepted that the passage of time and the absence of any other material did not enable any real testing of her evidence at all.  In spite of the trial being impeccably conducted from start to finish and there being no criticism of any individual decision or direction of the judge the Court exercised what it described at paragraph 37 of the judgment as:-

"a residual discretion to set aside a conviction if we feel it is unsafe or unfair to allow it to stand".

(iv)     R v Joynson [2008] EWCA 3049, a case in which former pupils alleged abuse by a schoolmaster.  In this case there were five complainants.  The school records had been destroyed and the headmaster of the school had himself been convicted of offences against children in the school.  There were concerns that the complainants may have wrongly accused the defendant when the offender had been the former headmaster.  There was an issue between the parties as to when the defendant had left the employment of the school.  If he had done so when he claimed to have done he could not have been responsible for some of the offences.  Another complainant disagreed fundamentally with his mother over a contemporaneous complaint which had been reported by the mother to Social Services.  The court allowed the appeal. 

(v)     R v F (TB) 2011 EWCA Crim 2011 726, a case similar to B and Joynson above, in which the Court of Appeal allowed the appeal of an appellant who was convicted, as this appellant was, some 40 years after the alleged offences.  In this case however the complainant had complained to her mother some 27 years earlier but no action had been taken.  The court decided that there were strong similarities between the case and those of B and Joynson (above) in particular the absence of material upon which to cross-examine the complainant. 

(vi)     R v RD [2013] EWCA Crim 1592.  In this, the most recent case, the Court of Appeal was considering convictions between 39 and 63 years old.  It re-examined the evidence at trial and concluded that the convictions were safe.  The judgment contains the following words which we have found particularly helpful:-

"14. The delay in this case is exceptionally long, between 39 and 63 years. The length of the period of itself proves nothing beyond that historical fact. What is of crucial importance is the effect of such delay on the fairness of the trial and the safety of any resultant convictions. In this case the appellant's submissions have not proceeded by reference to generalities based on the substantial lapse of time. Mr Kimsey has rightly concentrated on the question of prejudice to the defence caused by the absence of witnesses and documents arising from the delay. Quite apart from the question of missing materials, there were raised by the appellant in his trial issues of alleged collusion between the complainants and assertions of vagueness and inconsistency within their evidence. Those matters are of course not relevant to considerations of whether the trial should have been stayed on grounds of prejudice arising from extreme delay. They, along with the reasons for delay in reporting, form part of the relevant material for the jury to consider in deciding if the Crown has proved its case.

15. In considering the question of prejudice to the defence, it seems to us that it is necessary to distinguish between mere speculation about what missing documents or witnesses might show, and missing evidence which represents a significant and demonstrable chance of amounting to decisive or strongly supportive evidence emerging on a specific issue in the case. The court will need to consider what evidence directly relevant to the appellant's case has been lost by reason of the passage of time. The court will then need to go on to consider the importance of the missing evidence in the context of the case as a whole and the issues before the jury. Having considered those matters, the court will have to identify what prejudice, if any, has been caused to the appellant by the delay and whether judicial directions would be sufficient to compensate for such prejudice as may have been caused or whether in truth a fair trial could not properly be afforded to a defendant."

25.      We have borne in mind that this court must:-

(i)      Not attempt to retry cases to see whether it had been the court of first instance it would or would not have stayed proceedings, although it may review the way in which the trial actually proceeded and in an exceptional case quash a conviction. 

(ii)     In particular if its members all hail from other jurisdictions, bear well in mind that Jurats are "learned Jurats" rather than lay jurors.  In this context we were helpfully reminded of a decision of the Jersey Court of Appeal in Snooks v AG [1997] JLR 253 in which the special position of learned Jurats as opposed to jurors is set out in detail. 

(iii)    Recognise that as the Crown is representing the public at large - and the complainant as a member of the public - an allegation should be tried unless a fair trial is impossible. 

26.      The question for the Court below and for this court, reviewing the safety of a conviction, is not (see RD above) how long the delay was but what effect did it have on the fairness of the proceedings.  In particular was its effect such that taken on its own or with other factors it made a fair trial impossible? 

27.      In almost every case there are stones which have not been turned, and material which might have existed which does not.  Why was this or that article not tested for DNA or fingerprints?  Why was the CCTV footage not immediately saved?  Was every passer-by who may have witnessed an incident interviewed?  Equally, in many cases, where historic or contemporary, there are simply two contradictory accounts, with the burden and standard of proof as the standards against which they must be measured. 

28.      What is it about the evidence of A which means - granted that some material which existed in the 1970s does not exist now - that the court could not ensure a fair trial of the appellant?  Essentially the Jurats were left with an account, together with suitable directions as to the difficulties created for the defendant in raising an alibi etc, upon which they should only convict if they were sure it was true.  

29.      We have revisited the arguments before the Commissioner and his Ruling.  He was rightly taken to the principles set out in the cases cited and applied them.  We cannot fault his eventual decision that the difficulties faced by the defendant could be overcome by trial management on his and the advocates' part so as to leave the Jurats with the decision on guilt or not.  We reject Ground 3 although we shall return to it when considering Ground 5 of the appeal. 

Grounds 1 & 2

30.      Following the ruling to which we have just referred the Crown applied for permission to adduce the evidence of B in support of its case in respect of the second and third complainants.  Objection was taken to that course.  

31.      The Crown submitted that in spite of the decision to stay Counts 1-6 the evidence which gave rise to them from B should be allowed in evidence.  The Commissioner, in a detailed ruling given on 1st April, 2014, granted the application. 

32.      In summary, and in reliance on the judgments of the House of Lords in R v Z [2000] 3 All E R 385  and of the English Court of Appeal in R v David John R (25th May 2000) he ruled:-

(i)      that the principle of double jeopardy, autrefois acquit or ne bis in idem was not infringed when evidence of offences for which a conviction is impossible because of an acquittal in respect of them is led in support of other charges, provided that it is otherwise admissible. 

(ii)     That in this case the evidence fell squarely within the "similar fact" principle, the allegations containing striking similarities to those contained in the counts which were to be tried.  The defence would have the opportunity to test possible collusion between one or more of the complainants in cross-examination which might explain those similarities. 

(iii)    That in spite of having found that the counts concerning B should be stayed the appellant was not unduly hampered in his ability to cross-examine the witness about the allegations. 

33.      Advocate Cadin, who represents the appellant before us as he did at trial, has repeated the submissions he made at the trial.  In addition he urges us not simply to review the ruling of the Commissioner at the time he made it but to review, as part of his Ground 5, the consequences of that  ruling in the light of the way in which the trial developed. 

34.      In summary he submitted - and submits to us:-

(i)      That her evidence was not so "similar" to that of A that the jurats should have been allowed even to consider whether it did, or did not, support it. 

(ii)     Though all young they were of different ages, pre-pubertal in the case of A and post-pubertal in the other cases. 

(iii)    That her evidence could not properly be challenged because of the passage of time, the admitted destruction of any documentation, and the death of the officer to whom the original complaint had been made. 

(iv)     That her evidence was not "independent". 

(v)     That any probative force it had was outweighed by the prejudicial effect it would have/must have had on the minds of the learned Jurats. 

35.      On behalf of the Attorney General Advocate Baker submitted that:-

(i)      the evidence was admissible under the principles in Z as showing a course of conduct by the appellant in respect of daughters of the family following his acceptance into it by JB.  In each case the victim stood in the position of daughter.  In each case the allegation was of vaginal interference.  In each case the complainant was of tender years.  Moreover, the evidence was admissible to show that the appellant's contention in interview that he had no interest sexually in young girls was a lie. 

(ii)     There was ample opportunity to challenge B's evidence.  The absence of documentation concerning the 1964 proceedings which had prompted the successful application for a stay, combined with B's professed lack of recollection of those proceedings meant that the appellant's account of them given in interview was the only one.  In the event the cross-examination of B occupied some 14 pages of transcript. 

36.      As to iii and iv he submitted that the Jurats were well able to judge the independence or otherwise of the witness and there was ample material upon which to test the witness' evidence.  The problem arises in all cases in which the allegations against the appellant involve different members of the same family. To v he submitted that it was pre-eminently a matter for the Commissioner in the exercise of his discretion to decide on the proper balance between probative force and unfairly prejudicial effect and to deal with the matter appropriately by direction. 

37.      We have reviewed the submissions and the ruling of the Commissioner.  We conclude:-

(i)      All three complainants were indeed in the position of daughters of the appellant. 

(ii)     All the alleged offences took place in the family home. 

(iii)    All took the form of interference with the vagina. 

(iv)     All the victims were young. 

38.      The common law principles to be applied to the question of "similar fact" evidence have been the subject of anxious consideration by the courts of England and Wales for well over a century.  In that jurisdiction they are now contained in Part 11 Chapter 1 of the Criminal Justice Act 2003.  In Jersey the law remains the common law as set out in decisions of the House of Lords in the cases of R v P [1991] 3 All ER 337, R v H 2 All ER 865 and R v Z [2000] 3 All ER 385, and cases decided by the courts of Jersey since, only one of which was cited before us, namely Styles v AG [2006] JLR 210.  

39.      The appellant also cited O'Brien v Chief Constable of South Wales [2005] 2 AC 534.  This case concerned a civil claim by a man who had been convicted of murder, who then, following the quashing of his conviction by the Court of Appeal, sued the police force responsible for the investigation of the case.  The speeches were careful to note the differences in the application of the then, common law, rules governing the admissibility of similar fact evidence, because of different natures of the tribunals concerned.  The instant case was to be tried by judge alone.  Criminal cases in which the evidence is ultimately to be analysed by a jury were distinguished.  The courts in Jersey have similarly drawn the distinction between professional jurats and lay jurors - see Snooks above - when considering questions such as those posed which require a two-stage process to be gone through.  Stage one is the assessment of the admissibility of the evidence.  Does it potentially affect the strength of the case being made by the party wishing to lead it?  Stage two considers whether, even if admissible it is likely so to prejudice the minds of the tribunal of fact that it will lend undue weight to it.  If the evidence fails the stage two process it will be excluded and if an appellate court concludes that no reasonable judge could have concluded that it was fair to admit it will intervene.  The following is from the speech of Lord Bingham.

"6 While the argument against admitting evidence found to be legally admissible will necessarily depend on the particular case, some objections are likely to recur. First, it is likely to be said that admission of the evidence will distort the trial and distract the attention of the decision-maker by focusing attention on issues collateral to the issue to be decided.  This is an argument which has long exercised the courts (see Metropolitan Asylum C District Managers v Hill (1882) 47 LT 29, 31, per Lord O'Hagan) and it is often a potent argument, particularly where trial is by jury. Secondly, and again particularly when the trial is by jury, it will be necessary to weigh the potential probative value of the evidence against its potential for causing unfair prejudice: unless the former is judged to outweigh the latter by a considerable margin, the evidence is likely to be excluded."

Lord Phillips, in his speech, also articulated the differences between civil, in particular those without a jury, and criminal proceedings.  

"11 ......Rules of admissibility govern the circumstances in which evidence which is relevant is not admitted. Two policy considerations underlie the rules of admissibility with which this appeal is concerned. First, evidence should not be admitted if it is C likely to give rise to irrational prejudice which outweighs the probative effect that the evidence has in logic. This consideration of policy carries particular weight where the tribunal is a jury, whose members are not experienced as are judges in putting aside irrational prejudice....."

40.      Standing behind all principles of law concerning the admissibility of evidence are, in England and Wales, section 78 of the Police and Criminal Evidence Act 1984, and in Jersey Article 76 of the Police Procedures and Criminal Evidence (Jersey) Law 2003.  This, like section 78 of PACE, represents the codification of common law principles enabling the trial judge to maintain the fairness of the trial.  In that context we have borne in mind that the court is not protecting the fair consideration of jurors with no previous knowledge or experience of the criminal justice process but the fair consideration of professional jurats with much experience of - and training in - the weighing  of evidence. 

41.      We have reviewed the ruling, both in respect of its correctness at the time, and as to whether the admission of the evidence in fact rendered the trial unfair. We unhesitatingly conclude against the appellant in both respects. 

42.      Following the ruling B gave evidence.  So far from being unable to cross-examine her effectively Advocate Cadin did so over 33 pages of transcript, in the course of which he questioned her about:

(v)     Her failure to complain:-

(i)      to the police officer who was called to the 1964 incident, a child care officer, teachers at school or school friends, sports coaches, violin teacher, doctor, foster parents, and staff at the children's' home after she was put into care.  

(ii)     To anyone at all during an extended period living in England.  

(iii)    To anyone at all after the breakdown of her relationship with the appellant in the early 90s, even though that might have been an opportunity to make up with her mother who was still alive then.  In particular she had failed when discussing the topic of child abuse at Haut de la Garenne with her doctor to mention it or to take up the opportunity of discussing the issue with a counsellor.  

(vi)     Her account of what happened to her in 1964 and the incident which involved the police being called.  

(vii)    The fact that when this incident resulted in an appearance at court she had said that what was alleged had not happened and thus the appellant was acquitted. 

(viii)   A remark to the police to the effect that "I nothing sexual with him until he moved in, left mum".(sic as transcribed). 

(ix)    The unlikelihood, if what she claimed had in fact happened, of her moving back into the family home with the appellant and her mother after she left the children's' home. 

(x)     The unlikelihood that she would leave her daughter A then aged about 7 with her mother and the appellant when she returned to Jersey from England.  

(xi)    The appellant's television watching habits - as a contrast to evidence anticipated from A. 

(xii)   The fact that she noticed nothing untoward in A's behaviour at the time it is now alleged that the appellant was offending against her.  

(xiii)   The fact that she claimed to have no recollection of A telling her that the appellant had interfered with her.  If she had done she would not have remained with the appellant let alone have a child by him in 1978. 

(xiv)   The fact that the children she had with him took his surname. 

(xv)    A suggestion that the relationship between her and the appellant had broken up because A had failed to pay the rent. 

(xvi)   A suggestion that she would never have left their daughter then about 14, the age at which she now claimed that the appellant had assaulted her, to live with him alone. 

(xvii)  A suggestion that she and A had spoken together before she first spoke to the police. 

(xviii) The fact that she had raised concerns in respect of her sister in the 1960s though not in respect of herself.  

43.      Having wrongly admitted the evidence of B, Advocate Cadin submitted that the Commissioner's error was compounded, or if the evidence was correctly admitted, that in any event the Commissioner misdirected the Jurats in summing up as to the proper approach to be taken to the evidence of B, and C, in respect of the consideration of the counts concerning A.  

44.      In short he submits:-

(i)      That the Jurats should have been directed that unless they were sure that B's or C's evidence was true they could not even consider whether either witness in fact lent material support to the evidence of A. 

(ii)     That therefore his direction at page 48 of the summing up - "it's for you to decide the degree to which the evidence of one woman assists you to assess the evidence of the others" - was a misdirection.  

(iii)    That in view of the fact that the Jurats acquitted the appellant in respect of the counts concerning C there is a danger that he was convicted on the counts concerning A on the basis that C's evidence did support that of A, in particular because there was no direction to the Jurats not to be unfairly influenced by evidence they thought insufficient for conviction but sufficient for corroboration. 

45.      If indeed the direction quoted at b. above was a misdirection it would certainly render any subsequent conviction unsafe. 

46.      The question is, was it?  We have considered a number of cases in both jurisdictions, this being a topic which has exercised the minds of appellate courts for many years.  We have considered the cases of Styles [2006] JLR 210, R v P [1991]3 All ER 337, and R v H [1995] 2 All ER 319 and R v Z [2000] 3 All ER 385 (HL). 

47.      Advocate Cadin relies in particular on obiter dicta in R v Z, the case in which the House of Lords held that the rule against double jeopardy does not apply when the Crown seeks to lead evidence of behaviour similar to that alleged in the instant which had formed the subject of a previous trial or trials at which the defendant had been acquitted.  In the course of his short speech agreeing with the conclusions reached by Lord Hutton, Lord Hobhouse of Woodborough said:-

"Evidence given at a later trial of a previous similar incident will only be relevant if the jury believe that the complainant is telling the truth, otherwise it has no probative value to the prosecution. The jury at the later trial would therefore have to consider whether to believe her and the defendant would be faced with needing to give evidence which would persuade the jury that she should not be believed. The issue raised at the previous trial would be tried again at the later trial and the defendant would be having to defend himself again. If the jury at the later trial decide to accept that complainant's evidence, they will be arriving at a decision inconsistent with that arrived at by the jury at the previous trial at which he was acquitted. But it may be proper that they should do so since the evidence will be different."

48.      In addition the Court considering the question of the admissibility of similar fact evidence will always have to consider the question of unfairness, codified in England and Wales by Section 78 of the Police and Criminal Evidence Act 1986 and in Jersey by Article 76 of the Police Procedures and Criminal Evidence(Jersey) Law 2003.  This reads:-

"76 Exclusion of unfair evidence

            (1) Subject to paragraph (2), in any proceedings a court may refuse to allow

evidence on which the prosecution proposes to rely to be given if it appears to the court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would so adversely affect the fairness of the proceedings that the court ought not to admit it.56

            (2) Nothing in this Article shall -

(a) prejudice any rule of law requiring a court to exclude evidence; or

(b) apply to extradition proceedings or proceedings pursuant to Article 19 of the Loi (1864) reglant la procedure criminelle.

(3) Nothing in this Law shall prejudice any power of any court to exclude evidence, whether by preventing questions from being put or otherwise, at its discretion."

Decision

49.      Evidence is simply evidence; the only requirement for certainty rests in the eventual verdict.  There are countless cases where different pieces of evidence, not decisive in themselves, are put together to create certainty in a jury's mind.  No different principle applies to "similar fact" evidence than applies to any other type of evidence.  The dictum quoted from Z above does no more than state the obvious - namely that if a witness makes an assertion which the fact finder does not believe the assertion will not form part of the eventual decision. 

50.      The principle applies as well to C's evidence, where the Jurats had a dual function.  They had to decide whether they were sure that what she said was true.  Any state of mind short of certainty beyond reasonable doubt meant acquittal.  When considering A's case the question in respect of C's evidence was different.  To what extent if at all does C's evidence lend support to the evidence of A?  In our judgment it was perfectly clear to the Jurats that if they were sure that C was lying then her evidence could not be used to support that of A.  If they thought it may be true or was probably true then they were entitled to use it to support that of A in the ways suggested by the Crown even though they were not sufficiently sure of it to convict the appellant.  Whether they did use it to reach their conclusion or whether in fact they were convinced by the witness A that she was telling the truth without recourse to the "supporting evidence" of either C or B we shall never know.  In fact, as Advocate Cadin conceded, the evidence of B was closer in its detail to the evidence given by C and the Jurats acquitted in respect of the C counts.  Accordingly we reject this ground. 

Ground 4

51.      The amendment to the Indictment was sought at a very late stage of the trial, after the conclusion of the speeches, and as a direct result of points made in Advocate Cadin's final speech.  The later an amendment is sought, the more it must be scrutinised.  The cardinal principle must be that the accused must know, and have had the opportunity to meet, the case brought against him and to put it to the jury or Jurats for their decision.  

52.      The law in England on this topic is clearly set out in the Indictment Rules 1915:-

"5.-(1) Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless, having regard to the merits of the case, the required amendments cannot be made without injustice .."

and in the cases of R v Johal and Ram [1972] 1 QB 475 and R v Bonner [1974] Crim LR 479."

53.      The principles applicable in England are equally applicable in Jersey, Rule 6(1) of the Indictments (Jersey) Rules 1972, being in identical terms to Rule 5(1) above.  The two Jersey cases cited confirm that the principles developed in the English cases following the 1915 rules apply equally in Jersey. 

54.      The Indictment alleged that the assaults and other offences against A had taken place "in or about 1974", at a time when she was 6 or 7 years old.  In fact the evidence she gave suggested that what she was alleging had happened a year or so later in 1975-6 after she moved in with B.  The chronology became clearer from a series of Admissions between the parties which were put before the Jurats.  The Commissioner heard argument on the application and ruled in favour of the Crown.  Following his ruling Advocate Cadin's request to be allowed to reopen his closing speech to deal with the amendment was refused without argument.  Advocate Cadin has renewed his submissions on the amendment, although he did not indicate to us how - if granted the opportunity - he would have addressed the Jurats following the amendment. 

55.      In brief he made the following points in respect of the amendment:-

(i)      It meant that his speech, which contained an attack on A based upon the date alleged in the indictment, would have been different. 

(ii)     That the years 1974-6 were significant years in the life of the family and it was important to know how the Crown put their case in the context of some significant developments which took place during those years. 

56.      In reply Advocate Baker submitted:-

(i)      Date in this case is not a material averment.  

(ii)     The words "in or about" 1974 are apt to cover years either side, in particular 1975-6 in an indictment dealing with offences alleged to have taken place 40 years ago. 

(iii)    The case the appellant had to meet remained exactly the same at the end of the trial as it was at the beginning. 

57.      We have had to look at this incident in the trial both on its own, and in the context of the other matters, which, so it is submitted, even if they would not cause us to overturn the conviction alone, should do so when taken together.  Time is not a material averment in an indictment, save when it is a vital ingredient.  Examples are offences in which the victim has to be proved to be below a certain age for an offence to be made out, offences which can only be committed during a period of disqualification, or, if legislation has created a new offence, after the date upon which the enactment came into force.  Subject to these limitations, the overriding principle must be fairness. 

58.      Clearly, the moment when it became clear to Advocate Baker that it was likely that, if they had happened at all, the offences described by A had happened after June 1975 when A was 7 or 8 years old, rather than in 1974 when she was 6, should have been the moment when he asked for the indictment to be amended if he felt it necessary to do so.  At that time he could not know whether the accused was going to give evidence and whether the question of date was going to be a real issue.  However, in the end the appellant did not give or call evidence relevant to the date in the counts.  

59.      However when counsel came to make their final speeches Advocate Cadin, who had called no evidence directly relevant to the counts concerning SB , had therefore to rely upon such points as he could draw from the Crown's own case. In his written contentions he submits that the date issue was "one of the few limbs, if not the only limb" of defence open to him. 

60.      In fact there were a number matters which Advocate Cadin put to the jurats in an attempt to persuade them that there was at the very least a reasonable doubt as to the appellant's guilt of the charges concerning A.  These were in summary:-

(i)      The point about the date in the indictment. 

(ii)     The alleged conversation between A and B. 

(iii)    A's evidence that the appellant always treated her properly. 

(iv)     Inconsistencies between the counts in the indictment which alleged different offences and A's evidence that "the same thing happened every time."

(v)     Her evidence that he treated her well until adolescence. 

(vi)     Her failure to tell anyone (except possibly her mother) and in particular to warn B not to leave C alone with him. 

(vii)    The fact that her account and D's differ about what was said between them. 

(viii)   The impossibility of being sufficiently sure to be satisfied on the evidence of A, even assisted by consideration of the evidence of C and B. 

61.      What was the effect of the late amendment on any of these points apart of course from (i)?  In our judgment none at all. 

62.      In our judgment, although it would have been better if the application had been made and granted at a much earlier stage, there was no unfairness to the appellant.  We shall deal with the grounds in the round and the general safety of the conviction later. 

63.      As a postscript to the ground Advocate Cadin submitted that even if the amendment could have been allowed without unfairness it was yet another factor to take into account in assessing the overall fairness of the proceedings.  In short he submits that this episode is sufficient, with all the matters raised before and during the trial, to compel this court to set aside the convictions under the powers given by Article 26(10 of the Court of Appeal (Jersey) Law 1961.  This submission led to consideration of this final ground. 

Ground 5

64.      Following the conviction the case was adjourned for sentence.  

65.      At that hearing the Crown submitted a Victim Personal Statement from A.  This contained information which, submits Advocate Cadin, had he had the chance to follow it up, might have led to further evidence being available to demonstrate that her evidence was unreliable.  In it the complainant describes difficulties which she has experienced in her life since childhood.  She mentions the consideration she has given to the possibility of changing her surname from that of the appellant to another name and the reasons why she has not in the end done so.  The emergence of these matters which must have been known to the witness at the time she made her original statement should have been disclosed to the defence in case material emerged to the affect the credibility of A when she gave evidence. 

66.      Advocate Cadin submits that we should - even if we are not convinced that any of the individual grounds are sufficient in themselves to justify quashing the convictions - look at the trial, and the individual grounds as a whole - and decide whether looking at the entire trial through its transcripts we consider that the appellant had a fair trial.  In performing that review we should put in the balance the material in the Victim Personal Statement.  It goes without saying that cases of this sort of age, involving a number of complainants, require careful handling and a thorough review by this court both to review the individual decisions and directions made during the trial but also a general review.  It may be that a ruling which was perfectly proper on the information before the court at the time it was made, may turn out in retrospect to have been mistaken, or that the court concludes - as it did in B above - that although there is no valid criticism of the trial or any individual part of it, the conviction is nevertheless unsafe and should be quashed.  

67.      We have performed that review, and taken account as we did so of the contentions concerning the Victim Personal Statement of A.  If anything, the information on the possible change of name by A was a factor which tended to enhance her credibility and the effect of the absence of that information was that that enhancement was not before the Jurats.  Suffice it to say that having examined the individual rulings and directions of the Commissioner, and the trial as whole, we find no grounds for concluding, under Article 26 of the Court of Appeal (Jersey) Law that the convictions on the counts concerning A "....should be set aside on the ground of a wrong decision of any question of law or that, on any ground, there was a miscarriage of justice,...."

68.      Accordingly the appeal against conviction is dismissed. 

69.      There is however one matter, which was raised by Advocate Cadin in his written submissions as forming a significant part of the background to the case, to which we wish to refer.  As is clear from the authorities cited to us and our knowledge of the criminal justice process, cases of historic child abuse require extreme care.  The investigators must investigate the case thoroughly.  That investigation should include a thorough investigation into the period of time which has elapsed between the alleged offences and the date of the complaint, so that any material still available is examined and either served as part of the case or collected for potential disclosure.  Sometimes material is discovered during the investigation which casts such a serious doubt over the credibility of one or more complainants' evidence that it would not be proper to institute proceedings.  The Prosecution should be in position at the time of charge, to produce all the available evidence and to have conducted the search for material which may be disclosable under the Attorney Generals Guidelines.  The discovery of material which brings a prosecution to an end after charge is a potential disaster for all concerned.  The complainant has had hopes of having complaints aired in court dashed and a defendant has had his reputation tarnished for no good reason.  This trial was originally set down for hearing in November 2013.  It was adjourned eventually until late March 2014 when the six counts were stayed and the trial of the remainder tool place in large part due to the disclosure exercise much of which should have been carried out before charge having to be performed after it. 

Application for leave to appeal against the Commissioner's refusal to award the appellant's costs

70.      On 24th July, 2014, the Commissioner heard arguments on the question of costs.  

71.      Advocate Cadin submitted to the Commissioner that, in respect of what all agreed was a difficult and complex trial in which his client had been acquitted in respect of complaints made by three out of four original complainants, his client should receive his costs in respect of the counts of which he was acquitted from public funds under Article 2 (1) and (8) of the Costs in Criminal Cases (Jersey) Law 1961.  The Commissioner considered the cases of AG v Gouveia [2000] JLR 324, [2003] JRC 099 and Flynn v Reid [2012] (2) JLR 226.  He concluded that the matter was one for his discretion in a case in which there had been a mixture of acquittals and convictions, and that in particular the fact that the operation of the Legal Aid scheme in Jersey means that without an order for costs the defending solicitor will be out of pocket, was as irrelevant to the issue in criminal as it is in civil cases. 

72.      The Commissioner was provided, as we have been, with skeleton arguments from both advocates.  The agreed principle to be applied was that set out by the Court of Appeal in England in Practice Directions [1982] 3 All ER 1152 and [2013] EWCA Crim 1632. 

"Where the Defendant is acquitted on one charge but convicted on another the court should make whatever order seems just having regard to the relative importance of the two charges and the conduct of the parties generally".

"Where a person is convicted of some count(s) in the indictment and acquitted on other(s) the court may exercise its discretion to make a defendant's costs order but may order that only a proportion of the costs incurred be paid. The court should make whatever order seems just having regard to the relative importance of the charges and the conduct of the parties generally. The proportion of costs allowed must be specified in the order."

73.      The corresponding law in Jersey Article 2(1)(c) of the Costs in Criminal Cases (Jersey) Law 1961, states:-

"...... if the accused is discharged from the prosecution or acquitted,

order the payment out of public funds of the costs of the defence."

74.      There is a preliminary point raised by Advocate Baker in respect of this application.  While accepting that for the purposes of an appeal to this court an order that a convicted defendant should pay costs is to be treated as part of the sentence, whether the order was made at the same time as the substantive sentence or not, he submits that a refusal to order costs cannot be so treated, there being no "order" to appeal.  

75.      Advocate Cadin opposed this preliminary submission, submitting that the proper interpretation of Article 44(1) would allow this court to make an order in respect of the defence trial costs even if it had declined to interfere with the conviction and there was no appeal against the substantive sentence. 

76.      Turning to the substantive merits of the application, Advocate Cadin submitted that the counts of which the appellant was acquitted merited and received a huge amount of work and that even though the Commissioner is afforded a wide discretion as to what he considers "just" and the ability of this Court to interfere is strictly limited to cases, as set out in Self v AG [2010] JCA 061 and X v AG [2011] JLR 166, in which Bennett JA, giving the judgment of the Court, said:-

"We, with respect, agree with the Court of Appeal in Self that this court can only interfere with an award of costs by the court below if it is satisfied that no court, acting reasonably, could possibly have reached the determination it did. In other words, if the decision of the court below was perverse. In our judgment, we would add that, in accordance with the decision of the House of Lords in G v. G (2), an appellate court can also interfere with the exercise of discretion by a court below if the court below has taken into account in reaching its decision something that it should have excluded or failed to take into account in reaching its decision something that it ought to have taken into account."

that nevertheless the merits of this case are such that this court should intervene. 

77.      In this case it is hard to see how the work done by the defence solicitors, which amounted, so the court was told to more than 1000 hours in total, would have been any more or less whatever the result of the trial, save in respect of the application to stay the proceedings in respect of B.  The work needed to prepare for the defence of the counts concerning A would of course have involved, as will be clear from the points made during the appeal against conviction, a careful preparation of material concerning the "similar fact" evidence of B and C together with an investigation of the complaint by D to A which led eventually to the charges being brought. 

78.      What appears to lie behind the application was the practical consequence of a failure to award even part of the defence costs from public funds, namely a difference in the schemes for payment between Legal Aid on the one hand and Central Funds on the other.  In dealing with that point the Learned Commissioner said at para 17 of his judgment:-

"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 Flvnn v Reid [2012] (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."

79.      We are convinced by Advocate Bakers' preliminary point.  The only way in a criminal appeal in which a costs order can be treated as part of the sentence is by reference to a costs order against a convicted defendant.  For the Court to entertain appeals on behalf in effect of defence lawyers where no award of costs has been made would be to stretch the language of the relevant legislation way beyond its language and intention.  Accordingly this application is refused.  In any event were we wrong about this we would not have interfered with the discretion of the Commissioner who had had control of the case from the outset and was in a far better position than are we to decide the question. 

Authorities

Warren v AG [2011] JLR 424.

R v J.A.K. (1992) Crim LR 30.

Attorney General's Reference No 1 of 1990 [1992] QB 630.

R v F(S) 2011 EWCA Crim 1844.

R v Stephen Paul S [2006] EWCA Crim 756.

R v Frank Joynson [2008] EWCA Crim 3049.

AG v R [1995] JLR 315.

R v Turner (Transcript 27 March 2000).

R v B [2003] EWCA Crim 319.

R v Joynson 2008 EWCA 3049.

R v F (TB) 2011 EWCA Crim 2011 726.

R v RD [2013] EWCA Crim 1592.

Snooks v AG [1997] JLR 253.

R v Z [2000] 3 All E R 385.

R v David John R (25^th May 2000).

R v P [1991] 3 All ER 337.

R v H 2 All ER 865.

R v Z [2000] 3 All ER 385.

Styles v AG [2006] JLR 210.

O'Brien v Chief Constable of South Wales [2005] 2 AC 534.

Police and Criminal Evidence Act 1984.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

R v H [1995] 2 All ER 319.

AG v Gouveia [2000] JLR 324.

AG-v-Troy [2003] JRC 099.

Practice Directions [1982] 3 All ER 1152 and 2013 EWCA Crim 1632.

Costs in Criminal Cases (Jersey) Law 1961.

Self v AG [2010] JCA 061.

X v AG [2011] JLR 166.