Application for leave to appeal against conviction following a trial in the Royal Court.
Before : |
James McNeill, Q.C., President; |
Neil William Bennett
-v-
Her Majesty's Attorney General
Application for leave to appeal against conviction following a trial in the Royal Court.
Advocate C. Hall for the Appellant.
Advocate M. T. Jowitt., Crown Advocate.
JUDGMENT
PERRY JA:
This is the judgment of the Court.
1. On 12th June, 2014, following a trial in the Royal Court of Jersey, Samedi Division, before Commissioner P.J.L Beaumont, CBE., QC, and a jury, the applicant in these proceedings, Neil William Bennett, was convicted of an offence of grave and criminal assault. Subsequently, on 7th August, 2014, he was sentenced to 5 years' imprisonment.
2. The incident giving rise to the criminal proceedings occurred in the early hours of Saturday 28th September, 2013. The prosecution case, reduced to its essentials, was that the applicant, using a kitchen knife, stabbed Justin Sumrie, his business partner, three times, causing serious injuries. The stabbing took place at the applicant's home address at a time when he was intoxicated through drink and was unprovoked. The defence case at the trial was that Mr Sumrie was the aggressor, and that it was he, rather than the applicant, who had launched a violent and unprovoked knife attack, and that in the course of the scuffle that followed, Mr Sumrie had somehow turned the knife upon himself. The applicant did not himself give evidence in support of his defence, although he did call two witnesses as to fact. Neither of these two witnesses had been present at the time of the assault, the first, Dionne Gilbert, is the applicant's former wife and she gave evidence about two telephone conversations that she had had with Mr Sumrie on Saturday 28th and Sunday 29th September, 2013, during the course of which, according to Ms Gilbert, Mr Sumrie had said that what had happened was an accident. The second defence witness was Mr Brian Panaluna, who worked with the applicant in his retail clothing business known as White Collar. He had been called to give evidence about Mr Sumrie's business activities, but, in the event, gave no evidence that was material to the circumstances in which the assault had taken place.
3. The applicant now seeks leave to appeal against his conviction on the basis that he has suffered a miscarriage of justice arising from the conduct of his legal representative at the trial. In summary, it is argued on the applicant's behalf that his counsel failed in his professional duty and, in particular, that he failed properly to advance his case; failed to call material witnesses and failed properly to advise the applicant on the consequences of his decision not to give evidence. In the alternative it is argued that it was the prosecution's duty to call one of the witnesses and its failure to do so resulted in a miscarriage of justice.
4. Before we turn to consider the issues that arise for determination in this application, it may be helpful at this stage to say something about appeals based on the conduct of lawyers. There is no doubt that an error, or errors, on the part of an advocate may lead to the quashing of a conviction, provided that the error has resulted in a miscarriage of justice (to use the language of the Court of Appeal (Jersey) Law 1961). A number of formulations of the test for determining whether an advocate's conduct is sufficient to lead to the quashing of a conviction can be found in the authorities. In R v Ensor [1989] 2 All E.R. 586 it was suggested that the advocate's conduct must be "flagrantly incompetent", while in R v Richards [2000] All E.R (D), it was suggested that the test to be applied in relation to the conduct of the lawyer was "Wednesbury unreasonableness", a reference to the decision in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223. In R v Clinton [1993] 2 All E.R. 998, the English Court of Appeal (Steyn L.J. Garland and Rougier JJ) recognised the difficulties associated with such tests and stressed that what mattered was not the extent or quality of the advocate's error, but whether the conduct affected the safety of the conviction. To put this another way, the issue is whether the conduct of the lawyer has rendered the trial unfair; see Boodran v State of Trinidad and Tobago [2002] 1 Cr App R 103. Transposed to this jurisdiction, it would be necessary to consider whether the advocate's error was such as to have led to a miscarriage of justice.
5. In Clinton, supra, it was stated that if the decision of an advocate is taken in good faith, having weighed the competing considerations and having consulted his client when appropriate, the Court of Appeal is much less likely to interfere than where the decision is taken in defiance of instructions and without reference to the client.
6. The procedure to be followed by legal representatives when dealing with an appeal involving criticism of counsel is well-established. In short, the convicted defendant is required to waive legal professional privilege and the advocate whose conduct is the subject of criticism is entitled to have notice of that criticism and respond to it without being impeded or hampered by considerations of client confidentiality. In R v Achogbuo [2014] 2 Cr App R 94 (7), Thomas L.J. stated (at paragraph 16):-
"Before applications are made to [the Court of Appeal] alleging incompetent representation which is based upon an account given by a convicted criminal, we expect lawyers to take proper steps to ascertain by independent means, including contacting the previous lawyers, as to whether there is any objective and independent basis for the grounds of appeal"
7. We respectfully agree with those observations and would expect the same process of careful consideration to be followed in this jurisdiction.
8. Having identified the approach to be adopted in cases of this nature, it is now necessary to say something about the facts of the case and the course of the applicant's trial.
9. The evidence adduced at the trial established that the applicant and Justin Sumrie had known each other for over ten years; they were partners in a retail clothing business, which was run from the applicant's shop, known as "White Collar", in Broad Street, St Helier. Mr Sumrie lived in England, but on occasion he would visit the applicant in Jersey in order to discuss their business dealings. Mr Sumrie had invested money in the business and also supplied clothing and other items for retail sale through the applicant's shop.
10. On Friday 27th September, 2013, Mr Sumrie, by prior arrangement, arrived in Jersey at around 11am, and spent the day with the applicant discussing their business affairs. During the course of that day, Mr Sumrie went to a bank and withdrew some £3,600 in cash. This money, according to Mr Sumrie, was to be used to pay a supplier when he returned to England. He placed the money in an overnight bag for safe keeping.
11. At the end of the working day, Mr Sumrie and the applicant, together with the applicant's partner, Beverley McAllister, spent the evening socialising. They had dinner and consumed a considerable quantity of alcohol. Mr Sumrie said that while he himself did not feel drunk, the applicant was very much the worse for alcohol, to the extent that when the three visited a bar towards the end of the evening, the applicant had knocked over a tray of drinks.
12. At some point it had been agreed that Mr Sumrie would spend the night at the applicant's home and, at around 10:30pm, the three of them, Mr Sumrie, the applicant and Beverley McAllister, travelled there by taxi. Following their arrival, Mr Sumrie and the applicant sat in the downstairs of the premises, drinking beer and continuing their discussions, while Beverley McAllister retired upstairs to bed.
13. According to Mr Sumrie, the discussions were good natured and there was no animosity between the two men. He had spoken to the applicant of the need to restructure the business and reduce running costs, but made it clear that he had no plans to withdraw his financial support for the business, and this appeared to have been taken in good part by the applicant.
14. These discussions went on for some time and at some time shortly before 1am, Mr Sumrie was sitting at the kitchen table, when the applicant walked to the area of the kitchen sink. He then walked back to where Mr Sumrie was sitting and stood close beside him. Mr Sumrie said that he found this unsettling, and so he stood up to face the applicant and took a step back from him. He looked the applicant in the eye and saw that his demeanour had changed, and that he had a menacing expression on his face.
15. Mr Sumrie asked the applicant what was wrong and received no reply. Mr Sumrie had the feeling that the applicant was holding something, but he could not see what, if anything, it was. Mr Sumrie then felt a blow to the right side of his chest and he quickly realised that he had been stabbed.
16. He took steps to defend himself and tackled the applicant to the floor. In the course of the scuffle that followed, Mr Sumrie sustained two further stab wounds, this time to the left side of his chest. It was during this scuffle that Mr Sumrie saw for the first time that the applicant was holding a knife in his right hand.
17. In an effort to subdue the applicant and thus protect himself, Mr Sumrie punched him in the face and then fled from the premises in fear of his life.
18. Having left the premises, Mr Sumrie was seen by neighbouring residents clutching his side shouting for someone to call an ambulance and saying "I've been stabbed." The neighbours also saw Beverley McAllister exit the premises, Mr Sumrie asked her to go back inside and recover his overnight bag. Beverley McAllister did go back inside and returned with the bag and gave it to Mr Sumrie. Meanwhile the applicant could be heard shouting "Get that fucking bag back in here."
19. It is relevant to note that Beverley McAllister was heard asking Mr Sumrie to go back into the premises. She was also heard asking him what he was going to say because there was blood all over the house.
20. At around 1:07am, an ambulance arrived at the scene, and Mr Sumrie was taken to Jersey General Hospital. On Sunday 29th September, 2013, he was airlifted to Southampton University Hospital and admitted to an intensive care unit. He remained in hospital for a period of eight days; being discharged on 6th October, 2013.
21. In the course of the incident, Mr Sumrie sustained three incised stab wounds, the most serious of which was a horizontal wound over the right side of his upper abdomen, which measured 2cm in length on the skin surface. The penetrating track of this wound had caused internal damage to Mr Sumrie's liver. The other two wounds were shallow stab wounds on the left side of his chest, just below his armpit.
22. The applicant was arrested at the premises and it was apparent to the arresting officers that he had sustained a black eye and a cut to the bridge of his nose (caused by Mr Sumrie when he punched the applicant in the face).
23. Following his arrival at the police station, it was discovered that the applicant had himself suffered a stab wound to his right thigh. He was admitted to Jersey General Hospital and discharged into police custody on the following day, Sunday 29th September, 2013. The stab wound in his case was an incised wound to the outer aspect of his thigh; approximately 2.8cm long on the skin's surface and it had penetrated several centimetres into the soft tissue.
24. Following his arrest, the applicant made a number of comments which were relied on by the prosecution at his trial. First, at the scene, he said to the arresting officers:-"Why would he choose to attack me." Later, at the police station, he claimed that Mr Sumrie had stabbed him but said:- "It doesn't matter, it was a joke." He then said:-"He didn't mean to do it. He's my best friend. I'm not charging him with anything." By Sunday 29th September, 2013, the applicant was claiming that he had no memory of the events. Subsequently in an interview under caution, conducted in the presence of his lawyer, he largely made no comment to the questions asked of him, although he again suggested that Mr Sumrie had attacked him without provocation. He also said that he did not want to make a complaint against Mr Sumrie because he was one of his best friends. When asked if he had made any attempt to call the police he said "No" and when asked if Beverley McAllister had made any attempt to call the police he replied:- "I have no idea."
25. The expert medical opinion was that the appearances of the wounds suffered by the two men were indicative of being caused by an object with a sharp point and edge, and were most likely caused by the use of a knife applied with mild to moderate force.
26. Three knives were recovered by the police from the kitchen of the premises, including one found in the kitchen sink. An examination of the three knives proved to be inconclusive, with the result that it was not possible to identify which of the knives, if any of them, had been used in the incident. In the case of the knife recovered from the kitchen sink, the evidence was that it was wet and had upon it small traces of blood, although it was not possible to determine the origin of this blood nor even if it was human.
27. The trial commenced on 10th June, 2014, and concluded two days later on 12th June, 2014. The central issue for the jury to decide was whether the applicant had attacked Mr Sumrie and stabbed him three times, once in his right front chest (the wound that penetrated his liver) and twice on his left side beneath the armpit.
28. The prosecution case was that the applicant was the aggressor and Mr Sumrie was called to give evidence to this effect. He gave direct evidence that the applicant had stabbed him in the chest and, although he was unable to say precisely how he came to suffer two wounds to his left side, the inference was that these had been inflicted in the struggle that followed the initial stabbing, when Mr Sumrie had sought to defend himself and make good his escape from the premises. So far as the applicant's thigh wound is concerned, the prosecution case was that this was consistent with him holding a knife in his right hand, as described by Mr Sumrie, and wounding himself in the course of the struggle.
29. The prosecution case was supported by the evidence given by other witnesses. In particular, the evidence given by the neighbours confirmed that it was Mr Sumrie who was outside the premises claiming that he had been stabbed and shouting for an ambulance to be called. The evidence of the neighbours suggested that it was the applicant who was being aggressive and that Beverley McAllister was trying to persuade Mr Sumrie to go back into the premises and asking him what he was going to say. There was also the evidence from the police officers who dealt with the applicant at the scene and subsequently. This evidence suggested that the applicant was belligerent and aggressive, even at the time when he was admitted to hospital.
30. So far as the defence case is concerned, Mr Sumrie was cross-examined over the course of several hours and in great detail. The case that was put to him was that he had been the aggressor and that the catalyst of his attack on the applicant was the applicant's refusal to permit him to use the White Collar business to hide money from his wife in their ongoing divorce. It was put to Mr Sumrie that he had lunged at the applicant with a knife and that following a scuffle he had left the premises and disposed of the weapon. What was not explained on the basis of the defence case as advanced was how Mr Sumrie had come to suffer three stab wounds, the first of which was life threatening; nor was it explained why he had been so desperate to leave the premises.
31. In an effort to undermine Mr Sumrie's credibility it was suggested that he was using the White Collar business dishonestly to perpetrate a VAT fraud and commit other irregularities. It was also suggested that following the stabbing he had spoken to the applicant's former wife, Dionne Gilbert, and had told her that it had all been a "terrible accident". Mr Sumrie denied these suggestions and also denied a suggestion that he was using the criminal prosecution in order to obtain compensation.
32. As we have noted, the applicant chose not to give evidence in support of his own defence, but two witnesses were called to give evidence on his behalf. The applicant's former wife, Dionne Gilbert, gave evidence that at about 8pm on the night following the incident, she had spoken to Mr Sumrie on the telephone and in the course of their discussions he had described the stabbing as a terrible accident. He went on to say that he could not recall very much of what had happened. Mr Sumrie had repeated this, so she claimed, in a second telephone conversation on Sunday 29th September, 2013. When cross-examined, Dionne Gilbert accepted that she was a criminal lawyer and a Jersey advocate, but had not considered it appropriate to bring the information concerning the telephone calls to the attention of the investigating police officers. The second defence witness, Mr Brian Panaluna, gave brief evidence of the fact that he worked with the applicant in the White Collar business. Mr Panaluna had, in fact, been called to give evidence in support of the assertion that Mr Sumrie had been involved in conduct designed to evade the payment of VAT. Objection was taken to this evidence by the prosecution, on the basis that it went solely to Mr Sumrie's credibility as a witness. The learned Commissioner ruled that what had been characterised as the VAT fraud issue was a matter relating solely to Mr Sumrie's credit and the answers given by him on this topic were accordingly final. Following this ruling no further questions were put to Mr Panaluna.
33. As a result of the evidence given by Dionne Gilbert, the prosecutor was permitted to re-open its case and adduced evidence from a police constable who had spoken to Mr Sumrie on the morning of Saturday 28th September, 2013, and obtained from him an account of events that described an unprovoked and deliberate attack by the applicant.
34. The Learned Commissioner commenced his summing up on the afternoon of the 11th June, 2014 and it was completed on 12th June. In the course of his summing-up the Learned Commissioner directed the jury in conventional terms on the significance of the applicant's decision not to give evidence. The direction was as follows:-
"Now, the defendant has chosen not to give evidence in his trial. The law is this: he does not have to give evidence; he is quite entitled to sit back and require the prosecution to prove its case against him. You must not assume that the prosecution version of events is correct because the defendant has not given evidence in his trial. The fact that he has not proves nothing one way or the other. It does nothing to establish his guilt: on the other hand it means that there is no evidence from him given here in court before you and so tested by cross-examination to undermine, contradict or explain the evidence put before you by the prosecution. However, you still have to decide on all the evidence that you have heard, whether you are sure of the defendant's guilt."
Following their retirement, the jury sent a question to the Court which was in the following terms: "Was there a statement from Beverley McAllister. Why is it held if she did not attend (sic)". The Commissioner answered this question in the conventional way. He stated "there has been no evidence in the trial and the evidence is now over as to whether there was a statement from Beverley McAllister or if there was what it said. As to why she did not appear as a witness, please do not speculate. Bear in mind that there is no obligation on the defence to call any evidence and that the duty remains always with the prosecution to prove the case they bring against the defendant"
35. Later that day the jury returned their verdict of guilty, by a majority of 10 to 2.
36. Having dealt with the factual background and the course of the trial it is now convenient to turn to the arguments raised in the application for leave to appeal against conviction.
37. The applicant is seeking leave to appeal against his conviction on four principle grounds.
38. The first is that his counsel failed to call two witnesses who could have given material evidence in support of his case. These two witnesses are Beverley McAllister and a friend of Mrs McAllister's, Wendy Falle.
39. The second is that his counsel failed to advise him adequately on the consequences of his decision not to give evidence.
40. The third is that his counsel failed adequately to advance his case in relation to the VAT irregularities allegedly perpetrated by Mr Sumrie.
41. The fourth is advanced as an alternative to the first, and it is that the prosecution was under a duty to call Beverley McAllister as a witness as part of its case and failed so to do.
42. Given the nature of the grounds of appeal and the criticisms levelled at the applicant's legal representative, the Court was helpfully provided with affidavits sworn by the applicant, Advocate Preston, his counsel at trial, Beverley McAllister and Wendy Falle. At the hearing of the application we received evidence from both Advocate Preston and from the applicant. Before we turn to consider this evidence, it is necessary to place it in context. It may assist to summarise the contents of the material placed before us.
43. The applicant provided an affidavit sworn on 26th January, 2014, (the day of the hearing of the application for leave to appeal, although it had been provided to the Court and the respondent some days before the hearing).
44. This affidavit makes clear that the applicant's principal complaint concerning the conduct of his defence is really twofold. First, the alleged failure to call Beverley McAllister to give evidence and second, the alleged inadequacies of the cross-examination of Mr Sumrie.
45. The essential points made by the applicant may be summarised in the following way:-
(i) Before the trial he was given advice as to the risks of giving evidence. He accepted this advice and decided not to give evidence.
(ii) His decision not to give evidence was based on a belief that Mr Sumrie would be cross-examined with a view to demonstrating that he had a motive to carry out the attack.
(iii) He is unsure whether he discussed the position of Mrs Falle with Advocate Preston and whether she would give evidence, but he cannot recall the advice he was given in relation to Mrs Falle' evidence.
(iv) At the conclusion of the first day of the trial he told Advocate Preston that he thought Beverley McAllister should be called to give evidence and on the second day, when Mr Panaluna was not permitted to give evidence, his feelings were very strong, although he claims that no real discussion took place at this point as to whether Beverley McAllister should be called as a witness.
(v) One of the reasons Mr Sumrie attacked him (or so the applicant claims) is that he refused to allow him to use the White Collar business or another business known as Sumrie 1896 for the purpose of processing payments, by which means Mr Sumrie was able to reduce his tax liability in the United Kingdom and also hide assets from his wife.
(vi) It is the applicant's belief that Mr Sumrie was using the White Collar business to commit a VAT fraud and in support of this belief he produced a number of documents. The allegation is that Mr Sumrie would order high value items to be delivered to the White Collar shop in Jersey where they would be exempt from VAT. He would then collect the items from Jersey and sell them in the United Kingdom.
(vii) The applicant wanted Advocate Preston to go into detail on the VAT fraud and put it to Mr Sumrie that his refusal to allow him to continue with it was part of his motive for committing the attack.
(viii) The applicant's decision not to give evidence was taken at the beginning of the trial and he was not given any opportunity to change his position.
(ix) Following the Crown's successful objection to Mr Panaluna's evidence on the VAT issue (on the basis that it was a collateral issue that went solely to Mr Sumrie's credibility as a witness), he implored Advocate Preston to call Beverley McAlister but Advocate Preston would not listen and in that event, she was not called as a witness.
46. We turn now to consider the position of the particular individuals, beginning with Beverley McAllister. Beverley McAllister is the applicant's partner. She provided two witness statements to the States of Jersey Police. The first was dated 28th September, 2013, and had been written between 1:45am and 3:23am on that day, so within a short time of the incident. The second was dated 30th September, 2013, and had been written between 6:10pm and 7:40pm.
47. In the course of the first statement she described the events of the evening of Friday 27th September and explained how, after arriving home, she had retired to bed on the third floor of the premises. She said that at that time she was not really drunk, but the applicant, to use her words, was "getting there in terms of drunkenness." She was later woken by the noise of the applicant calling her name. She went downstairs and saw Mr Sumrie with his back to the front door of the premises saying that he wanted to leave. She sensed that the atmosphere between the two men had changed and she went upstairs to recover Mr Sumrie's overnight bag. When she returned downstairs she saw the two men involved in a struggle, rolling around on the floor. She noticed blood on the applicant's face and blood on Mr Sumrie's shirt. Mr Sumrie then went outside and she followed him. She did this, she said, in an effort to discover what had taken place. An ambulance arrived at the scene she thought at about 1:15am.
48. In her second statement she again described the struggle between Mr Sumrie and the applicant and said that Mr Sumrie had punched the applicant three times in the face. After Mr Sumrie left the premises she saw the applicant standing in the kitchen with his hands on the edge of the worktop and she went on to say that she had no idea what had been the cause of the fight.
49. In an affidavit dated 15th December, 2014, prepared for the purposes of these proceedings, Beverley McAllister provided further details of the events. She explained that when she came downstairs from her bedroom, Mr Sumrie had said that he wanted to get his bag and vacate the premises. When she returned with the bag she saw the fight between the two men and also described how Mr Sumrie had punched the applicant three times using his right hand. However, she did not see him armed with any knife. After Mr Sumrie left the premises, she had followed him outside and asked him to go back into the house. She also recalled that the applicant had shouted the words "Get that fucking bag in here." She was uncertain whether she had said to Mr Sumrie "What are you going to say? There's blood all over the house." The affidavit also gave details of telephone conversation with Mr Sumrie on the morning after the incident. Mrs McAllister says she was visiting a friend, Wendy Falle, when Mr Sumrie called. She put the call on loudspeaker and Mr Sumrie described the incident as a dreadful accident.
50. We were also provided with an affidavit sworn by Wendy Falle dated 15th December, 2014. In this affidavit she states that she was visited by Beverley McAllister on the morning of 28th September, 2013, and overheard a telephone conversation during which, she claims, Mr Sumrie referred to the incident and said to Mrs McAllister "it was a dreadful accident."
51. Advocate Preston provided the Court with two affidavits. The first dated 9th January, 2015, and the second dated 26th January, 2015. (The second was sworn on the day of the hearing of this application although as in the case of the Applicant's affidavit, his affidavit had been provided to the court and to the applicant in draft form some time before the hearing.) In his first affidavit, Advocate Preston explained that following the trial he had advised the applicant that there were no reasonable grounds of appeal but that if the applicant felt that he, Advocate Preston, had not performed adequately at trial, then that would provide a ground of appeal that he might pursue. The applicant at first said that he did not wish to pursue that course but when advised that, in those circumstances there would be no appeal, he decided otherwise, although Advocate Preston says that he did so reluctantly.
52. Advocate Preston provided an endorsement signed by the applicant on the evening of 10th June, 2014, (following the conclusion of the first day of the trial after Advocate Preston had completed his cross-examination of Mr Sumrie.) The endorsement was in the following terms:-
"I, Neil William Bennett, confirm that I understand that I am not obliged to give evidence in my trial but that if I do I will not only have to answer questions from my Advocate but also from the Crown Advocate and the Commissioner. I understand that I will have to answer all questions even if the answers are not helpful to my case.
I have been advised of the advantages and disadvantages of giving evidence.
I have decided that I will not give any evidence in my trial.
I have also been advised as to the potential advantages and disadvantages of Beverley McAllister giving evidence on my behalf. I have decided to instruct Advocate Preston not to call Beverley McAllister and only to call Dionne Gilbert and Brian Panaluna to give evidence on my behalf."
53. This endorsement is accompanied by a note which records the details of a meeting that took place at 6:30pm on 10th June, 2014. Among other matters, there was a discussion about Beverly McAllister and whether it would be to the applicant's advantage for her to give evidence in support of his case. The note records "Beverley McAllister, close to call but advantages outweigh."
54. In the body of his affidavit, Advocate Preston provides an account of the advice he gave to the applicant and the reasons for it. He states that he had always advised the applicant that the likelihood was that he would not give evidence at the trial and his principal concern was how he would fare in cross-examination. He says this:-"I advised Mr Bennett of these concerns on several occasions and he accepted my advice. As I recall Mr Bennett did not want to give evidence in any event and it does not appear to be suggested now that he should have done so."
55. As far as Beverley McAllister was concerned, she had provided a proof of evidence (an unsigned copy of which was produced by Advocate Preston) and her account of events in this proof of evidence had given rise to a number of concerns.
(i) The proof of evidence was not consistent with what she had said in the two witness statements which she had provided to the police. In particular she was now claiming that Mr Sumrie was the aggressor; when in her earlier statement she had suggested no such thing.
(ii) She did not dispute that, following the incident, she had followed Mr Sumrie out of the premises and could not recall whether she had said "what are you going to say Justin? What are you going to say? There's blood all over the house." She could only say that she might have asked Mr Sumrie if he was going to stay, but she could not be sure of this.
(iii) She placed the applicant in the kitchen in the immediate aftermath of the incident and, had she given evidence, it would have permitted the Crown to cross-examine her on this point and to raise the prospect that the applicant had used a knife, gone into the kitchen and washed it, thus removing any evidence linking him to that knife and so preventing his identification as the instigator of the attack.
56. Advocate Preston states that in his view Beverley McAllister would have been a disastrous witness for the defence and having given advice to this effect it was fully accepted by the applicant.
57. In response to the suggestion that he had failed to call Mrs Falle, Advocate Preston states that her name had been mentioned to his legal assistant by Mrs McAllister, but Mrs McAllister had also made it clear that she did not want to involve her friend in the proceedings. He states "the possibility of calling Mrs Falle was not then seriously considered given Mrs McAllister's stated position. I have no recollection of either the applicant or Mrs McAllister mentioning Mrs Falle to me at any stage."
58. On this aspect of the case, Advocate Preston concluded his first affidavit by stating: "in any event the likelihood of calling Mrs McAllister herself was slim and without her evidence the evidence, which it appears Mrs Falle might have given, would not have been relevant."
59. In his Supplementary Affidavit, Advocate Preston addressed the criticism that he had failed to advance the applicant's case in relation to the VAT evasion as an explanation for why Mr Sumrie behaved as the aggressor, as the applicant claimed. Advocate Preston produced an unsigned proof of the applicant's evidence, last amended on 5th June, 2014, that is the week before the trial. This proof had been produced following several meetings over a period of weeks, if not months, and formed the basis of the applicant's instructions in the case. It is apparent from this draft proof of evidence that the applicant made no mention at all of the VAT fraud or evasion as a motive for Mr Sumrie's behaviour. Instead, the explanation proffered by the applicant was that Mr Sumrie reacted to the applicant's refusal to allow the White Collar business bank account to be used for the purpose of hiding money from his wife. This is what was put to Mr Sumrie as his motive when he was cross-examined at the trial.
60. Advocate Preston goes on to explain in his supplementary affidavit that following the incident that gave rise to the charge and while preparing for trial the applicant discovered that Mr Sumrie appeared to have been ordering expensive items from an English supplier, arranging for these items to be delivered to Jersey free of VAT and then possibly selling them in the United kingdom and so evading VAT. However, Advocate Preston maintains that this was never said by the applicant to be the motive for the attack and, as it was never suggested to be Mr Sumrie's motive, the alleged VAT evasion could only be relevant to Mr Sumrie's credibility as a witness.
61. In the concluding summary of his supplementary affidavit, Advocate Preston that at the time of the trial "[the applicant] was as nervous as anyone in his position would be, and very complimentary about the way the trial had gone throughout."
62. As we have noted, Advocate Preston gave evidence before us and was cross-examined. Having adopted the contents of his two affidavits, he rejected the criticisms made of his professional conduct of the trial and was clear that the applicant had never advanced the VAT issue as a motive for Mr Sumrie's behaviour. He denied the applicant had ever expressed concerns about the conduct of the trial and reiterated that his decision not to call Beverley McAllister as a witness was the subject of careful consideration and that calling her to give evidence carried with it the danger of harming the applicant's case.
63. The applicant was called to give evidence before us. His principal complaint was that Advocate Preston had not adequately cross-examined Mr Sumrie on what the applicant claims was his motive for the attack, namely the VAT evasion and the applicant's unwillingness to have anything more to do with it. He said that his decision not to give evidence and the decision not to call Mrs McAllister to give evidence was based on his understanding that Mr Panaluna would give evidence of the circumstances giving rise to the allegation of the VAT fraud. When Mr Panaluna was not permitted to continue with his evidence, because what he had to say went only to a collateral issue, namely Mr Sumrie's credibility, he wanted Mrs McAllister to give evidence, although he was content to accept Advocate Preston's advice that he himself should not give evidence in support of his own defence.
Discussion
64. We now turn to our reasons and conclusions. By way of preliminary observation to our discussion of the reasons for our decision, we should say that, having seen and heard Advocate Preston give evidence, we found him to be a careful, thoughtful and honest witness, and we have no difficulty in accepting what he had to say. We are satisfied that he had a thorough and proper understanding of the applicant's instructions and that Mr Sumrie was properly cross-examined on the basis of those instructions. Our consideration of the transcript of the proceedings has fortified our conclusion in this respect. It shows that Advocate Preston conducted the defence case with some skill and ability and the applicant's case was pressed to its legitimate limit. We are further satisfied that the applicant was properly advised and that the decisions not to adduce evidence were made for sound tactical reasons which were understood and agreed to by the applicant.
65. So far as Mrs McAllister is concerned, there was a real danger that by calling her to give evidence, the Crown case would have become significantly stronger than it already was. We say this for the following reasons. The first point is that her evidence added nothing of assistance to the defence case as she was unable to say how it was that Mr Sumrie came to suffer his injuries. The second point is that although she could not give evidence on the essential issue which the jury had to determine, her evidence could have provided substantial assistance to the prosecution in four material respects:-
(i) Mr Sumrie had been cross-examined on the basis that he had been armed with a knife which he had held in his right hand. Mrs McAllister on the other hand described how she had seen Mr Sumrie punching the applicant with his right hand and made no reference to seeing him armed with a knife.
(ii) Mrs McAllister described how, in the immediate aftermath of the incident, she had seen the applicant in the kitchen very close to the sink. As we have mentioned, a knife was later recovered from the sink, although it was not possible for the prosecution to assert that it was necessarily the weapon used by the applicant in the assault on Mr Sumrie. Had Mrs McAllister given evidence it would have provided the prosecution with the opportunity to invite the jury to draw the inference that the applicant had used the knife that was recovered then washed it before the police arrived at the premises.
(iii) Mrs McAllister's account of events outside the premises was inconsistent with the assertion that Mr Sumrie was the aggressor. In particular, her concern that Mr Sumrie should return to the premises because he had nowhere else to stay would at the very least have been unhelpful to the defence case.
(iv) Mrs McAllister's evidence evolved over time and she would have been exposed to the suggestion that her evidence had been tailored to assist the applicant, her partner, and any damage to her credibility would have been to the applicant's detriment.
66. It is of course the case that Mrs McAllister could have given evidence about the telephone call she received from Mr Sumrie on Saturday 28th September, 2013, in the course of which she claimed that Mr Sumrie had said that he had suffered his injuries in an accident. However, adducing this evidence was also fraught with difficulty. Leaving aside the fact that it was inconsistent with the defence case it would have opened the door to her cross examination on various text messages passing between her and Mr Sumrie on 28th and 29th September, 2013. These text messages made no reference to Mr Sumrie's injuries being the result of any accident and are in fact inconsistent with any such assertion. Mr Sumrie was suggesting that the applicant should obtain the services of a solicitor and Mrs McAllister responded by saying:-"Neil in Court [tomorrow] morning, has lawyer, not been charged as yet." She seems to have accepted that her partner was in jeopardy of prosecution and made no protest to Mr Sumrie, either on the basis that he was the aggressor or that he knew full well that there was no basis for a prosecution. It is also relevant to note that when on 30th September, 2014, she provided her second statement to the police, she made no reference to the telephone conversation with Mr Sumrie even though it would have been helpful to her partner, who was at that time in custody and facing prosecution for the offence of grave and serious assault.
67. As an appeal court it is not our function to determine whether Mrs McAllister's evidence is credible or incredible. However it is apparent that had she been called to give evidence she would not have been able to assist the jury on the central issue of the case, but would very likely have added much that was damaging to the applicant's case. It follows from this that Advocate Preston's advice that she should not be called to give evidence, which was accepted by the applicant, was reasonable in the circumstances and cannot be faulted.
68. In light of the properly informed decision not to call Mrs McAllister, there was no good reason to call Mrs Falle, and, even assuming that she could have given any relevant evidence, her presence as a witness would merely have served to highlight the absence of Mrs McAllister and opened the door to damaging cross examination. We note also that according to Advocate Preston, Mrs McAllister did not want Mrs Falle, who was her friend, to be called as a witness. Accordingly, the decision not to call Mrs Falle does not give rise to any arguable ground of appeal and we reject the criticisms of Advocate Preston in this regard.
69. According to Advocate Preston, the applicant claimed to have little memory of the incident that gave rise to his prosecution and, in his opinion, was unlikely to make a good impression on the jury. It is clear from the note of the meeting that took place on the evening of the first day of the trial, after the cross-examination of Mr Sumrie had been concluded, that the applicant was properly advised of the potential advantages and disadvantages of giving evidence. Having been so advised the applicant elected not to give evidence in support of his own defence. It is obvious that the applicant appreciated that there was nothing to be gained by him by giving evidence and potentially much to be lost. In giving evidence before us the applicant appeared to accept that this was the case, but claimed that his decision not to give evidence was based to a large extent on two considerations. First his understanding that Mrs McAllister would give evidence and secondly, his belief that Mr Sumrie would be cross-examined in detail on the alleged irregularities in relation to VAT and that Mr Panaluna would be called to give evidence of the details of those irregularities.
70. In relation to the first point, the applicant's evidence is contradicted by Advocate Preston and inconsistent with the contemporaneous documentation which reveals that the final decision not to call Mrs McAllister was taken when Mr Sumrie's cross-examination had been concluded.
71. We address the alleged VAT irregularities below, suffice to say at this stage that we do not accept that the applicant's decision was conditional in the way he suggests and the advice given by Advocate Preston is not to be faulted.
72. A consideration of the transcript of the trial proceedings reveals that Mr Sumrie was cross-examined at some length about his business affairs and his alleged evasion of VAT. It was put to him that he would order goods from a supplier in England, the goods would then be delivered to Jersey free of VAT and later sold in the United Kingdom. Mr Sumrie denied that he was involved in a VAT fraud and also denied that he was dishonest. According to the evidence given to us by Advocate Preston, which we accept, this cross-examination was relevant only to the issue of Mr Sumrie's credibility as a witness. We also accept the evidence of Advocate Preston that the applicant's instructions were never to the effect that Mr Sumrie's motive for attacking him was because he, the applicant, had made it clear that he was no longer willing to countenance the use of the White Collar business to facilitate Mr Sumrie's VAT irregularities. We note that there is no suggestion of such a motive in the applicant's unsigned proof of evidence. Nor did the applicant say any such thing to the police at the time of his arrest or subsequently when interviewed. While it was submitted on his behalf in argument that the applicant might well have given such instructions even in the absence of a record to that effect, we do not agree with this submission. The applicant himself accepted that he had met Advocate Preston on numerous occasions in advance of the trial and it is inconceivable that the issue would not have been raised with him given the importance the applicant now seeks to attach to the point.
73. As we have made clear, we are satisfied that Advocate Preston had a thorough and proper understanding of the applicant's instructions and that Mr Sumrie was properly cross-examined on the basis of those instructions.
74. So far as Mr Panaluna is concerned, we are satisfied that the evidence he was called to give went only to Mr Sumrie's credibility as a witness and the learned Commissioner was correct to restrict the scope of Advocate Preston's cross-examination of Mr Panaluna.
75. Before leaving this issue we would note the following additional observations. The defence case, as advanced by Advocate Preston in cross-examination and in his closing speech, was that Mr Sumrie had stabbed the applicant in a fit of rage when the applicant had made it known that he would not permit the White Collar business to be used to conceal money from Mr Sumrie's wife. This case was advanced with other matters, including the alleged VAT fraud, which demonstrated, so it was said, that Mr Sumrie was dishonest. The jury saw and heard Mr Sumrie give evidence and were satisfied beyond reasonable doubt that the applicant had inflicted the injuries in an unprovoked attack. Even had the alleged VAT irregularities been put to Mr Sumrie as an additional motivation for an attack on the applicant and even if Mr Panaluna had been permitted to give evidence on the point, it is difficult to conclude that the jury would have come to any different conclusions. The short point is that the jury rejected the possibility that Mr Sumrie, motivated by anger arising from financial considerations had stabbed the applicant and suffered injury at his own hands.
76. Accordingly, we reject the criticism levelled against Advocate Preston in relation to the applicant's instructions and reject the argument that his conduct of the applicant's case on this point gives rise to any arguable miscarriage of justice.
77. Before we turn to address the final ground of appeal there is one additional matter on which we should express our conclusion. At the hearing of the application it was suggested on the applicant's behalf that Advocate Preston had failed to deliver up to the applicant's current legal representatives all the documentation generated by his firm for the purposes of preparing for the applicant's trial. It was also suggested that this missing documentation might contain information relevant to our determinations: for our part we cannot envisage what other documentation might have been in existence and the suggestion that it might have contained relevant information is purely speculative. We also note that no application was made for the hearing of this application to be adjourned. For his part Advocate Preston accepted that some documentation might have been retained by his firm, but he was clear in his evidence that he had produced all relevant materials touching upon the criticisms made of his conduct. As we have noted there is no substance in those criticisms and it is obvious from Advocate Preston's evidence and the documentation to which we have made reference, that the applicant was at all times properly advised and at all times competently represented.
78. As an alternative to the criticisms of Advocate Preston, the applicant argued that the Crown was under a duty to call Mrs McAllister as part of its case and had failed in its duty with the result that the trial was unfair. This argument was not advanced to the learned Commissioner at the trial and this is hardly surprising. Although Mrs McAllister had provided two witness statements to the police, a decision was taken on 1st November, 2013, that she would not be called as a prosecution witness. This was before the committal proceedings, which took place on 11th November, 2013, and it follows that she was never named as a witness 'on the back of the indictment'; to use the terminology found in the case law. The general principles governing the prosecution's obligations to call witnesses are well-known. The leading English case is R v Russell-Jones [1995] 3 All ER 239. In that case, Kennedy LJ stated that it is for the prosecution to decide which witnesses give direct evidence of the primary facts of the case and normally all such witnesses ought to be called to give evidence. However, the prosecutor is also the primary judge of whether a witness to the primary events is incredible or unworthy of belief and a prosecutor properly exercising his discretion is not obliged to proffer a witness merely in order to the give the defence material with which to attack the credit of other witnesses on whom the Crown relies. The overriding principle is one of fairness to both parties.
79. In the case of Mrs McAllister, the decision was taken not to call her as a prosecution witness and this cannot in any sense be stigmatised as an improper exercise of the discretion which a prosecutor properly enjoys. It was known to the prosecutor that she was the applicant's partner and in her statements to the police she was unable to assist on the question of how Mr Sumrie had come to suffer his injuries. It was not unreasonable to suppose that if called to give evidence she might attempt to assist the applicant's case, and events have shown that supposition to be well-founded. As Kennedy LJ made clear in R v Russell-Jones, supra, no sensible rule of justice could require the prosecution to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown's own case.
80. For these reasons we see no substance in this ground of appeal and reject it.
81. As we see it, the real problem confronting the applicant at his trial was the strength of the Prosecution's case. Mr Sumrie suffered three stab wounds, one that was life-threatening, and to suggest that he had inflicted the wounds on himself in the course of a violent struggle was inherently implausible. The conduct of the applicant's case was made even more difficult by the evidence given by the witnesses who had heard Mr Sumrie asking for an ambulance to be called, claiming that he had been stabbed. The applicant's case was also not helped by his own behaviour at the time of, and following, his arrest. The applicant's case was conducted skilfully by an advocate who properly understood his instructions. The decision not to call the applicant as a witness was a tactical decision upon which the applicant was properly advised and with which he concurred. The same can be said for the decisions not to call Mrs McAllister and Mrs Falle. The possible disadvantages of giving evidence and calling witnesses were obvious. We have concluded after careful consideration that the applicant's trial was in all respects fair. There is nothing in any of his complaints whether considered individually or cumulatively and for these reasons we reject the application for leave to appeal as being without substance.
82. Finally we wish to express our gratitude to counsel for their helpful written and oral submissions.
83. MCNEILL JA:- 1 agree.
84. MARTIN JA:- I agree.
Authorities
Court of Appeal (Jersey) Law 1961.
R v Ensor [1989] 2 All E.R. 586.
R v Richards [2010] All E.R (D).
Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.
R v Clinton [1993] 2 All E.R. 998.
Boodran v State of Trinidad and Tobago [2002] 1 Cr. App. R. 103.
R v Achogbuo [2014] 2 Cr App R 94 (7).
R v Russell-Jones [1995] 3 All ER 239.