Jersey Unreported Judgments

Appellant filed a notice of appeal in which he sought leave to appeal against his conviction for grave and criminal assault.

[2021]JCA282

Court of Appeal

17 November 2021

Before     :

Jonathan Crow QC Sir Wyn Williams Helen Mountfield QC

 

judgment

williams ja:

Introduction

1.        On 3 February 2021 at the Royal Court (Commissioner Clyde-Smith and a jury) the Appellant was convicted of offences of grave and criminal assault (count 1) and possession of a class A drug, namely cocaine (count 2).  The Appellant had previously pleaded guilty to five counts of possessing class C drugs (steroids).  On 3 June 2021, the Appellant was sentenced by the Commissioner to a total term of 2 years and 6 months imprisonment.   

2.        Throughout the proceedings leading to his convictions, the Appellant was represented by Advocate Harry Robinson. 

3.        On or about 6 March 2021 (prior to the Appellant being sentenced) the Appellant filed a notice of appeal in which he sought leave to appeal against his conviction for grave and criminal assault.  The notice was compiled by the Appellant himself.  By 6 March 2021 Advocate Robinson was no longer acting for the Appellant.  Indeed, the conduct of Advocate Robinson in advance of and during the course of the Appellant's trial before the Royal Court formed the basis of the Appellant's appeal.  The hand-written grounds of appeal filed by the Appellant with his Notice of Appeal contained a variety of criticisms of the manner in which Advocate Robinson had conducted the Appellant's defence during the proceedings before the Royal Court together with complaints about various aspects of the way in which Advocate Robinson acted in the many months in which he acted for the Appellant pre-trial. 

4.        The appeal came on for hearing before us on 20 September 2021.  At the hearing the Appellant was represented by Advocate Dix; the Respondent was represented by Crown Advocate Thomas (who had conducted the case for the prosecution before the Royal Court). 

5.        At the conclusion of the hearing on 20 September 2021 we indicated that we would take time to consider our decision.  On 22 September 2021 we informed the parties in writing that the appeal against conviction would be dismissed and that we would provide a written judgment explaining our reasons for that decision.   

6.        This is the judgment of the court which explains why we dismissed the appeal. 

Procedural Issues

7.        As we have said, the Appellant's Notice of Appeal was supported by grounds of appeal which he had composed himself.  The Appellant's grounds consisted of 28 paragraphs.  In Appeal Contentions dated 5 August 2021, Advocate Dix distilled the Appellant's grounds of appeal into three discrete contentions.  She informed us that the Appellant was content that his appeal should be conducted on the basis of these three contentions.  The hearing before us proceeded on that basis and we are very grateful to Advocate Dix for her work in crystallising the crucial aspects of the Appellant's appeal. 

8.        In her Appeal Contentions, Advocate Dix recognised that the grounds of appeal upon which she relied were such that leave to appeal was a necessary requirement by virtue of the provisions contained within Article 26 of the Court of Appeal (Jersey) Law 1961.  Ordinarily, as we understand it, the issue of whether or not leave to appeal should be granted is determined by a single judge of the Court of Appeal upon consideration of the papers filed in support of the appeal.  That did not happen in this case; the appeal was simply listed before us.  However, we are quite satisfied that this was always an appropriate case for the grant of leave to appeal.  Accordingly, notwithstanding that the appeal has been dismissed, the Order of Court will record that we granted leave to appeal. 

9.        As was to be expected in an appeal of this kind, the Appellant waived legal privilege in relation to his dealings with Advocate Robinson.  On the 7^th day of July 2021 Advocate Robinson swore an affidavit setting out what had occurred between the Appellant and him throughout the period of his retainer and, in effect, responding to the grounds of appeal. He exhibited many documents to the affidavit.  On 4 August 2021 the Appellant swore an affidavit in reply.

10.      The affidavits revealed significant factual disputes between the Appellant and Advocate Robinson.  Both the Appellant and the Respondent considered it necessary that the Appellant and Advocate Robinson should give oral evidence before us.  Much of the hearing before us was taken up with that oral evidence.  Both the Appellant and Advocate Robinson were subjected to searching cross-examination about their evidence. 

11.      The Appellant's notice of appeal made it clear that his appeal was confined to the conviction on count 1 - the offence of grave and criminal assault.  However, his grounds of appeal were such that it has been necessary to consider, to a degree, aspects of how the Appellant was advised by Advocate Robinson in relation to the second count of possessing cocaine, in relation to which there was no appeal.  We mention count 2 at this stage to explain why we deal with aspects of the possession charge and the advice in relation to it as this judgment unfolds. 

The Prosecution Case in relation to counts 1 and 2 at trial.

12.      The narrative that follows is the case presented by the prosecution. Much of it was disputed by the Appellant.

13.      In September 2019, the Appellant lived at 4 Victoria Crescent, Upper Midvale Road, Saint Hellier.  During the late evening of Friday 20 September 2019, Joseph Samson and Cleo Hickey visited the Appellant at his home.  The Appellant did not know Mr Samson; however, he had previously been involved in a relationship with Ms Hickey.  Both Mr Samson and Ms Hickey had been drinking prior to going to the Appellant's home and both accepted that they were under the influence of alcohol by the time they arrived at the Appellant's home.  This much was common ground. 

14.      Shortly after their arrival at the Appellant's home, Mr Samson and Ms Hickey became aware of the presence of drugs.  In particular, they both became aware of a small bag of white powder on a table in the Appellant's living room.  They both assumed that it was cocaine. 

15.      Mr Samson was concerned that Ms Hickey might become involved in taking cocaine.  Accordingly, he decided that he would take the bag containing white powder and run from the Appellant's home with a view to disposing of it. 

16.      When a suitable opportunity arose, Mr Samson took up the bag from the table and made his way quickly out of the Appellant's home.  Almost immediately, however, the Appellant became aware of what was happening and followed Mr Samson out of the house.  After a short chase, the Appellant cornered Mr Samson within a car park serving flats known as Kent Lodge.  According to the Prosecution, what happened next was that the Appellant quickly overpowered Mr Samson and placed him in a kind of stranglehold (described by Mr Samson as a "sleeper hold") and, thereafter, he punched and kicked him before retrieving the bag of white powder which Mr Samson had thrown over nearby wall.  The Prosecution case was that Mr Samson lost consciousness after being placed in the "sleeper hold" and that he was unaware of what occurred following his loss of consciousness. 

17.      At trial, the Prosecution relied upon a number of witnesses to support its case.  They were:

·              Mr Samson;

·              Ms Hickey;

·              Ms Sharon Pryce;

·              Police officers who attended at the scene of the alleged assault shortly after it had occurred; and

·              Dr James Newton, who conducted a medical examination of Mr Samson on 21 September 2019. 

18.      Mr Samson and Ms Hickey gave evidence at the trial about events at the Appellant's home and Mr Samson described what had occurred on his way to and at the car park prior to his losing consciousness.  To a substantial extent their evidence in chief was consistent with witness statements which had been taken from them by police officers and consistent with the Prosecution case as outlined above.  Such inconsistencies between their witness statements and oral evidence as existed were explored by Advocate Robinson in cross-examination.  

19.      Ms Pryce was, potentially, an important witness.  She lived in one of the flats which overlooked the car park and which was reasonably close to the area in which the alleged assault had taken place.  At about 10:30pm during the evening in question, she was alerted to an incident occurring outside her flat by loud noise coming from the direction of the car park.  In her evidence in chief, she described how, having heard shouts, she went to her bedroom window and saw two men.  One man was lying on the floor.  The other man, who was wearing a checked padded shirt, was standing over him.  She heard that man demand the return of his drugs and she heard a number of thuds, which she believed were the sounds of kicks being delivered by the man who was standing to the man lying on the floor.  After a short interval of time, the man who had been standing left the scene and Ms Pryce telephoned the police.  

20.      A number of officers arrived at the scene comparatively quickly.  Three of the officers were DC. Fowler, PC Rawlinson and PC Downes.  They all gave evidence to the effect that upon their arrival at the scene, Mr Samson was unconscious and he was lying in a foetal position on the ground.  He revived soon after their arrival.  The officers noted that there was blood on Mr Samson's face and that he appeared to have facial injuries.  They considered that paramedics should be summoned to the scene and, initially, they provided some assistance to Mr Samson to aid his recovery. 

21.      Once Mr Samson was capable of standing and speaking, he was asked to give an account of what had occurred. DC. Fowler, who was to become the officer in the charge of the case, decided that Mr Samson should be searched. 

22.      After the officers had been at the scene for some time, they noticed that two persons were in the vicinity.  They were the Appellant and Ms Hickey.  By this time, Mr Samson had given a brief account to DC. Fowler which amounted to an allegation that the Appellant had assaulted him. Accordingly, DC. Fowler asked the Appellant to provide his version of events.  The Appellant told DC. Fowler that he, the Appellant, was the victim - Mr Samson had assaulted or attempted to assault him.  DC. Fowler decided that the Appellant should be searched.  He recovered from the Appellant a passport belonging to Mr Samson, two mobile telephones and a small bag containing white powder which, upon analysis, proved to be cocaine. Upon the drugs being discovered on his person the Appellant said "Argh mother fucker" in a tone of voice which DC. Fowler described as expressing disappointment.  

23.      On 21 September 2019, at about 12 noon, Mr Samson was examined by Dr James Newton.  Dr Newton is designated as a Forensic Medical Examiner and he examined Mr Samson at the request of the police.  During the course of his examination, Dr Newton took a number of photographs to demonstrate injuries from which Mr Samson suffered.  In his evidence at trial, Dr Newton described Mr Samson's injuries by reference to those photographs.  In summary, the photographs showed a number of abrasions to Mr Samson's face and other parts of his body, including his neck and one of his hands, and small red marks to Mr Samson's neck which were consistent with petechial haemorrhaging.  According to Dr Newton, these injuries were consistent with the assault perpetrated upon Mr Samson as alleged by the Prosecution although he did not suggest that the alleged assault as described by the Prosecution was the only explanation for the injuries.

24.      Dr Newton also examined the Appellant on 21 September.  It suffices to say that the doctor found that he had minimal injuries.  

The Case for the Appellant as presented at Trial

25.      Before describing the evidence adduced on behalf of the Appellant and the course of events at trial it is necessary to provide some context. 

26.      Shortly after the arrival of police offices at the scene, the Appellant had told them that he had been the victim of an assault by Mr Samson.  It is also worth noting that Mr Samson had volunteered to the police that he had fallen over.  Shortly after his arrest, the Appellant was interviewed under caution by police officers.  As was his right, he declined to answer the questions put to him.  At that stage, the Appellant was not represented by a lawyer. 

27.      Thereafter, the Appellant instructed Advocate Robinson.  When the Appellant was interviewed under caution for a second time, Advocate Robinson was present.  Again, the Appellant declined to answer the questions which were put to him. 

28.      In due course, the Appellant was charged with the offences of grave and criminal assault and possession of cocaine.  He was committed for trial at the Royal Court.  On or about 31 July 2020, a Defence Case Statement was filed at Court and served upon the Prosecution on behalf of the Appellant.  In respect of the offence of inflicting grave and criminal assault, the nature of the defence was described as being "acting in lawful self-defence".  In respect of the charge of possessing cocaine, the nature of the defence was described as:

"The [Appellant] took possession of the controlled drug for the purpose of preventing the Complainant from continuing to commit an offence in connection with that drug and that as soon as possible after taking possession of it, he took all such steps as were reasonably open to him to destroy the drug". 

The Defence Case Statement went on to detail the Appellant's version of the events which had taken place on 20 September 2019. It is necessary to provide some of that detail. 

29.      The Appellant first described how Mr Samson and Ms Hickey came to be at his home.  He then described the events which followed in considerable detail at paragraphs 19 to 32 of the Defence Case Statement.  In the quotation below, Mr Samson is the Complainant and the Appellant is the Defendant:  

"19.     The Complainant was acting strangely and the Defendant believes this is because he had taken drugs and / or was jealous that the Defendant was talking to his girlfriend, Ms Hickey. 

20.      During the course of the evening, the Defendant was playing chess in the living room of his home.  The Defendant accepts that one of his friends was smoking cannabis. 

21.      The Complainant took out a small bag of white powder from his pocket and placed it on the table in the living room.  On enquiry, the Complainant told the Defendant that the white powder was cocaine and asked him if he wanted a line. 

22.      The Defendant was not comfortable with the drug misuse in his home and wanted to bring this to an end.  The final straw was the production of cocaine by the Complainant. 

23.      The Defendant asked his friend not to use cannabis in his home and he asked the Complainant, Ms Hickey and Mr Fisher [a friend of Mr Samson who was in the house] to leave.  At that time Ms Hickey was sat on the floor in the living room trying to roll a joint. 

24.      Ms Hickey did not want to leave.  The Complainant would not leave because he wanted to stay with Ms Hickey.  Mr Fisher was encouraging his friends to leave.  The Defendant went to the toilet and, on his return to the living room, saw the Complainant snorting a line of cocaine from the dining table.  

25.      The Defendant took the bag of cocaine from the table and put it in his shirt pocket to prevent the Complainant from taking any more.  He again asked the Complainant to leave.  The Complainant became angry with the Defendant for taking his cocaine, but asked to use the toilet before leaving.  ... When the Complainant returned to the living room, he grabbed the Defendant's wallet and phone and ran from the Defendant's home. 

26.      The Defendant went after the Complainant and followed him into the area outside Kent Lodge, Clarendon Road.  As he entered that location, the Complainant was getting up from the floor. 

27.      The Defendant tried to reason with the Complainant who started to shout at him.  The Defendant recalled that the Complainant shouted "Give me my cocaine or I'm going to fuck you up" or words tantamount to that statement. 

28.      The Complainant went to hit the Defendant. However, he was intoxicated through drink or drugs to the extent that he could not focus sufficiently to connect his punches.  The Defendant pushed the Complainant away from him on more than one occasion. 

29.      The Defendant recovered his wallet from the Complainant by holding him by his clothes and putting his hand in his trouser pocket.  During the incident, the Complainant punched at the Defendant on several occasions and grabbed him.  

30.      At one point the Defendant grabbed the Complainant by his clothes to hold him away from him, at an angle where he could not hit him and it is possible that this resulted in the clothing around his neck applying pressure to his neck.  This was unintentional, and the Defendant did not notice any constriction to the Complainant's neck at the time.  The Defendant does not believe there would have been any significant amount of pressure. 

31.      The Complainant fell to the ground on more than one occasion during the scuffle. 

32.      Once the Defendant had recovered his wallet, he went home.  When the Defendant left the Complainant, he was sitting on the ground and was conscious.  At all times the Defendant's actions in recovering his wallet and in defending himself were lawful and proportionate."

30.      Paragraphs 36 and 37 of the Defence Case Statement are also worth noting.  They deal with events after the alleged assault. They read : 

"36.     The Defendant took Ms Hickey to find the Complainant, at which point he met the Police outside Kent Lodge, Clarendon Road.  He was compliant and was shocked when he took the packet of cocaine from his top pocket. 

37.      This was the packet of cocaine the Defendant had taken from the Complainant earlier during the evening but because of the physical altercation with the Complainant, he had forgotten it was in his top pocket.  It had been the Defendant's intention to dispose of the controlled substance on returning home."

31.      The Appellant's trial began on 1 February 2021 and lasted three days.  On Day 1, the Prosecution adduced evidence from Mr Samson, Ms Hickey, Ms Pryce and the four police officers who had attended the scene.  Each of those witnesses, in turn, was cross-examined by Advocate Robinson.  By the end of Day 1, the only witness for the prosecution who had not been called to give evidence was Dr Newton.  Shortly before the close of proceedings on that day, a discussion took place between the Commissioner and the Advocates as to whether or not one of the police officers should be recalled to the witness box.  There was also a short discussion about the likely progress of the trial.  The following exchange took place between the Commissioner and Advocate Robinson: 

"COMMISSIONER:       Right. Then Advocate Robinson, from the Defence point of view, I imagine your client will be giving evidence. 

DEFENCE:                  I don't know if he will yet."

Nothing further was said, at that stage, about whether or not the Appellant would give evidence. 

32.      On Day 2, proceedings commenced with one of the police officers being recalled in order to give further evidence.  There then followed a debate about whether a medical expert witness for the Defence, Professor Payne-James, should give evidence "back-to-back" with Dr Newton.  Ultimately, it was accepted by the Commissioner that such a course of action was proper, which meant that Professor Payne-James gave evidence before the Prosecution had closed its case. 

33.      Both Dr Newton and Professor Payne-James were examined and cross-examined at some length.  Following the conclusion of their evidence, written admissions were read to the jury and Crown Advocate Thomas closed the prosecution case. 

34.      There then followed the following exchange between the Commissioner and Advocate Robinson.  This exchange took place in the presence of the jury:

"COMMISSIONER:       Thank you.  Advocate Robinson, the Defence case? 

DEFENCE:                  Sir, might I have a short adjournment to discuss with my client whether we feel it is necessary for him to give evidence? 

COMMISSIONER:        Very good.  We will take a short break, ladies and gentlemen."

So far as we are aware, there is no accurate record of the time when the Court adjourned in accordance with Advocate Robinson's request.  Nor is there an accurate record of the time when it resumed sitting.  No one has suggested, however, that there was an adjournment for a lengthy period of time. Equally, it has not been suggested that the adjournment was so short that Advocate Robinson and the Appellant had no time to discuss whether the Appellant should give evidence. 

35.      When the hearing resumed, Advocate Robinson informed the Commissioner that the Appellant would not be giving evidence.  The jury was asked to return to Court and, in their presence, the Commissioner informed them that the Appellant would not be giving evidence.  The jury were released until the following day. 

36.      Following the departure of the jury, the Commissioner and the Advocates debated issues relating to how the Commissioner should deal with certain issues in his summing up. In particular, there was a debate about whether it was appropriate to direct the jury in relation to self-defence, given that the Appellant had not advanced that defence by his own evidence at trial.  The Commissioner was persuaded that he should provide a full direction to the jury on the issue of self-defence. 

37.      The Advocates also discussed with the Commissioner how he should direct the jury in relation to the charge of possessing cocaine, given that (a) the Appellant had not disputed that the cocaine was found in one of his pockets when he was searched by DC. Fowler; and (b) he had adduced no evidence tending to show that as soon as possible after taking possession of the cocaine he had taken all such steps as were reasonably open to him to destroy the drug. 

38.      In summary, and using our words not his, Advocate Robinson accepted that there was no realistic possibility that the Appellant could be acquitted of the charge of possessing cocaine.  He indicated to the Commissioner, however, that he had advised the Appellant of the difficulties which faced him in defending count 2 but that the Appellant had, nonetheless, decided against giving evidence - for the full exchanges, see pages 99 and 100 of the transcript of Day 2 of the trial. 

39.      During the morning of Day 3, both Advocates addressed the jury and the Commissioner delivered his summing up. Following their retirement, the jury delivered their verdicts of guilty. 

40.      As can be seen from this narrative, the only witness called on behalf of the Appellant was Professor Payne-James.  The thrust of his evidence was that there were plausible explanations for the injuries sustained by Mr Samson which were consistent with the same being suffered on account of Mr Samson falling over under the influence of drink or drugs, or during the course of a scuffle during which the Appellant may have been seeking to defend himself.  These theses were tested appropriately by Crown Advocate Thomas in cross-examination, but the Professor would not be deflected from his views.  It is also to be noted that evidence had been adduced as part of the Prosecution case about what the Appellant and Mr Samson had said to the police at the scene of the alleged assault, parts of which were relied upon as part of the Appellant's case. 

41.      As it seems to us, it is clear that from the time of his arrest and throughout the course of the proceedings, the Appellant's answer to count 1 was that he had not committed a grave and criminal assault as a matter of fact. He had not held Mr Samson in a "sleeper hold" and he had not punched and kicked him. Further, such injuries as Mr Samson had suffered had been caused either because Mr Samson had fallen over on account of drink and drugs and/or because it had been necessary for the Appellant to defend himself against a drink/drug induced attack upon him by Mr Samson. 

Grounds of Appeal

42.      In the Appellant's Appeal Contentions submitted by Ms Dix, she identified three grounds of appeal.  First, Advocate Robinson failed to put the defence of self-defence before the jury; second, he failed to put the Appellant's case before the jury relating to the possession of cocaine; and three, he failed to advise the Appellant regarding the consequences of not giving evidence.  As is obvious, these Grounds of Appeal constitute significant criticisms of actions taken and the conduct of Advocate Robinson during the course of the Appellant's trial.  Although there are also criticisms of Advocate Robinson in relation to pre-trial matters it does not seem to us that they bear substantially upon the three grounds articulated by Advocate Dix and, to the extent the same is necessary, we deal with these additional criticisms when considering each ground. 

The relevant legal principles

43.      The circumstances in which errors by counsel at trial can lead to a successful appeal against conviction were considered by this Court in Lewis and others v Attorney General [2013] (1) JLR 325.  Giving the Judgment of the Court, Nutting JA formulated the relevant principles as follows: 

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

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

271.  It is clear, however, from Clinton that decisions made by counsel in good faith after proper consideration of the competing arguments and, where appropriate, after due discussion with the defendant will not, without more, render the conviction unsafe even though the Court of Appeal may disagree with those decisions.  It is also clear from Lord Woolf's Judgment in the Hong Kong Court of Final Appeal in the case of Chan Fat Chu v HKSAR [12 HKCFAR 775, at para 10] that -

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

272.    The English test for a successful appeal is 'unsafe or unsatisfactory'. The test in Hong Kong is 'grave and substantial injustice'.  The test in this jurisdiction is that of 'a miscarriage of justice'.  Notwithstanding the different tests, we see no reason why the principles to which we have referred in those two other jurisdictions should not inform the jurisdiction of the bailiwick." 

44.      In the recent decision of B v HM Attorney General [2020] JCA 148, this Court adopted the principles formulated in Lewis.  Giving the judgment of the Court, Sir Michael Birt concluded that an appeal brought on the basis of the incompetence of counsel can succeed only if the conduct about which complaint is made has resulted in the accused not having a fair trial and/or a miscarriage of justice has occurred - see paragraph 29 of the judgment.

45.      We are empowered to allow an appeal against conviction if:

(i)        the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; or

(ii)       the verdict is vitiated by a wrong decision on a question of law; or

(iii)      there was a miscarriage of justice in the particular case. 

In this case, Ms Dix readily accepts that her appeal can succeed only if a miscarriage of justice is established.  She submitted to us that there would be a miscarriage of justice if the Appellant's trial had not been fair.  For our part we do not consider it necessary or appropriate to seek to put a gloss on the statutory words.  In the context of this case, we can allow this appeal only if the conduct of Advocate Robinson, as alleged in the grounds of appeal, gave rise to a miscarriage of justice. 

46.      With this self-direction firmly at the forefront of our minds, we turn to consider each ground of appeal.

Ground 1 - failing to put the defence of self-defence before the jury

47.      There can be no doubt that a defence Advocate is obliged to put a defendant's case to relevant witnesses fully and fairly.  A defence Advocate is also obliged to make appropriate submissions about the nature of a defendant's defence when the Advocate addresses the jury in his/her final speech.

48.      In our judgment, the defence of self-defence was always part of the Appellant's case at trial.  It had been spelled out in the Defence Case Statement and on the basis of what we heard and read there can be no doubt that self-defence remained part of the Appellant's case throughout pre-trial preparation and at trial. It is clear to us that the Appellant was asserting in his Defence Case Statement that he was forced to defend himself at times during the course of a physical confrontation with Mr Samson and it is clear, too, that he was asserting or inviting the inference that some at least of Mr Samson's injuries were or may have been caused by reason of lawful self-defence on his part. 

49.      However, as we have already observed, the Appellant did not rely exclusively on the defence of self-defence.  Indeed, it seems to us that the core of his defence was that he had not, as a matter of fact, perpetrated an assault upon Mr Samson as described by the prosecution.  It was a significant part of his case, too, that Mr Samson had been drunk, under the influence of drugs and unsteady on his feet.  As a consequence, Mr Samson had fallen over on more than one occasion during the altercation through no fault of the Appellant and had suffered many of the injuries described by the doctors as a result of falling.  

50.      The witnesses to whom these parts of the Appellant's case should have been put were Mr Samson, Ms Pryce and, to the extent appropriate, Dr Newton. 

51.      Advocate Robinson cross-examined Mr Samson at some length.  He investigated in detail the events which had occurred the house.  He specifically suggested to Mr Samson that he had brought the cocaine to the Appellant's home and that the cocaine recovered from the Appellant by DC. Fowler belonged to him.  He suggested, too, that Mr Samson had taken the Appellant's wallet before leaving the Appellant's home and that this was the reason why the Appellant had followed him. 

52.      As to the events at the car park outside Kent Lodge, the main thrust of Advocate Robinson's questioning was aimed at establishing that Mr Samson had fallen on a number of occasions, that these falls explained many if not all of his injuries, that he had a graze on the knuckles of one hand which was consistent with him punching the Appellant or attempting to punch him and that the Appellant had not taken hold of Mr Samson around his neck as he alleged.  Towards the end of cross-examination Advocate Robinson put the following proposition to Mr Samson. 

"I will suggest to you that you were punching Mr Le Gros who was drunk, and there was a scuffle and that he was grabbing your clothes and that you were trying to hit him."

53.      It is clear from the transcript of the cross-examination of Mr Samson that Advocate Robinson did not suggest, expressly, that the Appellant had acted in self-defence when, as was acknowledged in the terms of the questioning, he was scuffling with Mr Samson.  That said, in our judgment it would have been obvious to any reasonable jury listening appropriately to the cross-examination of Mr Samson that the Appellant's case was that any injuries caused to Mr Samson had occurred as a consequence of him falling over under the influence of drink or drugs or as a consequence of a scuffle between the two men in which the Appellant was defending himself against an attack by Mr Samson.  It is also clear, in our view, that the jury would have understood from Advocate Robinson's cross-examination that the Appellant denied the allegation that he had held Mr Samson in a "sleeper hold" and denied kicking Mr Samson while he was on the ground. 

54.      In his oral evidence before us, Advocate Robinson acknowledged that he might have made it clearer in his cross-examination of Mr Samson that he was putting a case of self-defence.  We accept that Advocate Robinson should have been more precise in the questions which he put to Mr Samson and that the case of self-defence should have been spelled out expressly and unequivocally.  

55.      As we have said, the evidence given by Ms Pryce as to what she saw was, potentially, an important part of the Prosecution case.  Her evidence was that a man was lying on the ground being kicked and that the person doing the kicking was a person wearing a very similar type of shirt to the one which was seized from the Appellant upon his arrest. It was clearly necessary that Advocate Robinson would have to try to undermine the evidence which was given by Ms Pryce about events outside Kent Lodge. 

56.      Advocate Robinson's cross-examination of Ms Pryce was, in reality, confined to seeking to show that her view of what occurred was, possibly, impeded and that she could not have seen what occurred and, in particular, the shirt of the man who had been doing the kicking because it was too dark. 

57.      In our judgment it was necessary for Advocate Robinson to confront head on the evidence of Ms Pryce.  He should have put the Appellant's case to her since it was in complete conflict to the evidence which she gave.  That means that he should have put to her in express terms that she was mistaken about what she had seen, that there was no incident in which one man was lying on the floor and another man was kicking him and that the man in the check shirt was acting in self-defence during the course of the incident which she had witnessed.  

58.      Dr Newton was cross-examined closely about Mr Samson's injuries.  Advocate Robinson sought, quite properly, to establish that the injuries sustained by Mr Samson were consistent with him falling or engaging in a scuffle (thereby opening the door to the Appellant's defence that he had been acting in self-defence and/or that many of Mr Samson's injuries had been caused by him falling over under the influence of alcohol or drugs).  In our judgment, no criticism can be levelled against Advocate Robinson in relation to his cross-examination of the doctor. 

59.      In his Written Contentions in answer to this appeal, Crown Advocate Thomas set out in some detail the points made by Advocate Robinson in his closing speech to the jury - see paragraph 18 of those Contentions.  It suffices that in this judgment we adopt Crown Advocate Thomas's summary of those points at paragraph 19 of the Contentions.

"19. Advocate Robinson therefore closed the case to the jury on the basis that they could not be sure that Samson did not come by his injuries accidentally by hitting himself on the ground and/or on objects in the course of a scuffle when he was intoxicated and/or affected by drugs. He suggested that rather than being rendered unconscious by a "sleeper hold" as he contended, Samson could have simply fallen asleep because he was so drunk or drugged".

60.      It can be seen from the analysis which we have undertaken in the preceding paragraphs that at no point in his presentation of the Appellant's case did Advocate Robinson specifically put his defence of self-defence before the jury.  As he himself was prepared to accept he should have done so. 

61.      Did that omission on his part give rise to a miscarriage of justice?  We have no doubt that it did not.  There can be no doubt that the questions which Advocate Robinson put in cross-examination about the events at the car park and the injuries sustained by Mr Samson were all designed to throw doubt upon a central part of the prosecution case, namely that Mr Samson had been the victim of a serious assault perpetrated upon him by the Appellant as a consequence of Mr Samson taking off from the Appellant's home with the Appellant's cocaine.  His questioning of Mr Samson did not contain the express suggestion that the Appellant had been acting in self-defence during the incident or part of it, but it was clear from the terms of the questions that the Appellant was denying any unlawful assault.  Advocate Robinson adopted the same approach in his closing speech.  He made it clear that the defence case was that there had been no unlawful assault. 

62.      No doubt, Advocate Robinson should have cross-examined Ms Pryce along the lines we have suggested in paragraph 56 above.  However, there is no basis to suggest that had he done so Ms Pryce would have provided a rich seam of answers which would have assisted the Appellant in any material way. Ms Pryce had provided a witness statement about the relevant events shortly after they had occurred.  Her evidence at trial was consistent with that witness statement and to the extent that it was not she accepted without reservation that her witness statement was the accurate account when challenged.  It is fanciful to suppose that her evidence would have changed in any substantial way under a more detailed cross-examination and that it would have materially assisted the Appellant's case or undermined that of the prosecution.  

63.      There is one further and very important reason why we are satisfied that the failure of Advocate Robinson to put the defence of self-defence in express terms before the jury did not give rise to a miscarriage of justice.  This is that the defence was left to the jury unequivocally by the Commissioner in his summing up.  It is true that there was a debate about whether that was necessary.  That is not the point.  The plain fact is that the Commissioner left open to the jury the defence of self-defence.  His summing up on that issue is not the subject of any criticism: nor could it be.  Unless, therefore, the arguments advanced by Advocate Dix in relation ground 2 dictate a different conclusion, we are satisfied that ground 1 is not made out. 

Ground 2 - failure to put the Appellant's case on count 2 

64.      This ground of appeal asserts that Advocate Robinson failed to put the Appellant's case on count 2 before the jury.  As we have said, there is no appeal against the Appellant's conviction on count 2.  If made out, therefore, this ground can only be relevant as an additional basis for making good one or both of grounds 1 and 3.  

65.      The Appellant's case in relation to count 2, in short, was that the cocaine belonged to Mr Samson.  He had taken possession of it from Mr Samson only to prevent drug taking and he intended to dispose of it.  Indeed, he would have done so but for the altercation with Mr Samson in the car park.  He was surprised and shocked when the Police discovered the cocaine during their search of him because he had forgotten that he had taken it - see paragraph 30 above.  

66.      Given that was his case, the only basis upon which the Appellant could have been acquitted of count 2 was if the jury considered it at least possible that notwithstanding the Appellant was in possession of the cocaine when searched he was taking all such steps as were reasonably open to him to destroy the drug.  That was the defence to count 2 which the Appellant identified in his Defence Case Statement.  It was common ground at trial and before us that this defence could succeed only if the Appellant adduced some evidence before the jury to raise the possibility that he was taking such steps - see R v Lambert [2002] 2 AC 545.

67.      Despite the way in which this ground of appeal is formulated by Advocate Dix, she did not suggest to us that Advocate Robinson failed to ask questions of relevant witnesses which would, if asked, have resulted in some evidence before the jury to the effect that the Appellant was taking all such reasonable steps as were open to him to destroy the drugs immediately before he was searched.  Rather her complaint was that Advocate Robinson failed to advise the Appellant that if he chose not to give evidence on his own behalf there would be no evidence before the jury raising the possibility that he had been about to destroy the drugs and that, in effect, he was bound to be convicted of count 2.  The reality of this case was always that, if the burden of adducing evidence to that effect was to be discharged, some evidence in support would have to have come from the Appellant himself.  It seems to us, therefore, that ground 2 is a complaint similar to that advanced in ground 3, namely that Advocate Robinson failed to offer appropriate advice to the Appellant about whether or not he should give evidence in his own defence.  That being so we shall consider that issue as part of our consideration of ground 3. 

68.      It follows from what we have just said, however, that the allegation pursued as ground 2 can have no bearing upon the matters complained of in ground 1; they do not assist the Appellant to demonstrate that his defence of self-defence was not put before the jury. 

Ground 3 - failure to advise as to the consequences of not giving evidence 

69.      There is a stark factual dispute about whether or not Advocate Robinson advised the Appellant about the consequences of not giving evidence.  Stripped to its essentials, this ground was presented to us on the basis that almost from the time that he was instructed on behalf of the Appellant, Advocate Robinson formed the view that it would be detrimental to the Appellant's defence if he was to give evidence.  That being so (the argument for the Appellant was advanced), Advocate Robinson had "instructed" the Appellant at various stages of the proceedings that he should not give evidence.  At trial, Advocate Robinson maintained that stance.  According to the Appellant he "told" him not to give evidence without ever explaining why that was the appropriate course. It is argued that the Appellant never properly understood the implications of not giving evidence because such implications were never explained to him in respect of either count. In respect of count 1 the Appellant was never advised that his defence would be extremely difficult to sustain in the absence of evidence from him as to what had occurred in the car park.  In respect of count 2 it is said that Advocate Robinson failed to advise the Appellant if he did not give evidence, he was bound to be found guilty by the jury.  On that point, the Appellant's case, as presented by Ms Dix, was that if he had realised that by not giving evidence he would inevitably have been convicted of count 2, then he would have pleaded guilty, with all the incidental benefits that might bring. 

70.      For his part, Advocate Robinson maintained that he had advised the Appellant appropriately about whether or not he should give evidence throughout the course of the proceedings.  He accepted that he had considerable doubts from the start of his retainer about whether the Appellant should give evidence.  The Appellant was known to him; he had represented him in proceedings relating to the custody of and/or the contact to his child.  He was dubious about his ability to be a convincing witness.  Advocate Robinson was also aware that the Appellant might attack the character of Ms Hickey and Mr Samson, thereby running the risk that he would be questioned about two pertinent previous convictions recorded against the Appellant himself (affray and cultivation of a of controlled drug). According to Advocate Robinson, however, he kept open the possibility that the Appellant would give evidence throughout, and during trial he advised him appropriately. 

71.      We begin our task of resolving the core factual issues by explaining our view of the credibility of the Appellant and Advocate Robinson. 

72.      The Appellant is clearly an intelligent and articulate man.  He was very particular about the precision with which he was asked questions.  He has a forceful personality and strong opinions.  However, none of that necessarily leads to the conclusion that his evidence should be accepted where it is contradicted by that of Advocate Robinson.  In our judgment, there are several reasons for treating the Appellant's evidence generally with real caution. 

(a)       First, there were some significant inconsistencies in his testimony.  For example, in his proof of evidence and again in the Defence Case Statement, his position was that the cocaine was found in his pocket because he had confiscated it from Mr Samson in his own flat in order to stop Mr Samson from consuming it there, and that he intended to dispose of it, but he had then forgotten about it.  However, in his Appeal Notice, he stated (at paragraph 35) that he took the cocaine from Mr Samson unwittingly when recovering his phone and wallet after their scuffle outside.  There is a stark and irreconcilable inconsistency between these two versions of events.

(b)       Second, and as a related point, the Appellant made an unconvincing attempt to distance himself from the Defence Case Statement, which he had signed on 31 July 2020.  The thrust of his oral evidence to us was that he did not realise the importance of ensuring that the statement was complete and true, or that it would be provided to the court.  In particular, he said that Advocate Robinson simply told him to "give the statement a once over" and "told" him to sign it.  Notably, that version of events was not put to Advocate Robinson, and we do not accept the Appellant's evidence in this regard.  It is inherently unlikely that any Advocate would be so cavalier in his approach to obtaining a client's approval to a Defence Case Statement.  Furthermore, having seen this particular Appellant giving evidence, we do not believe that a man of his intelligence and clarity of thought would not have understood the significance of the document, nor that he would have signed it without reading it carefully and being satisfied that its contents would convey his version of events to the court. 

(c)       Third, and more generally, we consider that the Appellant displayed a tendency to be evasive when pressed with inconvenient evidence.

(d)       Fourth, in important respects the Appellant's evidence was contradicted by important documentary evidence - as to which see below. 

73.      Turning to Advocate Robinson, we formed the view that he was an honest witness.  It is striking and to his credit that he was prepared to accept that he "could have done better" for example in failing specifically to use the term "self-defence" when cross-examining Mr Samson and when addressing the jury in closing.  There were undoubtedly some shortcomings in the service he provided to the Appellant.  For example, there is a clear inference from an email dated 26 January 2021 that there had not, even at that late stage shortly before trial, been any formal written advice given to the Appellant on his prospects of acquittal.  Nevertheless, as noted above, the function of this court is not to sit in judgment on Advocate Robinson's performance, but rather to assess its impact on the trial and the subsequent conviction - i.e.  whether there has been a miscarriage of justice.  That is the issue to which we now turn.

74.      The first specific factual issue for this court to decide is the nature of Advocate Robinson's "advice" to the Appellant not to give evidence.  We have used inverted commas deliberately, because the Appellant's oral testimony was that he was always keen to give evidence at trial but that he was "told" not to do so by Advocate Robinson.  The Appellant repeatedly said to us that Advocate Robinson had decided from the outset that he was not going to give evidence, and there was "no discussion" about it.  We reject that evidence for many reasons.

(a)       First, it is inherently unlikely that any Advocate would attempt to dictate his own client's conduct in this way.

(b)       Second, having seen both individuals giving evidence, we do not believe that Advocate Robinson is the kind of person who would "tell" his client what to do, nor do we believe that the Appellant is the kind of person who would meekly accept any such attempted instruction. 

(c)       Third, the Appellant's version of events is inconsistent with an email sent to him by Advocate Robinson on 11 November 2020 which said in terms: "It may be that you will need to give evidence".  That email is consistent with Advocate Robinson's evidence that his preference was that the Appellant would not give evidence, but that no firm decision had yet been taken. 

(d)       Fourth, the Appellant's version of events was inconsistent with the Plea and Directions Hearing Form which was submitted to the Court on the Appellant's behalf.  That form records the fact that he would be giving evidence at trial: that is wholly consistent with Advocate Robinson's evidence that his preference was that the Appellant would not give evidence, but that he did not want to shut out that possibility and he was keeping an open mind on the subject, intending to discuss it with the Appellant at the close of the Prosecution's case. 

(e)       Fifth, that is exactly what Advocate Robinson told the Commissioner at the close of the proceedings on Day 1 of the trial (see paragraph 31 above) namely, that no decision had at that stage been taken whether the Appellant would be giving evidence.  We do not accept that Advocate Robinson would have misled the court in this regard, nor do we accept that the Appellant would have stayed silent if he knew that a decision had been taken long before that he was not giving evidence:  he would, at the very least, have asked Advocate Robinson privately why he had told the trial judge that no decision had yet been taken, when (on his version of events) it had.  There was no suggestion that the Appellant raised any such query with Advocate Robinson. 

(f)        Sixth, the Appellant's own affidavit in support of this appeal says in terms: "There was a discussion during the adjournment on the second day of trial regarding whether I should give evidence" (emphasis added).  In other words, the Appellant's own affidavit describes his exchanges with Advocate Robinson as a "discussion", which was exactly what he said in oral evidence had not happened. 

(g)       Finally, and most importantly, Advocate Robinson's contemporaneous manuscript note of what was said during that adjournment strongly supports his evidence that there was indeed a discussion.

75.      In our judgment, the contemporaneous note produced by Advocate Robinson is of considerable importance in this case.  Somewhat surprisingly, it was not produced until very late in the day.  (It reached us over the weekend before the appeal was heard).  That said, there was no suggestion before us that the note was a late fabrication on the part of Advocate Robinson.  He was cross-examined by Advocate Dix (no doubt quite properly on the basis of her instructions from the Appellant) as to the accuracy of parts of the note, and she put it to him that it did not properly represent what had transpired between the Appellant and Advocate Robinson.  It was not suggested, however, that it was a wholesale fabrication. It is worth setting out in full what the note records:

" Transcribed Version of DR's file note dated 2 February 2021

Adjourn to consider ALG giving evidence.

If ALG doesn't give evidence he will be relying on cross-examination of the crown witnesses.

Case put to J. Samson but rejected by J.S.

This is ALG opportunity to advance his case/defence but he needs to steer clear of allegations against JS or C. Hickey which might cause him to lose his shield.

If ALG starts to accuse JS or CH of being drug users and, having a history of drug dealing then ALG's previous may be admitted.

Also, if ALG accuses JS of having a propensity to violence then ALG's previous for the affray may be admitted

ALG asked if he will be cross-examined in the same way as JS.

DR confirmed that he will be, but he doesn't give evidence then his case will then turn on the possession evidence and JS contemporaneous account -risky approach.

May have done enough with the experts and JS but DR is unsure.  

ALG does not want to give evidence. 

DR will tell the court - then with closing." 

76.      In the light of the factors set out in the preceding paragraphs immediately above, we reject the Appellant's assertion that Advocate Robinson "told" him not to give evidence.  However, that would not necessarily mean that ground 3 must fail.  The crucial factual issue for our determination is whether the Appellant took a properly informed decision not to give evidence, understanding the implications for his defence in doing so, and following a discussion which took place between Advocate Robinson and the Appellant at the close of the Prosecution case.  While our rejection of the Appellant's assertions that he was "told" not to give evidence and that there was no discussion about the choice facing the Appellant is an important factor as a starting point in determining that issue it is no more than that. 

77.      What was said between the men?    We reject the suggestion that the contemporaneous note made of the discussion was inaccurate.  Based on what it contains, it seems clear that Advocate Robinson gave reasonably appropriate advice to the Appellant about the pros and cons of giving evidence so far as count 1 was concerned.  The note records that the giving of evidence presented an opportunity for the Appellant to advance his defence, but it also pointed out the potential pit falls of giving evidence, particularly those which would arise if the Appellant was unable to resist attacking the character of Mr Samson and Ms Hickey.  The note also records that the Appellant asked a pertinent question of Advocate Robinson, and Advocate Robinson's view that he could not be sure that his cross-examination of the witnesses had achieved the desired result although it may have done.  According to the note, the Appellant expressed the view that he did not wish to give evidence.  We are disposed to accept that this was the Appellant's state of mind at the time when he faced the choice one way or the other as to whether to give evidence. 

78.      We should also stress that we do not accept the Appellant's evidence to us that he laboured under a misapprehension about the significance of not giving evidence in his own defence.  He knew perfectly well that there were only three first-hand witnesses to his altercation with the Complainant - namely, Mr Samson, Ms Pryce and himself.  It does not take any high degree of insight to recognise that, if the Appellant did not give evidence, the only witness testimony before the jury would be that from Mr Samson and from an independent witness.  It was, accordingly, obvious to a man of the Appellant's intelligence that if he did not give evidence, the success or failure of his case on count 1 would turn on the extent to which the evidence of the other two witnesses had been undermined in cross-examination, such as to generate a reasonable doubt in the jury's mind. 

79.      We are also completely satisfied that Advocate Robinson had sound reasons for advising the Appellant about the risks of giving evidence, and in our judgment the Appellant fully understood those risks.  He knew he had previous convictions for affray and for cultivating cannabis.  His evidence before us revealed that he fully understood that, if he started giving evidence which imputed the character of Mr Samson and/or of Ms Hickey, there was a real risk that his own previous convictions would be put before the jury, which would inevitably have had a significant, adverse impact on the likelihood of an acquittal.  The Appellant's attempts, while giving evidence in this court, to pretend that he did not fully understand the "bad character" issue were unconvincing, and we reject them.  He may not have had case-law cited to him, and Advocate Robinson may not have explained the detailed legal basis for admitting the previous convictions, but, in our judgment, it is quite apparent that the Appellant fully understood the essential nature of the risk that was being weighed in the balance in the course of his discussion with Advocate Robinson during the adjournment on 2 February 2021.  We also accept Advocate Robinson's evidence that he considered the Appellant to be extremely angry with Mr Samson and with Ms Hickey, which enhanced the risk of him saying something in evidence which could justify allowing his previous convictions into evidence. 

80.      We have reached the conclusion that the Appellant himself made the decision that he would not give evidence, and that his decision was taken on the basis of a clear understanding of its implications to his case in answer to count 1. 

81.      The contemporaneous note is almost silent about what if anything was said about the impact of not giving evidence upon the Appellant's prospects of maintaining a successful defence in relation to count 2.  The only apparent reference to count 2 is the phrase "his case will turn on the possession evidence". 

82.      Advocate Robinson gave evidence to us that he had explained the legal effect of Lambert to the Appellant during the discussion which took place after the close of the prosecution case. The contemporaneous note does not refer to Lambert or the principles to be derived from Lambert. However, as we record at paragraph 38 above, during the course of the exchange between Advocate Robinson and the Commissioner just before the close of proceedings on Day 2 Advocate Robinson told the Commissioner that he had advised the Appellant about the impact of his not giving evidence as it related to count 2.

83.      In the light of that statement made in court to the Commissioner by Advocate Robinson, our finding that he is a credible witness, and the fact that the Appellant did not object to his Advocate's assertion to the Commissioner (recorded in the transcript) that he had given this advice, we are satisfied that appropriate advice was given about the effect of not giving evidence upon the Appellant's prospects of escaping conviction on count 2.  There is no basis upon which we could even begin to contemplate that Advocate Robinson deliberately or inadvertently misled the court when making that statement.  We have found that Advocate Robinson was a credible witness; we have reached the opposite conclusion about the Appellant.

84.      In light of the above we reject grounds 2 and 3.

Overall conclusion

85.      In consequence of the analysis above we have reached the clear conclusion that the Appellant has failed to establish that his conviction for grave and criminal assault constituted a miscarriage of justice.  We acknowledge that quite apart from the question whether the Appellant properly understood the implications of not giving evidence at trial, there were other criticisms of Advocate Robinson's performance which the Appellant relied upon, such as an alleged failure to provide advice in writing and an alleged failure to show the Appellant the prosecution witness statements and the police body-worn video footage before trial.  We regard such issues as peripheral to the core issue in this appeal which, in short, is whether the Appellant made a properly informed decision not to give evidence in his own defence.  We are satisfied that he did and that, in consequence, his conviction on count 1 does not constitute a miscarriage of justice.  In those circumstances we had no option but to dismiss this appeal.

Authorities

Court of Appeal (Jersey) Law 1961. 

Lewis and others v Attorney General [2013] 1 JLR 325. 

B v AG [2020] JCA 148. 

R v Lambert [2002] 2 AC 545.