Barette v Attorney General

CourtCourt of Appeal
JudgeBeloff, Nutting and McNeill, JJ.A.
Judgment Date12 September 2006
Date12 September 2006
Beloff, Nutting and McNeill, JJ.A.

Miss S.C. Nicolle, Q.C., Solicitor General, for the Crown;

M. St. J. O'Connell for the appellant.

Cases cited:

(1) Foster v. Att. Gen., 1992 JLR 6, referred to.

(2) Kirkland v. Att. Gen., C.A., September 24th, 2001, unreported, referred to.

(3) Locabail (UK) Ltd. v. Bayfield Properties Ltd., [2000] Q.B. 451; [2000] 1 All E.R. 65; (1999), 149 New L.J. 1793, applied.

(4) Marriott v. Att. Gen., 2002 JLR 283, distinguished.

(5) Porter v. Magill, [2002] 2 A.C. 357; [2002] 1 All E.R. 465; [2001] UKHL 67, applied.

(6) R. v. Alexander, [2004] EWCA Crim. 2341, distinguished.

(7) R. v. Bliss (1986), 84 Cr. App. R. 1; [1986] Crim. L.R. 467, referred to.

(8) R. v. Chapman (1976), 63 Cr. App. R. 75; [1976] Crim. L.R. 581, referred to.

(9) R. v. Cohen (1909), 2 Cr. App. R. 197, dicta of Channell, J. applied.

(10) R. v. Goodway, [1993] 4 All E.R. 894; (1993), 98 Cr. App. R. 11; [1993] Crim. L.R. 948, referred to.

(11) R. v. Gough, [1993] A.C. 646; [1993] 2 All E.R. 724; (1993), 97 Cr. App. R. 188, applied.

(12) R. v. Haddy, [1944] K.B. 442; [1944] 1 All E.R. 319; (1944), 29 Cr. App. R. 182, applied.

(13) R. v. Lucas, [1981] Q.B. 720; [1981] 2 All E.R. 1008; (1981), 73 Cr. App. R. 159, applied.

(14) R. v. Miah, [1997] 2 Cr. App. R. 12, referred to.

(15) R. v. Mirza, [2004] 1 A.C. 1118; [2004] UKHL 2; sub nom. R. v. Connor, [2004] 1 All E.R. 925, considered.

(16) R. v. Montilla, [2005] 1 All E.R. 113; [2005] 1 Cr. App. R. 26; [2004] UKHL 50, referred to.

(17) R. v. Qureshi, [2002] 1 W.L.R. 518; [2002] 1 Cr. App. R. 33; [2001] EWCA Crim. 1807, referred to.

(18) R. v. Raviraj (1986), 85 Cr. App. R. 93, referred to.

(19) R. v. Salt, [1996] Crim. L.R. 517, referred to.

(20) R. v. Young, [1995] Q.B. 324; [1995] 2 Cr. App. R. 379, referred to.

(21) Stirland v. D.P.P., [1944] A.C. 315; (1944), 30 Cr. App. R. 40, referred to.

Legislation construed:

Court of Appeal (Jersey) Law 1961 (Revised Edition, ch.07.245, 2006 ed.), art. 26(1): The relevant terms of this paragraph are set out at para. 86.

Loi (1864) Réglant la Procédure Criminelle (Revised Edition, ch.08.740), art. 10A: The relevant terms of this article are set out at para. 32.

Juries Act 1974 (c.23), s.18(1): The relevant terms of this sub-section are set out at para. 34.

Criminal Procedure—fair trial—bias—apparent bias—test—whether fair- minded and impartial observer, having considered facts, would conclude real possibility of bias—trial unfair if only one juror apparently biased—evidence to be assessed in realistic and commonsensical way but juror not to be cross-examined and evidence of jury deliberations inadmissible

Criminal Procedure—appeals—appeals against conviction—even if some error in conduct of trial, appeal dismissed under Court of Appeal (Jersey) Law, art. 26(1) if no substantial miscarriage of justice—Court of Appeal to make own assessment of evidence, both direct and indirect

The appellant was charged in the Royal Court with fraud.

The appellant was a director and minor shareholder of a company ("B & G") which operated a packhouse where Jersey potatoes were sorted and packed before being sold to the Jersey Produce Marketing Organisation Ltd. ("JPMO"). The appellant was responsible for sending cheques to growers, accompanied by a record of the quantity of their potatoes that had been sold.

In 2002, a grower ("B.V. Farms") noticed that it had not been paid for a considerable quantity of potatoes delivered to B & G. When it confronted the appellant, he blamed the discrepancies on a computing error, which he subsequently admitted to be untrue. Afterwards, he altered computer records and forged documents to show that no money was owed to B.V. Farms. He told the other directors of B & G that B.V. Farms was the only potential loser, which was also untrue.

B.V. Farms complained to JPMO, which instructed auditors to investigate the matter. They concluded that B & G owed money to several growers, including B.V. Farms, but could not specify how much, partly as a result of changes the appellant had introduced at the packhouse. B & G then paid considerable extra sums to the growers as compensation but did not concede liability. The matter was reported to the Jersey police, who sought the assistance of different auditors. Those auditors also found that B & G owed money to seven growers but could not specify the amount owed to each grower.

The appellant was charged with seven counts of fraud (Count 1 concerned B.V. Farms and Counts 2-7 concerned other growers) to which he pleaded not guilty. It was alleged that he had dishonestly manipulated figures so that false representations had been made to the growers as to the quantity of their potatoes that had been sold to JPMO, intending to and in fact causing financial benefit to B & G and loss to the growers. He was only tried on Count 1.

At trial, the appellant denied that he had acted dishonestly. The prosecution sought to adduce evidence of his lies to B.V. Farms and the directors of B & G. In his summing-up, the judge (Bailhache, Bailiff) directed the jury that it could rely on the lies to show that the appellant acted dishonestly if it was satisfied that they were deliberate, that they related to a material issue and that there were no innocent explanations for them. He did not specifically direct them that they had to find the lies material to Count 1, i.e. whether the appellant knew that B.V. Farms had suffered loss.

The appellant also claimed there was no proof that B & G owed money to B.V. Farms. The Bailiff referred to that submission in his summing-up and also to the fact that B & G had made an extra payment to B.V. Farms. He did not, however, repeat that it had been compensation and not a concession of liability.

At the outset of the trial, the jurors were asked whether they had any substantial connection with the agricultural industry in Jersey which might affect their ability to give an impartial verdict. None said that he did. After they retired to consider their verdict, it was disclosed that one of the jurors had a connection with a growing background. The jury found the appellant guilty and he was convicted of fraud and sentenced to 12 months' imprisonment. A subsequent investigation revealed inter alia that some members of the relevant juror's family and friends were or had been farmers in the Island.

The appellant appealed against his conviction and sentence. He was released on bail pending the appeal, having served four weeks of his sentence. He submitted that (a) his conviction should be quashed as he had not had a fair trial because one of the jurors came from a farming background and the jury was therefore apparently biased against him; (b) furthermore, the court was not prevented from considering the evidence of the juror's farming connections under art. 10A of the Loi (1864) Réglant la Procédure Criminelle, which provided that a judgment could not be set aside because of the "incapacité" of a juror, as that did not include apparent bias; (c) the evidence of his lies to B.V. Farms and the directors of B & G should not have been admitted; (d) in addition, as the Bailiff did not repeat in his summing-up B & G's explanation for the extra payment made to B.V. Farms, i.e. that it was merely compensation and not proof of loss, the jury's verdict could have been reached on an incorrect interpretation of the evidence; and (e) his sentence should be suspended.

The Crown submitted in reply that (a) even if the evidence disclosed apparent bias on the part of the juror, the court was prevented from considering it under art. 10A of the 1864 Law, as "incapacité" referred to any factor which meant that a juror should not have sat, including apparent bias; (b) moreover, even if the relevant juror were found to have been apparently biased against the appellant, the trial would not necessarily have been unfair; and (c) given the severity and duration of the offence, the appellant's sentence should not be suspended.

Held, dismissing the appeal against conviction and allowing the appeal against sentence in part:

(1) The relevant juror's connections with the Island farming community were admissible but merely historic or insignificant and a fair-minded and impartial observer, having considered the facts, would not have concluded that there was a real possibility that the juror was biased. The appellant's trial was not therefore unfair and his appeal against his conviction would be dismissed. If a fair-minded and impartial observer would have concluded that there was a real possibility that the juror was biased, the trial would have been unfair, even if the remaining jurors would not have failed the test. The evidence of the juror's farming connections had been assessed in a realistic and commonsensical way but he could not have been cross-examined on it. As the jury process was confidential, evidence of a jury's deliberations was inadmissible even if actual bias was alleged, with the exception of evidence concerning allegations of extraneous influence on a jury. In future, an inquiry into an allegation of apparent bias of a juror should be conducted under the direction of the Royal Court or, if necessary, the Court of Appeal ( paras. 36-45; para. 50).

(2) If the evidence had disclosed apparent bias on the part of the juror, the appellant's conviction could have been set aside. The court would not have been prevented from doing so by art. 10A of the Loi (1864) Réglant la Procédure Criminelle, which provided that a judgment would not be set aside by reason, inter alia, of the "incapacité" of a person to have served as a juror. "Incapacité" referred only to circumstances in which a juror was not qualified under the statutory criteria for jury service, not to any other factor which meant that he should not have sat, e.g. apparent bias. Furthermore, art. 10A merely prevented a verdict...

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