Charles David Barnett v HM Attorney General
| Jurisdiction | Jersey |
| Court | Court of Appeal |
| Judge | Doyle JA |
| Judgment Date | 17 March 2016 |
| Neutral Citation | [2016] JCA 64 |
| Date | 17 March 2016 |
[2016] JCA 64
COURT OF APPEAL
James McNeill., Q.C., President; George Bompas., Q.C., and; David Doyle, First Deemster & Clerk of the Rolls, Isle of Man
The Appellant appeared in person.
J. C. Gollop, Esq., Crown Advocate for the Respondent.
Protection of Children (Jersey) Law 1994.
Court of Appeal (Jersey) Law 1961.
Warren v AG [2014] (1) JLR 383.
Chan Fat Chu v HKSAR [2009] HKCFA 23.
Mendes v AG [2003] JLR N25.
Lewis and others v AG [2013] (1) JLR 325.
R v Babamuboni, Odigie and Malasi [2008] EWCA Crim 2505.
Smith [2013] EWCA Crim 2388.
Hong Kong Court of Final Appeal in Chong Ching Yuen v HKSAR [2004] 7 HKCFAR 126.
Hobson v R [1998] 1 Cr. App. R. 32.
R v Ulcay and Toygun [2007] EWCA Crim 2379.
R v Oliveria [2009] EWCA Crim 378.
Attorney General for Jersey v O'Brien [2006] UKPC 14.
Attorney General -v- for Jersey O'Brien [2006] 1 WLR 1485.
R v Hopkins-Husson (1949) 34 Cr App R 47.
Snooks and Dowse v United Kingdom [2002] JLR 475.
Bhojwani v AG [2011] JLR 249.
Barette v AG [2006] JLR 407.
Sex Offenders (Jersey) Law 2010.
Wicks and others v Law Officers of the Crown [2011–12] GLR 482.
Harrison v AG [2004] JLR 111.
AG v De Nobrega [2012] (2) JLR Note 22.
AG v Godson and Crowley [2013] (2) JLR 1.
Appeal — leave sought to appeal against both conviction and sentence.
This is the judgment of the court delivered on 17 March 2016.
On 3 December 2015 the Appellant was found guilty in respect of Counts 1 to 5 inclusive and not guilty in respect of Count 6 of the Indictment:-
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(i) Count 1 was the offence of possession of 152 indecent still images of children under the age of 16 contrary to Article 2(1)(b) of the Protection of Children (Jersey) Law 1994 (the “1994 Law”) between 29 December 2013 and 28 January 2014 with 137 at Level 1 on the Copine scale (described below), 6 at Level 2, 2 at Level 3, 5 at Level 4 and 2 at Level 5;
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(ii) Count 2 was the offence of making 21 indecent still images and 2 indecent moving images of children under the age of 16 contrary to Article 2(1)(a) of the 1994 Law between 5 July 2005 and 29 January 2014 on a Tiny computer with 20 still images at Level 1 and 1 still image at Level 5 and 2 moving images at Level 4;
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(iii) Count 3 was the offence of making 15 indecent still images and 1 indecent moving image of children under the age of 16 contrary to Article 2(1)(a) of the 1994 Law between 1 July 2012 and 29 January 2014 on a Dell computer with 11 still images at Level 1, 1 still image at Level 2, 2 still images at Level 3, 1 still image at Level 4 and 1 moving image at Level 3;
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(iv) Count 4 was the offence of making 6 indecent still images of children under the age of 16 contrary to Article 2(1)(a) of the 1994 Law between 1 May 2013 and 29 January 2014 on an external hard drive with 5 still images at Level 1 and 1 still image at Level 4;
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(v) Count 5 was the offence of possession of 3 still images of children under the age of 16 years being Level 1 still images contrary to Article 2(1)(b) of the 1994 Law between 29 December 2013 and 29 January 2014.
The Appellant seeks leave to appeal against both conviction and sentence.
In his notice of appeal against conviction the Appellant states that the court erred:-
“i in attaching too much weight to the evidence tendered by the prosecution and/or insufficient weight to the evidence tendered by the defence and/or reached conclusions contrary to the weight of the evidence”;
ii in attaching insufficient weight to the Appellant's contention that Mrs Angela Amy is attracted to women and that the photographs may have been hers”;
iii in failing to conclude that the trail of evidence linking the Appellant to the photographs was uninterrupted and/or untainted”; (presumably delete “in failing to conclude” and insert “in concluding”)
iv in attaching insufficient weight to the Appellant's contention that the images may have been planted on the computer on which they were found”
The notice of appeal states that the conviction is unsafe and should be quashed because of the conduct of the Appellant's trial advocate:-
“(1) the Advocate representing the Appellant failed to understand fully or at all the conclusions reached by the Appellant's forensic expert in her report and/or failed, refused or neglected to call the Appellant's forensic expert to give evidence in order to enable the Appellant's Advocate to draw out the more important aspects of the Appellant's defence”;
(2) “the Appellant's Advocate failed, refused or neglected to take any, or any sufficient notice of the Appellant's instructions” in respect of “questions which should have been put to [Mrs Amy in cross-examination/the Appellant's forensic expert in examination in chief?]”;
(3) “the Appellant's Advocate having failed to correctly understand and/or act upon the Appellant's instructions regarding the alleged ages of the children portrayed in the photographs (that they looked older than 16).”
The Appellant raises various other points in a series of documents filed in support of his appeal entitled:-
“Contentions – C.D. Barnett” (5 pages unsigned and undated);
“My Representation by Advocate Nicholls” (3 pages signed and dated 24 February 2016);
“Statement of Contentions for the Court of Appeal” (3 pages signed and dated 24 February 2016 and a further 3 pages signed and dated 12 March 2016 and handed into court at the commencement of the hearing);
“Appeal Notes for the Royal Court” with a request to “reconsider my sentence” (1 page signed and dated 24 February 2016);
“Addendum Advice from my previous lawyer who was engaged prior to my lack of funds” (1 page signed by Appellant and dated 26 February 2016);
“Statement of Contentions for the Court of Appeal” (2 pages signed by Appellant and dated 26 February 2016);
“Observations of Advocate A P Begg” (3 pages signed by Appellant and undated and handed into the court at the commencement of the hearing);
“Extracts from Cyfor Report 1. Ms Laura Collins BSc Bedfordshire” (2 pages signed by Appellant and dated 12 March 2016 and handed into the court at the commencement of the hearing).
In respect of the appeal against conviction the Appellant raises in effect four main grounds:-
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(i) the Appellant's trial advocate failed to call the Appellant's forensic expert (Ms Laura Collins of Cyfor Digital Evidence); (“Ground One”)
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(ii) the Appellant's trial advocate failed to ask certain questions of Mrs Amy; (“Ground Two”)
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(iii) the Appellant's trial advocate wrongly signed the Admissions dated 1 December 2015. The Appellant says “I did not give my unqualified consent, I acted under duress”, the “duress” being that the Appellant's trial advocate “told me that if I did not agree that the images were of children under sixteen and indecent, the Royal Court would look unfavourably upon me if the Court had to undertake that exercise itself”. The Appellant says he thought that the children portrayed looked older than 16; (“Ground Three”)
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(iv) that the convictions are against the weight of the evidence, in particular insufficient weight was attached to the Appellant's contention that the images may have been planted on the computers on which they were found. (“Ground Four”)
The Appellant does not allege any misdirection in the court below (see his negative response on page 2 of the appeal notice to the question whether one of the grounds is a misdirection).
The grounds for allowing an appeal against conviction are set out in Article 26 of the Court of Appeal (Jersey) Law 1961 (“the 1961 Law”):-
“26 Determination of appeals in ordinary cases
(1) Subject to the following provisions of this Part, on any appeal against conviction, the Court of Appeal shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that, on any ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal:
Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
(2) Subject to the following provisions of this Part, the Court of Appeal shall, if it allows an appeal against conviction, quash the conviction, and direct a judgment and verdict of acquittal to be entered.”
The application before the court is in effect for leave to appeal in respect of which the test is whether the proposed grounds are “seriously arguable” ( Warren v AG [2014] (1) JLR 383 at paragraph 37).
The main thrust of the Appellant's appeal is that his trial advocate made certain mistakes and failed to act on his instructions. The Appellant says that in such circumstances his conviction should be quashed.
Criticisms of trial advocates are easily made by convicted defendants. Cases where it will be appropriate to quash a conviction on the basis of criticisms of a defence advocate's conduct at trial will be very rare. In such cases the issue is whether the appellant has been deprived of a fair trial.
The Hong Kong Court of Final Appeal in Chan Fat Chu v HKSAR [2009] HKCFA 23 dealt with an appeal regarding allegations against trial counsel. Lord Woolf NPJ (with whom the other members of the court agreed) stated:-
“The Need for Careful Investigation
8. One of the most important...
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