Jersey Unreported Judgments

Judicial review - application to bring proceedings against His Excellency the Lieutenant-Governor's refusal to refer the applicant's conviction to the Court of Appeal.

[2013]JRC106A

Royal Court

(Samedi)

4 June 2013

Before     :

Sir Christopher Pitchers, Commissioner, sitting alone.

 

Advocate C. M. Fogarty for the Applicant.

M. T. Jowitt, Esq., Crown Advocate for the Respondent.

judgment

the commissioner:

1.        This is an application to bring proceedings for judicial review against the Lieutenant-Governor following his refusal to refer the applicant's conviction to the Court of Appeal.  Since this is the first time that the Lieutenant-Governor's powers have been considered by a court, it is necessary for me to deal with some preliminary matters, although they are not in dispute in this case. 

The powers of the Lieutenant-Governor to refer

2.        The Lieutenant-Governor's power is contained in Article 43 of the Court of Appeal (Jersey) Law 1961, as amended.  Until the amendment in 2008 the power to refer cases to the Court of Appeal after conviction and appeal was exercised by the Secretary of State in London and, since 1995, it had been his practice to refer such cases to the Criminal Cases Review Commission in England.  Article 43 now provides that the Lieutenant-Governor may refer cases "if he sees fit."  There is no test provided in the Law governing the circumstances in which a referral ought to be made.  Plainly the Lieutenant-Governor cannot act with a completely unfettered discretion and accordingly he prepared a note to legal practitioners setting out the circumstances in which he would refer a case to the Court of Appeal.  Those circumstances follow very closely the circumstances in which, under English statute, the Criminal Cases Review Commission will refer a case to the English Court of Appeal. 

3.        In respect of convictions where the appeal process has been exhausted, the Lieutenant-Governor will only refer a case where there is a new argument or fresh evidence not previously raised and there is a real possibility that the conviction would not have been upheld.  He will need to be satisfied that there was good reason for the new argument or fresh evidence not being presented at the original appeal or application for leave to appeal.  It is to be noted that there is a curious difference in the wording of that test from that which applies to the Criminal Cases Review Commission, in that they will refer when there is a real possibility that the conviction would not be upheld were the reference to be made.  It would seem that the Lieutenant-Governor is considering the position retrospectively and looking to the likely outcome had the new evidence or arguments been before the original Court of Appeal whereas the Criminal Cases Review Commission is considering what would be the case if the conviction is referred to a new Court of Appeal and the evidence or arguments are before them.  It may well be that there is little difference in practice between the two approaches but, it seems to me, the more logical approach is to consider the matter prospectively and look to the situation for the new Court of Appeal.  In fairness to the Lieutenant-Governor, his decision letter is clear that he did consider the matter prospectively.  It may be that the guidance note is simply badly worded and needs amendment. 

4.        The applicant does not suggest that the test as propounded by the Lieutenant-Governor in his note, subject to the small point made in the previous paragraph, is wrong.  She is right not to do so.  It was clearly necessary for the Lieutenant-Governor to apply some test to cases such as these.  It is important that the test should be consistently applied.  He was right to give public guidance so that practitioners should know the basis upon which he will proceed.  Further, it made clear sense to follow the same test as is propounded in statute by the Criminal Cases Review Commission since he was taking over the exercise of the same function. 

5.        There remains of course the important difference between the appellate procedure in Jersey and in England, namely the test to be applied by the Court of Appeal in Jersey in Article 26 of the 1961 Law is different from that applied by the Court of Appeal in England.  Most importantly, Article 26 contains what is generally referred to as the proviso under which the Court of Appeal may, notwithstanding its 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.  That provision has for some years not applied in England and Wales.  The applicant in this case argues that the Lieutenant-Governor should ignore this part of the Court of Appeal's consideration in deciding whether to make a reference.  The present case is not a case in which the proviso would be considered by any Court of Appeal.  Accordingly this question does not arise directly for decision by me.  However, had it done so, my view would be that the Lieutenant-Governor, in considering the likely outcome in any further appeal, must have regard to the whole of the test that that court will be applying including the possibility of the application of the proviso. 

The Test for Judicial Review in these cases

6.        The English courts have dealt with the question of the correct approach to judicially reviewing decisions of the Criminal Cases Review Commission on a number of occasions.  Those authorities are directly relevant to the Lieutenant-Governor's powers in Jersey.  The approach was clearly set out by the Lord Chief Justice, Lord Bingham, in the case of R-v-Criminal Cases Review Commission ex parte Maria Pearson [1999] EWHC (Admin) 452.  At paragraph 16 Lord Bingham said this:-

"16. Thus the Commission's power to refer under section 9 is exercisable only if it considers that if the reference were made there would be a real possibility that the conviction would not be upheld by the Court of Appeal.  The exercise of the power to refer accordingly depends on the judgment of the Commission, and it cannot be too strongly emphasised that this is a judgment entrusted to the Commission and to no one else.  Save in exceptional circumstances, the judgment must be made by the Commission, in a conviction case, on the ground of an argument or evidence which has not been before the court before, whether at trial, on application for leave to appeal or on appeal.  In the absence of such exceptional circumstances, the Commission cannot therefore invite the court to review issues or evidence upon which there has already been a ruling.  Resort to the Commission must ordinarily follow and not precede resort to the Court of Appeal.

17. The "real possibility" test prescribed in section 13(1)(a) of the 1995 Act as the threshold which the Commission must judge to be crossed before a conviction may be referred to the Court of Appeal is imprecise but plainly denotes a contingency which, in the Commission's judgment, is more than an outside chance or a bare possibility but which may be less than a probability or a likelihood or a  racing certainty.  The Commission must judge that there is at least a reasonable prospect of a conviction, if referred, not being upheld.  The threshold test is carefully chosen: if the Commission were almost automatically to refer all but the most obviously threadbare cases, its function would be mechanical rather than judgmental and the Court of Appeal would be burdened with a mass of hopeless appeals; if, on the other hand, the Commission were not to refer any case unless it judged the applicant's prospect of success on appeal to be assured, the cases of some deserving applicants would not be referred to the Court and the beneficial object which the Commission was established to achieve would be to that extent defeated.  The Commission is entrusted with the power and the duty to judge which cases cross the threshold and which do not."

And then at paragraph 59 of the same judgment:-

"59. Had the Commission decided to refer this case to the Court of Appeal, that would (if based upon a proper direction and reasoning) have been a reasonable and lawful decision.  The decision not to refer was in our view equally reasonable and lawful.  The question lay fairly and squarely within the area of judgment entrusted to the Commission.  If this Court were to hold that a decision one way or the other was objectively right or objectively wrong, it would be exceeding its function.  The Divisional Court will ensure that the Commission acts lawfully.  That is its only role.  To go further would be to usurp the function which Parliament has, quite deliberately, accorded to the judgment of the Commission.  We find no grounds for impugning the Commission's decision, and accordingly refuse this application."

7.        Later cases have emphasised that in judicial review the court is not an appellate body from the Criminal Cases Review Commission but is examining the decision not to refer to determine whether that decision was lawful.  Taking one example from among a number, in the case of Cleeland-v-Criminal Cases Review Commission [2009] EWHC 474 (Admin), Lord Justice Scott Baker said, at paragraph 48:-

"48. I would wish to emphasise the very high threshold that has to be crossed to persuade this court that a decision from the Criminal Cases Review Commission not to refer a case to the Court of Appeal (Criminal Division) is unlawful.  A grant of permission to apply for judicial review in a case of alleged wrongful conviction, especially in a case which as long a history as the present one, is liable to raise the hopes and expectations of the convicted person.  An alternative to granting permission on paper would have been to adjourn the permission application for an oral hearing on notice to the CCRC.  Had that be done in this case, the CCRC would have been able to expand upon and explain the grounds for resistance in the acknowledgment of service, and it may very well have been that permission would not then have been given."

This of course is what is taking place here in that I ordered an oral hearing of this application for leave.  Against that background I turn to examine the Lieutenant-Governor's decision in this case.

The Facts

8.        The applicant faced trial on an Indictment containing a number of counts jointly with her former employer, Peter Michel.  The allegations were of money-laundering.  Count 1 was a general allegation of providing the facility to launder funds for clients in the form of cash.  In the words of the Crown Advocate in opening the case, it differed from the other counts in an important respect, it covered the whole cash fraud facility available to any client of the company.  For the purposes of this charge it was necessary for the prosecution to prove that the applicant knew that criminal proceeds were being dealt with by way of cash repatriations.  The counts that followed related to specific dealings with particular companies and individuals.  These counts also specified other means of assisting in the retention of the proceeds of crime than by the delivery of cash to the client. 

9.        The procedural history of this case has been complex.  The original trial on the whole Indictment started in July 2006.  For reasons that I do not need to set out here, save to say that they were not in any way the responsibility either of the prosecution nor those who represent the present applicant, the Commissioner at the trial was driven to discharge the jurats from further consideration of the Indictment save for what was then Count 4.  The trial continued against both defendants on that count alone and both were convicted.  The applicant appealed that conviction to the Court of Appeal.  The appeal was dismissed.  Shortly after the appeal had been heard, the appellants were re-tried on the remaining counts on the Indictment.  The applicant's conviction on Count 4 was not adduced as part of the prosecution evidence but the evidence which underlay it was part of the prosecution's general case on Count 1 and was adduced as similar fact evidence in respect of the other counts.  At the conclusion of the trial the jurats convicted Mr Michel and acquitted the applicant on all the counts that she faced. 

10.      Thereafter the applicant applied to the Secretary of State in England asking him to refer the case back to the Jersey Court of Appeal under the power that he then exercised.  He referred the matter to the Criminal Cases Review Commission who, having considered arguments very similar to those that are advanced to me, advised against referring the case back. 

11.      On 16^th September, 2008, the applicant, alleging that the Secretary of State had misunderstood some of her arguments, sought to have the matter referred again to the Criminal Cases Review Commission.  Without giving reasons, the Secretary of State agreed to do so but before that had been done it was realised that the power to refer the cases to the Court of Appeal in Jersey had by now been transferred to the Lieutenant-Governor.  The matter was therefore referred to him and the application which is now the subject of these proceedings was made. 

Decision of the Lieutenant-Governor

12.      I turn then to the decision of the Lieutenant-Governor.  His final decision was delivered on 24^th September, 2012.  After setting out the applicant's arguments he deals at paragraph 5 of his letter with his conclusions:-

"5. Having considered afresh the original submissions made, and reviewed the same in the light of the further submissions, the Lieutenant-Governor remains of the view there is not a real possibility that Mrs Gallichan's conviction would be set aside on appeal.  The reasons for that conclusion are as follows:-

a. The Applicant contends that there is a logical inconsistency between her conviction in the first trial and her subsequent acquittal in the second trial, and that she has been "both convicted and acquitted of the same conduct".  The Lieutenant-Governor remains of the view that a very significant difference in the evidence between the first and second trials was that Mrs Gallichan gave evidence in the first trial but not in the second.  This does not mean that the Lieutenant-Governor has reversed the burden of proof.  Rather, he has considered the detail of the evidence of Mrs Gallichan given at the first trial.  In that trial Mrs Gallichan was cross-examined in detail about the documents that she had either written, seen or signed that on their face appeared to be untruthful.  The trial turned on what Mrs Gallichan's state of mind had been when such documents were composed.  The Jurats in the first trial who heard her evidence, and heard her being cross-examined, must have rejected her account that she had neither known nor suspected of the alleged criminal conduct.  The Jurats in the second trial did not hear her evidence.  The Lieutenant-Governor does not purport to express a view as to what might have happened had Mrs Gallichan given evidence in the second trial, but the point remains that it was a significant area of evidence that was heard in the first trial, but not the second.  

b. The Jurats in the first trial were not presented with a distorted or unbalanced view of the interviews that had been conducted with the Applicant.  It was made clear to them by the Applicant in evidence, and by her Advocate in closing, that she had not admitted her guilt during those interviews.  The point was made that the interviews had taken place long after the indictment period, at a time when Mrs Gallichan had read witness statements and documents and had been able to reflect with the benefit of hindsight upon what had transpired at Michel & Co years before;

c. The role and importance of Charlotte Swanwick was not overlooked or masked in the first trial.  In fact, the defence made much, during that first trial, of the role of the predecessor to Mrs Gallichan, including the fact that her signature appeared on some 30 letters sent to Mark Allan;

d. In relation to the severance of the remaining counts from trial one, the Lieutenant-Governor has considered the further submissions made to the effect that there was significant evidence that was precluded from the first trial by reason of the severance of all but one of the counts.  In the first instance, the Lieutenant-Governor does not accept that material that might have assisted Mrs Gallichan's defence in trial 1 would have been "irrelevant and prejudicial", or otherwise inadmissible, in trial 1.  Secondly, the applicant has not pointed to a specific example of a piece of evidence that could have been introduced in trial 1 that would have made a material difference to the Jurats' assessment of Mrs Gallichan's state of mind when she composed the specific documents that she admitted to having been responsible for, and which it was suggested were plainly untruthful.  Indeed, it is apparent that Mrs Gallichan had the opportunity during the first trial, both during her own evidence, but also in submissions made on her behalf by Advocate Fogarty, to repeatedly emphasise the limited role that she played within Michel & Co, when set against the roles of others and the context of Michel & Co's dealings as a whole.  The Lieutenant-Governor does not consider that the areas of further evidence put forward by the Applicant would so undermine the relevant evidence in trial 1 as to give rise to a real possibility that an appeal would succeed."

It was in light of the above that the Lieutenant-Governor refused the application. 

13.      I can deal with sub-paragraphs b, c and d in the Lieutenant-Governor's letter in short order.  They relate to what happened at the first trial.  They could have been and to some extent were raised in the appeal against conviction.  To the extent that they were not raised, they are not points that can be relied on now.  It could have been argued that this evidence could be called or the cross-examination allowed in the first trial.  If these points were not made then they should have been.  Again, they could have formed part of her appeal against conviction.  They are not new points. 

14.      The real basis for this application is contained in sub-paragraph a, and I now deal with that.  Inconsistencies in verdicts are a frequent ground for an application for leave to appeal against conviction or seek to have the conviction quashed.  They are advanced in many cases and the principles upon which they are approached are well established.  They are helpfully summarised in the case of Dhillon-v-R [2010] EWCA 1577 (Crim).  Lord Justice Elias giving the judgment of the Court at paragraph 33 summarised the Law as follows:-

"It is notoriously difficult successfully to challenge a jury's verdict on the grounds that inconsistent verdicts have been returned.  We have been referred to a number of authorities which in our view establish the following principles:-

1. The test for determining whether a conviction can stand is the statutory test whether the verdict is safe."

[I add that the test is of course different in relation to Jersey appeals.]

"2. Where it is alleged that the verdict is unsafe because of inconsistent verdicts, a logical inconsistency between the verdicts is a necessary condition to a finding that the conviction is unsafe, but it is not a sufficient condition.

3. Even where there is a logical inconsistency, a conviction may be safe if the court finds that there is an explanation for the inconsistency.  It is only in the absence of any such explanation that the court is entitled to conclude that the jury must have been confused or adopted the wrong approach, with the consequence that the conviction should be quashed. 

4. The burden of establishing that the verdict is unsafe lies on the appellant. 

5. Each case turns on its own facts and no universal test can be formulated."

And then later at paragraph 38 of the judgment:-

"38. A key issue is what amounts to a logical inconsistency.  In Durante (1972) 56 Cr App R 708, 714 Edmund Davies LJ described the test as being whether the verdicts were such that "no reasonable jury who had applied their minds properly to the facts in the case could have arrived at the two differing conclusions."  In other words, there is no rational explanation to justify the jury's conclusion.  However, since the facts are within the purview of the jury, and they do not reveal them, it must follow that if the apparently inconsistent verdicts could be explained by findings of fact which were properly open to the jury on the evidence, even if they might appear to be surprising findings, then no successful appeal could be maintained."

15.      These cases of course deal with the situation where the verdicts are by the same jury.  It would be necessary here though not sufficient for the applicant to demonstrate that had all the counts been tried together a conviction on Count 4 could not stand with acquittals on the other counts, in particular Count 1.  It is not enough to assert, as the applicant does here, that the evidence on Count 4 was admissible as similar fact evidence and was part of the general case against the applicant on Count 1.  It would have been perfectly possible for the jurats to conclude that they were satisfied so as to be sure of one individual money laundering transaction relating to a particular client but were not sure that she had the broader guilty knowledge which had to be proved for Count 1. 

16.      In relation to this it is instructive to consider the direction on separate verdicts given by the Commissioner in the second trial and not dissented from by the applicant's advocate at that trial.  Commissioner Nice said at page 69 of his summing up to the jurats:-

"There are nine counts, eight of them involving both defendants.  You must consider the defendants individually and, subject to one further direction, the counts individually, looking at the evidence that relates to each count and each defendant, one by one."

The further direction to which he was referring was the direction on similar fact evidence. 

17.      The position in this case was in fact quite different from the same jury considering all the counts.  There were two trials and there was a fundamental difference between the evidence in each.  In the first, the applicant gave evidence, in the second she did not.  She was not obliged to give evidence but once she did so, her evidence was evidence in the case just as much as any other witness.  The fact that she was denying her guilt does not mean that there could not be things that she said in examination in chief or in cross-examination when documents were put to her, or even in the way in which she said them which would assist the jurats in that trial in deciding that her guilt was proved.  It is a common experience for anyone who practises in the criminal courts that defendants frequently do their own case no good at all when they come to give evidence asserting their innocence. 

18.      This issue was considered in the case of Andrews-Weatherfoil Ltd (1972) 5 Cr. App. R. 31.  In giving the judgment of the court Mr Justice Eveleigh said this when dealing with verdicts returned by different juries.  After dealing with the situation where the same jury has come to different verdicts on different counts he said this:-

"So too, where the verdicts are returned by different juries, the inconsistency does not, of itself, indicate that the jury which returned the verdict was confused or misled or reached an incorrect conclusion on the evidence before it.  The verdict "Not Guilty" includes "Not Proven".  We do not therefore accept (counsel for the appellants) submission that inconsistent verdicts from different juries ipso facto render the Guilty verdict unsafe.  If, as will usually be the case, the evidence at the two trials was significantly different, this not only explains the different verdicts but also defeats the claim that inconsistency alone renders the Guilty verdict unsafe."

19.      As I have already indicated, in this case there was a significant difference between the two trials.  The applicant gave evidence in one and not the other.  Against that background I have come to a clear conclusion in this case.  I remind myself of the test for judicial review, I have already propounded.  I am absolutely satisfied that it cannot be argued that the Lieutenant-Governor applied the wrong test nor that his decision was illegal, irrational or procedurally improper.  This application is dismissed.  That is sufficient to dispose of this application.  It is unnecessary for me to express an opinion as to what I would have done but I do so and I make clear that I regard this decision not simply as not being legally challengeable but it was clearly right.

Authorities

Court of Appeal (Jersey) Law 1961, as amended.

R-v-CCRC ex parte Maria Pearson [1999] EWHC (Admin) 452.

Cleeland-v-Criminal Cases Review Commission [2009] EWHC 474 (Admin).

Dhillon-v-R [2010] EWCA 1577 (Crim).

Andrews-Weatherfoil Limited [1972] 5 Crim. App. R. 31.