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You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Pearce v AG (Court of Appeal : Appeal (Criminal)) [2025] JCA 026 (22 January 2025) URL: https://www.bailii.org/je/cases/UR/2025/2025_026.html Cite as: [2025] JCA 26, [2025] JCA 026 |
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Application for leave to appeal conviction of two counts of rape and two counts of assault
Before : |
Sir William Bailhache, President; |
David Pearce
-v-
The Attorney General
Advocate O. A. Blakeley for the Applicant and Appellant.
S. C. Thomas Esq., Crown Advocate.
JUDGMENT
WOLFFE JA:
1. This is the judgment of the Court.
2. On 19 February 2024 the Applicant and Appellant (whom we shall describe as the "Appellant") went to trial before a jury in the Royal Court. The indictment contained four counts of rape and three counts of assault all relating to the same complainant. There was a ten-day trial. Advocate Thomas was the Crown Advocate and the Appellant was represented by Advocate Steenson. The complainant gave evidence over the course of four days and the Appellant also gave evidence. The Appellant was convicted by a majority on 1 March 2024 on two counts of rape and two counts of assault. He was acquitted by a majority on three of the other charges and unanimously on one charge of assault.
3. The two counts of rape of which the Appellant was convicted were concerned with the period between 1 June 2012 and 31 December 2012. One of the counts of which he was acquitted covered the same period. The other count of which he was acquitted concerned a period in 2020. At trial the complainant gave evidence inter alia that the Appellant first raped her after the birth of their daughter on 15 May 2012. In cross examination, she stated that the first incident took place within a month after their daughter's birth.
4. Following his conviction, the Appellant discharged Advocate Steenson and entered a Notice of Appeal setting out eight grounds of appeal against both conviction and sentence. These were said to be "generic grounds" which would be amended "as required" should the Appellant decide to continue with the appeal. Sentencing was fixed for 16 May 2024, but the date was adjourned and the renewed date was also vacated with a further date being fixed for February 2025. The Appellant has accordingly not yet been sentenced.
5. On 25 September 2024 the Appellant intimated to the Greffier that he intended to pursue his appeal against conviction. The appeal was set down for the January sitting of the Court of Appeal. On 28 November 2024 Advocate Blakeley informed the Court that he had been instructed to represent the Appellant in his appeal against conviction and applied for an adjournment of the appeal to the March sitting. On 12 December 2024 Sir William Bailhache refused that application for the reasons set out in his judgment dated 16 December 2024. The appeal hearing was fixed for 21 January 2025.
6. On 18 January 2025 Advocate Blakeley filed a document headed "Appellant's Grounds of Appeal and Skeleton" to the Court. This intimated three specific Grounds of Appeal (with supporting argument) and was subsequently amended to include two further Grounds relating to the late disclosure of an Occurrence Report. It was accompanied by an expert report dated 15 January 2025 and a number of authorities. Crown Advocate Thomas produced a written skeleton in advance of the hearing.
7. Advocate Blakeley tendered an explanation and apology for the very late production of these Grounds of Appeal. He confirmed that they should be substituted for the generic grounds previously stated, which were abandoned. Both parties were prepared to present argument, and we proceeded to hear the appeal.
8. Article 24 of the Court of Appeal (Jersey) Law 1961 provides that a person convicted on indictment by the Royal Court may appeal to this Court - (a) against conviction, on any ground of appeal which involves a question of law alone; (b) with the leave of the Court of Appeal, or upon the certificate of the trial judge that it is a fit case for appeal, against conviction on any ground of appeal which involves a question of fact alone or a question of mixed fact and law, or on any other ground which appears to the Court to be a sufficient ground of appeal.
9. Article 26 provides that on any appeal against conviction, the Court 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 has been a miscarriage of justice, and in any other case shall dismiss the appeal. There is then a proviso which I need not discuss.
10. Advocate Blakeley explained that Grounds 1, 4a and 4b raised questions of law, and therefore did not require leave to appeal, whereas in respect of Grounds 2 and 3, leave is required. Advocate Thomas did not dispute that analysis and we will accordingly proceed on that basis.
11. The first Ground of Appeal advanced is in the following terms -
"The Commissioner erred in law by not considering the issue of bias in respect of a particular juror (X) in David Pearce's (DP) trial. X ought to have been discharged and was not. X remained on the jury until verdict."
12. On Day 2 of the trial, during the evidence in chief of the complainant, a female juror (X) got up and left the courtroom. This occurred during a passage of the complainant's evidence when she was giving evidence directed to Count 6, a charge of rape of which the Applicant was ultimately acquitted. After a brief discussion in public, the Court rose to allow inquiries to be made of X.
13. The Court subsequently re-convened in private to hear from the Viscount's Officer who had made those inquiries. The transcript records the following exchanges -
"COMMISSIONER - It has been agreed that we should ask you to provide us with some further information as to the reason why the particular juror considered it necessary to leave the court, so that we can decide how we can proceed from here. So it would be helpful if you could explain to us what you know of the circumstances.
VISCOUNT'S OFFICER - She mentioned that she had become a little bit lightheaded and I think emotional, and then that's why she had to vacate the court like she did.
COMMISSIONER - Did she give any indication as to whether she feels that she is able to continue?
VISCOUNT'S OFFICER - I have asked her, and she seems that she's fine now. She seems quite jovial now and relaxed. I think it just got a bit heavy for her at the time."
The Commissioner then invited the Advocates to ask further questions of the Viscount's Officer.
14. A question from the Crown Advocate elicited the following information -
"She spoke to me this morning, asking if there was anything that we could provide jurors regarding a case like this, because she found it quite emotional yesterday. And I said that we did have leaflets which we pass out to the jurors at the end of a trial that can refer them to an agency that might be able to help them. So we have brought those over now actually to be passed out."
Advocate Steenson confirmed this information with the Viscount's Officer and asked a further question about X's explanation for leaving the court, which elicited the following response -
"VISCOUNT'S OFFICER - She found that she had become a bit lightheaded and emotional, and just had to vacate the court and basically had a cry. And since then she's had a drink and calmed down and she seems fine now.
ADVOCATE STEENSON - She wanted to have a cry.
VISCOUNT'S OFFICER: That's what she told me when she was sitting on the stairwell When we initially found her once she had left the court."
15. The Commissioner then had a discussion with counsel about the appropriate approach and decided that a further question should be put to X herself. The question was -
"Do you consider that you are able to continue as a juror and consider this case impartially on the evidence, including evidence that you have not yet heard from the Defence? If you think that there is any difficulty in continuing, it is important that you let us know at this stage."
Advocate Steenson confirmed that this sounded reasonable.
16. The juror responded by writing the following below the question -
"I believe I can continue as a juror + consider the case impartially.
As there is evidence which I have not yet heard, + don't yet know the content of it, I would like to continue + see how I go.
If I was to feel unwell again at any point, I would like to reconsider at that point, if possible."
17. When the Court re-convened in the absence of the jury, the Commissioner indicated that having seen the note, he saw no reason why the juror should be discharged. The Crown Advocate, in a brief submission, agreed. Advocate Steenson made a submission inviting the Commissioner to discharge the juror. Having heard counsel the Commissioner adhered to his initial view.
18. When the jury returned to Court, the Commissioner gave the following direction -
"Members of the Jury, the oath that you swore as jurors requires you to try this case on the evidence. You have not yet heard all of the evidence. We have yet to hear the remainder of the evidence for the Prosecution, the evidence for the Defence, and also you have yet to hear the submissions both by the Prosecution and Defence counsel and my summing-up to you. It is therefore important that I remind you that you must keep an open mind in relation to all of the matters in issue in this trial and await the hearing of all of the evidence and the submissions that I have mentioned to you. We will now continue with the evidence of the Complainant."
19. No further issue arose in relation to juror X in the course of the trial.
20. On behalf of the Appellant, Advocate Blakeley contended before us that X's conduct was such that a hypothetical, dispassionate and fair-minded observer would have considered that there was a real risk of a possibility of bias in respect of X. As a result, the Commissioner should have discharged X. Advocate Blakeley relied on Re Medicaments and Related Classes of Goods (No. 2) [2001] 1 WLR 700, Porter v. Magill [2002] 2 AC 357 and Syvret v. Chief Minister [2011] JLR 343 for the law on apparent bias. His contention was that the behaviour of the juror was such as to give rise of an inference of bias.
21. In reply, Advocate Thomas submitted that the key question was whether there was a real risk that X would not be faithful to her oath. The distress exhibited by her did not justify the inference that she would not. The Commissioner took appropriate steps to make inquiries into the incident and, having decided not to discharge X, gave appropriate directions. In his written submissions, Advocate Thomas drew attention to Maciejewski [2022] EWCA Crim 151, Skeete [2022] EWCA Crim 1511, Gynane [2020] EWCA Crim 1348 and Lajevarti [2023] EWCA Crim 615.
22. An allegation of apparent bias must be founded on facts from which it would be proper to infer bias. Jurors, like judges, are expected to decide the issues which come before them dispassionately, on the basis of the evidence. But jurors are human beings. They may often, in the course of a trial, be faced with evidence which they find distressing. The fact that a juror finds a passage of evidence distressing does not, in itself, justify an inference that the juror is or may be biased in favour of one party or the other, although it may invite an inquiry such as the Commissioner instructed in this case. X confirmed that she was aware that she had not heard all the evidence and stated that she believed that she could deal with the case impartially. The Commissioner immediately gave firm and appropriate directions reminding the jurors of their responsibilities. The fair-minded observer would not consider that there was a real risk that juror X was biased in favour of one party or the other.
23. The second Ground of Appeal is described as a "possible error in advice to" the Appellant concerning character evidence. Advocate Blakeley explained that the Appellant had a previous conviction dating from 2005. The Crown made no application in advance of trial to admit bad character evidence, but such an application was made during the trial on the ground that the Appellant had attacked the character of the complainant in cross examination. The application was refused. The Appellant decided not to call several witnesses who were due to give evidence regarding the Appellant's good character, apparently on the basis that this would open him to the bad character evidence being led. Advocate Blakeley submitted that if the matter had been raised in advance of trial, the Appellant would not have had to make that decision under the pressure of a trial. Whilst inquiries had been made of Advocate Steenson about the advice given, no affidavit was produced to us.
24. Advocate Thomas drew to our attention the factual circumstances to which the 2005 conviction related. These included, as the Commissioner put it, "intoxicated, abusive and obstructive behaviour". On Day 6 of the trial Advocate Steenson put the court on notice that he intended to apply for the Appellant to be treated as man of effective good character. In light of that prospective application, the Crown sought details of the 2005 offence. This prompted the Crown application on Day 7 to adduce that information. As I have said, the Commissioner rejected the Crown application, but not because he took the view that the conviction was irrelevant. However, he left open the possibility of reviewing that decision if the Appellant advanced evidence of positive good character. The decision not to lead good character evidence was, in the circumstances, a legitimate tactical decision.
25. We reject the application for leave to appeal on this Ground. An advocate conducting a criminal trial on behalf of an accused defendant is called on to exercise considerable judgment and often has to react to the circumstances of the trial as it unfolds. The decision whether or not to lead good character evidence, in circumstances where a criminal defendant has previous convictions, is a sensitive and difficult one. In the present case, it is said that there was a "possible error" in Advocate Steenson's advice. We have no evidence as to the advice which he tendered. A "possible error" is not a basis for an appeal. We cannot conclude, in the circumstances of this case, that the decision not to lead good character evidence was outside the limits of the broad judgment which rests upon counsel in a criminal trial. Nor is there anything in the contention that, for the reasons explained to us, the decision had to be made under the pressure of the trial. The possibility of advancing evidence of positive good character, whether before or during the trial, inevitably called for consideration of the likelihood of a potential Crown response, namely to lead evidence of bad character to ensure that the jury were not misled.
26. As we have mentioned, the Appellant has produced an expert report dated 15 January 2025. The author is a specialist in Obstetrics and Gynaecology. He had reviewed medical notes relating to the complainant covering the first ten days after the birth of her child (i.e. from 17 to 25 May 2012). He noted that these disclosed that the complainant had suffered perineal damage which not been sutured. He expressed the view that a serious sexual assault during this period would have caused further damage with new bruising, bleeding and swelling. He observed that the notes did not record perineal pain being reported to the midwife and that the complainant declined examination.
27. The Court's power to entertain evidence which was not available at trial "if it thinks it necessary or expedient in the interests of justice" to do so is to be found in Article 34 of the Court of Appeal (Jersey) Law 1961. Advocate Blakeley relied on AG v. Gorvel 1973 JJ 2503 for its adoption from R v Parks (1961) 46 Cr App R 29 of the following statement of the principles to be applied when the Court is considering the exercise of that power -
Advocate Thomas did not dispute this articulation of the relevant principles.
28. Advocate Blakeley contended that the expert report which had been produced was useful evidence which, if it had been adduced at trial, could have had a significant impact on the jury's assessment of the complainant's evidence. He acknowledged that the report was concerned only with the first ten days after birth and that the two rape charges of which the Appellant was convicted related to the period from 1 June to 31 December 2012. He linked this Ground of Appeal with Ground of Appeal 4, which concerned an Occurrence Report, in which the complainant is recorded as reporting to the police that the last incident of rape in 2012 took place eight days after the birth of her child. As we will explain in relation to Grounds 4a and 4b, that Report was produced on the morning of the third day of the trial, and the relevant parts were before the jury by agreed admission.
29. Advocate Blakeley contended that the expert evidence now produced had not been available at trial. Although it could have been available if inquiries had been made at the time, the defence had no reason to investigate the effect of forced intercourse on the complainant immediately after the birth of the child, given the terms of the indictment. Advocate Blakeley argued that the report went to the complainant's credibility and reliability, which were the central issues in the case. The report was credible and, he submitted, might have created a reasonable doubt in the mind of the jury. He emphasised that the convictions had been by a majority. It would only have taken one juror to have made a different decision for the Appellant to have been acquitted.
30. Advocate Thomas focused his submissions on the fourth of the principles identified in Gorvel. He submitted that the probative value of the expert report was very limited. In cross-examination, the Appellant had stated only that the first rape was "within the first month" after the birth of the child and that the rapes continued until around September 2012. The expert report related only to the first ten days after the child's birth. The only new feature of the evidence was the likelihood of secondary injury if there had been a serious sexual assault during the period to which the report was directed. However, the medical notes did not show an absence of trauma. Rather they disclosed that the complainant had refused examination. There was no evidence as to the true state of her genital area during this period. The complainant did not make contemporaneous complaints about the Appellant's conduct. Evidence which focused on the fact that she had refused medical examination would have to be considered in that context.
31. We accept Advocate Thomas' submissions. The expert report is expressed in very general terms. All that can be taken from the report is the proposition that, during the very short period to which it relates a "serious sexual assault" of the complainant would likely have produced secondary injury. That term is not defined by the expert. The medical notes disclose that the complainant refused examination, and there is therefore no direct evidence that she did not sustain any secondary injury. In fact, the complainant gave evidence at trial that she was in pain and was bleeding during the period after the birth. The proposition that a "serious sexual assault" during this period would likely have produced secondary injury accordingly does not represent a new fact which contradicts the evidence of the complainant. At best it would provide a possible foundation for questions to the complainant, the effect of which is speculative. Insofar as the medical notes report the complainant reporting an absence of problems, that material was available to the defence for use in cross-examination.
32. Further, the expert report is addressed only to a very short period after the birth of the child -“ indeed, to a period which predates the time window referred to in the counts of rape of which the Appellant has been convicted. Any possible probative value of the expert report (which, for the reasons we have explained, seems to us to be limited in any event) would have depended on the jury concluding that there were incidents of rape within that very short period. But the complainant's evidence, elicited in cross-examination on the third day of the trial, was only that the first incident of rape occurred "within the first month" after the birth of child. It would, accordingly, at best for the Appellant, be doubtful whether the expert report, even if of probative value in relation to the issues in the case, could be of any relevance.
33. It was against this background that Advocate Blakeley founded on the passage of the Occurrence Report to which we have referred, which contained a report of a prior complaint by the complainant in terms which were inconsistent with her oral evidence and which stated that the last incident of rape occurred eight days after the birth of the child. As we will explain, that document had been disclosed at the beginning of the third day of the trial. Not only was it therefore available to Advocate Steenson when he was cross-examining the complainant as to the timing of the rape, but the relevant parts of it were before the jury in an agreed statement of facts. The Commissioner directed the jury in his summing-up that in assessing whether or not the complainant's evidence was true, the jury must look at all the evidence including any inconsistencies. The jury's verdict discloses that it accepted the complainant's evidence in relation to the first two counts, which were concerned with rapes between 1 June and 31 December 2012. The expert report can be relevant only on the footing that the allegations related specifically to the period to which it was directed, a proposition which is not supported by the verdict of the jury which related to a different period.
34. We do not have to consider whether the evidence would have been available if the Appellant had made reasonable enquiries before the trial as the contrary has not been contended for by the Respondent.
35. We accordingly refuse leave to appeal on this Ground.
36. Grounds of Appeal 4a and 4b are concerned with the Occurrence Report to which we have already referred. This was a States of Jersey Police Occurrence Report dated 16 April 2014, which was disclosed to the defence on the morning of the third day of the trial. The document came to light when, on the second day of the trial, in the course of cross-examination, the complainant referred to an occasion when the police attended at her house and, according to her, told her that what had happened to her was not rape. This led Advocate Thomas to carry out an investigation which revealed the Occurrence Report. Thereafter Advocate Steenson sought further time to make inquiries into the previous family proceedings. The Court adjourned until after lunch, when Advocate Steenson sought an adjournment to carry out further investigations. This was resisted by Advocate Thomas. The Commissioner refused Advocate Steenson's application as is discussed in more detail below. Thereafter, on the application of Advocate Thomas, the Commissioner admitted the Occurrence Report which came into evidence before the jury by agreed admission. Grounds of Appeal 4a and 4b contend that the Commissioner erred in law by admitting the Occurrence Report into evidence and acted unfairly in refusing the defence further time to undertake further investigations.
37. The Occurrence Report recorded an allegation of rape which the complainant made against the Appellant in March 2014. At that time there were ongoing family proceedings between the complainant and the Appellant. It appears from what is recorded in the Occurrence Report that the complainant was seeking to resist unsupervised contact between the Appellant and their child. The allegations recorded in the Occurrence Report are, in certain respects, inconsistent with the complainant's evidence at trial. Notably, she is recorded as alleging that the Appellant had intercourse with her without her consent while she was pregnant, that she "was reluctant to go into details, stating that she was unable to recall specific details" and that the last time she was raped was eight days after the birth of the child.
38. The Commissioner observed that the Appellant had been aware of the family proceedings. These had been relied upon in the defence statement as providing a possible motivation for the complainant to make fabricated allegations of rape. This was therefore something which could have been investigated at an earlier stage. Advocate Thomas' application to the Court to admit the Occurrence Report was based on his contention that it contained a prior consistent statement of the complainant inasmuch as it showed that she had made an allegation to the police in 2014. Advocate Steenson resisted that application. The Commissioner was satisfied that the Occurrence Report was admissible. He exercised his discretion to admit it. He proceeded on the basis that Advocate Steenson had put to the complainant that there was no evidence that she had made a complaint to the police. Knowing now that there was evidence that she had made such a complaint, it would be wrong, in his view, for the jury not to have that evidence before it; otherwise counsel would have to have to use forms of words which concealed the true position. The defence could still question the complainant's motivation.
39. The substantive terms of the Occurrence Report were incorporated into a statement of agreed facts which was read to the jury at the close of the evidence. Neither party before us drew our attention to any use of it in cross-examination of the complainant or otherwise. Although it prima facie might have been used to press the complainant on inconsistencies between it and her account to the jury, no such questioning took place. It was, of course, before the jury; and the Commissioner, as we have already observed, directed the jury appropriately that, in assessing the complainant's evidence, they should take into account any inconsistencies.
40. Before us, Advocate Blakeley contended that the Occurrence Report was a document the terms of which fell within the Crown's duty of disclosure. The defence case was that the complainant was inventing allegations of rape. Had the document been disclosed timeously her cross-examination would have been conducted differently. In particular, it would not have been put to her that she had made no complaint to the police. His ultimate submission to us was that the Commissioner should have exercised his discretion to exclude the document as unfairly prejudicial. The unfairness was said to be compounded by the Commissioner's refusal to allow the defence more time to investigate the family proceedings
41. Advocate Thomas accepted that the document was one which, had it been known to him in advance of the trial, would have been disclosed. He explained in his written submission that it had been disclosed to a prosecutor (not the trial Crown Advocate) for the purposes of an earlier hearing but had not made its way into the Crown Advocate's trial brief. He took us to the passage of evidence which had prompted his inquiries. When the complainant referred to the visit of police officers to her house, Advocate Steenson did not directly contradict her. Advocate Thomas observed that the defence case had always been and continued to be that the allegations were fabricated. The document rebutted the suggestion that the allegations were a recent fabrication and on that basis the Crown had wished to rely on it. It would not have been in the interests of justice to deprive the jury of that evidence. He recognised that other information in the document was not consistent with the complainant's evidence at trial. Once it had been admitted, that material was available to Advocate Steenson to use in cross-examination if he had wished to do so. His cross-examination of the complainant had continued well into the fourth day of the trial; and, further, the complainant was later recalled. The terms of the document were available to the jury in the statement of agreed facts.
42. As regards Ground of Appeal 4b, Advocate Thomas submitted that the Appellant had been present in the family proceedings and was well-placed to give instructions as to what had occurred. If anything said in those proceedings was relevant, it would be relevant regardless of the admission of the Occurrence Report. Any suggestion that the complainant had an ulterior motive related to the family proceedings would have been equally relevant in meeting other evidence about allegations made by the complainant. Had the defence wished to do so, they could have undertaken those inquiries in advance of trial. In any event those inquiries could have continued, but no further issue was made in relation to the family proceedings during the trial, and nothing has been produced since to suggest that such inquiries would have been fruitful.
43. There is no doubt that the Occurrence Report was a document which should have been disclosed by the Crown to the defence in advance of the trial. Whilst the Crown wished to rely on it for the purposes which Advocate Thomas explained, it also contained evidence of a prior statement by the complainant which, in certain respects, was inconsistent with her evidence at the trial. In the event, Advocate Blakeley did not rely, in this context, on those parts of the Occurrence Report which were inconsistent with the complainant's evidence. Rather, his submission was that it was unfairly prejudicial to admit the document because it tended to rebut any contention that the allegation of rape was a recent fabrication.
44. We do not agree with the contention in Advocate Blakeley's written submission that the Commissioner's decision to admit the document involved an error of law. The question of whether to accede to Advocate Thomas' application to allow the document to be admitted into evidence was a matter of discretion. There were competing considerations which the Commissioner was entitled to balance. The document was, as Advocate Thomas submitted, one which it was relevant for the jury to have before it. The Commissioner was entitled to take the view that it would be artificial, in a context where it was anticipated that the Appellant would wish to make something of the delayed allegation of rape, to have to find a form of words which avoided misleading the jury. Whilst Advocate Blakeley contended that the cross-examination of the complainant would have been conducted differently, we accept Advocate Thomas' submission that the prejudice should not be overstated. We were shown the passage of evidence when the complainant referred to the police visit, and Advocate Steenson did not challenge that directly.
45. Nor do we consider that any miscarriage of justice has occurred by reason of the Commissioner's decision not to allow the defence more time to investigate the family proceedings. As Advocate Thomas observed, there was other evidence, from another witness, that the complainant had made a disclosure to her in 2013 or 2014 that there were "things of a sexual nature" about which she was not happy and that "she felt forced into doing them". The Appellant was always going to have to address the question of why the complainant had made that disclosure, and indeed why she had made allegations of rape against him. The position disclosed in the defence statement was apparently that these were fabrications. The Appellant was well aware of the family proceedings, and if he wished to rely on those proceedings in that regard, he could have done so. The contention before us that he should have been given the opportunity to make inquiries into those proceedings was advanced at the level of generality and without any specification of information which could or would have been disclosed had such inquiries taken place and which might have affected the course of the trial.
46. We accordingly reject Grounds of Appeal 4a and 4b.
47. Advocate Blakeley invited us to consider the Grounds cumulatively as well as individually. We have rejected each of the Grounds for the reasons we have set out above. We do not consider that, considered cumulatively, the points raised disclose that there has been any miscarriage of justice.
48. For all these reasons, we refuse leave to appeal on Grounds 2 and 3 and we reject Grounds of Appeal 1, 4a and 4b. We dismiss the appeal.