![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |
Jersey Unreported Judgments |
||
You are here: BAILII >> Databases >> Jersey Unreported Judgments >> Lewis and Others v AG [2012] JCA 217A (21 November 2012) URL: https://www.bailii.org/je/cases/UR/2012/2012_217A.html Cite as: [2012] JCA 217A |
[New search]
[Context]
[Printable version]
[Help]
Before : |
Sir |
Ian Michael Christmas
-v-
The Attorney General
Application for bail pending appeal against conviction and sentence.
Crown Advocate M. T. Jowitt.
Advocate R. MacRae for Christmas.
JUDGMENT
nutting ja:
1. This is an application made on behalf of Ian Christmas ("the Applicant") for bail pending appeal.
2.
The
background to the application is that on Thursday 15th November, I was
constrained to adjourn the hearing of an appeal, which was scheduled to take
place on 27th November, 2012.
The appeal concerned this Applicant and three other men, John
Lewis,
Russell Foot and James Cameron. The
Applicant has been ready for that appeal, at least since the 23rd October 2012
when Contentions for leave to appeal against conviction were settled and filed
by his lawyer, Advocate MacRae, and, in relation to the application for leave
to appeal against sentence, at least since 2nd November 2012 when Advocate
MacRae filed detailed grounds in support of that sentence application. The appeal is now due to be heard on 21
January 2013.
3.
I propose
to give the Applicant and indeed Messrs Lewis,
Foot and Cameron, leave to
appeal in respect of their convictions and sentences.
4. It is necessary, shortly, for me to outline the circumstances in which the Applicant was convicted on the Indictment which he and his co-appellants faced.
5. Before I do so, I must emphasise that for the purposes of this hearing I have read, (I underline) among other matters, the Summing up of the Commissioner dated 20th July 2012, the Contentions of Advocate MacRae which supported the application for leave to appeal the conviction, dated 23rd October 2012, and the Contentions of the Crown in response dated 14th November 2012. In respect of Advocate MacRae's application for leave to appeal the sentence, I have read a Summary of Facts for the sentencing hearing, settled by Advocate Jowitt, as well as the Sentencing Conclusions which appear at the end of that document, dated 5th October 2012. I have read an extract of a transcript of the Sentencing Remarks of the Commissioner. I have read an Advice accompanying the grounds of application of leave to appeal against sentence, dated 2nd November 2012, settled by Advocate MacRae. I have read his further Contentions on leave to appeal against sentence dated the 20thNovember 2012. And I have read a Statement of Facts, agreed and settled yesterday by the Crown and by Advocate MacRae, for the purposes of this bail application.
6. It is to that document that I now turn, emphasising that I am grateful to both advocates for the time and the trouble that they have taken to allow me to refer, for the purposes of this application, to a non-contentious document outlining the facts on which the Applicant was sentenced.
7.
On 16th
May 2012, these four men, including the Applicant, stood trial before the
Inferior Number on an indictment containing 27 counts alleging fraudulent
inducement to invest or lend money contrary to the Investors (Prevention of
Fraud)(Jersey) Law 1967. The
case was heard before Mr Commissioner Pitchers and Jurats. At the end of an 11 week trial the
appellant Lewis
was convicted of 13 counts of fraudulently inducing investments
totalling £785,000. The
appellant Foot was convicted of 13 counts of fraudulently inducing investments
totalling £678,000. The
appellant Cameron was convicted of 16 counts of fraudulently inducing
investments totalling£943,000.
The Applicant was convicted of 1 count of fraudulently inducing an
investment of £100,000. The
Applicant was sentenced to 15 months imprisonment. The rest to four and a half years.
8.
It is
material that the Applicant and the appellant Lewis
were convicted of the
relevant count, Count 2, on the basis that they had acted recklessly in regard
to the investment made by the loser, Mrs Cotrel.
9. All the appellants are men of good character.
10. The case concerned investments in property in
the USA over the period between December 2003 and mid-2008. In late 2003 the appellant Lewis
became
enthused with the idea of making profits from the rising property market in
Florida.
11. The appellants Lewis,
Cameron and Foot had
known each other for several years and had worked together as independent
financial advisors through an entity called Goldridge Stone in Jersey. At the outset the plan was for a company
called De Lec, in which the Applicant and the appellant
Lewis
were involved, to
invest in "off-plan" Florida properties, yet to be completed, and to
benefit from the rise in
value
of those properties over the duration of the
build.
12. The Jurats found in relation to the Applicant's
involvement, is that he went into the De Lec office on most days and that he
and the appellant Lewis
and Mr
Evans
(who was a witness for the Prosecution)
reserved properties in Florida to be funded in part by mortgages and in part by
funds provided by investors in Jersey.
13. In late 2003 when the first properties were reserved "off-plan" by De Lec, Florida house prices were climbing at a rate of between 10-15% per year.
14. The appellant Lewis
did not limit himself to De
Lec, however, and in 2005 he set up a second company, this time with his
co-appellants Foot and Cameron.
They called this company Sunstone Holdings, but it functioned in the
same way as De Lec, that is as a
vehicle
for investing in US property, not only
in Florida but also in Colorado.
15. Over the lifetime of De Lec between February
2004 and January 2008 properties were purchased for De Lec, and on its behalf,
with mortgages totalling US$6,621,000 with a purchase value
in excess of
US$9,000,000. The directors
expected that appreciation in the
value
of property would result in quick
profits both for them and their investment partners. However the more US property was
purchased, the more money was needed to pay the costs which accompany the
ownership of property, such as mortgage interests, association fees for golf
courses and other leisure facilities with which the Florida properties were
encumbered, as well as the share of utility bills and maintenance. Of course it was necessary also to pay
profits and interest to existing Jersey investors who had been promised returns
on their investments. These
expenses, as the Royal Court found, were in large measure paid using funds from
existing and subsequent investors.
16. The properties proved to be more difficult to sell than at first thought and in sentencing the Commissioner stated that it was apparent that insufficient research had been carried out prior to launching the business model in relation to the problems which this Applicant and his co-appellants encountered.
17. In 2006 the US property market stalled. In 2007 it stagnated, and then crashed. From 2005 onwards the holding costs of both the De Lec and Sunstone property portfolios became crippling. Sunstone continued to bring in investors but De Lec did not take on any investors after 2006.
18. The Applicant resigned as a director of De Lec in December 2007. The appellants Cameron and Foot continued to encourage investors through Sunstone into 2008. Ultimately one of the Sunstone investors took legal action and a criminal investigation ensued.
19. That then is the general background against the single count of which the Applicant was convicted.
20. Mrs Cotrel, the victim,
was an elderly widow,
who, at the time, was in her late seventies. She had known the Appellant
Lewis
since
the year 2000 as her financial adviser through Goldridge Stone and,
accordingly, she trusted him where financial matters were concerned.
21. The Royal Court found that both the Applicant
and Lewis
must have known about the risk of disparity between what was being
represented to Mrs Cotrel as to how investors' money would be used and
the reality, which was that her money would be spent on the commitments
required at that time, including De Lec's operating costs.
22. Mrs Cotrel was induced to invest the sum of
£100,000. She gave evidence
about a meeting at her house with the appellant Lewis
at which she was
persuaded to part with that sum. Mr
Lewis
told her that the sum would be used to buy two properties in Florida,
specifically No. 104 and 203 Hawthorne.
She said in evidence that she wouldn't have made the investment if
she had known that that was not in fact the case.
23. The appellant Lewis
clearly misled her
verbally
at the meeting because little of the £100,000 was ever spent on either of
the Hawthorne properties but was spent instead, almost immediately, by the
appellant
Lewis
and the Applicant, as well as by Mr
Evans,
on other
liabilities.
24. Mrs Cotrel received a written Joint Venture
Agreement, or JVA, which was at some stage signed both by the Applicant and the
appellant
Lewis.
According to Mrs
Cotrel she did not read that document.
But plainly both men, as the Jurats found by their
verdict,
realised
that the representation that the sum of £100,000 was to be used in the
acquisition of the Hawthorne properties might not be true.
25. In sentencing the Applicant, the learned Commissioner said as follows:-
26. It is unnecessary for me to set out in detail the grounds of appeal against conviction. Advocate MacRae has amplified his grounds this morning focussing on a particular aspect of them, and indeed we have spent some time exploring the evidence which supported Count 2 in justification of Advocate MacRae's assertions. In essence he submitted firstly that the Commissioner should have stopped the case at the close of the Prosecution case, secondly that there was no factual warrant for the conclusion of the Jurats that the Applicant was guilty in respect of count 2 and thirdly that in any event the Jurats were misdirected by the Commissioner on certain aspects of the Law
27. The test which I am enjoined to apply in an
application of this kind is reported in the case of AG v
Barette [2006] JRC 060. On an application for bail
pending appeal, the Deputy Bailiff, as he then was, made clear what was the
test and I quote from his judgment:-
28. The appeal itself is reported in the Jersey Law
Reports 2006 at page 407. The
appeal was allowed but the proviso was applied and the Court therefore had to
recall the Appellant to prison with a view
to his serving the balance of his
sentence.
29. I have listened with great care to all that
Advocate MacRae has urged on me this morning. It is neither appropriate nor desirable
for me to say more than this. In my
view
though he has outlined a number of powerful points which he will no doubt
urge on the full Court on 21st January 2013 with the same persuasive force with
which he has urged them on me, nonetheless I am not persuaded that the test
which I have outlined has been met in this case. That test is one that constitutes, and
is designed to constitute, a significant hurdle for any applicant for
bail. It is, as I made clear in
giving the judgment of the Court in Barette, most undesirable that an
Appellant who has been released pending appeal has to be returned to custody
because his appeal against conviction has not been allowed or because the
appeal against sentence has not resulted in a situation where the applicant for
bail would have been released by the time of the hearing of the appeal.
30. It is not my function at this stage to allow or
disallow the appeal, in respect either of the appeal against conviction or
sentence. Rather is it my task to
make a preliminary assessment of the likelihood of the success of either
appeal. As I have said, Advocate
MacRae has not persuaded me that the very
high hurdle that he has to overcome
has been surmounted. In those
circumstances I regret I must refuse this application.