[2006]JCA095
COURT OF APPEAL
14th July 2006
|
Before :
|
P. D. Smith, Esq., Q.C., President;
M. S. Jones, Esq., Q.C., and;
J. W. McNeill, Esq., Q.C.
|
Richard Charles Robert Styles
Joseph Dean Day
Joseph Thomas Carney
Cliff Alberto De Sousa
-v-
The Attorney General
Application for leave to appeal against
the convictions passed by the Criminal Assize Court on 8th December,
2005 and the sentences passed by the Superior Number of the Royal Court on 27th
January, 2006, AND applications for leave to present new evidence.
|
1 count of:
|
Conspiracy to contravene Article 61 of
the Customs and Excise (Jersey) Law 1999.
|
S. M. Baker, Esq., Crown Advocate.
Advocate R. Tremoceiro for Styles.
Advocate M. L. A. Pallot for Carney.
Advocate R. C. L. Juste for De Sousa.
Advocate M. J. Haines as Amicus Curiae for Day.
JUDGMENT
Smith ja:
A INTRODUCTION
1.
These
applications for leave to appeal against conviction, for leave to adduce fresh
evidence and for leave to appeal against sentence arise out of the prosecution
and conviction of the Applicants in the Royal Court on one count of conspiracy to
contravene Article 61 of the Customs and Excise (Jersey)
Law 1999. The particulars of
the offence were that the Applicants, on or between 1st July 2003
and 6th October 2003, conspired with each other and others to
fraudulently evade (sic) the prohibition on the importation of a controlled
drug specified in Part II of the Second Schedule to the Misuse of Drugs
(Jersey) Law, 1978, namely cannabis resin.
2.
The Crown
case at the trial was that approximately 90 kgs of cannabis resin, packed into
three holdall type bags, had been dropped from an aeroplane flying over Jersey
on the night of 2nd/3rd October 2003. The cannabis was in
the form of “nine” bars. These had been made up into parcels bound
with masking tape which were surrounded by kitchen paper and plastic packaging
material to protect them against impact damage. Styles was alleged to have
piloted the aeroplane. Day and
Carney were alleged to have been passengers and have participated in getting
the cannabis out of the aircraft.
De Sousa was alleged to have been involved in an unsuccessful attempt to
retrieve the drugs after they had been dropped. We deal first with the applications for
leave to appeal against conviction.
B STYLES:
SIMILAR FACT EVIDENCE: THE BELGIAN EVIDENCE
3.
Prior to
the trial the judge, Sir Richard Tucker KBE, Commissioner, conducted a
directions hearing. At that
hearing, the Crown applied for leave to adduce at the trial as against Styles
certain evidence on the ground that it comprised similar facts. That evidence, described for convenience
as "the Belgian evidence", was in the following terms:
“On 19th
September 2000 Richard Styles flew a four-seater Cessna aircraft registered
G-GEAR from Wycombe in Great
Britain to Belgium.
At 20.10 hrs on 19th September 2000
G-GEAR landed at St Hubert. Shortly afterwards Styles manoeuvred G-GEAR
for take off but something went wrong and G-GEAR crashed.
Styles climbed from the cockpit
and was questioned and later detained at the scene of the crash.
The following day at 13.15 hrs
a black canvas travel bag was recovered near the crash scene in the woods. The bag contained approximately 130,000
ecstasy tablets. These were
contained in 130 packets wrapped in a sleeping bag and in a thin mattress and
further protected by 13 bath towels.
A global positioning system was found in G-GEAR.
On 21st September 200 two men were
spotted near the scene of the crash in an English registered Ford Mondeo. One of the men was arrested, the other
escaped.
On 18th November
2003, Styles was convicted in his absence of having imported, exported,
manufactured, transported, had in his possession, sold, offered for sale,
delivered or acquired illicitly for payment or freely without previous
authorisation from the competent authority 130,000 ecstasy tablets.
Styles was sentenced in his
absence to three years' imprisonment and fined 100 Euros.
On 15th December 2003, Styles
appealed in his absence to the Liege
Court of Appeal. On 20th December 2003
the Court of Appeal dismissed Styles' appeal and in his absence increased his
sentence to five years' imprisonment."
4.
As will be
seen, we have found it necessary to divide this evidence into two parts: We deal first with everything except the
last three pieces and then with those pieces which detail Styles' conviction,
punishment and appeal in Belgium.
5.
In his
ruling on this issue, the Commissioner set out the test he considered he had to
apply in the following terms:
"In essence … the
question which I have to decide is whether the proposed evidence is truly
probative and to such a degree that it outweighs the undoubted prejudice that
it would cause, or whether it does no more than demonstrate a propensity in the
Defendant to commit this type of offence."
The Commissioner went on to quote from the
speech of Lord Mackay of Clashfern LC in Director of Public Prosecutions -v-
P [1991] 2 AC 447. He
continued:
"Advocate Preston
[who appeared for Styles in the Royal
Court] has pointed … to differences between
the Belgian conviction and the present allegation. Nevertheless, both of them relate to the
use of a light aircraft and the transportation of illicit drugs. Both relate to the carrying of drugs - in one case ecstasy and, in this
case, cannabis resin - carefully packaged, as may be inferred from both cases,
in my view, against a drop from that aircraft.
I have to ask whether or not it
would be an affront to the common sense of a Jury to exclude the evidence of
the Belgian conviction from their consideration. Can it be right for the Jury to be left
in ignorance of the previous conviction?
Is it likely, I ask myself, that flying over or around Jersey airspace
at the relevant time there were two pilots each of whom had interest in the
illicit transportation of drugs, one of whom had a previous conviction for so
doing and the other not?
It seems to me highly material
that, in determining whether or not, in the case of Mr. Styles, he committed
this offence, the Jury should know that he was convicted of an offence
committed, in my view, in very similar although I concede not identical
circumstances. I recognise
obviously the prejudicial effect it will have upon him, but I have to ask
whether it has probative value. To that question, there is, in my mind, only
one answer. It clearly has
overwhelming probative value. In
the course of summing-up, if the case comes to that stage, I shall be careful
to warn the Jury about the approach that they should make to such evidence, but
I have no doubt that it is admissible."
6.
In this
Court, Advocate R. Tremoceiro appeared for Styles. He contended that the Commissioner ought
not to have admitted the Belgian evidence.
In particular he argued:
(i)
The
Commissioner erred in so far as he held that DPP -v- P extended the
previous principle of striking similarity or uniqueness;
(ii) The Commissioner had appeared to indicate,
mistakenly, that a lower degree of probative force was required of similar fact
evidence following DPP -v- P;
(iii) That the similarities identified by the
Commissioner between the Belgian evidence and the present case did not provide
the level of probative force required for the evidence to be admitted;
(iv) That the relevant issue was one of
identification and that therefore the test of "striking similarity"
should have been applied; and
(v) That there was no basis for the Commissioner's
rhetorical question as to the presence of two pilots in or around Jersey airspace on the night of 2nd/3rd October 2003.
7.
The
Commissioner did say that in DPP -v- P the House of Lords extended the
previous principle of striking similarity or uniqueness, by which we understand
him to mean that the Lords have relaxed this requirement. In this he was undoubtedly correct (see
p. 460 of the report). However, we
can find nothing in what the Commissioner said to indicate that he thought that
the effect of DPP -v- P was to lower the requisite degree of probative
force. Where Mr. Tremoceiro was on
apparently stronger ground was in submitting that the issue to which the
relevant Belgian evidence related was one of identification and that,
therefore, the test of "striking similarity" still had to be met
before it could lawfully be admitted.
8.
This
submission was based on the statement in Lord Mackay's speech (at p. 462) which
reads as follows:
"Where the identity of the
perpetrator is in issue, and evidence of this kind is important in that
connection, obviously something in the nature of what has been called in the
course of the argument a signature or other special feature will be
necessary."
9.
However,
in the case of John W [1998] 2 Cr. App. R. 289, the Court of Appeal of
England and Wales examined this statement very carefully and concluded, in our
respectful view correctly, that in making it Lord Mackay had in mind the type
of case in which the alleged similar facts constituted the only evidence of any
substance against the defendant on a particular count. Stress was laid on the phrase "and
evidence of this kind is important in that connection." (p. 300C-E).
10. In our opinion it was not necessary for the
Commissioner to have identified a "signature" or other special
feature in the instant case. That
part of the Belgian evidence with which we are dealing was not the only
evidence of substance against Styles.
We mention, by way of example, the evidence that the French civilian
radar system tracked the aircraft G-SHUG, which had been hired by Styles on the
same day in High Wycombe, being flown across
the north-west corner of Jersey in the late
evening of 2nd
October 2003 in the dark and in the direction of Dinard. And there was evidence (from a Mr. P. E.
F. Guivarc'h, Manager of the Brest Air Control Centre) that, although the
aeroplane was flying at 2000 feet before it reached Jersey,
it descended to 1300 feet (1150 when adjusted for air pressure) as it crossed
the Island, climbing to 2500 feet as it
continued towards Dinard. In his
committal statement Mr. Guivarc'h described the sequence as "not
usual" and especially dangerous for an aircraft flying on instruments at
night.
11. Mr. Tremoceiro laid great stress on the
argument that when, in the course of giving his ruling, the Commissioner posed
the rhetorical question as to two pilots flying over or around Jersey airspace
there was no foundation for a restriction of the relevant time to the night of
2nd/3rd October 2003. It had not been demonstrated, he
continued, how long the drugs had been in the field at L'Etacq when they were
found there on 3rd October and he referred to evidence emanating
from police witnesses shortly after the drugs were found, and reported in the
Jersey Evening Post, to the effect that the drugs had been where they were
found for some days.
12. We do not consider that the Commissioner can be
criticised for posing the rhetorical question in the terms he did. It was clearly going to be a matter for
the Jury to decide whether the drugs were lying in the field prior to the
aeroplane piloted by Styles passing over Jersey. If they considered this to be even a
reasonable possibility then the case against Styles would have collapsed and
the Belgian evidence would have had no significance. But in order properly to consider the
admissibility of that evidence the Commissioner had to take the view that it
would be open to the Jury to be satisfied, on the evidence and when properly
directed, that the drugs did land on the night in question. In our opinion he was right to do so.
13. What we have said deals with arguments (i),
(ii), (iv) and (v). This leaves
argument (iii) to which we now turn.
14. We consider that the correct approach to the
admissibility of similar fact evidence is to be found conveniently summarised
in the speech of Lord Carswell in O'Brien -v- South Wales Police [2005]
UKHL 26 at para 67 et seq. His
Lordship there pointed out that the question of admission in both civil and
criminal cases involves a two-stage process. The first stage is the test of
relevance, whether the evidence is logically probative or disprobative of some
matter which requires proof (para. 69).
In a criminal case the second stage involves the balancing of the
probative force of the evidence against the degree of prejudice to which it may
give rise (para. 70).
15. In our opinion, the evidence was undoubtedly
relevant to the question of whether the drugs had been dropped from an aircraft
piloted by Styles. We refer, in
particular, to the similarities identified by the Commissioner: the use of a
light aircraft, the carrying of illicit drugs and the packaging of the drugs
against a drop from that aircraft.
It is true that the type of drug was not the same in each case and that
the nature of the protective packaging differed. But there is no requirement that the
facts should be identical, only that they should be similar; and we agree with
the Commissioner that the material facts in question were very similar and that
the dissimilarities were not of any great importance.
16. Turning to the second stage, the facts to which
we have referred were obviously highly prejudicial to Styles tending, as they
did, to support the Crown's contention that it was from an aircraft piloted by
him that the cannabis resin was dropped.
However, it does not follow from this conclusion alone that admission of
the evidence must be rejected at the second stage: after all, similar fact evidence is
inevitably prejudicial, often highly prejudicial. In striking the balance we also have to
consider its probative force.
17. Mr. Tremoceiro argued that the probative force
of the evidence was limited in that it only went to show propensity. He supported his argument by suggesting
that there was nothing very unusual about the use of an aeroplane to import
drugs into Jersey and that therefore the evidence did not have the requisite
degree of enhanced relevance or substantial probative value (see O'Brien -v-
South Wales Police op. cit. per Lord Phillips of Worth Matravers at para.
33) to overtop the high degree of prejudice.
18. We reject this argument. We do not accept that
evidence showing propensity must automatically be rejected (see O'Brien -v-
South Wales Police op. cit. at para. 73 per Lord Carswell and R -v-
Randall [2004] 1 WLR 56 at para. 26 per Lord Steyn). It is one thing to reject similar fact
evidence where the modus operandi is known to have been adopted by numerous
other offenders. It is quite another when the commission of the crime involves
the application of sophisticated skills possessed by a relatively small number
of people. Over the years and, in particular, in recent years many cases of
importation of illicit drugs have come before the Island's
courts. This Court is not aware of
any case in which the importation was effected by them being dropped from an
aircraft, and we were not referred to such a case by Mr. Tremoceiro.
19. To our minds it is the fact that the Jury would
have been entitled to draw the inference from that part of the Belgian
evidence, with which we are now dealing, that at the material time Styles was
in the process of taking off in the aeroplane in which he was found with the
intention of dropping the drugs found nearby from that aeroplane onto a
particular target which gives that evidence its powerful probative force. In our judgment, the balance comes down
firmly on the side of admissibility.
20. Before leaving this aspect of Styles'
application we would add two things.
First, although we agree that it was incumbent upon the Commissioner to
review his ruling as to admissibility in the course of the trial as and when
the need arose, we do not agree with Mr. Tremoceiro's contention that that need
arose when evidence emerged at the trial that other unidentified aircraft had
flown over Jersey in the early hours of the morning in the week or so prior to
2nd October 2003. In our
opinion, the test for admissibility, which we have adumbrated above, remained
met after that evidence had been given to the same extent that it had been met
before. Secondly, we record that
if, in the circumstances of this case, and contrary to the view we have already
expressed, it was necessary for a special feature to have been identified to
render the evidence presently under consideration admissible, we would have
held that the similarities to which we have drawn attention are so striking as
to meet this requirement. We now
turn to the evidence of Styles' conviction, prosecution and appeal in Belgium.
21. In the course of the hearing before us, we
invited counsel for the Attorney General, Crown Advocate S. M. Baker, to
explain how this evidence was capable of being characterised as similar fact
evidence or was otherwise admissible.
Mr. Baker responded in written supplementary contentions supplied after
the conclusion of the hearing of the applications in this Court and Mr.
Tremoceiro furnished a written response on behalf of Styles.
22. Mr. Baker made the following points:
(i)
A
conviction in a foreign court is a fact capable of admission in evidence by
agreement between the prosecutor and the defence;
(ii) The Crown would have acceded to a defence
request to remove the reference to the conviction in the Belgian evidence had
one been made;
(iii) Before the Commissioner the defence did not
challenge the admissibility of the Belgian conviction, as such, and this was
not specifically raised by the defence in Styles' grounds of appeal;
(iv) There was no prejudice to Styles in the fact of
the conviction being admitted.
23. In our opinion the Crown's response to the
admissibility issue (points (i), (ii) and (iii) above) is totally misconceived.
Under the common law of Jersey a conviction is
not admissible in criminal proceedings and there is no statutory exception
relevant to this case. The admissions were sought under Article 3(1) of the Criminal
Justice (Evidence and Procedure) (Jersey) Law 1998. This provision only applies to "any
fact of which oral evidence may be given in any criminal
proceedings." The fact of the
Belgian conviction, and the associated punishment and appeal, were not facts of
which oral evidence could lawfully have been given and we record that at no
time has the Crown sought to argue to the contrary. The prosecution ought not to have sought
to have these facts admitted. That
the inadmissibility of this evidence was, it appears, overlooked both by the
advocate who represented Styles at the time and the Commissioner does not, to
any extent, relieve the Crown of the responsibility for what happened. It would appear from the transcript of
the directions hearing that the minds of those involved in addressing the
question of the admissibility of the Belgian evidence were so focussed on the
similar facts aspect that they simply did not advert to this aspect, the facts
of the conviction etc. being mistakenly treated as within the scope of the
similar facts application.
24. The purported admission of the Belgian evidence
did not render the evidence of the conviction, punishment or appeal admissible
and they ought not to have been put before the Jury. Furthermore, Mr. Tremoceiro was entitled
to rely on this point in this Court.
As we have said, the Belgian conviction was admitted on foot of the similar
facts application and in his application for leave to appeal Styles challenged
the admissibility of all of this evidence.
25. As to Mr. Baker's fourth point (the absence of
prejudice), we have come to the conclusion, albeit with a degree of hesitation,
that the facts in question could not have added significantly to the admissible
similar facts with which we have already dealt. If the jury accepted that those facts
were probative of Styles' guilt as contended by the prosecution, the conviction
and other inadmissible facts could have added nothing. If the jury took the view that the
similar facts were not probative of Styles' guilt it is inconceivable that they
did not also conclude that the conviction, punishment and appeal, all based on
those facts, were not probative of his guilt either.
26. We are confirmed in this conclusion by
reference to the transcript of what the Commissioner said about the similar
facts issue at the directions hearing.
Although he referred on a number of occasions to "the Belgian
conviction" he attached significance only to the actual similar
facts. Bearing in mind that at the
time the Commissioner was acting as the tribunal of fact as well as of law,
this strongly supports the view that it would be on those facts, and not on the
conviction or appeal or punishment, that a reasonable person would fix when
faced with the material in question.
27. Mr. Tremoceiro referred us to a Law Commission
Report "Evidence of Bad Character in Criminal Proceedings" (Law Com
No 273) published in 2001. This
concluded (at para. A.35 on p. 249) that "any previous conviction
unfavourably affected the magistrates' impressions and verdicts." However, while it is reasonable to
assume, as a generalisation, that the effect on a jury would be similar we do
not believe, for the reasons given, that there would have been any such effect
in the instant case.
28. We deal with the formal significance of our
conclusions on this issue later in this judgment.
C STYLES:
THE NICHOLLS EVIDENCE
29. At the directions hearing Styles' advocate
objected to the admissibility of part of the evidence the Crown sought to
adduce from a Mr. Charles Martin Nicholls.
In his statement Mr. Nicholls described hiring a light aircraft to
Styles on 30th
July 2003. There was
evidence from which it could be inferred that this aeroplane was flown by
Styles to Rennes
in Brittany
on 31st July 2003
with Carney on board and, during the same period, Day was in Jersey. A couple of days after the aircraft was
returned Mr. Nicholls noticed damage to the exterior paintwork "underneath
the passenger doors (sic)."
The damage appeared to him to have been caused by a strap or seatbelt
becoming accidentally trapped in the door and beating against the aircraft
panelling. Furthermore, on the same
day Mr. Nicholls found a cut black shoulder strap under the rear seats. Although he did not retain the strap Mr.
Nicholls was subsequently shown a strap from a bag which matched the bags which
were found in the field at L'Etacq an in which, according to the prosecution,
the cannabis resin had been dropped.
He said that he felt very confident that that strap was the same type as
the one he found in the aircraft.
30. The Crown put their argument that the evidence
was admissible on the basis that the Rennes
trip, which occurred during the period specified in the charge of conspiracy,
had formed part of the planning for the October drop on Jersey
and that it may have involved a drugs importation, the Crown did not know.
31. Mr. Tremoceiro argued that the parts of Mr.
Nicholls' evidence to which we have referred ought not to have been admitted as
the Jury may have concluded from it that Styles had committed an offence
similar to that on which he stood indicted but with which he had not been
charged or convicted and he referred us to Noor Mohammed -v- The King
[1949] AC 183.
32. Noor Mohammed's
case is a similar facts case. There
is nothing to indicate that the Commissioner viewed the evidence in question as
similar facts evidence and he did not give a similar facts warning to the jury
in relation to it. The evidence was
not inadmissible merely because it might have been interpreted as suggesting
that an offence other than that charged had been committed (see Makin -v-
A-G for NSW (1894) AC 57 at p. 65).
The Commissioner appears to have viewed the evidence as evidence of and
incidental to the alleged conspiracy.
In doing so we believe that he was correct. As part of his duty to ensure a fair
trial he considered whether the prejudicial effect of the evidence outweighed
its probative value and decided that it did not. We agree with his conclusion.
D STYLES:
THE STRENGTH OF THE EVIDENCE
33. All four of the Applicants raised this issue in
their written contentions in one form or another. In dealing with it we have to remind
ourselves of the limited scope of our powers which are contained in Article
26(1) of the Court of Appeal (Jersey) Law
1961 (“the Law”) which, so far as is material, is in the
following terms:
"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 … "
34. When enacted Article 26(1) followed the wording
of the equivalent provision in the Criminal Appeal Act 1907 which was replaced
in England
in 1968 by the "unsafe or unsatisfactory" test which has never been
adopted in Jersey. The 1907 wording was interpreted as
conferring only the right to "a limited appeal which precludes the court
from reviewing the evidence and making its own valuation thereof." (See Aladesuru -v- The Queen
[1956] AC 49, at pp. 54-55 per Lord Tucker) so that "[if] there is
evidence to go to the jury, and there has been no misdirection, and it cannot
be said that the verdict is one which a reasonable jury could not arrive at,
this court will not set aside the verdict of guilty which has been found by the
jury" (see R -v- Hopkins-Husson [1949] 34 Cr. App. R 47 at p. 49
per Lord Goddard CJ). The passages we have set out were quoted and their
applicability endorsed in the recent decision of the Privy Council on the
appeal from this Court in the case of Attorney General -v- O'Brien
[2006] UKPC 14. In giving the
Judicial Committee's reasons for the decision in that case, and having
concluded that the prosecution evidence raised a compelling prima facie case,
Lord Hoffmann said that "[if] the Court of Appeal [which had quashed the
conviction] was … looking at the matter after all of the evidence, their
Lordships consider that the Court of Appeal usurped the function of the Jurats"
(the tribunal of fact in that case).
Lord Hoffmann's remarks are a salutary reminder that we must not stray
beyond our limited role and this, of course, applies to all four of the
applications for leave to appeal presently before us.
35. Mr. Tremoceiro drew our attention to twenty
respects in which he contended that the prosecution evidence was weak, flawed
or inconsistent. In our view, in the light of Attorney General –v-
O’Brien it would not be appropriate for us to sift through those
points and attempt to evaluate them. Moreover, Mr Tremoceiro expressly
predicated his argument on the exclusion of the Belgian evidence and that of
Mr. Nicholls with the implication that when that is taken into account the
evidence was strong enough to support Styles' conviction. Our confirmation of
the admissibility of that evidence (apart from the Belgian conviction etc.) is
another reason why we should not conduct this exercise.
36. We consider that there was ample evidence on
which the Jury, properly directed (and there was no criticism of the Commissioner's
summing-up), could have convicted Styles.
In addition to the admissible Belgian evidence, the French radar
evidence, that of Mr Guivarc'h, that of Mr Nicholl and of the July flight to Rennes to which we have
already made reference, we list the following, which includes inferences the
Jury could legitimately have drawn:
(i)
After
hiring G-SHUG on 2nd
October 2003, Styles flew to a remote airfield at Pocklington in
the north of England.
(ii) He filed a flight plan indicating his intention
to take three passengers (including himself) to Dinard by a route that would
take the aircraft over the north-west tip of Jersey.
(iii) What was observed by a witness at that airfield
in the early evening of that day was consistent with the arrival of others and
the loading of the drugs.
(iv) Styles flew to Dinard where he arrived after midnight.
(v) The drugs were found the next day (3rd
October) near the area over which G-SHUG had flown at a reduced speed and
height.
(vi) On that day Styles flew to Jersey
in G-SHUG with Day and Carney.
(vii) On arrival in Jersey Styles told Customs
officers that he had gone to France
to attend the Dinard Film Festival but by the time he had landed on the
previous evening the films would have finished.
(viii) Styles left Day and Carney in Jersey.
(ix) Straps matching those which are supplied with
the holdall type bags in which the drugs were found were retrieved from G-SHUG
after Styles had returned it.
(x) A piece of notepaper from the Hotel de France
was found in Styles' loft when it was searched some months later. On it was written a set of Global
Positioning System (GPS) co-ordinates which relate to a model aeroplane runway
at Les Landes on the north-west corner of Jersey
and which is near the field at L’Etacq in which the drugs were found.
(xi) A number of men were seen searching the area of
the model aeroplane runway on the early evening of 3rd October 2003.
E DAY'S
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
37. Although he was represented in the Royal Court
Day was not represented before us.
However, in advance of the hearing Advocate M. J. Haines was appointed
amicus curiae to assist this Court in dealing fairly with an unrepresented
person.
38. The evidence against Day, including the
inferences which the Jury could legitimately have drawn, may be summarised as
follows:
(i)
Styles was
supplied with two additional headsets (making a total of three) when he hired
G-SHUG on 2nd
October 2003.
(ii) G-SHUG flew over the north-west corner of Jersey on the late evening of 2nd October 2003.
(iii) At or around 14.50pm on 3rd
October 2003 Styles, Day and Carney arrived in Jersey
from Dinard on board G-SHUG.
(iv) A number of men were seen searching the area of
the model aeroplane runway at Les Landes, which is near the field at
L’Etacq in which the drugs were found, on the early evening of 3rd October 2003
when Day and Carney were in Jersey.
(v) Day and Carney did not leave Jersey
with Styles on G-SHUG but left by ferry on 4th October, their
tickets having been booked on that day by use of a credit card belonging to
Day's mother and registered at Day's address in Liverpool.
(vi) On 31st July 2003, the same day that Styles and
Carney flew to Rennes
in an aircraft hired from Mr. Nicholls, Day was in Jersey. The explanation he gave for being on the
Island was far-fetched.
(vii) Day provided an alibi statement to explain how
he came to be in Dinard on 3rd
October 2003. It was
absurd, involving him in sleeping all the way from England to France before
mistakenly taking a train to Dinard in Brittany
rather than Den Haag in the Netherlands,
having misheard a railway announcement.
Dinard does not have a railway station.
(viii) Straps matching those which are supplied with
the holdall type bags in which the drugs were found were retrieved from G-SHUG
after it had been returned.
39. In our opinion a reasonable jury could also
have legitimately inferred that Day was indeed one of the people in G-SHUG
besides Styles when the cannabis was dropped on Jersey
and could reasonably have convicted on the basis of the evidence and inferences
we have summarised.
40. In the documents furnished to the Court by Day
he raised a number of other issues relating to the trial. Not all of these were proceeded with
before us. Those that were related
to the location of the three holdall-type bags which were found at L'Etacq and
which appear to have contained the 90 kgs of cannabis resin; the circumstances
surrounding the discovery of the straps in G-SHUG and events at Les Landes in September
2003.
41. Each of these issues was explored fully before
the Jury who clearly did not consider that either individually or cumulatively
they raised a reasonable doubt about Day's guilt, or the guilt of any of his
co-accused. Bearing in mind O'Brien’s
case we must be careful not to usurp the function of the tribunal of fact. Accordingly, we do not consider it to be
open to this Court to contemplate taking a different view of them.
F CARNEY'S
APPLICATION FOR LEAVE TO APPEAL AGAINST CONVICTION
42. Advocate M. Pallot, who appeared for Carney
both before us and in the Royal Court, contended that the verdict was
unreasonable and could not be supported having regard to the totality of the
evidence. While these words echo
part of Article 26(1) of the Law (with the addition of "totality of")
we consider, as we have already indicated, that the test to be applied is that
adumbrated by Lord Goddard in R -v- Hopkins-Husson and endorsed by the
Privy Council (see para. 34 above).
In other words, no misdirection having been alleged, the question is
whether the guilty verdict against Carney was one which a reasonable jury could
reach. The evidence against Carney,
including inferences the Jury could legitimately have drawn, may be summarised
as follows:
(i)
Styles was
supplied with two additional headsets (making a total of three) when he hired
G-SHUG on 2nd
October 2003.
(ii) G-SHUG flew over the north-west corner of Jersey on the late evening of 2nd October 2003.
(iii) At or around 14.50 pm on 3rd October 2003 Styles, Carney and Day arrived
in Jersey from Dinard on board G-SHUG.
(iv) A number of men were seen searching the area of
the model aeroplane runway at Les Landes, which is near the field at
L’Etacq in which the drugs were found, in the early evening of 3rd October 2003
when Carney and Day were in Jersey.
(v) Carney and Day did not leave Jersey
with Styles on G-SHUG but left by ferry on 4th October, their
tickets having been booked on that day by use of a credit card belonging to
Day's mother and registered at Day's address in Liverpool.
(vi) Straps matching those which are supplied with
the holdall type bags in which the drugs were found were retrieved from G-SHUG
after it had been returned.
(vii) On 31st July 2003 Carney had flown to Rennes in the aircraft
piloted by Styles which had been hired to him by Mr. Nicholls. On its return the aircraft had damage to
the paintwork which appeared to have been caused by a strap or seatbelt having
become accidentally trapped in the door and having beaten against the aircraft
panelling. Furthermore, a cut strap
was subsequently found in the aircraft of the same type as a strap from a bag
which matched the bags found in the field at L'Etacq and in which the cannabis
resin had been dropped.
(viii) When interviewed by police Carney denied that
he knew Styles, was evasive as to whether he had even been to Dinard, as to how
he came to be on the aircraft on which he arrived in Jersey
on 3rd October
2003 and as to the circumstances of his stay.
43. Mr. Pallot made a number of points in relation
to the evidence at the trial: as to the absence of corroboration and its
circumstantial nature; as to the absence of identification of his client at
Pocklington or Dinard or at Les Landes as one of the searchers; as to
inconsistency between the description of Carney and of the men he took to Les
Landes given by de Sousa to the police; as to the absence of forensic evidence;
as to alleged adjustments in the evidence of prosecution witnesses to meet the
prosecution case; and as to the absence of evidence that the drugs could not
have been in the field at L'Etacq on the day or days preceding the day on which
they were found.
44. All of these points were before the Jury yet
they convicted Carney. In our
judgment a reasonable jury was entitled to conclude that Carney also was one of
the people in the aircraft piloted by Styles and that he participated in
getting the bags of cannabis resin which fell at L'Etacq out of the
aeroplane. We reiterate that it is
not for us to usurp the function of the Jury by contemplating taking a
different view of the points made than they did. Furthermore, Mr. Pallot sought to adopt
all the points made by Mr. Tremoceiro on Styles' behalf in so far as they
related to Carney. Just as we
declined to entertain those points when raised on behalf of Styles we decline
also to scrutinise them in respect of Carney.
45. Mr. Pallot went on to argue that Carney had
been denied a fair trial by reason of the incompetence of the police
investigation. He drew attention to
the failure of the police to record accurately or at all the alleged impact
marks of the bags or the resting places of the bags or their contents (two of
the bags had split open) in the field at L'Etacq. Furthermore, he complained that the
evidence of witnesses who gave evidence as to other unidentified aircraft
flying in the area was unknown to the Applicant and only came out during the
trial.
46. We accept that the police investigation in this
case left a lot to be desired. We
do not, however, accept that this was so prejudicial to Carney that he was
denied a fair trial and we note that no application to this effect was made to
the Commissioner. The failure to
record and the consequent discrepancies between the evidence of the relevant
police witnesses were, if anything, of assistance to the Applicant in lending
credence to the case advanced on Styles' behalf that the aircraft which dropped
the cannabis must have been flying in a northerly rather than a southerly
direction.
47. As to the evidence of other aircraft we do not
see now Carney was prejudiced by its late provision. The two witnesses in question gave their
evidence at the trial, having been called on behalf of other defendants. We do not accept that earlier notice of
their evidence would have had any impact on the way in which Carney's case was
run.
48. Finally, Mr. Pallot argued that there was
evidence given at the trial against other defendants which was not evidence
against Carney but was prejudicial to him.
49. It is not necessary to set this evidence
out. The Applicants were tried
together. No application for
separate trials was made nor should such an application have succeeded. Where defendants are tried together
there is always the possibility that evidence inadmissible against a particular
defendant but prejudicial to another or others will be given. The problem falls to be dealt with by
the judge directing the jury in clear terms that the evidence in question is
not evidence against any other defendant.
This is the way in which it was dealt with in this case and we reject
Mr. Pallot's argument on this point.
G DE SOUSA'S APPLICATION AGAINST LEAVE TO APPEAL AGAINST CONVICTION
50. Advocate R. Juste appeared for de Sousa in this
Court and in the Royal Court. She submitted that his conviction could
not be supported having regard to the evidence or, in other words, that a
reasonable jury, properly directed, could not have convicted de Sousa on the
evidence against him.
51. The evidence against de Sousa was that he had
driven three men to Les Landes on the early evening of, the Jury was entitled
to infer, the day after G-SHUG had flown over the north-west corner of Jersey and on the day on which the cannabis resin was
found in the field at L'Etacq.
There they searched the area for something, the prosecution contending
that that something was the cannabis resin.
52. The crucial evidence against de Sousa was his
alleged oral statement made to the person from whom he had borrowed the car he
was driving and after he had returned it that "he had been up Les Landes
(sic) looking for a bit of hash."
53. Not surprisingly, Miss Juste cross-examined
that person, Mr. Michael de Freitas Pereira,
at the trial. In the course of her
cross-examination she put the question:
"Is it possible that your memory given that it is such a long time
ago, is wrong, that you're mistaken?"
Pereira
replied "Could be, yes."
On this basis Miss Juste argued that a reasonable jury would inevitably
have had a reasonable doubt as to de Sousa's guilt.
54. However, the question and answer have to be
seen in their context. They were
preceded by a series of questions about the arrest of Pereira on 8th February 2005 on suspicion of
being involved in the conspiracy.
He was interviewed by police and it was put to him that at the end of
his interview he "made the statement about Cliff de Sousa." The questions and answers then proceeded
as follows:
"WITNESS: Did I?
ADVOCATE JUSTE: Straight afterwards.
WITNESS: Can't remember. It’s been that long.
ADVOCATE JUSTE: It’s been that long you can't
remember?
WITNESS: Yeah.
ADVOCATE JUSTE: But you took that
opportunity to get the attention away from you didn't you?
WITNESS: No, not at all.
ADVOCATE JUSTE: You made up the fact that de Sousa told
you that he was up there looking for a bit of hash didn't you?
WITNESS: No.
ADVOCATE JUSTE: Is it possible that your memory given
that it was such a long time ago, is wrong, that you're mistaken?
WITNESS: Could be, yes."
55. Three points may be made about this
exchange. First, that Pereira's "Could be,
yes" answer may well have related to his memory of his police
interview. It was this to which his
remark "It’s been that long" referred. Secondly, if the answer did relate to
his memory when he was in the witness box of what de Sousa had told him, it
does not follow that it also applied to the time of his police interview. He was not asked as to the state of his
memory at that time. Thirdly, the real thrust of the series of questions was to
the effect that Pereira
had made up the allegation about the hash, something that the Jury obviously
rejected.
56. This is a classic example of material which a
jury is far better placed to evaluate than an appellate court reading a
transcript. In our opinion it was
open to the Jury to have concluded from Pereira's evidence that de Sousa did
make the oral statement relied on by the Crown and to have further concluded
from all of the evidence against de Sousa that he was involved in the
conspiracy, his role having been to assist in the retrieval of the cannabis
after it had been dropped.
H THE
APPLICATIONS TO ADDUCE FRESH EVIDENCE
57. Styles, Day and Carney all sought leave to
adduce fresh evidence under Article 34 of the Law, the material part of which
reads as follows:
"… the Court of Appeal
may, if it thinks it necessary or expedient in the interests of justice -
… (b) if it thinks fit, order any witnesses who would have been
compellable witnesses at the trial to attend and be examined before the Court,
whether they were or were not called at the trial, or order the examination of
any such witnesses to be conducted in the manner provided by rules of court
before the Bailiff, the Deputy Bailiff or an ordinary judge of the Court of
Appeal, any officer of the Court or any other person appointed by the Court for
the purpose, and allow the admission of any depositions so taken as evidence
before the Court…"
58. This provision has been considered by the Court
of Appeal on a number of occasions.
In Attorney General -v- Gorvel [1973] JJ 2503, Le Quesne JA cited
the principles stated by Lord Parker CJ in the English Court of Appeal in R
-v- Parks [1961] 46 Cr. App. R. 29 in the following terms (at p. 32):
"Those principles can be
summarised in this way: First, the
evidence that it has sought to call must be evidence which was not available at
the trial. Secondly, and this goes
without saying, it must be evidence relevant to the issues. Thirdly, it must be evidence which is
credible evidence in the sense that it is well capable of belief; it is not for
this court to decide whether it is to be believed or not, but evidence which is
capable of belief. Fourthly, the
court will, after considering that evidence, go on to consider whether there
might have been a reasonable doubt in the minds of the jury as to the guilt of
the Appellant if that evidence had been given together with other evidence at
the trial … "
Le Quesne JA continued (at p. 2505): "The position, therefore, is that
the Court will not admit the further evidence unless the first three conditions
stated by Lord Parker are satisfied.
If those three conditions are satisfied and the Court decides to admit
the evidence, the Court will be guided by the fourth rule stated by Lord Parker
in deciding what effect the new evidence ought to have." In Barnes -v- Attorney General [1987-88]
JLR 669 Chadwick JA confirmed the continuing applicability of Lord Parker's
principles and went on to emphasize that the reception of fresh evidence is to
be regarded as "wholly exceptional" (at p. 675).
59. Styles sought leave to adduce evidence from the
following witnesses:
(i)
Dr. Uwe
Grimm. Dr. Grimm is a Reader in
mathematics at the Open University. He would give expert evidence to the
effect that, particularly in the light of the steep slope of the field at
L'Etacq, if the bags had been dropped from an aircraft travelling at the speed
and altitude of G-SHUG and along its approximately north-south flight path it
appeared impossible for them to have ended up in the rather close proximity in
which they were found. Also, he
could not exclude the possibility that the bags were dropped (as he put it)
from the road above (i.e., to the north) of the field.
(ii) Mr. Peter Styles. He is a commercial pilot and would give
expert evidence that it would have been extremely difficult or even impossible
for the bags to have been thrown out of the aircraft and for it to have continued
towards France
with the door open. The scenario of
three adults and the bags of cannabis resin in the cabin would have been highly
improbable and the bags could not have been moved around without interfering
with the aircraft controls.
(iii) Ms Julie Thompson. She would give evidence (a) tending to
refute the prosecution suggestion that the flight to Rennes on 31 July 2003 was
a trial run by producing a Rennes Airport receipt showing that there were no
passengers on board the aircraft piloted by Styles on arrival there; (b) of
flight schedules showing that Rennes is a busy airport with a large number of
domestic and international flights; and (c) of a bulletin from the British Air
Accident Investigation Branch referring to an incident in which the nose
baggage bay door, which had accidentally been left unlatched, came off a
similar aircraft when it was in flight.
60. An affidavit was sworn by Styles seeking to
explain, from his perspective, the failure to adduce at the trial expert
evidence of the sort that has since become available from Dr. Grimm. According to this affidavit it was only
a week or two before the trial that Styles became aware from Mr. Tremoceiro's
predecessor, Advocate M. Preston, that the field was very steep and of the
theory that the bags were not in the location where they would have been
expected to have been found if they had been dropped from an aircraft
travelling from north to south. The
affidavit continues: "Even at that point the possibility of calling an
expert to give evidence on this issue was not discussed between my lawyers and
me, and I was concentrating on other points of the evidence, so I did not give
this matter any thought."
61. The implications of what we have set out is
that Styles was in the hands of his lawyer, Mr. Preston, and that his failure
to obtain or lead helpful expert evidence which, it turns out, would have been
obtainable, should not disadvantage Styles. Mr. Preston's swore an affidavit in
response to that of Styles and from it a rather different picture begins to
emerge. Mr. Preston pointed out
that there are references to the steepness of the field in statements made by
prosecution witnesses. These would
have been available to Styles for many months prior to the trial. Moreover, Mr. Preston clearly recalled
Styles telling him on 30th September 2003 (the trial started on 28th
November 2003) that "… he could not trust anybody (including me) to
know anything about his defence at that stage" and he avers that on that
date or shortly afterwards Styles told him "… that he had instructed
a physicist in Cambridge to look at the trajectory of the bags in order to
assess whether it was possible for them to have been dropped in the manner
suggested by the Crown."
Although Mr. Preston believed that his assistant had followed this up
with Styles nothing more appeared to have been heard of "the Cambridge
physicist".
62. Styles made a further affidavit in response to
that of Mr. Preston. In it he
purports not to recollect discussing a specific "physicist from Cambridge" but
concedes, contrary to his denial in his earlier affidavit (but without any
attempt to explain it), that there were discussions about experts. And he goes on to state that: "Dr.
Grimm was not contacted on my behalf until around the time of the trial."
63. In the course of the hearing, the Court sought clarification
of this last averment from Mr. Tremoceiro.
It transpired that Dr. Grimm was initially approached by Julie Thompson,
Styles' girlfriend, on 18th November 2005 by both telephone and
e-mail.
64. We draw three conclusions from what we have set
out above. The first is that Styles
took it upon himself to deal with the issue of whether expert evidence should
be called on his behalf at the trial.
The second is that he made the decision to go ahead and take his chance
without such evidence. It may be that
he believed, as he states in his first affidavit, "… that the theory
put forward by my lawyer to the jury regarding the drugs being dropped from an
aircraft in the opposite direction would be accepted by the jury." Another possibility is that, knowing
that the drugs had in fact been dropped on to the field at L'Etacq from G-SHUG,
Styles thought that any expert evidence that could be obtained would be
unhelpful or, if apparently helpful, would be liable to destruction in
cross-examination which would have wrecked his defence. Whatever the explanation we are
satisfied that he, without reference to his counsel, made a conscious decision
not to obtain expert evidence in advance of the trial. The third conclusion is that Styles has
not been candid with this Court in the affidavits he has sworn in support of
his application for leave to adduce the evidence of Dr. Grimm.
65. The first of Lord Parker's four principles is
that the evidence sought to be adduced must be evidence which was not available
at the trial. As was pointed out by
this Court in Baglin -v- Attorney General [2005] JCA 064, at para. 37,
it is implicit in this principle that the evidence could not have been produced
at the trial by the exercise of reasonable diligence. This principle has not been met in
respect of Dr. Grimm. Furthermore,
we emphasize that applications of this sort must be based on reliable
material. Where, as in this case,
false or misleading information is put before the Court it does not have a firm
foundation on which to base consideration of the exercise of its discretion in
the applicant's favour.
66. What we have just said is sufficient to dispose
also of the applications in respect of Peter Styles and Julie Thompson. But they also fail on other grounds
which may be stated quite shortly.
Where there is a relationship between a proposed expert witness and the
party seeking to call him which a reasonable observer might think was capable
of affecting the views of the expert so as to make him unduly favourable to
that party the evidence should be excluded (Liverpool Roman Catholic
Archdiocese Trustees Incorporated -v- Goldberg (No. 2) [2001] 4 All E.R.
950). Mr. Peter Styles is Styles'
brother and, therefore, his evidence could not be adduced as expert evidence on
the latter's behalf.
67. The evidence which Styles sought to adduce from
Julie Thompson would have been available at the trial and would not be
admissible if given by her.
Furthermore, her purported evidence as to Rennes Airport
being busy, when scrutinised, turned out to be demonstrably wrong and, in our
view, the incident in which the baggage bay door came off is not relevant to
any issue in this case.
68. Although in the normal course of things we
would deal next with Day's application for leave to adduce fresh evidence, we
think it more convenient to move to that of Carney. His application relates to four witnesses:
(i)
Mr. G. M.
Geary. He is an engineer with
flying experience and leave was sought to adduce expert evidence from him. In his report he concludes that it would
have been physically impossible for the bags containing the cannabis resin to
have been dropped from G-SHUG in such a way that they could all have landed in
the same field at L'Etacq.
(ii) Mr. Mark Burby. He is a helicopter pilot flying in and
out of Jersey Airport. His evidence
would be as to lack of radar coverage around Jersey when flying at low altitudes,
in refutation of evidence adduced by the prosecution at the trial that no such
gaps in coverage could occur, the inference being that drugs could have been
dropped from an unidentified aircraft rather than from G-SHUG.
(iii) Mr. James Aidan. He is a transport pilot and certified
flight instructor. He would give
expert evidence as to the flight path and variations in speed and altitude of
G-SHUG on 2nd October
2003 and purport to comment on various aspects of the prosecution
case against Styles.
(iv) Ms Baljit Kaur. In October 2003 she was the girlfriend
of a friend of Styles. She would
give evidence that on 2nd
October 2003 she was to fly with her boyfriend from Pocklington to France on an
aircraft piloted by Styles but that when she got to the airfield she lost her
nerve. The significance of this
evidence would lie in explaining the two additional headsets which Styles took
on board G-SHUG and it would tend to show that, besides Styles, G-SHUG was not
carrying any passengers when it flew to Dinard on that evening.
69. Mr. Pallot drew our attention to the
difficulties that would have been faced by him in obtaining expert evidence,
such as that provided by Mr. Geary, in advance of the trial, particularly those
caused by the failure of the police to record what they found in the field at
L'Etacq on 3rd October 2003 and the consequent lack of information
in the committal statements. But he
accepted that even if these difficulties had not existed he would still not
have adduced expert evidence unilaterally.
The essence of Carney's case was that he was not on board the aircraft
from which the drugs were dropped.
Had he, through his counsel, taken the lead on the question of whether
the drugs, if dropped from G-SHUG, could or could not have landed in that field
he would have run the risk of his defence standing or falling on an issue that
was not essential for him to win.
Such a course would have been tactically most unwise and we note from
the transcript that at the trial Mr. Pallot touched on this issue very lightly
indeed both in cross-examination and in his closing speech. As Mr. Pallot explained to us with
characteristic candour, it was the conviction that changed everything.
70. In our judgment as it is clear that competent
counsel would have judged it imprudent to have introduced the fresh evidence
had it been available to him, we do not consider that we should exercise our
discretion and permit it to be adduced at this stage. To do so would be to open the door to
the "public mischief" to which Edmund-Davies LJ alluded in Stafford [1968] 3 All E.R. 752 of indefinitely
prolonging the legal process. To
put it another way, we cannot accept that it is any part of the policy behind
the relevant portion of Article 34 of the Law to permit convictions to be
quashed in such circumstances.
71. As to Mr. Burby's evidence, there are three
reasons why we refuse leave to adduce it.
First, it is hearsay, depending on what Mr. Burby says that Air Traffic
Control told him. Secondly, and
connected with the first, if it is accurate it may well have been available
from Air Traffic Control sources prior to the trial but it has not been
suggested that any attempt was made to obtain it at that time. And, thirdly, it falls into the same
category as Mr. Geary's evidence: it is not the kind of evidence that competent
counsel would have sought to adduce on Carney's behalf at the trial.
72. We now turn to the evidence of Mr. Aidan and Ms
Kaur. There are some distinctly odd
features of the provenance of this evidence. According to Styles' second affidavit
(to which we have referred in paragraph 62 above) Styles had given his counsel
instructions to call Mr. Aidan but he was only available during the scheduled
third week and the trial lasted only two weeks. And Styles must have known about
Kaur’s evidence, and its value, at all material times but yet it was not
adduced at the trial on his behalf and no explanation has been offered as to
why not. What is more, Mr. Pallot
informed us that the evidence of both Aidan and Kaur was brought to his
attention in March 2006 not by Carney or Styles but by Day, who telephoned his
office. Yet another odd feature is
that Mr. Pallot has never had any contact with these witnesses, their
statements having been furnished to him in typed up form. And we record that
the fresh evidence which Styles sought to leave to adduce from his brother is
similar to Aidan’s expert evidence.
73. Before giving our ruling on the applications in
respect of Aidan and Kaur we turn to Day's application for leave to adduce
fresh evidence. He, too, seeks leave
to adduce the evidence of Kaur and, in addition, he seeks leave to adduce
evidence from Styles' girlfriend, Julie Thompson. But this is not the same evidence that
Styles sought to adduce. This time
it is evidence as to what Styles told her of his trip to Dinard, both before
and after it had occurred, tending to confirm that he had gone there for the
film festival and had travelled alone.
74. It is not difficult to discern the hand of
Styles in the application in respect of Aidan, Kaur and Thompson. All of those witnesses were available to
him prior to the trial, could have given evidence apparently helpful to him but
were not called on his behalf. Now
they have been distributed to two people whom the Jury held to have been his
co-conspirators. But this has not
been done in an open and transparent way.
As far as Carney is concerned it was done through Day and two of the
witnesses, as distinct from their evidence, were not actually made available. And even if Styles' own application for
leave to adduce fresh evidence fails, as it has, he stands to benefit if either
of the others are allowed.
75. What we have to ask ourselves is whether we are
dealing with two Applicants who genuinely did not know about the existence of
certain witnesses or of the nature of their evidence or, as Mr. Baker
contended, whether their applications are barefaced attempts by three
co-conspirators to manipulate this Court into quashing their convictions so
that, at worst, they may have the benefit of a retrial. We are satisfied that
the latter is the true position and, accordingly, we decline to exercise our
discretion in favour of either Carney or Day and we refuse them leave to adduce
the allegedly fresh evidence of the
witnesses to whom we have referred.
76. We would add, for the sake of completeness
that, in any event, we would have refused leave in respect of Aidan because (a)
there are indications in his proof of evidence that he is not independent of
Styles and, therefore, by extension of the Liverpool Roman Catholic
Archdiocese case (see para. 65 above), we consider that he would be
precluded from giving expert evidence on behalf of a co-accused and (b) because
the rest of his evidence is inadmissible comment; and in respect of Thompson
because her evidence is inadmissible hearsay.
I THE
APPLICATIONS FOR LEAVE TO APPEAL AGAINST SENTENCE: GENERAL POINTS
77. Two points of general application to all four
Applicants were made to us. The
first was that the sentencing guidelines laid down in Campbell -v- Attorney General [1995]
JLR 136 at p. 147 in respect of cannabis are excessive. The second is that the guidelines should
not be applied to a case of conspiracy.
78. The first point was argued before us by Mr.
Pallot on behalf of Carney and adopted by the other Applicants. He submitted that the guidelines are
based on information which is now at least ten years out of date; are
predicated on premises which no longer have any validity; do not reflect the
criminality of this sort of offending when considered properly against other
offences and other comparable jurisdictions; serve only to increase the
attractiveness of Jersey as a destination for illegal substances by driving up
prices; and are in urgent need of review.
79. It seems to us that, besides the States, which
can, if it sees fit, legislate, there are three potential sources of impetus
for revision in this jurisdiction:
the Attorney General, the Royal
Court and the Court of Appeal.
80. One of the Attorney General's functions is to
represent the public interest. If
he were to conclude that guidelines set by this Court had become outdated we
would expect him to draw this to the attention of the Court of Appeal in an
appropriate case or cases and to provide information necessary to enable it to
decide whether review was required and, if so, to what extent. This has not happened in this case and
it is clear that the Attorney General considers that the Campbell guidelines for cannabis
continue to be appropriate.
81. The unwritten constitution of Jersey
vests the determination of sentences in serious criminal cases in the
Jurats. It would be open to the
Superior Number of the Royal Court
to have indicated, through the Commissioner, on the sentencing of these
Applicants that the Campbell
guidelines have, in its view, become outdated. Although this course was urged on the Royal Court on the
Applicants' behalf, the Commissioner made it clear in his sentencing remarks
that the Royal Court
considered the Campbell
guidelines to be, as the Commissioner put it, correct.
82. We accept that this Court has power to embark
on a revision of guidelines off its own bat. However, we consider that, in the
absence of a supporting signal from either the Attorney General or the Royal Court, this
is something that this Court should be slow to do. The reason is that both the Attorney
General and the Jurats are far better placed than is this Court to judge
whether consideration should be given to revision. With the exception of the Bailiff and
the Deputy Bailiff, the judges making up the Court of Appeal do not reside in Jersey and are not as familiar with the social and
penological issues here that bear on sentencing policy. It was recognised by this Court in Campbell (at p.
140) that Jersey, as a separate jurisdiction,
is free to set its own sentencing levels.
As Neill JA said in Attorney General -v- Pagett [1984] JJ 57 at
p. 65: "… the Royal
Court sitting in Jersey will be aware of current attitudes here to sentencing
and will know, in particular, what sort of crimes are prevalent and for what
crimes it is desirable to retain a severe deterrent sentence." This could also be said of the Attorney
General.
83. Adopting this approach we do not consider that
the imposition of sentences in drug trafficking cases which are much longer
than those imposed in the United
Kingdom and are different in their
proportions to sentences imposed in respect of other crimes, is intrinsically
objectionable. By logical extension
we cannot say that the consequent driving up of prices is objectionable either
and, accordingly, we decline to initiate the process of review.
84. The second point was argued by Miss Juste on
behalf of de Sousa. It was
contended that, because the possible range of roles in a conspiracy is vast,
the Campbell
starting point bands are not broad enough to deal with them.
85. In Campbell's
case this Court said quite explicitly that, in relation to the guidelines laid
down for cannabis, they were to apply equally to all cases involving the
trafficking of Class B drugs on a commercial basis. Although no express reference was made
to conspiracy, we have no reason to doubt that the Court intended to include
this offence and, for our part, we can see no compelling reason for excluding
it. The application of the guidelines makes allowance for variations in role,
as we shall demonstrate.
J APPLICATION
FOR LEAVE TO APPEAL AGAINST SENTENCE: STYLES
86. Applying the Campbell guidelines, the Royal Court adopted
a starting point of twelve years.
It could find no significant mitigation and therefore sentenced Styles
to that period of imprisonment. In
our view the sentence imposed was neither manifestly excessive nor contrary to
principle.
K APPLICATIONS
FOR LEAVE TO APPEAL AGAINST SENTENCE: DAY AND CARNEY
87. As the Royal Court took the view, with which we
agree, that these Applicants played similar roles we consider that their
applications should be dealt with together.
88. In Rimmer and Others -v- Attorney General
[2001] JLR 373 this Court made it clear that, in determining starting points in
drug trafficking cases, regard must be had not just to the amount and value of
the drugs but also to the role of the defendant (see p. 387, paras. 20-22). In
the instant case this requirement was met by the Crown, which made appropriate
adjustments in the starting points it proposed. Yet, although the Royal Court
recognised (expressly in Day's case, by implication in that of Carney) that the
role played by these Applicants was less than that of Styles, it nevertheless
adopted the same starting point of twelve years for all three. Moreover, in respect of both de Sousa
and James (a co-conspirator who had pleaded guilty) the Royal Court adopted the lower starting
point of ten years which, given that the amount and value of the cannabis was a
constant applicable to all five cases, can only be interpreted as a reflection
of their lesser role.
89. It may be that the lesser role of Day and
Carney was taken into account by the Royal
Court in assessing the deduction for mitigation
(it allowed two years in each case) but, if so, this was not the correct
approach and we do not know the extent of any allowance made.
90. Before dealing with the consequences of this,
we turn to the argument advanced by Mr. Pallot on behalf of Carney, and which
would, if correct, be applicable also to Day, that the Royal Court was wrong to differentiate
between Carney and James. He argued
that Carney ought to have received the same sentence as James (five years) or
even less. In our view, Mr.
Pallot's argument on this point confused two different things: the fixing of
the starting point and deducting for mitigation. In respect of James, the Royal Court
assessed the starting point in the proper way by taking account of both (a) the
amount and value of the drugs and (b) his role. It concluded that James was the link
between England
and Jersey as evidenced by numerous telephone
calls that he had made. However, it
accepted the view of the Crown that James was further from the source of supply
than Day or Carney and adopted a starting point of ten years.
91. In our opinion it was open to the Royal Court, in
fixing James' starting point, on the basis of the material before it, to
differentiate between Day and Carney on the one hand and James on the
other. Having reached this
conclusion, we have serious reservations about the appropriateness of embarking
on a detailed examination of the mitigation available to James and a comparison
between it and that available to Day and Carney. Suffice to say that there were powerful
mitigating factors in James' case which were not available to Day or Carney
including, of course, James' plea of guilty.
92. While rejecting the differentiation argument
relating to James, we consider, nevertheless, and as we have indicated, that
the starting point adopted for both Day and Carney ought to have reflected
their somewhat lesser role than that of Styles. Accordingly, we feel constrained to
reduce it to eleven years in each case and, deducting the same period for
mitigation as was allowed by the Royal
Court, their sentences must be reduced by one year
also.
L APPLICATION
FOR LEAVE TO APPEAL: DE SOUSA
93. Miss Juste contended that the sentence of seven
years imposed on de Sousa was manifestly excessive. Although the Crown accepted that de
Sousa was the least involved of all of the defendants and that he was one step
further removed from the source of supply than James the Royal Court adopted the same starting
point for both James and de Sousa, one of ten years.
94. In the course of his sentencing remarks the
Commissioner stated that "… [in] view of the guideline case the
starting point must be one of ten years' imprisonment." Clearly, this was a reference to Campbell's
case which lays down the starting point for over 30 kg of cannabis as "10
years plus". But in Rimmer
(op. cit.) this Court said that the margins of the bands laid down in that case
(in respect of heroin and other Class A drugs carried or sold in powder form)
were not to be treated as set in stone and pointed out that there may be
exceptional cases "…in which on a particular count the starting
point may be above or below the band otherwise appropriate" (at p. 390,
para. 34). Miss Juste argued that
de Sousa's case was exceptional.
95. We recognise that this Court must be extremely
circumspect in determining that a particular case is exceptional where the Royal Court, for
whatever reason, has not done so.
However, we consider that the difference between the roles of Styles,
Day and Carney and that of de Sousa is so marked that, if his case were not to
be treated as exceptional, de Sousa would be entitled to feel a justified sense
of grievance. In other words, in
all the circumstances, a difference in the starting point of two years (Styles)
or one year (Day and Carney) is simply too unjust to be right and it is an
injustice that we feel bound to correct.
Accordingly, de Sousa's starting point falls to be reduced from ten to
nine years and, deducting the three years the Royal Court allowed for mitigation, this
produces a reduced sentence of six years’ imprisonment.
M DISPOSITION
96. In respect of Styles we grant leave to appeal
against conviction on the basis that evidence against him which ought not to
have been admitted was admitted at the trial. However, relying on the proviso to
Article 26(1) of the Law, we dismiss the appeal as we consider that no
substantial miscarriage of justice has actually occurred. We refuse Styles' other applications.
97. In respect of Day and Carney we refuse their
applications for leave to appeal against conviction and to adduce fresh evidence. However, we grant each of them leave to
appeal against sentence and allow their appeals to the extent that we reduce
the sentence imposed on each of them by the Royal Court to one of nine years'
imprisonment.
98. In respect of de Sousa we refuse his application
for leave to appeal against conviction but grant him leave to appeal against
sentence. We allow his appeal to
the extent that we reduce the sentence imposed on him by the Royal Court to one of six years'
imprisonment.
Authorities
Customs and Excise (Jersey)
Law 1999.
Director of Public Prosecutions -v- P
[1991] 2 AC 447.
Misuse of Drugs (Jersey)
Law 1978.
John W [1998] 2 Cr App R 289.
O'Brien -v- South Wales Police [2005]
UKHL 26 at para 67 et seq.
R -v- Randall [2004] 1 WLR 56.
Criminal Justice (Evidence and
Procedure) (Jersey) Law 1998.
Noor Mohammed -v- The King [1949] AC 183.
Makin -v- A-G for NSW (1894) AC 57.
Court of Appeal (Jersey)
Law 1961.
Aladesuru -v- The Queen [1956] AC 49.
R -v- Hopkins-Husson [1949] 34 Cr.
App. R. 47.
Attorney General –v-
O’Brien [2006] UKPC 14.
Attorney General -v- Gorvel [1973] JJ
2503.
R -v- Parks [1961] 46 Cr. App. R. 29.
Barnes
-v- Attorney General [1987-88] JLR 669.
Baglin
-v- Attorney General [2005] JCA 064.
Liverpool Roman Catholic Archdiocese
Trustees Incorporated -v- Goldberg (No. 2) [2001] 4 All ER 950.
Stafford [1968] 3 All ER 752.
Campbell
-v- Attorney General [1995] JLR 136.
Attorney
General -v- Pagett [1984] JJ 57.
Rimmer
and Others -v- Attorney General [2001] JLR
373.