Drugs - application to adduce bad character
[2024]JRC045
Royal Court
(Samedi)
23 February 2024
|
Before :
|
R. J. MacRae Esq.,
Deputy Bailiff
|
The Attorney General
-v-
Mark James Maher
L. Sette Esq.,
Crown Advocate.
Advocate O. A. Blakeley for the Defendant.
JUDGMENT
THE DEPUTY BAILIFF:
1.
The Crown
made an application to adduce bad character at the outset of the trial in this
case. As indicated, such
applications should be made well before trial and not on the first day of the
trial. To make them on the day of
the trial means that the jury or the Jurats having to wait unnecessarily,
disrupts the flow of the evidence (in this case, it was necessary for the
application to take place during the evidence of a prosecution witness) and
some bad character applications are not without their complexities.
The Crown’s case
2.
The
Defendant in this case was charged with being knowingly concerned in the
fraudulent evasion of the prohibition on the importation of goods, namely MDMA,
between 5 and 8 January 2023.
3.
The
Crown’s case, in short, was that the Defendant, whilst living at a
housing shelter in St Helier received a parcel from the United Kingdom
addressed to him. Unbeknownst to
him, this parcel had been intercepted by customs officers on arrival in Jersey
on 6 January 2023 and found to contain a large quantity of loose sweets in a
cardboard box below which was hidden a brown padded envelope. Within that envelope was another brown
padded envelope. Within that
envelope was a third padded brown envelope and within the third envelope was a
grey plastic bag. Within that
plastic bag was another grey plastic bag which contained 2,640 MDMA tablets
with a Jersey street value of between £50,000 and £80,000.
4.
On 7
January 2023, customs officers prepared a substitute parcel using the original
label but containing a covert GPS tracking device and audio device.
5.
This was
delivered to and signed for by a member of staff at the housing shelter on 7
January at 9.30am. Later that day
the Defendant was alerted to the arrival of the parcel whilst he was queuing
for his evening meal. He insisted
upon collecting it immediately and did not return for his meal. The GPS feed showed that the package was
then handled from 5.15pm to 5.18pm, after which time it was motionless. Five minutes later, at 5.23pm, the
Defendant sent a text message consisting only of an asterisk to a mobile phone
using his mobile phone. The mobile
phone to which the Defendant sent the message has never been identified or
seized but call data shows that the number in question was activated on 4 June
2022, first used on 27 December 2022 and last used on 9 January 2023. It was only ever used to contact the
Defendant and no one else. Further,
at 7pm on 7 January 2023, approximately an hour and a half after the Defendant
had sent a text to this number containing an asterisk, he sent a further
message saying “What time do you fancy coffee 2mo let me know kid”.
6.
The police
arrived at the Defendant’s room in the shelter at 8pm that night. He was arrested for being concerned in
the importation of controlled drugs and cautioned.
7.
The agreed
expert evidence presented to the Jurats was to the effect that the role of a
mobile telephone is highly significant in the world of drugs dealing and
organised crime, with the telephone itself often being an unregistered “pay
as you go” phone, with those involved in criminality often having one
mobile telephone for use for contacting friends and family etc and another for
use in criminal activity only.
These are often cheap disposable non-registered pay as you go phones,
not “smart” phones, and are described as “burner”
phones.
8.
The
Defendant’s mobile phone was downloaded (in terms of the call data being
extracted) on 9 January 2023 and the Defendant was interviewed on 10 January 2023. In summary, the Defendant agreed that he
received a parcel delivered to his accommodation which he had not opened. He did not know what the contents were
and had no involvement in the delivery of the package. He knew nothing of the origin of the package
and did not know why it was sent to him.
He put it in the wardrobe in his room. His plan was to return the package to
the post office on Monday. As to
the contact with the “burner” phone, he said that the
messages were sent to his friend Chris, although he did not know Chris’
surname or where he worked.
9.
He denied
being the intended recipient of the parcel containing the large quantity of
MDMA.
The evidence the Crown wished to admit
10. The Crown wished to adduce evidence of two
previous incidents which were evidenced by witness statements made in 2015 and
2018 respectively, but were helpfully reduced to admissions in the following
form:
“Previous parcels
2015
1. On 18 November 2015,
Danielle MOREL was on duty at Postal Headquarters, Rue des Pres in the Parish
of St Saviour.
2. At 07:50 hours Danielle
MOREL selected a Special Delivery parcel for further examination. The tracking
number on the parcel was SG915003144GB, postmark Romford, Essex.
3. The jiffy parcel was
addressed to: James MARR Flat 4, Penlyn Apartments,
20 West Park Avenue, St Helier JE2 3PJ
4. Within the jiffy envelope,
there were two sheets of white A4 sized sheets of paper. In between the sheets
of paper was a silver heat sealed packet.
5. The silver packet contained
a clear heat-sealed packet containing an off-white powder within liquid. The
clear heat-sealed packet including the powder was weighed using digital scales
and amounted to 36.6g of Amphetamine.
6. The Defendant was
interviewed about this parcel and he denied all knowledge of a package sent to
him. He admitted to staying at 4 Penlyn Apartments on
a few occasions. When confronted with the package name being to 'James MARR'
and he is known as James MAHER (pronounced the same way) he could not give an
explanation but stated he would never have ordered any drugs as he does not
know how to use the internet.
2018
7. On Friday 15 June 2018 at
approximately 07:30 hours, whilst on duty at Jersey Post Headquarters, Rue De
Pres, St. Saviour, Customs Officer Michael SOLEY selected a small white postal
box for further examination. The parcel was addressed to: Mark MAHER, Room 6
The Beach House, Le Havre Des Pas, St. Helier, Jersey JE2 4UL.
8. The box was sealed using Ebay branded tape and bore a white printed address label
and silver Special Delivery sticker reference number: JS237726043GB. A Customs
declaration was also attached which declared the goods as 'DDR3 Memory'. No
value was declared.
9. Inside the box was a
silver heat-sealed packet wrapped in brown packing paper. Within the silver
packet were two clear heat-sealed packages containing a quantity of white
powder. Each clear packet was labelled in black pen '28CK' and '7CK'
respectively.
10. The contents were tested
and were found to be cocaine. The total of weight of both packets and their
contents was found to be 40 grams.
12. At 15:25 hours, whilst
Michael SOLEY was conducting a search of Room 6, The Beach House, Havre Des
Pas, the Defendant, who gave his details as Mark James MAHER dob 30 March 1973
returned to the property.
13. The Defendant had cannabis
on his person when he was arrested. The Defendant was arrested and interviewed.
During his interview, the Defendant stated that:
(1) the
address on the package (i.e. Room 6, The Beach House, Le Havre Des Pas, St
Helier, Jersey, JE2 4UL) was his address.
(2) a
friend, whose name he would not mention, asked if he could have stuff sent to
the Defendant's address. The Defendant said: "I'm not grassing on
anyone".
(3) he
was just doing a favour for his mate and he did not pay attention to the box.
(4) his
friend would be 'pulled up for a start' as a result of the package containing
Class A drugs.
(5) he
used to take cocaine but at the time of the interview he had stopped some years
earlier and only took cannabis. The Defendant would not state where he got his
drugs from.
(6) the
friend called him from someone else's phone to speak to him and he would not
identify the person who asked him to take receipt of the parcel.
(7) he
was given one of the phones found in his flat, but he would not name the person
who gave him the phone.
(8) he
was on income support and said he was in debt.
(9) a
piece of paper found at his address stating "Yorky, 30 quid, Danny 20
quid, Deano 20 quid" was a record of sums of money he had lent to his
friends.”
11. In respect of neither matter, i.e. the 2015
delivery of amphetamine and the 2018 delivery of cocaine, was the Defendant
charged, let alone prosecuted and convicted.
12. The Crown said that this was admissible bad
character evidence and, in default, if it was not bad character evidence then
it was relevant evidence at customary law.
In the alternative, the Crown argued that this was “important
explanatory evidence” under Article 82E of the Police Procedures
and Criminal Evidence (Jersey) Law 2003 (“the Law”) in that
pursuant to Article 82E(5), without it the Court would find it impossible or
difficult properly to understand other evidence in the case and its value for
understanding the case as a whole was substantial.
13. I rejected the assertion that this could amount
to “important explanatory evidence” without having to hear
from defence counsel. The Jurats
did not need to hear about the 2015 and 2018 matters in order to properly
understand the case against the Defendant.
Was this bad character evidence?
14. Pursuant to Article 82C of the Law, bad
character evidence is “evidence of, or of a disposition towards,
misconduct” and “misconduct” is defined
in Article 82A as “the commission of an offence or other
reprehensible behaviour”.
15. As the defence quite rightly observed, it is
not reprehensible behaviour to innocently receive a package of material which
it is unlawful to import. Defence
counsel asked rhetorically whether it could be reprehensible to receive
prohibited goods without knowing of the contents.
16. The defence argued that the Crown was, by the
back door, trying to prove that the Defendant knew of the contents of the 2015
and 2018 packages at the time they were received. The Crown’s case was that the
evidence from 2015 and 2018 went to an issue in the case, namely whether or not
the Defendant was an innocent recipient of the 2023 parcel and was thus
admissible under Article 82F. The
Crown belatedly conceded that the Jurats would need to be sure that the
Defendant knew or believed that the 2015 and / or 2018 postal packages
contained drugs at the time in order for the evidence connected to those two
importations to be admissible.
17. If the Crown was adducing the evidence (which
they ultimately accepted) for the purpose of showing that the Defendant was
guilty of this offence on the basis that he had the requisite knowledge of the
contents of the packages in 2015 and 2018 respectively, then this is bad
character evidence. As Archbold
says at paragraph 13-43:
“Another situation in which
evidence of bad character is admitted on the basis of coincidence rather than
propensity are what are usually called “similar fact evidence” cases. The classic examples are two famous
cases which pre-date the CJA 2003 by many years: Makin v Attorney General
for New South Wales [1984] AC 57 and Smith (1916) 11 Cr App R 229. In Makin the defendants were
convicted of the murder of a baby whose body was found buried in the garden of
their house, partly on evidence of the discovery of the other babies in the
gardens of their previous homes; and in Smith the defendant was
convicted of murdering a woman by drowning her in the bath shortly after bigamously
marrying her, partly on evidence of the death of two other ‘brides’
in circumstances virtually identical.
In both of these cases the evidence was held to have been rightly
admitted, given the extreme unlikelihood of the defendants’ connection
with a series of such deaths being purely coincidental.
A modern case to similar effect is Wallace
[2007] EWCA Crim 1760; [2007] 2 Cr App R 30. Here the defendant was convicted of
three robberies and one attempted robbery, to each of which he was connected by
various pieces of circumstantial evidence, none of which was conclusive on its
own, but all of which together made a substantial case. In upholding the conviction, the Court
of Appeal held that in cases of this sort the bad character evidence provisions
of the CJA 2003 now apply, but in deciding whether the evidence was admissible
under the statutory scheme the courts should approach it in the same way as
before:
“In
our view, the important matter in issue was not whether the defendant had a
propensity to commit offences or to be untruthful but whether the
circumstantial evidence linking him to the robberies, when viewed as a whole,
pointed to his participation in and guilt of each offence. Nevertheless, the definition of
‘bad character’ in section 98 of the 2003 Act is in our view
sufficiently wide to have triggered the operation of section 101 of the 2003
Act and in particular section 101(1)(d).
Although technically within the definition of bad character, the purpose
of the admission of evidence was not to prove that the defendant was of bad
character in the sense that that expression is commonly understood. Once before the jury the evidence was
relevant for what it tended to prove, namely that when viewed as a whole the
defendant was guilty of each of the offences.”” [My emphasis]
18. At 13-44, Archbold continues:
“As with the identity cases
discussed in §13-42, the reasoning in these ‘similar fact’ and
‘multiple accusation’ cases involves propensity as well as the
unlikelihood of coincidence. In
this type of case the court is faced with two possible explanations: either
that the defendant is the unlucky victim of an extraordinary series of
coincidences, or that they are a repeat offender – the second explanation
being much more likely than the first.
Indeed, in Chopra [2006] EWCA Crim 2133; [2007] 1 Cr App R 16,
decided shortly after the new law came into force, the Court of Appeal
discussed a multiple accusation case in terms of propensity alone, and with
almost no discussion of coincidence.
But in Freeman and Crawford [2008] EWCA Crim 1863; [2009] 1 Cr
App R 11, the Court of Appeal, in a reserved judgment, reviewed Chopra and a
number of other cases before making it clear that under the new law, as under
the old, the correct approach in cases of this sort is to look at the
totality of the evidence ‘in the round’, and not – as
would be done in a ‘pure propensity’ case (see § 13-45)
– to consider the evidence in each case individually, and if persuaded
of the offender’s guilt in one count, to consider whether, for the
purpose of the others, it demonstrates their propensity to commit this type of
offence [My
emphasis]:
“[20]
In some of the judgments since Hanson [2005] EWCA 824 [(§ 13-3)],
the impression may have been given that the jury, in its decision-making
process in cross-admissibility cases should first determine whether it is
satisfied on the evidence in relation to one of the counts of the
defendant’s guilt before it can move on to using the evidence in relation
to that count in dealing with any other count in the indictment. A good example is the judgment of this
court in Spencer [2008] EWCA Crim 544. We consider that this is too restrictive
on approach. Whilst the jury must
be reminded that it has to reach a verdict on each count separately, it is
entitled, in determining guilt in respect of any count, to have regard to the
evidence in regard to any other count, or any other bad character evidence if
that evidence is admissible and relevant in the way we have described. It may be that in some cases the jury
will find it easier to decide the guilt of a defendant on the evidence relating
to that count alone. That does not
mean that it cannot, in other cases, use the evidence in relation to the other
count or counts to help it decide on the defendant’s guilt in respect of
the count that it is considering.
To do otherwise would fail to give proper effect to the decision in
admissibility.””
19. In respect of drugs cases, Archbold says at
paragraph 30-243:
“In prosecutions for being
knowingly concerned in the evasion of the prohibition upon importation of
controlled drugs, the real issue in many cases turns out to be whether it has
been proved that the defendant knew of the existence of the drugs: the defence
is frequently to the effect that the defendant was innocently helping a third
party or that the drugs must have been ‘planted’ on him, either for
the purpose of getting them through customs using an unwitting courier or for
the purpose of getting the courier into trouble.
For the purpose of proving
knowledge and of rebutting the defence of innocent involvement, the prosecution
were permitted in a number of cases which have been before the Court of Appeal,
and which were decided at common law, to adduce evidence of matters having no
immediate connection with the importation in question, but tending to show the
defendant to have been otherwise involved in drugs. There were no special rules of evidence
for drug cases or importation of drugs cases, as there were once though to be for sexual cases. The general principles in Makin v
Att.-Gen for New South Wales [1894] AC 57, PC; DPP v Boardman [1975]
AC 421, HL; and DPP v P [1991] 2 AC 447, HL (§ 1-287), applied here
as elsewhere. As in all cases,
where the admission of this type of evidence was being considered, the most
important feature to keep in mind was the issue to which the evidence was said
to be relevant.
…..
Under Ch.1 of Pt 11 of the CJA
2003, such evidence will be admissible if it is ‘relevant to an important
matter in issue between the prosecution and the defendant’ (see
s.101(1)(d)). In the cases under
consideration, the matter in issue between prosecution and defendant is
knowledge, but s.103(1)(a) deems another matter in issue to be whether the
defendant has a propensity to commit offences of the kind with which he is
charged, except where his having such a propensity makes it no more likely that
he is guilty of the offence.”
Analysis
20. As to the relevance of Jersey customary law, it
is plain from the section above that such evidence would have been relevant at
English common law prior to the enactment of the Law on the footing that the
Crown could argue that the 2015, 2018 and 2023 importations should be looked at
together and the evidence, if the Jurats were sure that the Defendant had the
requisite knowledge in relation to one, might be admissible when considering
his state of mind in relation to a later importation. However, if the Crown does not set out
to prove such knowledge on the part of the Defendant in respect to the 2015 and
2018 packages, then I agree with the defence that this was evidence that would
have been not relevant and therefore not admissible.
21. The defence quite rightly went on to say that
if the Defendant chose to give evidence to the effect that he had never
received an unexpected package in the post, then at that stage the Crown could
apply to adduce the material as evidence to correct a false impression under
Article 82I.
22. Bearing in mind the fact that the Court ought
to assume that the evidence is supportive of the contentions that the Crown
makes unless no Court or jury could reasonably find that to be so (Article
82B(2)), I was satisfied that the 2015 and 2018 matters did amount to bad
character evidence and were admissible as such, subject to the Court’s general
exclusionary power under Article 76 and specific exclusionary power under
Article 82E(2) which provides:
“(2) The court must not
admit evidence under Article 82F or Article 82G if, on an application by the
defendant to exclude it, it appears to the court that the admission of the
evidence would have such an adverse effect on the fairness of the proceedings
that the court ought not to admit it.”
Decision
23. The facts as set out above were in a narrow
compass. Indeed the evidence was
reduced to admissions, with the exception of the calling of one witness whose
evidence was little more than a commentary on those admissions. The Crown made their application to
adduce the evidence late in the day and in some respects on the wrong basis
– it was only in the Crown’s speech in reply on their application
to admit the evidence that they conceded that the Jurats would need to be
satisfied that the Defendant knew of the contents of the packages to be
imported in 2015 and / or 2018 for them to be able to take them into account
when considering whether they were sure of the allegation on the
indictment. The Crown agreed that
if the Jurats were less than sure they would need to ignore those matters. There was a possibility that the trial
could become dominated by consideration of the Defendant’s state of mind
in 2015 and 2018 in respect of which the Defendant had never been charged, let
alone convicted. In the
circumstances, I found that the admission of the evidence the Crown sought to
adduce would, in the circumstances of this case, have such an adverse effect on
the fairness of the proceedings that I ought not to admit it and accordingly it
was not admitted.
Authorities
Police Procedures and Criminal
Evidence (Jersey) Law 2003.
Archbold Criminal Pleading, Evidence
and Practice