AG v Hamilton and Owens

• Jurisdiction: Jersey
• Court: Royal Court
• Judge: Sir Philip Bailhache
• Judgment Date: 21 December 2009
• Neutral Citation: [2009] JRC 246
• Date: 21 December 2009

[2009] JRC 246

ROYAL COURT

(Samedi Division)

Before:

Sir Philip Bailhache, Kt., Commissioner, sitting alone.

The Attorney General

and

David Rhys Hamilton

Dayle David Owens

R. C. P. Pedley, Esq., Crown Advocate.

Advocate I. C. Jones for Owens.

Advocate C. M. Fogarty for Hamilton.

Authorities

Customs and Excise (Jersey) Law 1999.

Misuse of Drugs (Jersey) Law 1978.

Campbell -v- Attorney General [1995] JLR 136.

Barr -v- Attorney General [2003] JCA 158.

R -v- Taaffe (1984) 78 Cr. App. R 301.

Drug Trafficking Offences (Jersey) Law 1988.

R -v- Hussain (1969) 53 Cr. App. R. 448.

THE COMMISSIONER:

Introduction

1 This is a reference by the Crown seeking a ruling on a point of law relating to the prosecution of Dayle David Owens and David Rhys Hamilton. There is, regrettably, no agreed statement of facts, but the following emerges from the skeleton arguments put before me by counsel.

2 The defendants travelled to Jersey by ferry on 9 ^th May, 2009. They were at that time unemployed bricklayers. The car in which they travelled was owned by Owens. Hamilton had provided the funds of £400 for the journey which he claimed had come from his mother. Hamilton admitted that he was a user of cocaine and cannabis. Owens was a user of cannabis.

3 On arrival in Jersey the defendants told customs officers that they had come to the Island for a short fishing holiday. A small piece of cannabis was found in the car. No charge resulted from that. When the rear wheels of the car were examined, packages containing nearly 1 kilogram of cocaine were found taped inside. The street value of the drugs was approximately £79,000.

4 During interview Hamilton said that he did not know that there were drugs in the car; he believed that they were transporting cash. He claimed not to know where the cash was concealed, and said that each of them was to receive £1,000 for bringing the money into the Island. He is recorded as saying:-

“When I got caught with the money I wouldn't be in so much trouble as I would with a fucking – I don't know what – as far as I'm concerned, I didn't know what the money was for. I didn't know if it was for coke. I just thought I was bringing money over for whatever.”

5 Owens was told of Hamilton's admission, and gave the same explanation that he believed that they were transporting cash to Jersey. He had no idea that there were drugs in the car. Both men refused to give any information about their associates. The defendants were charged with being knowingly concerned in the fraudulent evasion of a prohibition on the importation of a controlled drug, namely cocaine, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999.

Question of law

6 The issue of law, as described as by the Crown Advocate in his skeleton argument, is “ whether money can amount to a prohibited item as described in the Customs and Excise (Jersey) Law 1999”. Put another way, is a belief that money is being imported, if accepted, a defence to a charge of being concerned in the importation of a controlled drug?

7 Article 61(2)(b) of the 1999 Law provides:-

“(2) Without prejudice to any other provision of this Law, any person who is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempted evasion of –

…..

(b) any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment

…..

shall be guilty of an offence.”

The importation of controlled drugs is prohibited by Article 4(1) of the Misuse of Drugs (Jersey) Law 1978.

Mistake as to the nature of controlled drug

8 All counsel agree that a mistake of fact as to the nature of the controlled drug which was being imported is neither a mitigating nor an exonerating factor. In Campbell -v- Attorney General [1995] JLR 136 the Court stated at 145:-

“In our judgment, a courier who knowingly transports illegal drugs must be taken to accept the consequences of his actions. As the Attorney General put it, the moral blameworthiness is the same, whatever the nature of the drugs transported. Furthermore, viewed from the perspective of the community, the evil consequences flowing from the dissemination of Class A drugs are not mitigated in the slightest by the erroneous belief of the courier that he was transporting a Class B drug. There may be very exceptional circumstances in which a genuine belief that a different drug was being carried out might be relevant to sentence. But in general we endorse the Royal Court's view in the case of Campbell that an erroneous belief as to the type of drug being carried is not a mitigating factor.”

Nor, I would add, is it an exonerating factor.

Analysis of offence under Article 61(2)(b)

9 The question here is whether a mistaken belief that the imported goods were of a different kind can be a defence to a charge under this Article. There are two elements to the offence, namely the actus reus (the unlawful act) and the mens rea (the guilty mind). The unlawful act consists of the importation of prohibited goods. If, therefore, a defendant, believing that the goods in question are cocaine, is concerned in the importation of sugar, there is no offence. The importation of sugar is not prohibited. There is no actus reus. It may be that a prosecution for a criminal attempt would lie, but there is no substantive offence involving importation of prohibited goods. I turn to the mens rea relating to the offence, which has been considered in two cases cited to me.

10 The first is Barr -v- Attorney General [2003] JCA 158. In this case, an oven containing a quantity of heroin had been imported into Jersey. The defendant's account was that he had driven the van on to the ferry knowing that the oven was inside but that he was completely ignorant as to what the oven contained. He admitted that he knew that there was something “dodgy” about the trip, but no more than that. The defendant had pleaded guilty in the Royal Court and had been sentenced to nine years' imprisonment. Subsequently, evidence emerged that he might not have received adequate legal advice as to the constituent elements of the offence with which he had been charged. After a hearing, the appeal was allowed and the conviction quashed. The Court of Appeal stated that the extent of Barr's guilty knowledge as to the presence of the drugs inside the...