Bayliss v Attorney General

JurisdictionJersey
CourtCourt of Appeal
JudgeSmith, Clarke and Rokison, JJ.A.
Judgment Date12 November 2004
Date12 November 2004
COURT OF APPEAL
Smith, Clarke and Rokison, JJ.A.

C.J. Scholefield for the applicant;

Miss B.H. Lacey, Crown Advocate, for the Crown.

Cases cited:

(1) Att. Gen. v. Antunes, 2003 JLR 144, observations of Birt, Deputy Bailiff applied.

(2) Bell v. Att. Gen., 2001 JLR 400, applied.

(3) Guest v. Law Officers of the Crown, [2003] GLR N-7, referred to.

(4) Hall v. Att. Gen., 1996 JLR 129, applied.

(5) Law Officers of the Crown v. Ogier (1989), Guernsey C.A. (Case No. 27), referred to.

(6) R. v. Armstrong (1922), 16 Cr. App. R. 147, dictum of Lord Hewart, C.J. distinguished.

(7) R. v. Ayres, [1984] A.C. 447; [1984] 1 All E.R. 619; (1984), 78 Cr. App. R. 232, dicta of Lord Bridge of Harwich followed.

(8) R. v. Cooper, [1969] 1 Q.B. 267; [1969] 1 All E.R. 32, observations of Widgery, L.J. referred to.

(9) R. v. Wallace (1931), 23 Cr. App. R. 32, distinguished.

(10) R. v. Whitehouse, [1977] Q.B. 868; [1977] 3 All E.R. 737; (1977), 65 Cr. App. R. 33, referred to.

(11) Stafford v. D.P.P., [1974] A.C. 878; [1973] 3 All E.R. 762, observations of Lord Kilbrandon referred to.

(12) Swanston v. Att. Gen., C.A., November 25th, 1998, unreported, dicta of Clarke, J.A. considered.

Additional cases cited by counsel:

R. v. Graham, [1997] 1 Cr. App. R. 302.

R. v. McVitie, [1960] 2 Q.B. 483; [1960] 2 All E.R. 498; (1960), 44 Cr. App. R. 201.

R. v. R (Rape: Marital Exemption), [1992] 1 A.C. 599; [1991] 4 All E.R. 481; [1992] FLR 217.

Tromans v. Att. Gen., Royal Ct., October 21st, 1997, unreported.

Legislation construed:

Court of Appeal (Jersey) Law 1961, art. 25(1): The relevant terms of this paragraph are set out at para. 13.

Misuse of Drugs (Jersey) Law 1978, art. 5(c):

". . . [I]t is an offence for a person—

. . .

(c) to be concerned in the supplying of . . . a controlled drug to any person."

Texts cited:

Blackstone's Criminal Practice, 2004 ed., para. D23.17, at 1664.

Harman, Criminal Appeal Law: Time for a Change 2 Jersey Law Review 280 (1998).

Criminal Procedure—charges—statement of offence—incorrect statement of known and subsisting offence makes indictment defective but not nullity—allowing Jurats to consider it is wrong decision of law within Court of Appeal (Jersey) Law 1961, art. 25(1) but if properly explained by judge, appeal dismissed as no substantial miscarriage of justice

Criminal Procedure—appeals—appeals against conviction—Court of Appeal's supervisory powers limited to those stated in Court of Appeal (Jersey) Law 1961, art. 25—English "lurking doubt" test for "unsafe conviction" not included in art. 25 and not applicable in Jersey

The applicant was charged in the Royal Court with two counts of being "concerned in the supply" of a controlled drug.

The statement of offence and particulars of the two counts on the indictment alleged that the applicant had been "concerned in the supply" of drugs, contrary to art. 5(c) of the Misuse of Drugs (Jersey) Law 1978. The offence was in fact defined in that provision as being "concerned in the supplying" of controlled drugs and the indictment was therefore incorrect. The judge correctly defined the offence in his summing-up to the Jurats, and the applicant was later convicted on both counts.

The applicant applied for leave to appeal against those convictions, submitting that (a) the indictment was a nullity because the offence of being "concerned in the supply" of drugs was not an offence known to the law; and (b) when deciding whether to grant leave the court should consider whether the convictions were "unsafe or unsatisfactory," which was a test applied by the English Court of Appeal.

The Crown submitted in reply that the reference in the indictment to "supply" was insignificant since it was obvious that the case was about being "concerned in the supplying" of drugs, contrary to art. 5(c) of the Law.

Held, granting leave to appeal but dismissing the appeal:

(1) The indictment was not a nullity as the counts pleaded a known and subsisting offence, contained in art. 5(c) of the Misuse of Drugs (Jersey) Law 1978, but the inaccuracy of the pleading rendered the indictment defective. The applicant would therefore be granted leave to appeal against his convictions because by allowing the Jurats to consider the defective counts the judge had made wrong decisions of law. He had, however, made it completely clear to the Jurats in his summing-up that they were in fact required to consider whether the applicant had been "concerned in the supplying" of the drugs. As there was no possibility that they had misunderstood the task and as ample evidence supported the convictions, no substantial miscarriage of justice had resulted from the judge's wrong decisions of law and the appeal would therefore be dismissed under the proviso to art. 25(1) of the Court of Appeal (Jersey) Law 1961 ( paras. 43-44; paras. 47-48).

(2) The question of whether the applicant's convictions were "unsafe or unsatisfactory" was not relevant to the review by the present court of the Royal Court's decisions. The court was confined to exercising the supervisory powers provided in art. 25(1) of the Court of Appeal (Jersey) Law 1961, which did not include the "unsafe or unsatisfactory" test. The inclusion of that test in the law would be a matter for the legislature ( paras. 21-23).

1 SMITH, J.A., delivering the judgment of the court:

Introduction

This is an application by Jason Paul Bayliss for leave to appeal against his conviction on May 7th, 2004 by the Inferior Number of the Royal Court, Hamon, Commr. presiding, on two counts of being "concerned in the supply [sic] of controlled drugs, contrary to art. 5(c) of the Misuse of Drugs (Jersey) Law 1978." We return to the significance of this wording below. Advocate C.J. Scholefield appeared for the applicant and Crown Advocate B.H. Lacey appeared for the respondent. We are indebted to both of them for their helpful submissions.

Background

2 Most of the evidence adduced by the prosecution against the applicant at the trial was comprised in a series of facts agreed by the Crown, the applicant and his co-accused, Elsa Alexandra Presume. These revealed that on February 6th, 2004, one Mark Disbury pleaded guilty to the importation, on Saturday, November 15th, 2003 at the States of Jersey Airport, of 93.9g. of heroin and 41.71g. of cocaine. Disbury had arrived by air that morning with two of his children, aged 11 and 7 years, and he checked into the Merton Hotel on the outskirts of St. Helier, at which he had booked accommodation.

3 Disbury had with him a mobile telephone, the SIM card of which, when subsequently forensically examined, revealed the number of the applicant's mobile telephone stored with the initial "J." Investigations, including examination of the applicant's mobile telephone, revealed that on November 15th, 2003, Disbury called that telephone from a public payphone on the ground floor of the Merton Hotel at 10.21 a.m.; that at 10.37 a.m. Disbury again rang the applicant's mobile telephone; that at 10.44 a.m. Disbury attempted to call his own mobile telephone (which would not operate automatically in Jersey); that at 11.02.04, 11.02.44 and 11.04.49 a.m. the applicant's mobile telephone was used to make calls to Disbury's mobile telephone; that at 11.09 a.m. the applicant's telephone was used to ring the public payphone at the Merton Hotel; that at 11.11 a.m. the applicant's mobile telephone was used to obtain from Jersey Telecom, via text, the switchboard number of the Merton Hotel; and that at 11.12 a.m. the applicant's mobile telephone was used to call the switchboard number of the Merton Hotel, that call lasting for 2 minutes and 44 seconds. In addition, a number of text messages were sent to the applicant's telephone. We comment on these messages later in this...

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