Hamilton and Owens v AG

JurisdictionJersey
CourtCourt of Appeal
JudgeM. C. St.J. Birt,Bailiff,J. W. McNeill,N. P. Pleming
Date21 July 2010

[2010] JCA 136A

COURT OF APPEAL

Before:

M. C. St.J. Birt, Q.C., Bailiff, President; J. W. McNeillQ.C., and; N. P. Pleming, Q.C.

David Rhys Hamilton
Dayle David Owens
and
The Attorney General

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

Advocate C. M. Fogarty for Hamilton.

Advocate I. C. Jones for Owens.

Authorities

Customs and Excise (Jersey) Law 1999.

Misuse of Drugs (Jersey) Law 1978.

R v Taaffe [1984] Cr. App. R. 301 .

R v Hussain [1969] 53 Cr. App. R. 448 .

Drug Trafficking Offences (Jersey) Law 1988.

R v Hennessey [1979] 68 Cr. App. R. 419 .

R v Taaffe [1983] 77 Cr. App. R. 82 .

R v Shivpuri [1987] AC 1 .

R v Forbes [2002] 2 AC 512 , [2002] 1 Cr. App. R. 1.

Barr v Attorney General [2003] JCA 158 .

Indictment (Jersey) Rules 1972.

Al-Khawaja and Tahery v United Kingdom (2009) 49 EHRR 1 .

Luca v Italy (2003) 36 EHRR 46 .

R v Horncastle [2010] 3 WLR 47 .

AG v Kelly and others [1982] JJ 275 .

Subramaniam v Public Prosecutor [1956] 1 WLR 965 .

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Court of Appeal (Jersey) Law 1961.

Attorney General v Edmond-O'Brien [2006] JLR 133 .

R v Hopkins-Husson [1949] 34 Cr. App. R. 47 .

Rimmer v AG [2001] JLR 373 .

Campbell v AG [1995] JLR 136 .

R v Bilinski [1987] Cr. App. R. (s) 360 .

R v Mendez [2010] 3 All ER 231 .

Archbold (2010 Edition).

R v Finch [1993] 14 Cr. App. R. (S) 226 .

Applications for leave to appeal against the convictions by the Royal Court on 10 th March, 2010 and the sentences passed by the Superior Number on 1 st July, 2010, on one charge of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug.

Application for leave considered by M. C. Birt, Q.C. Bailiff, sitting as a single Judge of the Court of Appeal and referred directly to the full Court.

THE PRESIDENT:
1

This is the judgment of the court. On 10th March 2010 Hamilton and Owens were convicted before the Inferior Number (Commissioner Clyde-Smith with Jurats Tibbo and Marett-Crosby) of a single count of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999, (“the 1999 Law”) the particulars being that on 8th May 2009 at Elizabeth Harbour in the Parish of St Helier, they were knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug specified in part 1 of the second schedule to the Misuse of Drugs (Jersey) Law 1978, namely cocaine.

2

They now appeal on a point of law and seek leave to appeal on certain other grounds. We will for convenience refer to them as the appellants where appropriate albeit that they need leave on some aspects.

The factual background
3

Many of the facts were not in dispute and were proved by way of formal admission. We would summarise them as follows. The appellants are both 19 and are natives of north Wales. They were at school together and at the time of these events had known each other for about 7 years. At the material time they were both unemployed apprentice brick layers. Both were living at their respective homes and were financially supported by their mothers. Neither had been to Jersey before or knew anyone in the Island. They decided to travel to Jersey together on about Tuesday 5th May 2009 and left Holywell in north Wales in Owen's car between 9–11pm on Wednesday 6th May. Hamilton supplied the funds in the sum of £400 in cash. They also had some cannabis resin with them which they smoked on the journey. They arrived in Tewkesbury near Bristol at about 3.05am on Thursday 7th May as shown by a receipt for a room at a Travelodge indicating that they had paid £55 in cash for the room. They left there 3 hours later and continued to Weymouth where they found they had missed the ferry, so paid £60 for a second hotel room.

4

The following morning, Friday 8th May, Hamilton bought a ticket for £250 in cash to travel to Jersey and they caught the 6am Condor Ferry, arriving at about 10.15am. Having driven off the ferry, the defendants were stopped by Customs officers and warned of the prohibitions in relation to drugs, firearms and pornography. They were not specifically told of any prohibition in relation to cash. Owens stated in reply that they intended to stay in Jersey for a couple of days and had decided to make the trip 4 days earlier. Owens said that the purpose of their trip was to go fishing but they had no accommodation booked but intended to stay at the local Travelodge. When informed that there was no Travelodge in the Island, Owens stated that they would then find a bed and breakfast. Owens also stated that Hamilton had bought the ferry ticket for about £250 in cash and, when asked how they had funded the journey, Owens said that he had saved his wages over 5 weeks. He said that he was the registered keeper of the vehicle. At the time of their arrival they had less than £100 in cash remaining, no accommodation booked, no return ticket and no local contacts.

5

The car was searched and two bank cards were recovered, both in the name of Darren McGilloway. Both of these cards had traces of cocaine on them. McGilloway had been staying at Hamilton's family home for a number of months. A small lump of cannabis resin was found in the passenger door which was the remainder of the amount they had been smoking on the journey down. The car also contained two fishing rods.

6

The car was subsequently searched and the rear wheels were removed from the vehicle. An X-ray revealed packages concealed inside. The defendants were arrested at 12.13pm. An examination of the tyres from the rear wheels showed that a number of brown taped packages were concealed inside. It was admitted that, in order to place the packages inside the tyres, it would have been necessary to use a machine and would not have been possible with hand tools. The extra weight in the tyres would have caused vibration in the vehicle and the faster the vehicle was travelling, the greater would have been the vibration. The contents of the packages were analysed and subsequently found to contain 984.82g of 2% purity cocaine. The expert evidence from the prosecution estimated that the Jersey street price would be £79,000, the wholesale price would be £64,000 and the purchase price in the United Kingdom would have been £31,000. Forensic examination revealed no trace of the DNA or fingerprints of either of the defendants on the packages or the tyres.

7

Both defendants were interviewed the following day. Hamilton was asked about the journey and gave much of the information about the journey referred to earlier. He said that it had been a spur of the moment decision to come. Indeed he had left without telling his mother and had only telephoned her on the way down to let her know what they were doing. They came to Jersey to go fishing and to ‘get lashed’. They planned to stay until their money ran out. He denied all knowledge of the packages although he accepted that he used cocaine socially on occasions. He was questioned fairly closely about the fishing rods from which it became clear that his knowledge of fishing was limited. Eventually, shortly after the commencement of the second interview which began at 12.32pm, he said “Alright then I'll tell you the truth”. He went on to say that they were sent over to Jersey to bring money, not drugs.

8

He said that the fee was £1000 each. He explained “It was money I was bringing over, that I thought I was bringing over and so did Dayle think he's bringing money over not drugs. I wouldn't have done it if it was drugs. I told the lad that. I said ‘If there's any drugs coming over I don't want nothing to do with it’. I said ‘I'll take the money for you if you pay me a grand’”. He said that he was told to await a phone call then they arrived in Jersey. He said that he did not know what the money was for. He did not know if it was for cocaine. He just thought he was bringing money over for whatever purpose. He did not see the items being put in the tyre and did not think of checking to see whether it was cash or not. He said “I didn't ask any questions. You don't ask questions”.

9

Owens was interviewed at much the same time. He admitted to smoking cannabis and for the most part answered “No comment” to questions about the journey to Jersey. He did however agree when the officers put it to him that the purpose of the trip was to do some fishing and “go on the lash”. The Customs officers then put the version of events which Hamilton had admitted to and Owens agreed that they thought they were bringing money down to Jersey and that he was also to be paid £1000. When asked about the details of what had been arranged, he replied on several occasions “I'm not sure”. He was then asked whether it was that he was not sure or that he just did not want to say, to which he replied “Both really”.

10

Customs Officer Perez gave evidence about the interview with Hamilton. He was cross examined and it was put to him that he had not explored with Hamilton matters such as where Hamilton thought the money had come from and what he thought it was to be for. He said he believed that Hamilton was not going to elaborate any more on what he had already said and therefore brought the interview to a close. Customs Officer McGaw gave evidence about the interview with Owens and similar questions were put to him. That officer also admitted that he had not specifically put to Owens that he knew there was cocaine in the car.

11

Customs Officer Jason Harrison was called as an expert and gave evidence about the value of the drugs. He said that the seizure in this case was of extremely low purity and was really at the lowest limit where the drug would have any effect. He also said that it was more common...

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