Hamilton and Owens v Attorney General

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Birt, Bailiff, McNeill and Pleming, JJ.A.
• Judgment Date: 21 July 2010
• Date: 21 July 2010

COURT OF APPEAL

Birt, Bailiff, McNeill and Pleming, JJ.A.

Ms. C.M. Fogarty for the first appellant;

I.C. Jones for the second appellant;

R.C.P. Pedley, Crown Advocate, for the Attorney General.

Cases cited:

(1) Al-Khawaja v. United Kingdom (2009), 49 E.H.R.R. 1; 26 B.H.R.C. 249; [2009] Crim. L.R. 352, considered.

(2) Att. Gen. v. Edmond-O'Brien, 2006 JLR 133, considered.

(3) Att. Gen. v. Kelly, 1982 J.J. 275, applied.

(4) Barr v. Att. Gen., 2003 JLR N [42]; [2003] JCA 158, distinguished.

(5) Campbell (A.T.) v. Att. Gen., 1995 JLR 136, followed.

(6) Luca v. Italy (2001), 36 E.H.R.R. 46; [2001] Crim. L.R. 747, considered.

(7) R. v. Bilinski (1987), 86 Cr. App. R. 146; 9 Cr. App. R. (S.) 360; [1987] Crim. L.R. 782, referred to.

(8) R. v. Finch (1992), 14 Cr. App. R. (S.) 226; [1992] Crim. L.R. 901, referred to.

(9) R. v. Forbes, [2002] 2 A.C. 512; [2001] 3 W.L.R. 428; [2001] 4 All E.R. 97; [2002] 1 Cr. App. R. 1; [2001] UKHL 40, applied.

(10) R. v. Hennessey (1978), 68 Cr. App. R. 419, referred to.

(11) R. v. Hopkins-Husson (1949), 34 Cr. App. R. 47, considered.

(12) R. v. Horncastle, [2010] 2 W.L.R. 47; [2010] 2 All E.R. 359; [2010] H.R.L.R. 12; [2010] U.K.H.R.R. 1; [2009] UKSC 14, referred to.

(13) R. v. Hussain, [1969] 2 Q.B. 567; [1969] 3 W.L.R. 134; [1969] 2 All E.R. 1117; (1969), 53 Cr. App. R. 448, referred to.

(14) R. v. Mendez, [2010] 3 All E.R. 231; [2010] Crim. L.R. 874; [2010] EWCA Crim 516, considered.

(15) R. v. Shivpuri, [1987] A.C. 1; [1986] 2 W.L.R. 988; [1986] 2 All E.R. 334; [1986] Crim. L.R. 536; (1986), 83 Cr. App. R. 178, referred to.

(16) R. v. Taaffe, [1983] 1 W.L.R. 627; [1983] 2 All E.R. 625; (1983), 77 Cr. App. R. 82; [1983] Crim. L.R. 536; on appeal, [1984] A.C. 539; [1984] 2 W.L.R. 326; [1984] 1 All E.R. 747; (1984), 78 Cr. App. R. 301, considered.

(17) Rimmer v. Att. Gen., 2001 JLR 373, applied.

(18) Subramaniam v. Public Prosecutor, [1956] 1 W.L.R. 965; (1956), 100 Sol. Jo. 566, applied.

Legislation construed:

Customs and Excise (Jersey) Law 1999 (Revised Edition, ch.24.660, 2010 ed.), art. 61(2)(b):

"(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."

Drug Trafficking Offences (Jersey) Law 1988 (Revised Edition, ch.08.580, 2010 ed.), art. 29:

"The importation?.?.?. of goods intended by any person for use in drug trafficking or of the proceeds of drug trafficking is hereby prohibited."

European Convention for the Protection of Human Rights and Fundamental Freedoms (Rome, November 4th, 1950; Treaty Series 71 (1953)) (Cmnd. 8969) (Human Rights (Jersey) Law 2000 (Schedule 1)), art. 6: The relevant terms of this article are set out at para. 39.

art. 7: The relevant terms of this article are set out at para. 62.

Text cited:

Archbold, Criminal Pleading, Evidence & Practice, 2010 ed., para. 5-71, at 618.

Criminal Law—drugs—importation—knowingly concerned in importation of prohibited goods, contrary to Customs and Excise (Jersey) Law 1999, art. 61(2)(b)—mens rea satisfied if accused knew or believed importing controlled drugs (even if mistake as to type), or money to be used for drug trafficking or proceeds of drug trafficking—simple importation of money not prohibited—trial not unfair if guilty verdict consistent with finding that accused believed importing either drugs or drug money

The appellants were charged in the Royal Court with importing drugs.

The appellants imported 984.82g. of cocaine into Jersey, concealed in the tyres of a car. They were charged in the Royal Court with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to art. 61(2)(b) of the Customs and Excise (Jersey) Law 1999. They claimed to have been unaware of the drug and to have believed instead that they were importing money. The prosecution sought a ruling of the Royal Court as to whether the belief that money was being imported, if accepted, would constitute a defence to the charge.

The court (Bailhache, Commr.) ruled that the mens rea for an offence under art. 61(2)(b) would be proved if the prosecution proved that an accused knew or believed that he was importing prohibited goods. Under art. 29 of the Drug Trafficking Offences (Jersey) Law 1988, the importation of money to be used for the purpose of drug trafficking or money that was itself the proceeds of drug trafficking ("drug money") was prohibited. The necessary mens rea for an offence under art. 61(2)(b) would therefore be established if the prosecution proved that the accused knew or believed he was importing controlled drugs (regardless of whether he was mistaken as to the nature of the controlled drug that was actually imported) or drug money. The simple importation of money was not, however, prohibited (that ruling is noted at 2010 JLR N [7]).

The sole question at the trial was whether the appellants had been "knowingly" concerned in the importation and the trial judge directed the Jurats in accordance with the ruling of Bailhache, Commr. The Jurats found the appellants guilty. The appellants were subsequently sentenced to 8 years' imprisonment. The sentencing court applied the guidelines in Rimmer v. Att. Gen. (2001 JLR 373), which provided a starting point of 14 years upwards for the importation of 400g. or more of a Class A powder drug. The court stated that it considered an offender's erroneous belief to have imported drug money rather than controlled drugs to be irrelevant to the appropriate level of sentence to be imposed.

The first appellant appealed against his conviction. He submitted that, as a consequence of the direction on mens rea, it was not clear whether the appellants had been convicted on the basis that they knew they were importing controlled drugs or that they believed they were importing drug money, which uncertainty rendered the trial unfair. The second appellant sought leave to appeal against his conviction, submitting that the sole and decisive evidence against him, namely a text message sent to his mobile phone during his journey to Jersey which referred to drug dealing, should have been excluded as hearsay or under art. 76 of the Police Procedures and Criminal Evidence (Jersey) Law 2003.

The appellants also applied for leave to appeal against their sentences, submitting that the fact that it was impossible to say from the Jurats' verdict whether they had found that the appellants knew they were importing a controlled drug or believed they were importing drug money was an extraordinary circumstance that should lead to a further reduction in sentence. The first appellant submitted that (a) by sentencing on an unknown factual basis the court failed to give adequate reasons for its decision or announce the decision in public, as required by art. 6 of the European Convention on Human Rights; and (b) the sentencing court had retrospectively applied the Rimmer guidelines to what was in effect an offence of attempting to import drug money (for which the maximum sentence was 7 years, under art. 61(3) of the 1999 Law) thus breaching art. 7 of the Convention, which provided that a heavier penalty should not be imposed than the one that was applicable at the time of the commission of an offence. The appellants submitted that the sentencing court's decision—that their erroneous belief that they were importing drug money made no difference to the appropriate sentence—was incorrect.

Held, ruling as follows:

(1) The first appellant's appeal against his conviction would be dismissed. The ruling of the Commissioner, which was repeated in the direction to the Jurats at the trial, as to the mens rea for an offence of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug, contrary to art. 61(2)(b)—namely, that the mens rea would be proved if an accused knew or believed that the goods he imported were prohibited—was correct. It was not necessary for the prosecution to prove that an accused knew the precise nature of the goods he imported. It had been for the appellants, therefore, to put forward their defence that they believed they were importing money, which was not in fact prohibited. As the appellants had been found guilty, the Jurats had rejected that defence and found either that the appellants knew they were importing a controlled drug, whether they knew it was cocaine or believed it to be some other drug, or that the appellants believed they were importing money intended for use in drug trafficking or which was the proceeds of drug trafficking (the importation of which was prohibited under art. 29 of the Drug Trafficking Offences (Jersey) Law 1988). The fact that the Jurats' guilty verdict was consistent with either of those findings did not give rise to an unfair trial or a miscarriage of justice. Indeed, it was not uncommon for Jurats or jury verdicts to be consistent with more than one version of the facts ( paras. 19-21; para. 23; paras. 28-31; para. 35).

(2) The second appellant would also be refused leave to appeal against his conviction. The text message, which he had received during the journey to Jersey and which referred to drugs, was not inadmissible as hearsay evidence because it had not been admitted to prove that the second appellant was a drug dealer but rather to cast doubt on the appellants' claim that they honestly believed that they were importing non-drug money. Nor should it have been excluded under art. 76 of the Police Procedures and Criminal Evidence (Jersey) Law 2003, as its admission was not unfair. Furthermore, the text message was not the sole or decisive evidence against the second appellant and the...