Le Pavoux v AG

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: R.C. Southwell,M.J. Beloff,D.A.J. Vaughan,C.B.E.
• Judgment Date: 14 July 2003
• Neutral Citation: [2003] JCA 127
• Date: 14 July 2003

[2003] JCA 127

COURT OF APPEAL

Before:

R.C. Southwell, Esq., Q.C., President; The Hon. M.J. Beloff, Q.C.; and D.A.J. Vaughan, Esq., C.B.E., Q.C.

Paul Anthony Le Pavoux

and

The Attorney General

Advocate M.L. Preston for the Appellant;

Mrs. S. Sharpe, Crown Advocate.

Authorities

R v Neal [1984] 3 AllER 156.

AG v Knowles (27th September, 2002) Jersey Unreported; [2002/178].

R v Russell-Jones (1995) 1 Cr. App. R. 538.

Archbold (2003): 4/95; 4/273; 4/275; 7/82; Appendix 4.48.

Blackstone: p.1417.

McDonough v AG (28th September, 1994) Jersey Unreported; [1994/193].

Jenkins v AG (23rd January, 2001) Jersey Unreported; [2001/22].

AG v Antunes & Ors [2003] JRC 072

AG v Le Pavoux & Anor [2003] JRC 075

AG v Saraiva & Ors [2003] JRC 074.

McGurk v AG (4th January, 1988) Jersey Unreported C of A; [1988] JLR N.19.

Wright v AG (12th July, 1999) Jersey Unreported; [1999/125]

Application of Paul Anthony LE PAVOUX for leave to appeal against conviction on 28th February, 2003, by the Inferior Number of the Royal Court, “en police correctionnelle”, on a not guilty plea to:

First Indictment.

1 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 Law 1999:

count 1: diamorphine

The application for leave to appeal against conviction placed directly before the plenary Court, without first being submitted to a Single Judge for consideration and determination.

Application of Paul Anthony LE PAVOUX for leave to appeal against a total sentence of 11 years' imprisonment, passed on 30 ^th April, 2003, by the Superior Number of the Royal Court, to which the appellant was remanded on 28th January, 2003, in respect of the following counts laid in the First Indictment, and on 7th March, 2003, in respect of the following count laid in the Second Indictment, after the said conviction and after entering guilty pleas on 3rd October, 2002, to the remaining counts in the First Indictment and on 7th March, 2003, to the count laid in the Second Indictment:

First Indictment:

1 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 Law 1999:

count 1: diamorphine, on which count a sentence of 11 years' imprisonment was passed

2 counts of: possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978:

count 2: cannabis, on which count a sentence of a £100 fine or 1 week's imprisonment in default of payment was passed; and

count 3: diamorphine, on which count a sentence of 3 months' imprisonment, concurrent was passed

Second Indictment:

1 count of: possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978:

count 1: cannabis, on which count a sentence of a £100 fine or 1 week's imprisonment in default of payment was passed.

The application for leave to appeal against sentence placed directly before the plenary Court, without first being submitted to a Single Judge for consideration and determination.

(on appeal against conviction, delivered on 16 ^th July, 2003)

THE PRESIDENT:

1 This is the judgment of the Court. Mr Paul Anthony Le Pavoux (formerly Coppell) seeks leave to appeal against conviction (and if necessary also against sentence) on one count of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of diamorphine (or heroin, to use the common term). The applications for leave were by the direction of the Greffier Substitute, Mr F B H Sergeant, placed directly before the full Court of Appeal, to be heard as if they were appeals with leave. This judgment is concerned only with the application for leave to appeal against conviction.

2 Mr Le Pavoux is a chef by trade, who has lived in Thailand and worked there as a chef for a number of years. He stayed in Thailand because he was, and continued to be, a heroin addict, and apparently heroin is available and cheap in Thailand. In the course of the 1990s he met Mr Wolfgang Baumgartner, an Austrian national, living in Thailand who himself became a heroin addict. Le Pavoux returned to Jersey in early 2002. He opened a shop called “Asian Arts” offering for sale artefacts bought in Thailand.

3 In July 2002 Baumgartner flew to Vienna to see his parents, and then went by rail to Zurich where he bought 237 grams of heroin at a price substantially below the price obtainable in Jersey. He secreted the heroin internally. On Friday 5 July 2002 he flew to Jersey. He took a room at the Uplands Hotel where he excreted the heroin packages.

4 On Sunday 7 July 2002 Baumgartner met Le Pavoux at about 2 pm in St Helier in the street near Le Pavoux's shop. Baumgartner had not succeeded in making contact with Le Pavoux since arriving on 5 July 2002, and we emphasise that this encounter in the street was entirely by chance. The two men arranged to meet at 3 pm at the Beaufort Hotel. Baumgartner did not attend, apparently due to dislike for and distrust of Le Pavoux. Le Pavoux rang Baumgartner on his mobile phone four times shortly after 3 pm but without success. At about 7 pm the police arrested Baumgartner at the Uplands Hotel and seized the heroin in his possession. Just before this arrest he had spoken to Le Pavoux and arranged to meet at about 8 pm at the Beaufort Hotel. Le Pavoux was arrested when he had arrived for this meeting at the Beaufort Hotel. Le Pavoux was carrying in a bag a set of digital scales, a needles box, a small knife, a straw and other articles. Another man, Mr John Philip McConnachie, was arrested outside the hotel in his car. He had driven Le Pavoux to the hotel. He was later released without charge.

5 On 8 July 2002 Le Pavoux was charged with three counts:

Count 1, with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of diamorphine (heroin). This count was amended by consent on the first day of trial to allege that Le Pavoux was knowingly concerned between 1 March 2002 and 8 July 2002.

Count 2, with possession of cannabis.

Count 3, with possession of diamorphine.

6 Baumgartner was charged with three counts:

Count 4, with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of diamorphine.

Count 5, with possession of diamorphine

Count 6, with possession of diamorphine with intent to supply.

7 Baumgartner pleaded guilty to Counts 4 and 6, Count 5 having been withdrawn by the Crown.

8 Le Pavoux pleaded guilty to Counts 2 and 3, but not guilty to Count 1.

9 The trial of Le Pavoux in the Royal Court on Count 1 took place on 27 and 28 January 2003 before Commissioner Francis Hamon OBE and Jurats Mazel Joan Le Ruez (née de Gruchy) MBE and Geoffrey Allo. On 28 January 2003 Le Pavoux was convicted on Count 1.

10 Shortly before this trial, on 22 January 2003, Le Pavoux was arrested and charged with possession of 1.76 grams of cannabis. On 23 January 2003 be pleaded guilty in the Magistrate's Court. His plea of guilty was renewed in the Royal Court on 7 March 2003.

11 On 30 April 2003 Le Pavoux and Baumgartner were sentenced by the Royal Court (Commissioner Francis Hamon and Jurats Philip de Veulle, Michael Rumfitt, Edward Potter ISO, Arthur Quérée and John Tibbo). The Royal Court first heard an application for a confiscation order under Article 3 of the Drug Trafficking Offences (Jersey) Law 1988, and decided that Le Pavoux and Baumgartner had benefited from drug trafficking in the sums of £37,260 and £3,860 respectively, and that the amounts to be recovered from (and paid by) them were £22,577.27 from Le Pavoux and £123 and 500 Swiss francs from Baumgartner.

12 Le Pavoux was sentenced as follows:

Count 1 — imprisonment for 11 years

Count 2 — a fine of £100 or in default one week's imprisonment in lieu, concurrent

Count 3 — imprisonment for 3 months, concurrent

and on the second indictment to a fine of £100, or one week's imprisonment in lieu. The report of the Commissioner shows that the Jurats were unanimous on both conviction and sentence.

13 Baumgartner was sentenced on Count 4 to 3 years imprisonment, and on Count 6 to 18 months imprisonment, concurrent, and was recommended for deportation. Baumgartner has not appealed.

14 By Count 1 Le Pavoux was charged with a criminal offence under Article 61(2)(b) of the Customs & Excise (Jersey) Law 1999. This statutory provision, derived from similar provisions in the statute law of England and Wales, is very widely drawn indeed. The legal ingredients of the offence which the prosecution had to prove were:

• (i) that the goods were a controlled drug and were subject to a prohibition on importation by virtue of an enactment;

• (ii) that a fraudulent evasion of the prohibition had taken place in relation to the controlled drug;

• (iii) that Le Pavoux was “concerned” in the fraudulent evasion; and

• (iv) that Le Pavoux was “knowingly” concerned in the fraudulent evasion.

15 There was no issue on ingredients (1) and (2): the heroin was a controlled drug subject to a prohibition on importation, and a fraudulent evasion had taken place by the internally concealed importation of the heroin by Baumgartner.

16 The central question, which depended on ingredients (3) and (4), was whether Le Pavoux was knowingly concerned in the fraudulent evasion by Baumgartner. As the English Court of Appeal observed in R v Neal et al [1984] 3 AllER 156, the offence is widely drawn so as to cover not only those involved in planning and effecting the prohibited importation, but also those who might become involved after importation with the requisite knowledge and the requisite intention.

17 The only substantive evidence against Le Pavoux was that of Baumgartner, his alleged accomplice. The substantive ground of appeal was that Baumgartner's...