Styles, Day, Carney and De Sousa v Attorney General

CourtCourt of Appeal
JudgeSmith, Jones and McNeill, JJ.A.
Judgment Date14 July 2006
Date14 July 2006
Smith, Jones and McNeill, JJ.A.

S.M. Baker, Crown Advocate, for the Crown;

R. Tremoceiro for Styles;

M. Pallot for Carney;

R. Juste for de Sousa;

M. Haines as amicus curiae for Day.

Cases cited:

(1) Aladesuru v. R., [1956] A.C. 49 ([1955] UKPC 29); (1955), 99 Sol. Jo. 760; 39 Cr. App. R. 184, applied.

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

(3) Att. Gen. v. Gorvel, 1973 J.J. 2503, applied.

(4) Att. Gen. v. Pagett, 1984 J.J. 57, dicta of Neill, J.A. considered.

(5) Baglin v. Att. Gen., 2005 JLR 180, applied.

(6) Barnes v. Att. Gen., 1987-88 JLR 669, applied.

(7) Campbell (A.T.) v. Att. Gen., 1995 JLR 136, applied.

(8) D.P.P. v. P, [1991] 2 A.C. 447; (1991), 93 Cr. App. R. 267; sub nom. R. v. P, [1991] 3 All E.R. 337, considered.

(9) Liverpool Roman Catholic Archdiocesan Trustees Inc. v. Goldberg (No. 3), [2001] 1 W.L.R. 2337; [2001] 4 All E.R. 950, applied.

(10) Makin v. Att.-Gen. for New South Wales, [1894] A.C. 57 ([1893] UKPC 56); [1891-4] All E.R. Rep. 24, referred to.

(11) Noor Mohammed v. R., [1949] A.C. 182; [1949] 1 All E.R. 365, considered.

(12) O'Brien v. Chief Const. (S. Wales), [2005] 2 A.C. 534; [2005] 2 All E.R. 931; [2005] UKHL 26, applied.

(13) R. v. Hopkins-Husson (1949), 34 Cr. App. R. 47, applied.

(14) R. v. Parks, [1961] 1 W.L.R. 1484; [1961] 3 All E.R. 633; (1961), 46 Cr. App. R. 29; 105 Sol. Jo. 868, applied.

(15) R. v. Randall, [2004] 1 W.L.R. 56; [2004] 1 All E.R. 467; [2003] UKHL 69, referred to.

(16) R. v. Stafford, [1968] 3 All E.R. 752n.; (1968), 53 Cr. App. R. 1, referred to.

(17) R. v. W (John), [1998] 2 Cr. App. R. 289, distinguished.

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

Legislation construed:

Court of Appeal (Jersey) Law 1961 (Revised Edition, ch.07.245, 2006 ed.), art. 26(1): The relevant terms of this paragraph are set out at para. 32.

art. 34: The relevant terms of this article are set out at para. 55.

Text cited:

Law Commission, Evidence of Bad Character in Criminal Proceedings, para. A.35, at 249 (Law Com. No. 273) (2001).

Criminal Law—drugs—importation—sentence—Class B drugs—Campbell starting points not excessive—applicable to all offences involving trafficking of Class B drugs, including conspiracy to import—not intrinsically objectionable that sentences much higher than other jurisdictions; inflate value of drugs in Island; and different in proportion to sentences for other offences

Evidence—similar facts—admissibility—admissible if probative value outweighs prejudice to accused—facts to be similar, not necessarily identical—if not sole evidence against accused, no requirement for "signature" or special feature—may be satisfied by striking similarity

The applicants were charged in the Royal Court with conspiracy fraudulently to evade the prohibition on the importation of a controlled drug, namely, cannabis resin, contrary to art. 61 of the Customs and Excise (Jersey) Law 1999.

The applicants were convicted in the Royal Court of conspiring to import cannabis resin, contrary to art. 61 of the Customs and Excise (Jersey) Law 1999, and sentenced to imprisonment. The Crown alleged that approximately 90 kg. of cannabis resin had been dropped from a light aircraft piloted by Styles into a field in Jersey. The drugs had been packaged so as to protect them from impact damage. It was alleged that Day and Carney had been passengers in the aircraft and had helped to drop the drugs and to search for them the following day. De Sousa was alleged only to have been involved in the unsuccessful attempt to find the drugs.

As part of its evidence against Styles, the Crown was granted leave by the Royal Court to adduce certain evidence on the ground that it comprised similar facts. That evidence concerned the flying by Styles of a light aircraft to Belgium in 2000. The aircraft had crashed and a bag containing Class A drugs, which had also been carefully packaged but in a slightly different manner to the drugs in the present case, had been found nearby. The jury was invited to infer that he had intended to drop those drugs from the aircraft. Evidence was also adduced that he had been convicted in Belgium of importing the drugs and sentenced to imprisonment, against which he had appealed unsuccessfully. The Royal Court found that the facts were very similar to the present case and that the dissimilarities were unimportant.

The Royal Court sentenced the applicants on the basis of the guidelines established in Campbell (A.T.) v. Att. Gen., which provided that the minimum starting point for an offence involving the commercial trafficking of more than 30 kg. of a Class B drug was 10 years' imprisonment. A starting point of 12 years was adopted for Styles, Day and Carney, even though the Crown had proposed a lower starting point for Day and Carney to reflect their lesser role in the offence, and a starting point of 10 years was adopted for de Sousa. Styles was in fact sentenced to 12 years' imprisonment; allowing for mitigation, Day and Carney were sentenced to 10 years and de Sousa to 7.

The applicants sought leave to appeal against their convictions and sentences. The court could allow an appeal against conviction, under art. 26(1) of the Court of Appeal (Jersey) Law 1961, if "it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or . . . on the ground of a wrong decision of any question of law or that, on any ground, there was a miscarriage of justice." Styles, Day and Carney also sought leave to adduce fresh evidence under art. 34(b) of the Law. Styles sought to adduce expert evidence from several witnesses, including his brother and his girlfriend. Styles's explanation for the failure to adduce the evidence at the trial conflicted with that of his advocate. In addition, Carney's advocate stated that, even if the fresh evidence had been available at the trial, he would not have chosen to adduce it.

Styles submitted that the Royal Court should not have admitted the Belgian evidence because (a) it was not sufficiently similar to the facts of the present case; (b) the court had not identified a "signature" or other special feature of the evidence; and (c) the probative force was limited, as it merely showed propensity and there was nothing unusual about the use of an aircraft to import drugs into the Island.

The Crown submitted that (a) evidence of Styles's conviction in Belgium was admissible as he had not challenged its admissibility in the Royal Court; and (b) in any case, he had not been prejudiced by the admission.

The applicants also submitted that their convictions were unreasonable and could not be supported having regard to the totality of the evidence against them. They drew attention to several specific respects in which the prosecution evidence was weak, flawed or inconsistent. When seeking leave to appeal against their sentences, they submitted that (a) the sentencing guidelines in Campbell were excessive, did not reflect the criminality of the offence when compared with other crimes, were inconsistent with other comparable jurisdictions, e.g. the United Kingdom, and merely served to inflate the value of drugs in the Island; and (b) further, the guidelines should not have been applied to a case of conspiracy to import drugs. De Sousa also submitted that his sentence of seven years' imprisonment was manifestly excessive given his alleged involvement in the offence and that it should therefore be treated as exceptional and a lower starting point adopted.

Held, ruling as follows:

(1) Styles would be refused leave to appeal against his conviction because the Royal Court had not erred in admitting the similar fact evidence concerning the events in Belgium. On an application to adduce evidence of similar facts, the court should first consider whether or not the evidence was logically probative and, if so, secondly, balance that probative value against the prejudice to the accused. The Belgian evidence was undoubtedly relevant to whether, in the present case, the drugs had been dropped from an aircraft piloted by Styles. Although there were some differences, e.g. the drugs were not the same type and had been packaged differently, to be admissible the facts had merely to be similar, not identical. The Royal Court had correctly held that the material facts were very similar and that the dissimilarities were unimportant. Secondly, whilst the evidence was highly prejudicial to Styles, that was outweighed by its probative value and it had therefore been properly admitted. Indeed, similar fact evidence would inevitably be prejudicial to an accused, often highly prejudicial. Although it was not necessary for the Crown to have identified a "signature" or special feature of the evidence, as it was not the only evidence of substance against Styles, if it had been necessary the similarities would have been so striking as to have satisfied that requirement ( paras. 14-16; paras. 19-20).

(2) Furthermore, the similar fact evidence was not inadmissible merely because it showed propensity on the part of Styles to have committed the present offence. Similar fact evidence would not necessarily be rejected because it showed propensity to commit the offence charged. Whilst the evidence might have been inadmissible on this basis if numerous other offenders were known to have imported drugs by dropping them from aircraft, the charge in fact involved sophisticated skills possessed by relatively few people and there appeared to have been no previous cases of drugs being imported into Jersey in this manner ( para. 18).

(3) Styles would, however, be granted leave to appeal against his conviction because evidence of his previous conviction in Belgium and the sentence and appeal had wrongly been admitted in the Royal Court. His appeal would, however, be dismissed, under the proviso to art. 26(1) of...

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