Warren, Welsh, O'Brien, Woodward, Hunt and Lucas v AG

• Jurisdiction: Jersey
• Court: Court of Appeal
• Judge: Montgomery JA
• Judgment Date: 01 July 2009
• Neutral Citation: [2009] JCA 135
• Date: 01 July 2009

[2009] JCA 135

COURT OF APPEAL

Before:

Jonathan Sumption Esq., Q.C.; President; Dame Heather Steel, DBE, and Clare Montgomery, Q.C.

Curtis Warren

John Alan Welsh

James O'Brien

Jason Woodward

Paul Hunt

Oliver Lucas

and

The Attorney General

Curtis Warren acting on his own behalf.

Advocate S. E. Fitz for Welsh.

Advocate J. W. R. Bell for O'Brien.

Advocate D. Gilbert for Woodward.

Advocate M. J. Haines for Hunt.

Advocate M. L. Preston for Lucas.

H. Sharp, Esq., Crown Advocate.

Advocate R. Tremoceiro, as an amicus to the Court.

The Deputy Judicial Greffier acting on his own behalf.

Authorities

Customs and Excise (Jersey) Law 1999.

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Warren and Others v AG [2008] JCA 135.

Hollington v Hewthorn [1943] KB 587.

Styles and Others v AG [2006] JLR 210.

R v Welsh [1999] 2 VR 62.

Civil Evidence Act 1968.

R. v. Robertson [1987] Q.B. 920.

R v Kordasinski [2007] 1 Cr. App. R. 17.

Criminal Justice Act 2003.

ARA v Virtuso [2008] 3 All ER 637.

Proceeds of Crime Act 2002.

Evidence Act 1851.

R. v. Mauricia (Richard Audberto) [2002] 2 Cr. App. R. 27.

Willis (unreported) January 29th, 1979, CA.

Thrussell (unreported) November 30th, 1981.

Madden [1986] Crim LR 804, CA.

Bagga (unreported) May 21st, 1986.

Groves [1998] Crim LR 200, CA.

R v Ilomuanya [2005] EWCA Crim 58.

Makin v Attorney General for New South Wales [1894] AC 507.

DPP v Boardman [1975] AC 421.

Criminal Justice (International Co-operation)(Jersey) Law 2001.

R v Davis [2008] AC 1128.

R v Glen Williams 97/7714W2.

R v Ryan Simmonds MacDonald [2008] EWCA Crim 2902.

Haywood v Sweden Application No 14106/88.

Taylor v Crabb [1995] Crim LR 253.

R v B [2008] EWCA Crim 1144.

Criminal Evidence (Witness Anonymity) Act 2008.

R v Mayers, Glascow and Others [2008] EWCA Crim 2989.

R v Evans (2005) EWCW 3542.

R v H [2007] 2 AC 270.

Montgomery JA

Introduction

1 This is the judgment of the Court. These appeals concern criminal proceedings brought by the Crown before the Royal Court in which the defendants are charged with a conspiracy to fraudulently evade the prohibition on the importation of a controlled drug, namely cannabis, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999. The charge relates to an allegation that there was an agreement between the defendants and certain Dutch nationals that they should import cannabis into the Island of Jersey from the continent between May and July 2007. The defendants were arrested before any cannabis was imported. We shall refer to the individuals in this judgment as the defendants, even though they are in some instances the Appellants (appealing with the leave of the Commissioner in the Royal Court), in other instances Applicants seeking the leave of this court and also Respondents to applications and appeals brought by the Crown. We shall similarly refer to the Crown as such throughout despite the fact that it is also variously Appellant, Applicant and Respondent.

2 The evidence led in support of the case for the Crown consists in the main of surveillance and other evidence relating to the contacts between the defendants and two Dutch nationals, Zulfu Vatandas and Mohamed Liazid. Mr. Warren is alleged to be the architect of the conspiracy and to have recruited Mr. Welsh to put his scheme into effect. The Crown alleges that it was Mr. Welsh who recruited the remaining conspirators. It is claimed that it was agreed that Mr. Woodward and Mr. Hunt would transport money to Amsterdam to buy the drugs from Liazid and that Mr. Welsh was then to drive to Amsterdam to collect the consignment of drugs from Liazid. Mr. Welsh had made contact with Mr. O'Brien whom the prosecution allege was to be responsible for transporting the drugs by boat from France to Jersey. However, following a meeting between Messrs Welsh, Liazid and Vatandas in Amsterdam, it appears that the purchase and transportation of the drugs was postponed. The Jersey Police then intervened and arrests were made before any importation could take place.

3 In the course of a preparatory hearing before the Royal Court, the Commissioner, Sir Richard Tucker KBE, made a number of rulings in relation to the admissibility of evidence sought to be adduced by the Crown. He also made a ruling restricting the contents of an audio surveillance schedule that has been prepared by the Crown for use in front of the jury. He also refused to recuse himself in the aftermath of an application made by Mr. Warren with a view to procuring the withdrawal of the then Crown Advocate, Advocate J. Gollop. In addition Commissioner Clyde Smith refused an application brought on behalf of Mr. Warren for leave to move for judicial review of a decision to refuse to grant him legal aid to instruct an English barrister to assist him in the trial.

4 Article 86(3) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 (the PPCE Law) provides that, at a preparatory hearing, a Commissioner “may make a ruling as to any question as to the admissibility of evidence and any other question of law relating to the case.”

5 Under Article 90 of the PPCE Law an appeal lies to the Court of Appeal from any ruling under Article 86(3) but only with leave. The jurisdiction of this Court under the PPCE Law was considered in the earlier decision of the Court in this case, Warren & others v AG [2008] JCA 135. The Court held that leave to appeal should not be granted “ unless it is seriously arguable, not that the discretionary jurisdiction might have been exercised differently, but that it was unreasonable for it to have been exercised in the way that it was.”

The issues

6 The rulings by the Commissioner give rise to issues as to the admissibility of:-

• (i) The antecedent records of third parties (Liazid and Vatandas);

• (ii) Records of prison visits made to Mr. Warren by Liazid and Vatandas;

• (iii) The previous convictions of Mr. O'Brien;

• (iv) Evidence obtained pursuant to letters of request;

• (v) Anonymous documentary records and statements made by Dutch surveillance officers;

• (vi) The evidence of Brig. L. C. Bal of the Dutch Police in relation to the identification of Vatandas;

• (vii) Comments made by Mr. Warren on his entry into Jersey;

• (viii) Evidence of a conversation between Messrs. Welsh and Warren referring to the mayor of Sao Paolo; and

• (ix) Evidence of the exclusion of Mr. Warren from the Netherlands.

7 In addition the Commissioner has ruled that the Crown could not put before the jury a schedule of the audio surveillance recordings which includes details of the dates and times of calls, the identity of the speakers, and the Crown's interpretation of certain parts of the conversations in the form of commentary.

8 The Commissioner refused to recuse himself on the application of Mr. Warren. Mr Warren made the application on the basis that the Commissioner's failure to determine questions raised in relation to the conduct of Crown Counsel in Mr. Warren's favour showed the Commissioner to be biased.

9 Finally Commissioner Clyde Smith refused an application brought on behalf of Mr. Warren for leave to move for judicial review of the decision to refuse to grant him legal aid to instruct an English barrister to assist him in the trial in which he wishes to represent himself, having dismissed his Jersey advocate and having declined the appointment of a replacement.

The antecedent record of third parties

10 The Crown contends that the fact that Liazid and Vatandas have criminal convictions in relation to drugs offences committed abroad forms important background evidence that is relevant to prove the purpose of a conversation between Liazid and Mr. Welsh in a hire car in Amsterdam and a later meeting between Liazid, Vatandas and Mr. Welsh. Liazid is named as a co-conspirator in the indictment in Jersey. Vatandas is not named in the indictment but it is common ground that Vatandas and Liazid are both unindicted co-conspirators in the case.

11 The defendants contend, through Advocate Gilbert, that the foreign criminal convictions of third parties are not relevant or admissible under Jersey law and that, even if they were admissible, any such evidence should be excluded in this case in the exercise of the discretion conferred by Article 75 of the PPCE Law.

12 The Crown contends that the decision in Hollington v Hewthorn [1943] KB 587 does not operate in Jersey and that evidence of the previous convictions of a third party is admissible in Jersey to prove that a third party has been guilty of a criminal offence and to prove his bad character because the evidence is relevant. It was argued on behalf of the Crown that if the evidence is relevant then it is admissible.

13 The Commissioner held in his ruling dated 3 April 2009 that, whilst he was bound by the decision of this Court in Styles & others v AG [2006] JLR 210, to hold that evidence of the conviction of a defendant is not admissible in criminal proceedings in Jersey, this decision was not applicable to convictions of third parties. The Commissioner also held that he was entitled to disregard the decision in Hollington v Hewthorn. The Commissioner decided that foreign convictions of persons, other than defendants, were potentially admissible under the laws of Jersey and that the convictions of Liazid and Vatandas were relevant to establish the purpose of their meetings with Mr. Welsh and to rebut any suggestion that these were innocent encounters. The Commissioner held that the fact of the convictions could be proved by the production of foreign judgments or judicial documents and that the probative value of the evidence was not outweighed by its prejudicial effect.

14 The decision requires this Court to determine (i) the admissibility of evidence of previous convictions, as well as (ii) the form in which evidence of a previous foreign conviction, if...