Jersey Unreported Judgments

2000/94

3 pages

ROYAL COURT

 

30^th May, 2000

 

Before: R.D. Harman, Esq., Q.C., Commissioner, sitting alone.

 

 

IN THE MATTER OF

The Attorney General

-v-

Karen Irene Durkin;

Laurence Anthony Durkin.

 

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

                    Count 1: MDMA;

                    Count 3: MDMA;

                    Count 5: Heroin.

 

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

                    Count 2: MDMA;

                    Count 4: MDMA;

                    Count 6: heroin;

                    Count 7: cannabis resin.

 

Voire dire:  Applications by counsel for Karen Irene Durkin:

(1)       that urine samples, taken by police surgeon be excluded on grounds that procedure guidelines were not followed and that evidence is more prejudicial than probative.

(2)       that a pair of boots be excluded as exhibits on ground that evidence is more prejudicial than probative.

 

Voire dire:  Application by both defence counsel to exclude parts of financial statement,

compiled by Anthony Michael Tanguy.

 

N.M. Santos Costa, Esq., Crown Advocate;

Advocate C.R.G. Deacon for Karen Irene Durkin;

Advocate Mrs. S.A. Pearmain for Laurence Anthony Durkin.

 

JUDGMENT

 

THE COMMISSIONER:

 

1.            Miss Deacon submitted to me that the evidence with regard to the taking of the urine sample, and the results of the analysis were objectionable for reasons that I will spell out in a moment.  She accepted that the sample was taken with her client's verbal consent but she submitted to me that the prejudicial effect of the evidence that the sample showed the presence of both morphine and cannabis was prejudicial to an extent that it would outweigh the probative value of that evidence.

 

2.            She said that there was no connection which could be substantiated between the drugs which were seized at her premises and those found in her system.

 

3.            The position at the present time is that there are no special procedures laid down in Jersey for the taking of a urine sample.  There are rules in England which are not yet the law in Jersey.  There is, I am told, nevertheless, law in draft form.

 

4.            It was submitted to me that she should have been warned about the likely use of the sample and was not so alerted.  In other words, she was not told what the purpose of the sample would be.  She was not invited to put her verbal agreement into writing and she was not asked if she wished to have legal advice specifically on this topic.

 

5.            Mr. Santos Costa has put the matter fairly and accurately in my judgment in emphasising that the ultimate question that I have to determine is: was the sample given voluntarily and in circumstances which were fair?  He contends - and I think this must be obvious - that both defendants would know what they were agreeing to in circumstances such as this.

 

6.            He has submitted that this evidence is highly probative to show that Karen Durkin does use heroin.  She admits taking cannabis on odd occasions but has made no admission with regard to heroin.  He makes the point that the majority of the drugs were actually found in her bedroom.  She has of course pleaded not guilty to each and every count.  She was in fact told on three occasions during the interview that she was entitled to legal advice.

 

7.            Plainly, there was no element of trickery or oppression and I have to consider whether there was present here the standard of fairness which the public expects from a criminal trial.  Has that standard been met?  In my judgment it has and I therefore allow this evidence to be given.

 

8.            I also allow evidence with regard to the boots found in Mrs. Durkin's own car which contained traces of heroin in the holed-out heels of both boots.  It is right of course that she has always denied that those boots were hers and that the drugs found in the boots are not contained in the indictment.  I have to consider the prejudicial effect against the probative value and in my opinion it does have probative value and if she says at any later stage in evidence that the boots are not hers that would be a matter for the Jurats to consider.  I note in passing that Mr. Santos Costa says that he does not know why the heroin was not in the indictment for which he  was not personally responsible.

 

9.            With regard to the financial information which the prosecution seeks to lead, I have to consider first of all the submission that has been made to me to the effect that once again this is evidence, which may be prejudicial, is not probative.  I have considered the authorities which have been quoted to me and of course I take them fully into account but where the purpose of the evidence is to show that a sum of money in the region of £33,000 was spent during a period when rather less than half that sum was being paid into Mrs. Durkin's bank account, that is evidence in my judgment for the Court to consider.  On the other hand, and late in the day though it may be in coming, I have concluded that the sum of money (£267) found on Laurence Durkin in cash and the evidence that he was in possession of an item of clothing which was worth in the region of £245 is not evidence which should go before the Court as evidence capable of going to further the case for the prosecution.

Authorities

 

 

Archbold (1999 Ed'n): pp.449-452; 1046-1065; 1545-1557; 2192-2193.

 

Archbold (2000 Ed'n): pp.1496-1505; 1521-1522.

 

R -v- Grant [1996] 1 Cr.App.R. 73; [1995] Crim.LR 715.

 

Clarkin -v- AG (28^th August, 1991) Jersey Unreported CofA.

 

AG -v- Dowse and Heys (18^th December, 1996) Jersey Unreported.

 

AG -v- Dowse and Heys (23^rd December, 1996) Jersey Unreported.

 

Khan -v- United Kingdom (European Court of Human Rights: Application No. 35394/97)

(23^rd May, 2000) Times Law Reports.