Jersey Unreported Judgments

2001/105

ROYAL COURT

(Samedi Division)

 

15^th May 2001

 

 

The Attorney General

-v-

Stephan Ernst Schlandt.

 

Trial before the Inferior Number, en police correctionelle, on a plea of not guilty to:

 

1 count of:

Possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law 1978: Count 1: Heroin

 

[The accused had previously entered pleas of guilty to 1 count of supplying cannabis (Count 2) and to 1 count of possession of heroin (Count 3).]

 

Preliminary issue heard in the absence of the Jurats:  the admissibility of transcripts of four police question and answer interviews.

 

 

A.R. Binnington, Crown Advocate.

Advocate D.C. Sowden for the accused.

 

 

 

JUDGMENT

 

THE Commissioner:

1.      Miss Sowden has made submissions as to the admissibility of the evidence of the interviews in this case, based upon two separate grounds.  She alleges a breach of Code C and, in addition, oppression.  With the agreement and indeed encouragement of counsel, I have considered the issues on the basis of the texts of the interviews.  I have not heard the tapes and I have not heard the officers, but I have been fully addressed on each of the four interviews and I am grateful for that assistance.

2.      With regard to the alleged breaches of the Code, the situation is that Code C is mandatory and I have been especially referred to paragraphs 12(4) and 17(1). 

12(4) is in these terms;

As soon as a police officer who is making enquiries of any person about an offence believes that a prosecution should be brought against him and that there is sufficient evidence for it to succeed, he should ask the person if he has anything further to say.  If the person indicates that he has nothing more to say, the officer shall, without delay, cease to question him about this offence. 

 

And then, 17(1);

 

When an officer considers that there is sufficient evidence to prosecute a detained person and that there is sufficient evidence for a prosecution to succeed and that the person has said all that he wishes to say about the offence he should, without delay, bring him before the custody officer who shall then be responsible for considering whether or not he should be charged. 

3.      It therefore follows that I have to consider the state of mind or minds of the questioning officers at all stages of these interviews.  In addition, Miss Sowden  has submitted that during a period of build up, the questioning became oppressive and I have, in particular, had regard in this context to the case of Fulling (1987), in 85 Criminal Appeal Reports 136 and to the Royal Court case of Dowse and Heys (18^th December, 1996) Jersey Unreported. 

4.      I have been taken through these four interviews by Miss Sowden and also addressed upon them by Mr Binnington.  I have had regard, in particular, to a number of observations and statements made by the two officers who were conducting the interviews and asking all the questions.  At pages 10 and 11 of the second interview the officer said "I believe that you worked this out and have sold heroin to make that money."  That was an accusation repeated on a number of occasions thereafter in face of denials by the, then, suspect.  At page 16, the officer said; "all these bits of paper relate to the sale of heroin, without doubt, Steve."  At page 27, he said: (this was about the document at page 143)  "That relates to bags of heroin and you've written that, Steve, because you've been selling heroin."  On the next page, that is at 28, he said "I am telling you now, you've been selling bags to help get you and Nicky through."   And he repeated that more than once immediately thereafter.  This was followed by questions from which it emerged that the accused was unable to explain the significance of the word 'bags', which, it is common ground, could not refer to cannabis.  Then at page 31 of that second interview: "You're selling heroin to pay back your debt, that's obvious." 

5.      The position, therefore, at that stage at the end of the second interview was that the officers were at least conducting the questioning in what Mr Binnington has referred to as a forthright manner but, he says, that does not necessarily mean that it was oppressive.  Police officers were plainly not obliged to accept denials at their face value. However, at the beginning of the third interview, and at page 2 of it, the officer asking the questions said this: "I believe there is ample evidence against you for us to be looking at a charge against you of possession (he appears to be trying to say) with intent to supply heroin."  The wording is a bit muddled on the transcript, but the sense is plain.  On the same page the same officer said: "I have never seen dealer lists in as much detail as this."   And then on the next page: "All I'm saying is that you have been knocking out bags, otherwise you'd have no reason on God's earth to have written all these things down."  And finally, on page 7, he said: "I know you've been knocking out bags, D.C Marquand knows you've been knocking out bags, you know you've been knocking out bags.  I believe that when a Magistrate, or anyone else reads that, they are going to know you have been knocking out bags.  I'm giving you an opportunity on tape to say exactly what and then give your reason and help yourself."  It seems to me that that is a clear statement of the officer's belief as to the state of the evidence and at that stage, in my judgment, there was a clear breach of Code C, paragraph 12(4), with paragraph 17(1) necessarily following upon it.

6.      I should say that I have also been asked to consider the question of oppression in the light of the authorities, in particular Fulling, where it was held that the word was to be given its ordinary dictionary meaning, that is to say 'the exercise of authority, or power, in a burdensome, harsh or wrongful manner, unjust or cruel treatment, of subjects, inferiors etc., or the imposition of unreasonable or unjust burdens.'  I have taken that into account.  I have also been reminded of this passage in Dowse and Heys, with its quotation from Clarkin:

  The correct principle is that a discretion to exclude evidence, otherwise admissible, should be exercised when, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the Trial Court is satisfied that the use of that evidence would undermine the justice of the trial.  The power to exclude evidence on that basis is a necessary incident to the overriding duty of the Trial Court, which is to ensure that the accused has a fair trial.

7.      If it should have any significance, in view of the opinion I have already formed as to the breach of Code C, I would hold that the first two interviews were not oppressive within the meaning of that word and of the authorities which are well known, but that any further questioning as from the second page, from which I have quoted in the third interview, would indeed be oppressive, as well as being in breach of Code C.  It must necessarily follow, from what I have stated, that the fourth interview is necessarily also ruled out.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Authorities

Archbold (2000 Ed'n); para 15-442: p.1502.

States of Jersey Police Code of Practice for Detention, Treatment and Questioning by Police Officers: para 12.4 (p28); para 17.1 (p.34).

Fulling (1987) 85 Cr.App.R 136.

A.G.-v-Dowse & Heys (18^th December 1996) Jersey Unreported.