Jersey Unreported Judgments

[2009]JRC246

ROYAL COURT

(Samedi Division)

21^st December 2009

Before     :

Sir Philip Bailhache, Kt., Commissioner, sitting alone.

The Attorney General

-v-

David Rhys Hamilton

Dayle David Owens

R. C. P. Pedley, Esq., Crown Advocate.

Advocate I. C. Jones for Owens.

Advocate C. M. Fogarty for Hamilton.

JUDGMENT

THE commissioner:

Introduction

1.        This is a reference by the Crown seeking a ruling on a point of law relating to the prosecution of Dayle David Owens and David Rhys Hamilton.  There is, regrettably, no agreed statement of facts, but the following emerges from the skeleton arguments put before me by counsel.

2.        The defendants travelled to Jersey by ferry on 9^th May, 2009.  They were at that time unemployed bricklayers.  The car in which they travelled was owned by Owens.  Hamilton had provided the funds of £400 for the journey which he claimed had come from his mother.  Hamilton admitted that he was a user of cocaine and cannabis.  Owens was a user of cannabis. 

3.        On arrival in Jersey the defendants told customs officers that they had come to the Island for a short fishing holiday.   A small piece of cannabis was found in the car.  No charge resulted from that.  When the rear wheels of the car were examined, packages containing nearly 1 kilogram of cocaine were found taped inside.  The street value of the drugs was approximately £79,000. 

4.        During interview Hamilton said that he did not know that there were drugs in the car; he believed that they were transporting cash.  He claimed not to know where the cash was concealed, and said that each of them was to receive £1,000 for bringing the money into the Island.  He is recorded as saying:-

"When I got caught with the money I wouldn't be in so much trouble as I would with a fucking - I don't know what - as far as I'm concerned, I didn't know what the money was for.  I didn't know if it was for coke.  I just thought I was bringing money over for whatever."

5.        Owens was told of Hamilton's admission, and gave the same explanation that he believed that they were transporting cash to Jersey.  He had no idea that there were drugs in the car.  Both men refused to give any information about their associates.  The defendants were charged with being knowingly concerned in the fraudulent evasion of a prohibition on the importation of a controlled drug, namely cocaine, contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999. 

Question of law

6.        The issue of law, as described as by the Crown Advocate in his skeleton argument, is "whether money can amount to a prohibited item as described in the Customs and Excise (Jersey) Law 1999".  Put another way, is a belief that money is being imported, if accepted, a defence to a charge of being concerned in the importation of a controlled drug?

7.        Article 61(2)(b) of the 1999 Law provides:-

"(2)     Without prejudice to any other provision of this Law, any person who is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempted evasion of -

.....

(b)       any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment

.....

shall be guilty of an offence."

The importation of controlled drugs is prohibited by Article 4(1) of the Misuse of Drugs (Jersey) Law 1978.

Mistake as to the nature of controlled drug

8.        All counsel agree that a mistake of fact as to the nature of the controlled drug which was being imported is neither a mitigating nor an exonerating factor.  In Campbell-v-Attorney General [1995] JLR 136 the Court stated at 145:-

"In our judgment, a courier who knowingly transports illegal drugs must be taken to accept the consequences of his actions.  As the Attorney General put it, the moral blameworthiness is the same, whatever the nature of the drugs transported.  Furthermore, viewed from the perspective of the community, the evil consequences flowing from the dissemination of Class A drugs are not mitigated in the slightest by the erroneous belief of the courier that he was transporting a Class B drug.  There may be very exceptional circumstances in which a genuine belief that a different drug was being carried out might be relevant to sentence.  But in general we endorse the Royal Court's view in the case of Campbell that an erroneous belief as to the type of drug being carried is not a mitigating factor."

Nor, I would add, is it an exonerating factor. 

Analysis of offence under Article 61(2)(b)

9.        The question here is whether a mistaken belief that the imported goods were of a different kind can be a defence to a charge under this Article.  There are two elements to the offence, namely the actus reus (the unlawful act) and the mens rea (the guilty mind).  The unlawful act consists of the importation of prohibited goods.  If, therefore, a defendant, believing that the goods in question are cocaine, is concerned in the importation of sugar, there is no offence.  The importation of sugar is not prohibited.  There is no actus reus.  It may be that a prosecution for a criminal attempt would lie, but there is no substantive offence involving importation of prohibited goods.  I turn to the mens rea relating to the offence, which has been considered in two cases cited to me.

10.      The first is Barr-v-Attorney General [2003] JCA 158.  In this case, an oven containing a quantity of heroin had been imported into Jersey.  The defendant's account was that he had driven the van on to the ferry knowing that the oven was inside but that he was completely ignorant as to what the oven contained.  He admitted that he knew that there was something "dodgy" about the trip, but no more than that.  The defendant had pleaded guilty in the Royal Court and had been sentenced to nine years' imprisonment.  Subsequently, evidence emerged that he might not have received adequate legal advice as to the constituent elements of the offence with which he had been charged.  After a hearing, the appeal was allowed and the conviction quashed.  The Court of Appeal stated that the extent of Barr's guilty knowledge as to the presence of the drugs inside the oven would be the crucial issue of fact to be determined by the Royal Court. 

11.      The second case is R-v-Taaffe (1984) 78 Cr. App. R 301.  Taaffe had entered the UK with cannabis strapped to his body and secreted in the spare wheel of his car.  His explanation to customs officers was that he thought that he was transporting money; he believed that money was the subject of a prohibition against importation.  He had pleaded guilty in the Crown Court after a ruling that the facts as he believed them to be did not afford a defence to the charge of being knowingly concerned in the evasion of a prohibition against the importation of a controlled drug.  On appeal to the Court of Appeal, his conviction was quashed, and the Crown appealed to the House of Lords.  The certified question was:-

"When a defendant is charged with an offence, contrary to section 170(20 of the Customs and Excise Management act 1979, of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug - Does the defendant commit the offence where he: (a) imports prohibited drugs into the United Kingdom; (b) intends fraudulently to evade a prohibition on importation; but (c) mistakenly believes the goods to be money and not drugs; and (d) mistakenly believes that money is the subject of a prohibition against importation."

12.      In upholding the decision of the Court of Appeal, Lord Scarman stated:-

"Lord Lane CJ construed the subsection under which the respondent was charged as creating an offence not of absolute liability but as one of which an essential ingredient is a guilty mind.  To be "knowingly concerned" meant, in his judgment, knowledge not only of the existence of a smuggling operation but also that the substance being smuggled into the country was one the importation of which was prohibited by statute.  The respondent thought he was concerned in a smuggling operation but believed that the substance was currency.  The importation of currency is not subject to any prohibition.  The learned Chief Justice concluded that: 'He [the respondent] is to be judged against the facts that he believed them to be.  Had this indeed been currency and not cannabis, no offence would have been committed.'

Lord Lane CJ went on to ask this question: 'Does it make any difference that the [respondent] thought wrongly that by clandestinely importing currency he was committing an offence?' The Crown submitted that it does.  The Court rejected the submission: the respondent's mistake of law could not convert the importation of currency into a criminal offence: and importing currency is what it had to be assumed that the respondent believed he was doing."

13.      Counsel referred me to a number of other English cases, but they add nothing, in my judgement, to Barr and Taaffe. 

Discussion

14.      Miss Fogarty, for Hamilton, submitted that a ruling such as that sought by the Crown Advocate would be to enable a defendant to be convicted on the basis of facts not particularised in the indictment.  Counsel submitted that if the Court were to extend the mens rea of the offence under Article 62(2)(b) in such a way, this should not be done retrospectively.  I do not consider that this ruling will extend the mens rea of this offence so that counsel's concern does not arise. 

15.      Mr Jones, for Owens, submitted that the law was settled; the Crown was required to prove that the defendant knew that he was importing a prohibited item.  So far as it goes, this submission seems to me to be, on the authorities, correct.  But in the context of this case it begs the question of whether the importation of money is in fact prohibited.  In England, at the time when Taaffe was decided, the importation of money was not prohibited.  Now, it appears that there is a European directive which does prohibit the importation of cash.  The particular directive was not placed before me because all counsel agreed that it had no application in Jersey. 

16.      The answer to the question - is the importation of money into Jersey prohibited? - is not, however, straightforward and the question posed by the Crown Advocate does not seem to me to admit of an unqualified answer.  In certain circumstances it is unlawful to import money into Jersey.  For example, Article 29 of the Drug Trafficking Offences (Jersey) Law 1988 provides:-

"The importation or exportation of goods intended by any person for use in drug trafficking or of the proceeds of drug trafficking is hereby prohibited".

If, therefore, a person imports money into Jersey, knowing that it is to be used for the purposes of drug trafficking, or knowing that the money is the proceeds of drug trafficking, such importation would amount to an offence under Article 61 of the Customs and Excise (Jersey) Law 1999.  I have, however, been directed to no authority suggesting that the importation of money into Jersey is in itself a prohibited act. 

Conclusion

17.      The mens rea of the offence under Article 61(2)(b) of the 1999 Law involves a knowledge or belief that the goods imported were prohibited goods.  It is not necessary for the prosecution to prove that the defendant knew precisely what the goods were.  It is sufficient that the prosecution can establish that the defendant knew that he was engaged in an operation involving the importation of goods which were subject to a prohibition.  I respectfully adopt the words of Widgery LJ (as he then was) in R-v-Hussain (1969) 53 Cr. App. R. 448, (which is still good law in England) when he stated:-

"It seems perfectly clear that the word 'knowingly' in the section in question is concerned with knowing that a fraudulent evasion of a prohibition in respect of goods is taking place.  If, therefore, the accused knows that what is on foot is the evasion of a prohibition against importation and he knowingly takes part in that operation, it is sufficient to justify his conviction, even if he does not know precisely what kind of goods are being imported.  It is, of course, essential that he should know that the goods which are being imported are goods subject to a prohibition.  It is essential he should know that the operation with which he is concerning himself is an operation designed to evade that prohibition and evade it fraudulently.  But it is not necessary he should know the precise category of the goods the importation of which has been prohibited."

The English statutory provision is for all practical purposes identical to Article 61(2)(b) of the 1999 Law.

18.      Applying those principles to the facts of this case, I do not find it possible to give an unqualified affirmative or negative answer to the question posed by the Crown Advocate.  I would answer the question, and would propose to direct the Jurats, in this way.  First, the prosecution must prove that the goods imported were prohibited goods.  The goods in this case were cocaine, and there is no dispute that the importation of cocaine is prohibited.  Secondly, the prosecution must prove that the defendants knew or believed that the goods which they were importing were prohibited goods.  If the Jurats find that these defendants knew that there was cocaine, or some other controlled drug, in the vehicle, the verdict must be 'Guilty'.  If the Jurats find that the defendants believed that they were importing money which was either to be used for the purposes of drug trafficking or was itself the proceeds of drug trafficking, the verdict must be 'Guilty'.  If the Jurats find that the defendants believed they were importing money, but no more than that, the verdict must be 'Not Guilty'.  I accordingly answer the Crown Advocate's question in that way.

Authorities

Customs and Excise (Jersey) Law 1999.

Misuse of Drugs (Jersey) Law 1978.

Campbell-v-Attorney General [1995] JLR 136.

Barr-v-Attorney General [2003] JCA 158.

R-v-Taaffe (1984) 78 Cr. App. R 301.

Drug Trafficking Offences (Jersey) Law 1988.

R-v-Hussain (1969) 53 Cr. App. R. 448.