Jersey Unreported Judgments

 2001/107

ROYAL COURT

(Samedi Division)

16th May 2001

The Attorney General

-v-

Nicola Sarah Jane Lomas

Application for costs, under Article 2(1)(c) of the Costs in Criminal Cases (Jersey) Law, 1961, arising out of the abandonment by the Crown of a charge of possession of heroin with intent to supply.  

D. E. Le Cornu, Esq, Crown Advocate.

Advocate C.M. Fogarty for the Defendant.

JUDGMENT

THE BAILIFF:

1.        This an Application for costs, arising out of the abandonment by the prosecution of a charge of possession of heroin with intent to supply.  The facts, very briefly, are that the defendant was arrested by customs officers at Jersey Airport on 11th May, 2000 and found to be in possession of 29 grams of heroin, which she had secreted internally.  She admitted that she was a heroin addict and stated that she was on a methadone programme.  She held a seven day return ticket to England and was also in possession of some £4000 in cash. She told the officers that this money was part of the proceeds of substantial winnings at Bingo, totalling some £120,000.  This claim was investigated and later found to be true.  In interview the defendant told the investigating officer that she had not taken heroin for some two weeks and had not taken methadone for six weeks prior to her arrest.  Bearing in mind that she was in possession of a commercial quantity of heroin, worth some £8,000 on the streets of Jersey, it is not surprising that the prosecution decided to charge the defendant, not only with importation of heroin, but also with possession of heroin with intent to supply.

2.        On 4th January, 2001, however, the prosecution abandoned the charge and on 3rd May, 2001 the defendant was sentenced to three and a half years' imprisonment on the single count of importation of heroin.

3.        At the outset of the hearing I drew the attention of counsel to the recent case of the Attorney General-v-Gouveia (15th September, 2000) Jersey Unreported, where the court examined the principles to be applied when applications are made, pursuant to the Costs in Criminal Cases Law (Jersey), 1961, in a case of this kind.  In Gouveia, the Court decided that it had jurisdiction to make an award of costs in favour of the defence, where the defendant was convicted of one charge, but acquitted of another.  The Deputy Bailiff observed, in delivering the Judgment of the Court at paragraph 11:

"Suppose an indictment with two counts, the accused has, at all times, pleaded guilty to one count, but not guilty to the other, an Assize Trial is fixed in respect of the count to which he has pleaded guilty. The parties prepare for trial and incur all the usual expenses in doing so.  The day before the trial the prosecution realises, belatedly, that its case is hopelessly inadequate and throws in its hand before the jury is sworn in and the Assize Trial commences. A not guilty plea is, therefore, accepted.  If Mr Costa is right the Court will have no jurisdiction in those circumstances to award costs, no matter how unreasonable the prosecution had been.  As mentioned earlier he has conceded that if, in the example I have given, the accused were acquitted by the jury, he would be entitled to apply for costs.  Is it really so very different if the prosecution drops the case at a late stage rather take it through to the bitter end?"

Later in the judgment, at paragraph 25, the Deputy Bailiff stated:

"An award would, however, often be appropriate where the prosecution decided to go on with a particular count, or counts, having had a reasonable opportunity to consider the pleas, and additional costs are incurred as a result.  If, in such a case, there is either an acquittal on these counts, following a trial, or the prosecution drop the counts at a late stage, after considerable extra costs have been incurred, an order for defence costs may well be appropriate."

4.        In this case, the defendant did, indeed, admit the importation of the heroin, but denied its possession with intent to supply from the outset.  Miss Fogarty submits that from the very beginning the prosecution was in possession of information which should have alerted it to the fatal weaknesses in the case, on the charge of possession with intent to supply.  When the defendant was examined by the police doctor shortly after her arrest, she told the doctor that she was on a methadone programme and was taking 40 ml, which is the equivalent of 40 mg per day, of that drug, to wean herself off her heroin addiction.  As it happens, the heroin equivalent of 40 mg per day was almost exactly the amount which would have been consumed during a seven day period and almost the exact amount of which the defendant was found to be in possession.  Mr Le Cornu has submitted, however, that it was not known to the prosecution until the end of December 2000 that the programme of methadone treatment was a supervised programme and that evidence was available from pharmacy records, that the defendant was indeed consuming that amount of methadone daily, despite the contrary information which she gave to the investigating officers.  On 29th December 2000 the defendant's legal adviser forwarded these copies of these records to the prosecution, together with a report from a defence expert, Dr. Sharky, which suggested that it was conceivable that the defendant had developed a 4 gram a day heroin habit at the time of her arrest.  This information was forwarded to the prosecution expert, Dr. Payne-James, who in a supplementary report, dated 3rd January 200, confirmed his agreement with the conclusion of Dr. Sharky.  The following day the prosecution abandoned the charge of possession with intent to supply.

5.        Miss Fogarty argued that it was the duty of the prosecution to investigate the discrepancy between what the defendant had told the investigating officers and what she had told the police doctor as to her consumption of methadone.  If they had done so, they would have established, she submitted, that the defendant was on a supervised programme, which is apparently common in the part of Scotland from which the defendant comes and would have established that she could have established a heavy heroin dependency, which might have explained her possession of such a substantial quantity of heroin at the time of her arrest.  It is true that the prosecution has a duty to investigate every relevant avenue in order that justice may be done.  It seems to me, however, on balance, that the submission of Miss Fogarty in the context of this case goes too far.  The defendant herself had lied to the investigating officers as to her recent consumption both of methadone and of heroin.  Of all people, she was best placed to know that she was on a supervised methadone programme and that evidence, therefore existed, which could prove her recent consumption of this drug.  She could have supplied the information which would have led the investigating officers to verify the claim which she made to the police doctor, but she failed to do so until very late in the day.

6.        It seems to me, therefore, that the defendant did bring upon herself the charge of possession with intent to supply.  In the exercise of my discretion I accordingly refuse the application for costs. 

Authorities

AG-v-Gouveia (15th September 2000) Jersey Unreported; [2000/182]