Jersey Unreported Judgments

2002/215

ROYAL COURT

(Samedi Division)

7^th November, 2002.

The Attorney General

-v-

Alexander McLees;

William Swanston

Following an abandonment by the prosecution of the charge of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug (diamorphine), contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999, on the ground that there was insufficient evidence to support it, application by the Defendants for costs under Article 2(1) (c) of the Costs in Criminal Cases (Jersey) Law 1961.

A.D.Robinson, Esq., Crown Advocate

Advocate J. C. Gollop for Alexander McLees

Advocate D. Gilbert for William Swanston

judgment

the commissioner:

1.        This application for costs on an abandoned prosecution came before the Court on Friday morning, 25th October, 2002, as part of the public business.  I heard counsel but deferred judgment until today as the papers were handed to me during the hearing.

2.        The application made is on behalf of two accused who were discharged on a criminal charge with two others of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug contrary to Article 61(2)(b) of the Customs and Excise (Jersey) Law 1999.  The controlled drug was heroin.  The Court has a discretion under Article 2(1)(c) of the Costs in Criminal Cases (Jersey) Law 1961 to order that the defence costs of a person discharged from prosecution be borne by public funds unless there were strong reasons indicating otherwise.

3.        In  Attorney General v Bouchard  (1989) JLR 350 at 352 the Court said -

"We have to consider whether it was the defendant's own conduct which misled the prosecution into thinking that the case was stronger than it was".

4.        Mr. McLees was under surveillance when he drove his van up St. Peter's Valley, apparently leading Mr. Hagen to a store on Mont des Louannes.    The police clearly thought that a stove containing half a kilo of heroin had been exchanged there.  By the time Mr. McLees was first interviewed under caution he had spoken to a lawyer.  The interview was on 3rd April.  When questions became what the police would call "difficult" he answered "No comment".  He was unhelpful but certainly within the bounds of forensic reason.  Only on 26th September did he admit leading Mr. Hagen up the valley.  The Crown appears to be saying that he might have greatly helped the police investigation had he made that admission earlier.

5.        Kinder Eggs, which the Customs Officers had filled with sugar, found their way into Mr. Swanston's rubbish bin near the entrance to his flat.  He gave an explanation but again when the matters appeared difficult in interview he answered "No comment". 

6.        As Advocate Gilbert argued - and I agree - Mr. Swanston had no duty to assist the police.  He had a right to silence and a right to keep his powder dry.

7.        I can see no reason why I should exercise my discretion under Article 2(1) (c) of the Law in favour of the Crown and I order that the accused shall each have his costs.

Authorities.

Costs in Criminal Cases (Jersey) Law 1961: Article 2(1) (c).

Attorney General v Bouchard  (1989) JLR 350 at 352