Jersey Unreported Judgments

2002/54

ROYAL COURT

(Samedi Division)

1^st March, 2002.

The Attorney General

-v-

John Philip McConnachie

Trial before the Inferior Number of the Royal Court, en police correctionnelle, following a not guilty plea to:

[Count 1 relates to a co-accused who pleaded guilty to that charge.].

Application by the Defendant for an Order seeking to exclude certain evidence of two Crown witnesses

J.C .Gollop, Esq., Crown Advocate.

Advocate J.D .Kelleher for the Defendant.

JUDGMENT

THE BAILIFF:

1.        Yesterday afternoon I rejected an application by Counsel for the Defence seeking to exclude certain evidence to be given by Senior Customs Officer Le Neveu and Customs Executive Officer Davidson.  I now give my reasons for that ruling.

2.        The evidence of Mr Le Neveu and Mr Davidson, which Counsel seeks to exclude, relates to a discussion which took place immediately prior to the arrest of the accused in room 1 at the Moorings Hotel.   Notes were made in their respective pocket books by both Officers and those notes were endorsed by the accused as being accurate.  Counsel seeks to have any evidence relating to those notes and their endorsement similarly excluded.

3.        Counsel are agreed that the principle laid down by the Court of Appeal in Clarkin-v-The Attorney General (1991) JLR 232, is the one to be applied in this case. Chadwick J.A, stated at page 246:

"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 over riding duty of the trial court which is to ensure that the accused has a fair trial".

4.        The evidence of Mr Davidson who was hidden in the bathroom adjacent to the bedroom was limited and not entirely consistent with that of Mr Le Neveu. The evidence of Mr Le Neveu was, in a nut shell, as follows: he stated that he had taken possession of a note left at the Hotel for the importer of the drugs, Pierre Benoit Lescoumes, who was in custody; the note was written by someone called Phil and gave a mobile telephone number.   At about 6.15pm Mr Le Neveu telephoned the mobile number and assumed the identity of the importer, Lescoumes. 

5.        The man with the mobile telephone said that he could come to the Hotel in about 10 minutes.  At about 6.40pm the accused knocked on the bedroom door and entered.  There was a conversation between the accused and the officer who continued to assume the identity of the importer, Lescoumes.

6.        Mr Le Neveu stated that during the course of the discussion the accused said "Can we go to a pub to do this" to which he replied "There's no way I'm leaving the room with this, I just want to get rid of it."  Mr Le Neveu said "Have you got my money" to which the accused replied "I've got £250," which he then handed over.  Mr Le Neveu asked whether he could get the rest later, and the accused replied that 'he' did not get in until 8.30pm.  It was apparently mutually understood who 'he' was.

7.        There was a discussion about a bag to carry it and the provision of carrier bags, and Mr Le Neveu then revealed brown packets made up to resemble packets of cannabis, which had been hidden on the bed.  

8.        The accused said "Jesus, I wasn't expecting this much, I was only expecting a bit," and gave an indication with his hand of a small amount.   He asked what it was and Mr Le Neveu said it was Marijuana.  The accused then asked how much there was and was told that there were 4 kilograms.  The accused said "Gee, I just can't walk out of here with all that in these bags."  The officer then suggested using his holdall, and the accused agreed to that suggestion.

9.        The accused asked the Officer "Didn't you get stopped" and was told "No way".  The accused asked the Officer if he could carry the bag to McConnachie's car which was parked nearby, the Officer replied "No way, I've carried it half way round the world, I've had it with it."   

10.      Both the accused and Mr Le Neveu helped to fill the holdall with the carrier bags containing the packages and then the Officer zipped up the holdall and handed it to the accused.  At that stage Officers Davidson and Harrison came out of the bathroom and the accused was arrested and cautioned.

11.      When Mr Le Neveu got back to his office at Queen Elizabeth Terminal he compiled his notes of this conversation and took the pocket book into the interview room where the accused was being held.   He took the accused through the notes and invited him to sign them.  The accused then wrote out in his own hand

"I have read the record of notes made at 18.16 hours and marked at the beginning and end with my signature that they are an accurate record.  I have also read the record of notes timed 18.40 marked at the beginning and end with my signature, they to are an accurate record.  Signed: J.P.McConnachie, 21.42."

12.      The evidence of the accused did not differ from that of Mr Le Neveu as to what took place in room 1, except in three respects.  As to the exchange about going to a pub he denied that it was "to do this;" he maintained that he had suggested going for a drink or for a chat.  Secondly, while he admitted saying "Jesus I wasn't expecting this."  He denied adding the word "much".  Thirdly he denied saying he was "only expecting a bit".   As to the signature of the pocket book, he agreed doing so but claimed that it had not been read out to him, as asserted by Mr Le Neveu; he claimed that he was in shock and was not really thinking about what he was doing; he thought that if he signed the notes the Customs Officers would let him go because he had not done anything wrong. He had no real recollection of signing Officer Davidson's notes, although that was on a different occasion.

13.      Counsel for the Defence placed great reliance on an unreported English case of R-v-Lawrence and Nash which was before the Court of Appeal on 14^th December, 1993.  That was a case where the Court held that the uncorroborated evidence of a Police Officer as to conversations which had taken place with the two Appellants over a period of some 2 months ought to have been excluded. 

14.      In my judgement that was a case on very different facts.  It was possible that the Officer in that case had acted as an agent provocateur, and had induced the commission of the offence of supplying cannabis.    In my judgement nothing of that kind is in question here.

15.      It is true that Mr Le Neveu took no steps to arrange for the discussion in room 1 to be recorded, but I am satisfied that there were sound practical reasons why the conversation could not be recorded.   No improper pressure was placed by the Officer on the accused.   It is true that the accused said that he felt pressured, but only because he felt sorry for the Officer,  posing as Lescoumes who appeared to him to be agitated and nervous.

16.      I am quite satisfied that Mr Le Neveu did not provoke the accused or compel him to take possession of these supposed drugs.   He was acting as a competent investigator endeavouring to ascertain whether the accused was concerned in the importation of the cannabis that had recently been carried into the Island by Lescoumes.

17.      His evidence was corroborated to an extent by the evidence of Mr Davidson and by the fact of McConnachie's endorsement of his notes.  The discrepancies between the evidence of the Officers and that of the accused are all matters for resolution by the Jurats in the usual way.

18.      In my judgment it would in no sense undermine the justice of the trial to admit the evidence of the Customs Officers; indeed it would be a grave injustice to the public to exclude it.   In the exercise of my discretion I accordingly allowed the evidence to be led.

Authorities

R-v-Lawrence & Nash (14^th December, 1993) Unreported Judgment of Court of Appeal of England & Wales (Criminal Division).

Clarkin-v-AG (1991) JLR 232 CofA.

R-v-Edwards (1997) Cr.L.R. 348.

Archbold (2002 Ed'n): pp.1469-1475.