[2003]JCA228
COURT OF APPEAL
9th December, 2003; reserved 12th November, 2003.
Before: |
R.C .Southwell, Esq., Q.C., President; Miss E. Gloster, Q.C.; and D.A.J. Vaughan, Esq., C.B.E., Q.C. |
Michael O'Brien;
Yvonne Katina Edmond-O'Brien;
Michael Joseph Dunne;
David Jarman Lloyd;
Carol Ann Lloyd.
-v-
The Attorney General.
Application of Michael O'BRIEN for leave to appeal against a total sentence of 4 years' imprisonment, passed on 30th July, 2003, by the Superior Number of the Royal Court, to which the appellant was remanded on 13th December, 2002, on a guilty plea to:
2 counts of: |
transferring the proceeds of criminal conduct, contrary to Article 16A(1)(b) of the Drug Trafficking Offences (Jersey) Law 1988 (counts 1 & 2. on both of which counts concurrent sentences of 4 years' imprisonment were passed)
|
The application for leave to appeal against conviction placed directly before the plenary Court, without first being submitted to a Single Judge for consideration and determination.
Application of Yvonne Katina Edmond-O'Brien for leave to appeal against conviction on 5th June, 2003, by the Inferior Number of the Royal Court, en police correctionnelle, on a not guilty plea to:
1 count of: |
assisting another to retain the benefit of drug trafficking, contrary to Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988 (count 1) |
Application of Yvonne Katina Edmond-O'Brien for leave to appeal against a sentence of 7 years' imprisonment passed on 30th July, 2003, by the Superior Number of the Royal Court, to which the appellant was remanded by the Inferior Number on 5th June, 2003, following conviction on:
1 count of: |
assisting another to retain the benefit of drug trafficking, contrary to Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988 (count 1) |
The application for leave to appeal against conviction and sentence placed directly before the plenary Court, without first being submitted to a Single Judge for consideration and determination.
Application of Michael Joseph Dunne for leave to appeal against conviction on 5th June, 2003, by the Inferior Number of the Royal Court, en police correctionnelle, on a not guilty plea to:
1 count of: |
assisting another to retain the benefit of drug trafficking, contrary to Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988 (count 2) |
2 counts of: |
assisting another to retain the benefit of drug trafficking, by using the proceeds to acquire property by way of investment, contrary to Article 17(1)(b)(ii) of the Drug Trafficking Offences (Jersey) Law 1988 (counts 5, 6) |
Application of Michael Joseph Dunne for leave to appeal against a total sentence of 9 years' imprisonment passed on 30th July, 2003, by the Superior Number of the Royal Court, to which the appellant was remanded by the Inferior Number on 5th June, 2003, and made up as follows :
1 count of: |
assisting another to retain the benefit of drug trafficking, contrary to Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988 (count 2, on which count a sentence of 9 years' imprisonment was passed) |
2 counts of: |
assisting another to retain the benefit of drug trafficking, by using the proceeds to acquire property by way of investment, contrary to Article 17(1)(b)(ii) of the Drug Trafficking Offences (Jersey) Law 1988 (counts 5, 6, on both of which counts concurrent sentences of 9 years' imprisonment, were passed) |
The application for leave to appeal against conviction and sentence placed directly before the plenary Court, without first being submitted to a Single Judge for consideration and determination.
Application of David Jarman Lloyd for leave to appeal against conviction on 5th June, 2003, by the Inferior Number of the Royal Court, en police correctionnelle ,on a not guilty plea to:
1 count of: |
assisting another to retain the benefit of drug trafficking, contrary to Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988 (count 4) |
1 count of: |
assisting another to retain the benefit of drug trafficking, by using the proceeds to acquire property by way of investment, contrary to Article 17(1)(b)(ii) of the Drug Trafficking Offences (Jersey) Law 1988 (count 6) |
The application for leave to appeal against conviction placed directly before the plenary Court, without first being submitted to a Single Judge for consideration and determination.
[The Court adjourned the application of David Jarman Lloyd for leave to appeal against conviction.]
Application of Carol Ann Lloyd for leave to appeal against conviction on 5th June, 2003, by the Inferior Number of the Royal Court, en police correctionnelle, on a not guilty plea to:
1 count of: |
assisting another to retain the benefit of drug trafficking, contrary to Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988 (count 3) |
1 count of: |
assisting another to retain the benefit of drug trafficking, by using the proceeds to acquire property by way of investment, contrary to Article 17(1)(b)(ii) of the Drug Trafficking Offences (Jersey) Law 1988 (count 6) |
The application for leave to appeal against conviction placed directly before the plenary Court, without first being submitted to a Single Judge for consideration and determination.
[The Court adjourned the application of Carol Ann Lloyd for leave to appeal against conviction.]
S.M. Baker, Esq., Crown Advocate;
Advocate R. Tremoceiro for Michael O'Brien;
Advocate D. Gilbert for Yvonne Katina Edmond-O'Brien;
Advocate M.L. Preston for Michael Joseph Dunne;
Advocate R. Juste for David Jarman Lloyd and Carol Ann Lloyd.
JUDGMENT
THE PRESIDENT:
1. This is the unanimous judgment of the Court, which has heard applications for leave to appeal against conviction by Mrs Yvonne Edmond-O'Brien (to whom we will refer as "Mrs O'Brien") and Mr Michael Dunne and applications for leave to appeal against sentence by Mr Michael O'Brien (who had pleaded guilty) and by Mrs O'Brien and Mr Dunne. Two other defendants, Mr David Lloyd and Mrs Carol Lloyd, have applied for leave to appeal against conviction, but their applications have been adjourned, because of the serious ill-health of Mr Lloyd, which has also led to adjournment of the sentencing hearing in the Royal Court in respect of both Mr and Mrs Lloyd.
2. The applicants and the Crown have been represented in the Royal Court and in this Court as follows:
Mrs O'Brien - Advocate Dionne Gilbert
Mr Dunne - Advocate Michael Preston
The Crown - Crown Advocate Stephen Baker.
Mr and Mrs Lloyd were represented in the Royal Court by Advocate Juste. This Court is indebted to counsel for their careful submissions and the help each of them has given the Court.
SUMMARY OF THE FACTS
3. Mr O'Brien until September 1998 carried on the following businesses, roughly split into three categories:
(i) Butchery - Holly Ltd, Traditional Butcher & Delicatessen (which appears not to have been a limited company), Lidsters (another trade name), Emjay Food & Wine Brokers Ltd, and Emjay Food and Wine Brokers (CI) Ltd. Apparently all the butchery activities were reflected in the books of Holly Ltd in so far as those were in fact duly kept.
(ii) Investment - Finwin Ltd.
(iii) A lodging house property - Soudan Lodge Limited.
4. All the businesses were jointly owned by Mr and Mrs O'Brien. But in practice the running of the businesses was divided between them. Mrs O'Brien alone ran the lodging house business at Soudan Lodge, except that Mr O'Brien's signature was required on cheques as well as hers. Mrs O'Brien had little involvement in the butchery businesses, except that (i) she paid in to the bank accounts cheques and cash from those businesses, (ii) she prepared invoices for customers on monthly credit, and (iii) she sometimes helped with deliveries to customers. Soudan Lodge was entirely a cash business, and the butchery businesses were predominantly also cash businesses. Earlier in the 1990s they had together run an open-all-hours shop called Annie's which also had been entirely a cash business. The cash turnover of their various businesses was substantial, but the profitability of the butchery businesses seems to have been doubtful.
5. By the start of 1997 Mr O'Brien had become established in the business of trafficking in illegal drugs. His method of transporting them into Jersey was this. He had regular consignments of meat and meat products gathered together at Weddell Swift Wholesale Meat Market ("Weddell Swift") at the Hilsea, Portsmouth. Each consignment was palleted and wrapped with a form of cling-wrap by Weddell Swift and then shipped by them via Ferry Speed to Jersey. What Mr O'Brien did was to hand to Weddell Swift for inclusion in a consignment of meat an additional box containing illegal drugs. Weddell Swift assumed that the box contained meat products. When the consignment arrived at Mr O'Brien's business premises in Jersey, he removed the box containing drugs and hid it in those premises. The dealings between Weddell Swift and Mr O'Brien took place between March 1996 and September 1998. The evidence of Mr Neil Kingston of Weddell Swift was that
"about fifteen "extra" packages would be sent over with the LIDSTER order and these would roughly be about three or four months apart. The amount of packages Mr O'Brien personally asked us to put on his pallet was six to eight in total."
6. On 15 September 1998 Mr O'Brien was arrested in Portsmouth, and found to be in possession of 1001 grams of heroin and 10.1 kilograms of cannabis resin with a wholesale value of between £193,500 and £223,500. Following his arrest, and with the benefit of guidance from Mr O'Brien as to where drugs were to be found, his business premises in Jersey were searched, and there were found hidden there the following:
(i) Over 2,500 tablets of ecstasy
(ii) Nearly 5 kilograms of amphetamine
(iii) 127 blocks of cannabis resin
with a wholesale value of between £194,00 and £205,000. Thus the total wholesale value of the illegal drugs then seized in Portsmouth and Jersey was between £387,500 and £428,500.
7. During the period from January 1997 to September 1998, substantial sums, mainly in cash, were paid into the personal and business accounts of Mr O'Brien. It appears that in each case the relevant paying-in books were handed by Mr O'Brien to his wife, together with the cash and cheques to be paid in. His wife filled in the paying-in book appropriately and made the payment into the appropriate bank account. The bank accounts into which the money was paid were as follows:
PERSONAL ACCOUNTS
(1) Michael O'Brien Nat West Current Account No. 69053308
(2) Michael O'Brien Nat West Diamond Reserve Account No. 83569014
(3) Michael O'Brien Midland Current Account No. 41302418
(4) Michael O'Brien Barclays Current Account No. 00723088
BUSINESS ACCOUNTS
(5) Traditional Butcher & Delicatessen Nat West Current Account No. 67267076
(6) Holly Limited T/A Lidsters Nat West Current Account No. 66566495
(7) Emjay Food and Wine Brokers Nat West Current Account No. 66604710
(8) Finwin Limited Nat West Business Account No. 83643508
(9) Traditional Butcher & Delicatessen Nat West Business Reserve Account No. 67309186
(10) Holly Limited T/A Lidsters Nat West Business Reserve Account No. 67309178
8. The sums which went into the business accounts during 1997 and 1998 totalled £770,943. The conclusion of the accountant witness for the prosecution, Mr P Beamish of Deloitte & Touche, in para 13.2 of his report was:
"Based on the information available to us to date [4 October 2002], we believe that the level of transactions flowing through Michael O'Brien's business accounts may reasonably be explained by the legitimate businesses he was running."
9. The sums which went into the personal accounts during 1997 and 1998 totalled £1,799,434. The conclusion of Mr Beamish (para. 13.2 of his report) was:
"However, the level of funds flowing though Michael O'Brien's web of personal accounts cannot be justified by the level of income his legitimate businesses could have been expected to generate."
10. All, or virtually all, of these sums were paid into the business and personal accounts of Mr O'Brien by Mrs O'Brien.
11. Much of this money was transferred out of the bank accounts of Mr O'Brien. The transfers out fell into these categories:
(i) Payments by cheque (totalling £1,078,00) direct to Mr Michael Dunne's account at Banca Privada d'Andorra in Andorra (four of these cheques were signed by Mrs O'Brien: one of her signatures was forged, and her case was that the other three were signed in blank for Mr O'Brien, a practice commonly employed by them);
(ii) Payments totalling £32,500 to Mr Dunne's account with Allied Irish Bank in Jersey, which Mr Dunne then transferred to his Andorran account;
(iii) Payments totalling £97,295 to Mrs Carol Lloyd's account with Allied Irish Bank in Jersey, which were transferred on to Mr Dunne's Andorran account;
(iv) Payments totalling £50,475.51 to Mr David Lloyd's account at Banca Privada d'Andorra in Andorra;
(v) A payment of £49,043.12 which went to Mr Dunne's account in Andorra via a Mr Clements in the United Kingdom.
12. The moneys received by Mr Dunne and Mr and Mrs Lloyd were used in part:
(i) On 8 October 1997 to buy an apartment in Andorra in the name of Mr Dunne for £57,437;
(ii) With Mr and Mrs Lloyd on 7 May 1998 to buy a public house in Wiltshire for £370,000;
(iii) To buy £600,000 worth of bonds on 8 February 1999, four months after Mr O'Brien was arrested, which were placed in the account of Mr Dunne's wife with Banco Reig Andorra.
13. On 19 February 1999 Mr O'Brien pleaded guilty in the Portsmouth Crown Court to a number of charges, except for Count 5 relating to heroin.
Count 1 conspiracy to supply ecstasy between 1 January 1997 and 31 August 1998
Count 2 conspiracy with another defendant, Derek Wray, to supply cannabis resin between 1 January 1997 and 14 September 1998
Count 3 conspiracy to supply amphetamine between 1 January 1997 and 31 August 1998
Count 5 possessing heroin (diamorphine) with intent to supply on or about 15 September 1998
Count 7 possessing cannabis resin with intent to supply on or about 15 September 1998
14. On a separate indictment (not shown to this Court) to which Mr O'Brien also pleaded guilty, he was charged with two other men on
Count 1 conspiracy to supply ecstasy
Count 2 conspiracy to supply amphetamine
Count 3 conspiracy to supply cannabis.
15. On 14 July 1999 Mr O'Brien pleaded guilty to the heroin count.
16. Mr O'Brien was sentenced by His Honour Judge Chubb in the Portsmouth Crown Court on 19 November 1999. His drug trafficking activities in Jersey were taken into account, as appears from the counts relating to the drugs in Jersey. It is apparent that Mr O'Brien had given significant assistance to the police in both England and Jersey, leading to the arrest and conviction of some other men involved in the supply of illegal drugs in both jurisdictions, and that this and other aspects of his mitigation were taken into account by Judge Chubb. Seven other offences were also taken into consideration. Judge Chubb sentenced O'Brien to six years imprisonment on the counts concerning Class A drugs and three years imprisonment on those concerning Class B drugs, all concurrent, making a total sentence of 6 years.
17. The authorities in England failed to proceed timeously with confiscation proceedings against Mr O'Brien. It was not until 27 September 2000 that the English authorities applied, in the Portsmouth Crown Court, for a confiscation order in relation to O'Brien's assets. That application failed because it was out of time. On 6 October 2000 restraint orders in respect of Mr O'Brien in England were discharged. In Jersey saisie judiciaire was discharged but then ordered again over all the assets of Mr O'Brien.
18. It appears that if the confiscation proceedings had been brought timeously in England, appropriate confiscation orders could there have been made, Mr O'Brien would not have been prosecuted a second time, and Mr O'Brien would not have received a second prison sentence, except as a sanction if he failed to comply with the confiscation order. What the position would have been as regards the other defendants is unclear.
19. As regards the proceedings in Jersey, the history between September 2000 and the start of the trial in Jersey can be summarised in this way:
(i) Mrs O'Brien was interviewed by the Jersey Police on 15 December 2000
(ii) On 27 May 2002 Mr O'Brien and Mr and Mrs Lloyd were arrested in England, brought to Jersey, and charged. On the same day Mrs O'Brien voluntarily attended on the Jersey Police and was charged. They appeared in the Magistrates Court on various dates from 28 May 2002 onwards.
(iii) Mr Dunne was arrested in Andorra on 12 August 2002. He did not oppose extradition and voluntarily returned to Jersey on 24 October 2002, when he was charged.
(iv) On 15 October 2002 the Magistrates Court committed Mr and Mrs O'Brien and Mr Lloyd for trial before the Inferior Number of the Royal Court.
(v) Mr Dunne first appeared in the Magistrates Court on 25 October 2002.
(vi) On 31 October 2002 Mrs Lloyd was committed to the Royal Court for trial.
(vii) On 14 November 2002 Mr Dunne was committed to the Royal Court for trial.
(viii) Mrs O'Brien and Mr and Mrs Lloyd were on conditional bail from 28 May 2002 onwards.
(ix) Mr O'Brien was on conditional bail from 25 June 2002 onwards.
(x) Mr Dunne was not granted bail and continued to be remanded in custody.
(xi) On 13 December 2002 before the Royal Court Mr O'Brien pleaded guilty to the two charges against him, on the basis, which the Crown did not agree, that he had benefited from drug trafficking to the extent of about £180,000, and not about £1.5 million as the Crown contended. The other defendants pleaded not guilty to the charges against them.
(xii) There were various interlocutory hearings before the Royal Court in January, February and March 2003.
(xiii) The trial started on 19 May 2003.
20. The two counts to which Mr O'Brien pleaded guilty were:
COUNT 1
Statement of Offence
Transferring the proceeds of criminal conduct, contrary to Article 16A(1)(b) of the Drug Trafficking Offences (Jersey) Law 1988.
Michael O'Brien between 15 October 1997 and 20 September 1998 acted in contravention of Article 16A(1)(b) of the Drug Trafficking Offences (Jersey) Law 1988 by transferring property, namely various cash sums via the agency of his wife, Yvonne Katina Edmond-O'Brien, into accounts at Barclays Bank, the Midland Bank (HSBC), and the National Westminster Bank which [were] in whole or in part directly or indirectly represented his proceeds of drug trafficking, for the purpose of avoiding prosecution for a drug trafficking offence.
COUNT 2
Statement of Offence
Transferring the proceeds of criminal conduct, contrary to Article 16A(1)(b) of the Drug Trafficking Offences (Jersey) Law 1988.
Particulars of Offence
Michael O'Brien between 15 October 1997 and 20 September 1998 acted in contravention of Article 16A(1)(b) of the Drug Trafficking Offences (Jersey) Law 1988 by transferring property, namely chooses in action being the credit balances held in various accounts at Barclays Bank, the Midland Bank (HSBC), and the National Westminster Bank which [were] in whole or in part directly or indirectly represented his proceeds of drug trafficking, for the purpose of avoiding prosecution for a drug trafficking offence."
21. The counts on which Mrs O'Brien and Mr Dunne stood trial were:
"Yvonne Katina Edmond-O'Brien is charged with the following offence:
COUNT 1
Statement of Offence
Assisting another to retain the benefit of drug trafficking contrary to Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988.
Particulars of Offence
Yvonne Katina Edmond-O'Brien between the 1st day of January 1997 and the 20th day of September, 1998 acted in contravention of Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988 by entering into or being otherwise concerned in an arrangement whereby the retention or control by or on behalf of Michael O'Brien of the said Michael O'Brien's proceeds of drug trafficking was facilitated, knowing or suspecting that Michael O'Brien was a person who was carrying on drug trafficking or was benefiting from drug trafficking.
Michael Joseph Dunne is charged with the following offence:
COUNT 2
Statement of Offence
Assisting another to retain the benefit of drug trafficking contrary to Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988.
Particulars of Offence
Michael Joseph Dunne between the 1st day of January 1997 and the 20th day of September 1998 acted in contravention of Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1988 by entering into or being otherwise concerned in an arrangement whereby the retention or control by or on behalf of Michael O'Brien of the said Michael O'Brien's proceeds of drug trafficking was facilitated, knowing or suspecting that Michael O'Brien was a person who was carrying on drug trafficking or was benefiting from drug trafficking.
Michael Joseph Dunne is charged with the following offence:
COUNT 5
Statement of Offence
Assisting another to retain the benefit of drug trafficking contrary to Article 17(1)(b)(ii) of the Drug Trafficking Offences (Jersey) Law 1988.
Particulars of Offence
Michael Joseph Dunne between the 1st day of January 1997 and the 20th day of September 1998 acted in contravention of Article 17(1)(b)(ii) of the Drug Trafficking Offences (Jersey) Law 1988 by entering into or being otherwise concerned in an arrangement whereby Michael O'Brien's proceeds of drug trafficking was used for the said Michael O'Brien's benefit to acquire by way of investment the apartment known as, Apartment 1b, Bloc A, Edifici Les Fixes, La Massana, Arinsal, Andorra, knowing or suspecting that Michael O'Brien was a person who was carrying on drug trafficking or was benefiting from drug trafficking.
Michael Joseph Dunne, [Carol Ann Lloyd, and David Jarman Lloyd] are charged with the following offence:
COUNT 6
Statement of Offence
Assisting another to retain the benefit of drug trafficking contrary to Article 17(1)(b)(ii) of the Drug Trafficking Offences (Jersey) Law 1988.
Particulars of Offence
Michael Joseph Dunne, [Carol Anne Lloyd and David Jarman Lloyd] between the 1st day of January 1997 and the 20th day of September 1998 acted in contravention of Article 17(1)(b)(ii) of the Drug Trafficking Offences (Jersey) Law 1988 by entering into or being otherwise concerned in an arrangement, whereby Michael O'Brien's proceeds of drug trafficking were used for the said Michael O'Brien's benefit to acquire by way of investment the Pelican Inn Public House, in the county of Wiltshire, the United Kingdom, knowing or suspecting that Michael O'Brien was a person who was carrying on drug trafficking or was benefiting from drug trafficking."
22. The prosecution case was, in brief, that
(i) Mr O'Brien had made over £1.5 million from his drug trafficking, not the figure of about £180,000 which he admitted.
(ii) Mrs O'Brien, because of the much increased sums which she was more frequently paying-into Mr O'Brien's personal accounts, must have known or suspected that she was involved in paying-in the proceeds of drug trafficking.
(iii) Mr Dunne knew that the moneys he was receiving from Mr O'Brien were the proceeds of Mr O'Brien's drug trafficking which he was helping Mr O'Brien to launder.
23. Mrs O'Brien's defence was, in brief, that
(i) She had not known or suspected that any of the moneys she paid in for her husband was the proceeds of his drug trafficking.
(ii) Mr O'Brien had anyway made no more than £180,000 from his drug trafficking.
(iii) The large sums paid into his personal accounts were Mr Dunne's money made from market trading in the United Kingdom, on which no income tax or VAT had been paid, and which Mr O'Brien was assisting Mr Dunne in shielding from the UK tax authorities and from Mr Dunne's wife.
Mrs O'Brien called her husband as a witness in support of each of these three lines of defence.
24. Mr Dunne's defence was to the same effect as paragraph 23(2) and (3) above.
25. The trial took eleven days between 19 May and 5 June 2003. The prosecution called to give live testimony, or read the statements of, forty-seven witnesses, and relied on the extensive admissions of the defendants and transcripts of their questioning by the police. The documents relied on are contained in nine large lever arch files, and the transcripts of the trial in five such files.
26. At the close of the prosecution's case Advocate Preston for Mr Dunne made a submission that there was no case for him to answer, basing his submission on the decision of the English Court of Appeal in R v Galbraith (1981) 73 Cr App R 124. The gist of his submission was this:
(i) the Prosecution's evidence had, at its highest, established only that seven boxes of drugs had been brought into Jersey by Mr O'Brien;
(ii) though when arrested in Portsmouth Mr O'Brien had heroin in his possession, there was no evidence that he had brought any heroin into Jersey;
(iii) Mr O'Brien was in partnership with a number of other men in his drug trafficking who would have taken a substantial proportion of any proceeds;
(iv) Mr O'Brien and his partners could not have made sums of more than £180,000 from the importation of only about seven boxes, on the assumption that the mix of the drugs imported was the same as that of the drugs found in the butcher's premises;
(v) in any event to make the amount suggested by the Prosecution of about £1.78 million from drugs imported by Mr O'Brien, he would have needed to invest in the purchase of drugs up to £1.2 million, and there was no evidence before the Court to show any such substantial investment in drugs by Mr O'Brien;
(vi) even taking the prosecution case at its highest, the only credible explanation of the sums paid into Mr O'Brien's personal accounts was that these sums came from Mr Dunne himself;
(vii) on the evidence before the Royal Court the Jurats must conclude that most if not all of the money received by Mr O'Brien came from Mr Dunne, and could not properly infer that Mr Dunne had any knowledge or suspicion that his money had been mixed up by Mr O'Brien with some proceeds of drug trafficking.
In making this submission Mr Preston relied particularly on the evidence of a retired Detective Constable, Mr Terence De La Haye, who had been recognised on many occasions in the 1990s by the Royal Court as an expert on drugs and drugs transactions and values. Mr De La Haye had been tendered by the prosecution as a witness and had been cross-examined at length by Mr Preston.
27. The Trial Judge rejected this submission, ruling that there was evidence before the Jurats on which they could properly convict Mr Dunne.
28. Mrs O'Brien gave evidence. The gist of her evidence was that she had no inkling that her husband had been engaged in drug trafficking, that she had failed to note the increase in the numbers and amounts of the payments into the bank accounts which she was making for her husband, and that she therefore had not had occasion to question her husband about this. She had signed blank cheques when asked by her husband (as he had in relation to Soudan Lodge) though one of the cheques purportedly signed by her in fact had a forged signature. There had been no change in her or her husband's lifestyle. She had not questioned her husband's visits to England, even when those involved him spending only an hour in England before taking a flight back to Jersey.
29. Mr O'Brien was called as a witness on behalf of his wife. His evidence was that he had engaged in drug dealing for just over two years, and had not made profits from drug dealing in excess of about £180,000. The rest of the money which had passed through his bank accounts was in part derived from his legitimate businesses, and in larger part from the moneys which he was laundering on behalf of Mr Dunne. His wife had not known anything about his drug-dealing.
30. Mr Dunne gave evidence to the effect that the money which he received from Mr O'Brien was his own money previously handed to Mr O'Brien. Three witnesses were called on behalf of Mr Dunne; their evidence added little, except to give some indication of the turnover he could have achieved as a market trader.
31. Mr and Mrs Lloyd also gave evidence.
32. On 5 June 2003 evidence and speeches were concluded. The Jurats retired for less than an hour and delivered guilty verdicts on all six counts before them.
33. The hearing concerning confiscation orders and sentencing took place on 28 - 30 July 2003. Confiscation orders were made in respect of all the defendants by the Inferior Number. Sentencing of Mr and Mrs Lloyd was adjourned as already indicated. The sentences imposed by the Superior Number were
Mr O'Brien - 4 years imprisonment
Mrs O'Brien - 7 years imprisonment
Mr Dunne - 9 years imprisonment.
MRS O'BRIEN : CONVICTION APPLICATION
34. This Court approaches the applications for leave to appeal against conviction on the footing that the verdicts reached by the Jurats are to be upheld unless the applicant can discharge the relatively heavy burden of showing that the requirements of Article 25(1) of the Court of Appeal (Jersey) Law 1961 are satisfied. Article 25(1) reads as follows:
"(1) On any appeal against conviction, the Court of Appeal shall allow the appeal if it thinks that the verdict should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence, or that the judgment of the court before which the appellant was convicted should be set aside on the ground of a wrong decision of any question of law or that, on any ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal:
Provided that the Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."
The wording of Article 25(1) is based on that of section 4(1) of the English Criminal Appeal Act 1907 (Ch.23). The States of Jersey have not yet altered the 1961 Law along the lines of the statutory provision now in force in England and Wales (Criminal Appeal Act 1968, section 4, as amended) which requires the English Court of Appeal to "allow an appeal against conviction if they think that the conviction is unsafe". Advocate Gilbert for Mr O'Brien did not seek to attack the Trial Judge's directions to the Jurats. So our task is to decide whether the guilty verdict against Mrs O'Brien was "unreasonable", or could not "be supported having regard to the evidence", or "on any ground, there was a miscarriage of justice", subject always to the proviso. We emphasise both that this must be the approach of this Court, and that the burden on the applicant is no light one.
35. We turn to the count on which Mrs O'Brien was convicted in which there was alleged an offence under Article 17(1)(a) of the Drug Trafficking Offences (Jersey) Law 1998. Article 17, so far as relevant, provides as follows:
"17. (1) Subject to paragraph (3), if a person enters into or is otherwise concerned in an arrangement whereby-
the retention or control by or on behalf of another (in this article referred to as "A") of A's proceeds of drug trafficking is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise); or
A's proceeds of drug trafficking-
(i) are used to secure that funds are placed at A's disposal; or
(ii) are used for A's benefit to acquire property by way of investment;
knowing or suspecting that A is a person who carried on or has carried on drug trafficking or has benefited from drug trafficking, he is guilty of an offence.
In this Article, references to any person's proceeds of drug trafficking include a reference to any property which in whole or in part directly or indirectly represented in his hands his proceeds of drug trafficking.
(3) ................ ................
(4) In proceedings against a person for an offence under this Article, it is a defence to prove-
that he did not know or suspect that the arrangement related to any person's proceeds of drug trafficking; or
that he did not know or suspect that by the arrangement the retention or control by or on behalf of A of any property was facilitated or, as the case may be, that by the arrangement any property was used as mentioned in paragraph (1); or
.............. ............
(5) A person guilty of an offence under this Article shall be liable on conviction to imprisonment for a term not exceeding fourteen years or to a fine or to both."
36. Thus the ingredients of the offence under Article 17(1)(a) so far as concerned the case against Mrs O'Brien were these:
(i) The prosecution had to prove that
(a) there was an "arrangement" whereby the retention and control by or on behalf of Mr O'Brien of his proceeds of drug trafficking was facilitated;
(b) Mrs O'Brien entered into or was concerned in that arrangement;
(c) Mrs O'Brien knew or suspected that Mr O'Brien was a person who carried on or had carried on drug trafficking or had benefited from it.
(ii) In so far as Mrs O'Brien had adduced evidence (as she had) in support of a defence under Article 17(4)(a), the prosecution had to establish that no such defence existed, by proving that Mrs O'Brien did know or suspect that the arrangement related to Mr O'Brien's proceeds of drug trafficking.
37. "Arrangement" is a wide word which could encompass the simple acts of Mrs O'Brien in depositing cash handed to her by Mr O'Brien for the credit of Mr O'Brien's bank accounts. Those acts were capable of facilitating his retention and control of his proceeds of drug trafficking. Mrs O'Brien entered into or was concerned in the arrangement by carrying out those acts, provided always that the cash handed to her was the proceeds of drug trafficking.
38. The central matters which the prosecution had to prove, beyond reasonable doubt, against Mrs O'Brien were that
(i) The cash handed to her (or a substantial part of the cash) was the proceeds of Mr O'Brien's drug trafficking, and not the proceeds of Mr Dunne's market trading as the defendants alleged;
(ii) Mrs O'Brien knew or suspected that Mr O'Brien had carried on or benefited from drug trafficking;
(iii) Mrs O'Brien knew or suspected that she was dealing with the proceeds of Mr O'Brien's drug trafficking.
39. That a substantial part of the cash handed by Mr O'Brien to his wife for payment into the various personal bank accounts was the proceeds of Mr O'Brien's drug trafficking, the Jurats were in our judgment fully entitled to determine. This is a point to which we will return when considering Mr Dunne's application for leave to appeal against conviction.
40. There was no direct evidence of Mrs O'Brien's knowledge or suspicion of either of the two matters set out in paragraph 38(ii) and (iii) above. In particular, it was not suggested that she knew of the presence of the drugs in the butcher's premises. But that is not determinative, because such direct evidence is rarely available to the prosecution. The prosecution usually, as in this case, has to seek to rely on an inference to be drawn from the totality of the evidence before the Jurats (or in common law cases, before a jury).
41. We turn therefore to examine those particular circumstances on which the prosecution relied for this purpose.
42. The main circumstance relied on was the substantial increase in the sums being paid into Mr O'Brien's personal accounts during 1997 and 1998, as contrasted with the size of the sums paid into the personal accounts during preceding years, as summarised by the accountant witness, Mr Beamish, and as shown by the schedules of deposits and the paying-in slips themselves, prepared by Mrs O'Brien. One difficulty we have had in considering Mr Beamish's report is that neither the applicants nor the prosecution chose to place any of the fifty-five appendices to his report before this Court, though some of the documents to which he referred were placed separately before the Court.
43. For the business accounts Mr Beamish gave the figures for the actual credits to the butchery business bank accounts for the period 1 January 1995 to 30 September 1998 (in paragraph 8.3.2 of his report) as follows:
|
|
1995 |
256,962 |
1996 |
377,801 |
1997 |
434,752 |
1998 (9 months) |
336,191 |
In our judgment there is nothing in these figures (though they do show significant increases in the credits to the business bank accounts year on year) from which any inference could be drawn that Mr O'Brien was engaged in drug trafficking, and, as already indicated, Mr Beamish fairly accepted that these figures might reasonably be explained by the legitimate butchery businesses he was running.
44. The figures are clearly different when one examines the credits to the personal accounts. For these Mr Beamish covered a longer period, from 1 January 1992 to 30 September 1998. We doubt whether much is gained by going back as far as five years before the start of the relevant period on 1 January 1997. Nevertheless we refer to the figures for the actual credits to Mr O'Brien's personal accounts over the full period:
|
|
1992 |
71,247 |
1993 |
154,708 |
1994 |
174,991 |
1995 |
104,880 |
1996 |
302,455 |
1997 |
1,191,680 |
1998 (9 months) |
607,754 |
The figures for 1997 and 1998 are strikingly higher than the figures in the previous years.
45. For 1996-98 Mr Beamish set out the breakdown of deposits in the personal accounts by type as follows:
|
|
|
|
|
1996 |
161,226 |
88,636 |
52,593 |
302,455 |
1997 |
699,330 |
176,228 |
316,122 |
1,191,680 |
1998 (9 months) |
451,943 |
86,073 |
69,738 |
607,754 |
* 'Other' includes proceeds of sale of
property, loan repayments, interest received and unidentified receipts |
46. Mr Beamish then examined in some detail those parts of the credits to the personal accounts which were in his opinion unexplained and summarised the amounts involved as follows:
|
|
1992 |
|
1993 |
61,424 |
1994 |
97,186 |
1995 |
34,169 |
1996 |
195,021 |
1997 |
870,729 |
1998 |
537,388 |
In reducing the figures for 1997 and 1998 to arrive at the "unexplained" amounts Mr Beamish took account of (inter alia) substantial transactions involving the sale of the O'Brien's previous home and work on their current home.
47. Since the relevant period is 1997-98 the figures on which the prosecution could rely were those of £870,729 for 1997 and £537,388 for 1998.
48. We turn next to consider these figures in the context of the actual payments in to the personal accounts, which were summarised by the prosecution in a "Diary of daily deposits 1996-98". We should mention here that the prosecution, though they had confined the counts in the indictment against the defendants (other than Mr O'Brien) to the period from 1 January 1997 to 30 September 1998, had sought in the course of the trial to allege that the defendants' involvement in the laundering of the proceeds of Mr O'Brien's drug trafficking included also the year 1996. That in our judgment was not open to the prosecution, and the Trial Judge should have ensured that the prosecution confined their case to the period set out in the indictment.
49. Nevertheless it was open to the prosecution to rely on a comparison of the payments in 1996 with those in 1997 and 1988. The "Diary" entries for 1996 show that down to the middle of 1996 payments into the bank accounts by Mrs O'Brien tended to be either once or twice a week, included some payments into the personal accounts, and the amounts were not individually large. In the second half of 1996 there began to be more frequent payments in, more into the personal accounts, and some for rather larger amounts such as £12,000 or £13,000.
50. In 1997 and 1998 there were more payments in and more into the personal accounts. The number of days on which payments in were made by Mrs O'Brien in each month into any of the accounts, including both personal and business, were:
|
|
|
|
February |
6 |
|
March |
6 |
|
April |
11 |
|
May |
8 |
|
June |
9 |
|
July |
8 |
|
August |
7 |
|
September |
11 |
|
October |
11 |
|
November |
10 |
|
December |
11 |
1998 |
January |
9 |
|
February |
5 |
|
March |
10 |
|
April |
10 |
|
May |
7 |
|
June |
11 |
|
July |
8 |
|
August |
9 |
51. Though the payments into the personal accounts were more frequent in 1997 and 1998, and though in total larger amounts were paid in, there were relatively few payments-in which were individually of an amount which by itself would attract attention. Such payments into the personal accounts included:
|
|
(Mr Beamish noted that this might have included a cheque
from Soudan Lodge Ltd for £10,000.) |
|
1 August 1997 |
£65,150.00 |
(Mr Beamish noted that the four cheques paid in appeared
to include two for £10,000 and £28,000 from others of Mr
O'Brien's personal accounts, and one for £27,000 from one
of the business accounts.) |
|
1 October 1997 |
£16,000.00 |
(Mr Beamish noted that this might have included a cheque from
Soudan Lodge Ltd for £15,000.) |
|
13 October 1997 |
£124,745.00 |
(Mr Beamish noted that this came from the sale of their
former home.) |
|
11 November 1997 |
£45,169.00 |
(Mr Beamish noted that this included a single cheque for
£43,469.) |
|
13 January 1998 |
£10,473.48 |
(Mr Beamish noted that this might have included a cheque
for £7,000 drawn on another personal account.) |
|
23 January 1998 |
£15,165.00 |
(Mr Beamish noted that this might have included a cheque
for £13,100 drawn on another personal account.) |
|
10 March 1998 |
£26,000.00 |
(Mr Beamish noted that this might have comprised a
payment of £6,000 from Soudan Lodge Ltd and a cheque for £20,000
drawn on another personal account.) |
|
6 April 1998 |
£20,000.00 |
(Mr Beamish noted that this might have included a cheque
for £18,000 from Finwin Ltd.) |
|
29 April 1998 |
£11,467.50 |
(Mr Beamish noted that this appeared to be the proceeds
of sale of shares in Courtaulds.) |
52. We have examined these larger payments-in with some care, because the considerable emphasis placed on them by the prosecution has to be put in the context of the complete or partial explanations offered by Mr Beamish.
53. At this point we stand back from the detail of the payments in to look at them in the round. In our judgment, though they would have indicated to Mrs O'Brien that the total amounts going into the personal accounts had increased, as also had the frequency, we do not consider that on this evidence alone the Jurats would have been entitled to infer that Mrs O'Brien knew or suspected that the moneys were the proceeds of drug trafficking. In the context of businesses (including Mrs O'Brien's Soudan Lodge) which were predominantly cash businesses (as had been their shop Annie's) there was in our judgment nothing in the payments in, viewed by themselves, which bore the mark of drugs moneys.
54. In her evidence both in chief and in cross-examination Mrs O'Brien throughout maintained strongly that she never had any knowledge or suspicion that her husband was involved in drug trafficking until the day when he was arrested.
55. In the context, therefore, of her denial of knowledge or suspicion, we turn to the other matters on which the prosecution relied to support their case that her knowledge or suspicion could properly be inferred by the Jurats.
56. The prosecution contended that the Jurats could take into account the numbers of £50 notes and £20 notes included in the payments in to the personal accounts. The point was put in this way in the closing speech:
"There are far too many £50 notes and an explosion of £20 notes."
The Crown Advocate went on to suggest that £50 notes were currency for the drugs trade, and not for butchery or market trading. In our judgment to seek to rely on the mere appearance of £20 notes in the cash in 1997 or 1998 did not carry any weight. The consistent appearance of £50 notes might perhaps be thought to carry some weight. We have therefore examined with care all the paying-in slips for 1996, 1997 and 1998 before the Court (File 3), and not only the small selection to which we were referred by the prosecution. We summarise the result of our examination below. We refer only to those paying-in slips for payments into personal accounts which include cash, and indicate the numbers of £50 and £20 notes which were included. In almost all instances numerous £10 and £5 notes were included:
5 January 1996 |
37 £50 notes and 158 £20 notes |
6 August 1996 |
4 £50 notes and 146 £20 notes |
20 September 1996 |
No £50 notes but 200 £20 notes |
20 September 1996 |
No £50 or £20 notes |
20 September 1996 |
No £50 notes but 50 £20 notes |
7 October 1996 |
12 £50 notes and 30 £20 notes |
7 October 1996 |
No £50 notes but 150 £20 notes |
7 October 1996 |
10 £50 notes and 50 £20 |
24 January 1997 |
No £50 notes but 50 £20 notes |
24 January 1997 |
One £50 note and 58 £20 notes |
24 January 1997 |
No £50 or £20 notes |
4 April 1997 |
No £50 notes but 100 £20 notes |
4 April 1997 |
No £50 notes but 100 £20 notes |
4 April 1997 |
No £50 notes but 100 £20 notes |
4 April 1997 |
14 £50 notes and 50 £20 notes |
4 April 1997 |
11 £50 notes and 112 £20 notes |
8 April 1997 |
20 £50 notes and 23 £20 notes |
8 April 1997 |
No £50 notes but 50 £20 notes |
8 April 1997 |
20 £50 notes and 50 £20 notes |
8 April 1997 |
9 £50 notes and 50 £20 notes |
8 April 1997 |
12 £50 notes and 120 £20 notes |
8 July 1997 |
20 £50 notes but no £20 notes |
8 July 1997 |
No £50 notes but 54 £20 notes |
8 July 1997 |
No £50 notes but 50 £20 notes |
8 July 1997 |
No £50 notes but 50 £20 notes |
8 July 1997 |
10 £50 notes and 127 £20 notes |
12 September 1997 |
No £50 notes but 101 £20 notes |
12 September 1997 |
No £50 notes but 50 £20 notes |
12 September 1997 |
No £50 notes but 50 £20 notes |
12 September 1997 |
No £50 notes but 50 £20 notes |
12 September 1997 |
12 £50 notes but 125 £20 notes |
31 October 1997 |
6 £50 notes and 50 £20 notes |
31 October 1997 |
No £50 notes but 65 £20 notes |
31 October 1997 |
No £50 notes but 50 £20 notes |
31 October 1997 |
No £50 notes but 50 £20 notes |
31 October 1997 |
No £50 notes but 50 £20 notes |
13 January 1998 |
No £50 notes but 29 £20 notes |
13 January 1998 |
No £50 notes but 50 £20 notes |
13 January 1998 |
No £50 notes or £20 notes |
13 January 1998 |
No £50 or £20 notes |
5 June 1998 |
7 £50 notes and 50 £20 notes |
5 June 1998 |
No £50 notes or £20 notes |
5 June 1998 |
No £50 notes but 50 £20 notes |
5 June 1998 |
No £50 notes but 43 £20 notes |
14 July 1998 |
No £50 notes but 50 £20 notes |
14 July 1998 |
20 £50 notes and 50 £20 notes |
14 July 1998 |
12 £50 notes and 50 £20 notes |
14 July 1998 |
No £50 notes but 100 £20 notes |
11 September 1998 |
5 £50 notes and 50 £20 notes |
11 September 1998 |
No £50 notes but 100 £20 notes |
11 September 1998 |
No £50 notes but 100 £20 notes |
11 September 1998 |
20 £50 notes and 50 £20 notes |
57. We have set out the results of our examination of the paying-in slips at length. In our judgment both the comparison with 1996 (8 payments), and more important the full record for 1997 and 1998 (44 payments), do not provide the basis for an inference that Mrs O'Brien knew or suspected that her husband was drug trafficking or that these were the proceeds of drug trafficking. Mrs O'Brien's evidence was she regularly saw £50 notes at Annie's and in the Soudan Lodge payments. In any event, even if £50 notes could be said to be a hall-mark of the drugs trade (taken with other matters), we do not consider that in this case the presence of £50 notes in a little under a half of the payments-in could possibly amount (by itself) to evidence which would suggest knowledge or suspicion of the fact that these moneys came from trading in drugs. In particular, the payment-in with most £50 notes was made in early 1996 at a time when there was no allegation that Mr O'Brien was involved in the importation of drugs. It should also be borne in mind that so far as Mrs O'Brien was concerned:
(i) the system of her paying-in the moneys into the bank accounts continued in the same way in 1997 and 1998 as it had in previous years, and there was no suggestion that new accounts were opened or a new system operated;
(ii) she had no knowledge of what payments were made out of these accounts.
58. The next point relied on by the prosecution was that nearly £10,000 was hidden in Mr O'Brien's wardrobe and further moneys in the attic. It was suggested that such moneys could not have been hidden in their house without Mrs O'Brien's knowledge. Mrs O'Brien denied any knowledge of these hidden moneys. Her evidence was that she did not search through her husband's wardrobe or clothes. Given that the police search of their house was not correctly carried out, there was an absence of any cogent evidence either that she must have seen the hidden money or that in fact she did see it. In our judgment her denial has therefore to be accepted.
59. Much was made by the prosecution of some pieces of paper containing details of drug deals written by Mr O'Brien and found by the Police when searching the house. There was no evidence from the Police as to where these papers had been found. Mrs O'Brien denied having seen them. In his cross-examination Mr O'Brien appeared to accept the suggestion of the Crown Advocate that the papers were simply "lying around". But in the absence of any specific evidence that the papers were somewhere in the house where they were likely to have been seen by Mrs O'Brien, again her denial has to be accepted.
60. The prosecution contended that by virtue of the money going into both the business and the personal accounts Mr and Mrs O'Brien "had become as rich as princes, in their terms. The butcher, earning a butcher's salary, year after year, was suddenly earning money, not far off a millionaire, into the personal accounts, and she didn't notice." Mrs O'Brien's response in cross-examination was that she did not keep her own record of what was paid in and did not notice how large a total over 1997 and 1998 the payments in amounted to. She also pointed out that their style of living did not change at all. We note that the business and personal accounts appear to have been treated as largely interchangeable, and therefore the payments-in have to be treated as turnover, rather than all profit, though in hindsight, knowing of all the money that went into the accounts, it is plain that Mr O'Brien was in fact making substantial profits.
61. The next point made by the prosecution was that she drove her husband to Jersey airport and collected him on his return, and must have questioned what he was doing in England, particularly when he went at weekends, and the more so when he stayed in England for only about an hour before taking a return flight. Her case was she understood that he was going to England on business connected with his meat businesses, and that she had no reason to question this.
62. When their house was searched, according to the Detective Constable a loose bundle of cash, bundled into three amounts, was found in the bottom right-hand drawer of the dresser in the dining area. The cash totalled £3,000. Puzzlingly the Detective Constable also said that the cash was "bagged and sealed", though that was hardly consistent with the description of "a loose bundle of cash". He told the Court that Mrs O'Brien had said that the money belonged to friends for whom they paid bills, enabling the friends to avoid the payment of tax. Mrs O'Brien's evidence in cross-examination was that the cash in the drawer would be money from the lodging house, earlier in the 1990s from the shop Annie's and from the meat businesses. She indicated that from Annie's, an entirely cash business, they would have takings of almost £10,000 a week. She denied having told the Detective Constable that the money in the drawer belonged to friends.
63. These were the main points made by the prosecution against Mrs O'Brien.
64. Mrs O'Brien made clear in her evidence her total opposition to drug dealing, and that by Mr O'Brien's involvement in drug dealing of which she had known nothing he had destroyed their marriage. Following his arrest and release on bail, and again following his release from prison in England, he lived with a sister in England, not with his wife in Jersey.
65. We have separately and together reviewed all the evidence against Mrs O'Brien. It is our judgment that on the totality of that evidence the Jurats could not properly decide that Mrs O'Brien knew or suspected (i) that her husband was trafficking in drugs, or (ii) that the moneys, or part of them, which she paid into the bank accounts were proceeds of drug trafficking. In our judgment the verdict "cannot be supported having regard to the evidence". The prosecution did not ask the Court to apply the proviso in Article 25(1), but in any event it could not be applied because a "substantial miscarriage of justice" did occur. We add for completeness that if the English test applied in Jersey we would have concluded that the verdict was clearly not "safe". Accordingly we set aside the conviction of Mrs O'Brien and acquitted her. We also set aside the confiscation order and the sentence in default.
Mr DUNNE: CONVICTION APPLICATION
66. The three counts against Mr Dunne alleged offences under Article 17(1)(a) and Article 17(1)(b)(ii) of the 1988 Law. As regards Article 17(1)(a), the elements of the offence which the prosecution had to prove are the same as in the case of Mrs O'Brien, as set out in paragraph 36 above. In relation to Article 17(1)(b)(ii), the elements of the two alleged offences to be proved by the prosecution were;
(i) there was an arrangement whereby Mr O'Brien's proceeds of drug trafficking were used for Mr O'Brien's benefit to acquire property by way of investment;
(ii) Mr Dunne entered into or was otherwise concerned in such arrangement;
(iii) Mr Dunne knew or suspected that Mr O'Brien carried on or had carried on drug trafficking or had benefited from drug trafficking;
(iv) In so far as Mr Dunne adduced evidence (as he did) in support of defences under Article 17(4)(a) and (b), no such defence was available, which involved the prosecution proving that Mr Dunne knew or suspected that the arrangement related to Mr O'Brien's proceeds of drug trafficking, and that Mr O'Brien's proceeds of drug trafficking were used to acquire the property for Mr O'Brien's benefit.
67. The properties alleged to have been acquired by Mr Dunne for Mr O'Brien's benefit with the proceeds of Mr O'Brien's drug trafficking were the apartment in Andorra (Count 5) , and the Pelican Inn public house in Wiltshire (Count 6) bought by Mr Dunne in conjunction with Mr and Mrs Lloyd.
68. The prosecution case against Mr Dunne was, in brief, that to his knowledge or suspicion all the moneys he received from Mr O'Brien, whether directly or indirectly (eg via Mr Clements), were the proceeds of Mr O'Brien's drug trafficking.
69. Mr Dunne's defence was, in brief, that the money he received from Mr O'Brien was Mr Dunne's own money which he himself had handed to Mr O'Brien in an attempt to shield it from the UK tax authorities and from Mr Dunne's wife. He claimed that this version of events was supported by the fact, as he alleged, that Mr O'Brien did not make (and probably could not have made) more than about £180,000 from drug trafficking.
70. We take this second point first. It was put at trial and before this Court forcefully by Advocate Preston. It was based primarily on the evidence of three witnesses, Mr Kingston of Weddell Swift, retired Detective Constable De La Haye, and Mr O'Brien.
71. Reliance was placed on Mr Kingston's evidence to the effect that Mr O'Brien himself handed over to Weddell Swift on no more than about six to eight occasions boxes to be added to the pallets of meat being transported from Portsmouth to Jersey, and on the size of the boxes referred to by Mr Kingston. However, Mr Kingston in his statement made it clear that Weddell Swift accepted additional packages from "an agent of Mr O'Brien's" on other occasions, and that not all the additional packages were handed over by Mr O'Brien himself. On the evidence of Mr Kingston, which was read and not cross-examined on behalf of Mr Dunne, it was open to the Jurats to conclude that extra packages which might contain drugs were added to the pallets going to Mr O'Brien's business in Jersey on many more occasions than the six to eight occasions when Mr O'Brien himself was involved.
72. Mr De La Haye's evidence was premised, in his cross-examination by Mr Preston, on
(i) there only being about six to eight packages of drugs brought to Jersey for Mr O'Brien.
(ii) the mix of drugs so transported being similar throughout to the mix of drugs found at Mr O'Brien's business premises, ie ecstasy, amphetamine and predominantly cannabis, and not including heroin (though Mr O'Brien had heroin in his possession when arrested at Portsmouth).
The purpose of this second premise was to limit the profitability of the drugs Mr O'Brien imported, because heroin, for example, had a much higher mark-up than the other drugs referred to. Reference was also made to the involvement of others in the importation and trafficking of the drugs, who would have wished to make profits as well, diminishing Mr O'Brien's profit share.
73. The Jurats were in our judgment entitled to conclude that the profits which Mr O'Brien could have made from his drug trafficking were much greater than Mr Preston contended. As Mr De La Haye stated in his evidence ecstasy could be bought in England wholesale for as little as 50p per tablet, and sold wholesale in Jersey for as much as £14 per tablet. Further, he stated that the quantity of heroin (1001gr) in Mr O'Brien's possession when arrested could have been bought in England for about £25,000 wholesale, and sold in Jersey wholesale for up to £180,000. So the Jurats were entitled to conclude that Mr O'Brien would have been able during 1997 and 1998 to make profits greatly in excess of the maximum figure of about £180,000 put forward by Mr O'Brien in his evidence, and relied on by Mr Preston in support of Mr Dunne's defence.
74. Turning to the central issue raised on Mr Dunne's behalf, that all or the great majority of the moneys received by him from Mr O'Brien had their origin in moneys received by Mr O'Brien from him, this was pre-eminently an issue for the Jurats who saw the witnesses give evidence, as to whether or not the Jurats believed what was said about this by Mr O'Brien and Mr Dunne. There were in our judgment several points in the evidence which might have indicated to the Jurats the implausibility of this version of events:
(i) there was little evidence to support Mr Dunne's story that he had acquired through years of market trading a nest egg of about £1.2 million;
(ii) the three witnesses called on Mr Dunne's behalf did not support the notion that such large profits could have been achieved;
(iii) the evidence that Mr Dunne had hidden such a large total amount, in cash, in the chimney above the fireplace in his and his wife's house at Poole might have been considered inconsistent with his evidence that he wished to conceal his money from his wife;
(iv) that following Mr O'Brien's arrest Mr Dunne invested £600,000 in bonds in his wife's name seemed also to be inconsistent with the supposed concealment from his wife;
(v) the evidence of Mr O'Brien and Mr Dunne of what money was handed over to Mr O'Brien and when was not consistent;
(vi) Mr Dunne's voluntary statement to the police, made in December 2002, did not tally in some important respects with the undoubted facts concerning the payments made to his bank account in Andorra.
75. In our judgment there was evidence before the Jurats on which they were entitled to disbelieve Mr Dunne's and Mr O'Brien's version of events, and to conclude that at least a large part of the moneys paid by Mr O'Brien to Mr Dunne were the proceeds of Mr O'Brien's drug trafficking. Further, having rejected the positive case run by Mr Dunne, the Jurats were entitled to infer that he knew or suspected that the moneys paid by Mr O'Brien to him were the proceeds of drug trafficking. Accordingly we refused the application of Mr Dunne for leave to appeal against conviction.
SENTENCES
76. Mr O'Brien and Mr Dunne apply for leave to appeal against their sentences.
77. For reasons which will appear below sentencing in these cases was and is as difficult as in any cases which have come before the Court of Appeal in our experience.
MR O'BRIEN : SENTENCE APPLICATON
78. As we have already stated, Mr O'Brien was on 19 November 1999 sentenced in England to a total of six years imprisonment. In this total sentence his drug trafficking activities in Jersey were taken into account, as well as his assistance to the police in both jurisdictions. It was due to the failure of the English Crown Prosecution Service that confiscation proceedings were brought too late in England. If such proceedings had been brought in time, a confiscation order would have been made, as it now has been made in Jersey, and no further prison sentence would have been imposed, except as a sanction if Mr O'Brien failed to comply with the confiscation order. It follows that the bringing of these proceedings in Jersey, in order to secure in Jersey the confiscation order which the Crown Prosecution Service failed to secure in England, is in itself a step which is somewhat unusual.
79. Mr O'Brien pleaded guilty to both the counts against him in Jersey under Article 16A(1)(b) of the 1998 Law. The period in respect of which the counts were laid started on 15 October 1997. The reason for 15 October 1997 being the starting date as against him (contrasted with the starting date of 1 January 1997 against the other defendants) was that Article 16A did not come into force until that time.
80. Mr O'Brien pleaded guilty on the basis of his factual allegation that he had made no more than £180,000 from his drug trafficking. The prosecution was fully aware of this from the outset. The then prosecuting counsel, Crown Advocate Beverley Lacey, wrote to Advocate Tremoceiro who has acted throughout for Mr O'Brien, as follows on 23 December 2002:
"As earlier advised, I confirm that I discussed the position of your client and the Crown's conclusions with HM Attorney General. Ordinarily, in due course the Crown would have moved for a significant term of imprisonment against your client as being the only option open to the sentencing court given the very serious nature of the offences he has pleaded guilty to. However, the Attorney General and I are aware that, when Mr O'Brien was sentenced by the Portsmouth Crown Court in 1999 and a total sentence of six years imprisonment imposed, the drug trafficking activity in Jersey on the part of Mr O'Brien was for some reason taken into account. All that was left to be dealt with was the confiscation of assets. The English Court clearly should not have taken offences committed in Jersey into account, but in so far as your client was concerned, the Crown agrees that he had the legitimate expectation that no further sentence of imprisonment would follow for the Jersey drug trafficking offences previously committed by him.
Therefore, in the wholly exceptional circumstances surrounding your client's earlier sentence, in relation to the two counts to which your client has now pleaded guilty, I confirm that the Crown will move for non-custodial sentences against your client. As I earlier pointed out to you, however, it will still be open to the Royal Court of its own volition to impose a term of imprisonment. Furthermore, this should not be taken as an indication in any way of the likely sentences to be sought on behalf of the Crown against each co-accused who, for the first time before a court, face very serious drug trafficking offences.
Finally, when your client's guilty pleas were entered this was not on any agreed basis. I pointed out to you that the counts against your client focussed on his pattern of activity as opposed to the value of the proceeds of drug trafficking generated by him. I now note that your client puts his estimated benefits from drug trafficking activity at nearer £180,000 as opposed to over £1.5m as maintained throughout by the Crown. This issue may well fall to be ruled upon by the Royal Court at the confiscation hearing. You earlier indicated that a full Affidavit from your client with extensive supporting documentation was in the process of being compiled and that I should receive this early January 2003. I ask that you give that Affidavit urgent priority."
81. We note that Crown Advocate Lacey's statement that the guilty pleas were "not on any agreed basis" related to the amount of benefit from drug trafficking, and that the pleas were entered on the footing indicated by Crown Advocate Lacey that the Crown would move by its conclusions for non-custodial sentences, though as she rightly pointed out, the Crown's conclusions could not bind the Royal Court. That this was a form of plea-bargaining was accepted in the course of the hearing before this Court, and was in fact put by Mr Baker to Mr O'Brien in cross-examination in that way (pages 233-234):
"CROWN ADVOCATE: Mr O'Brien, what you were told by previous Prosecution counsel was that, on the basis of a plea to £178,000 worth of drug trafficking, the Prosecution would not be minded to move for a custodial sentence. That is what you were told, isn't it?
THE WITNESS: Bearing in mind that it was the Prosecution that approached my advocate. It wasn't the other way around.
CROWN ADVOCATE: Never mind that. Never mind that, Mr O'Brien. What you were told by previous Prosecution counsel was that, on the basis of a plea to £178,000, the Prosecution would not be minded to move for a custodial sentence. That is true, isn't it?
WITNESS: That is true, yes."
We will therefore have to consider the effect of such plea bargaining in the Courts of Jersey.
82. The Trial Judge at that stage of the trial, and indeed on other occasions during the trial, said that
"for my part, I make it clear, I am not bound by anything said by anyone as to the basis of your plea."
Our observations on these statements by the Trial Judge are
(i) It was probably inappropriate for such remarks to be made before the time for sentencing arrived, and the Superior Number of the Royal Court had been addressed on the subject of the plea bargain, particularly since Mr O'Brien was not then represented by counsel, and the Trial Judge had yet to hear submissions from counsel.
(ii) The trial was before the Inferior Number and there could be no certainty that the Trial Judge would be presiding in the Superior Number when sentences came to be considered.
(iii) Sentencing would in any event be by the Jurats, and the Judge would be directly involved in the sentencing only if the Jurats sitting in the Superior Number were equally divided. It was for the Jurats to decide what effect (if any) was to be given to the plea bargain between the Crown and Mr O'Brien.
83. In the Superior Number, before the Jurats had been addressed by either the Crown Advocate or Mr Tremoceiro, the Judge stated on behalf of the Jurats (page 42 of the transcript)
"the court would like to make this plain as a preliminary observation in the sentencing proceedings. The learned Jurats are not at present minded to follow the Crown's conclusions in respect of Michael O'Brien. It is open to this court to impose such sentence as it thinks fit but we wish to make it plain that at present the learned Jurats are not minded to follow the course proposed by the Crown in their conclusions. In any individual case, it is of course a matter for the court, not for the Crown, to decide what sentence is appropriate."
The Judge was right to state that the Superior Number was not bound by the Crown's conclusions. But we respectfully observe that it was the Jurats to hear submissions on behalf of the Crown and more particularly of Mr Tremoceiro for Mr O'Brien before deciding whether or not to follow the Crown's conclusions.
84. In the course of Crown Advocate Baker's address to the Superior Number he referred to the plea bargain and the Judge then said this (29 July 2003, transcript, page 73):
"SIR RICHARD TUCKER; Forgive me for interrupting. You heard me say during the trial that I regarded that as a very unsatisfactory and unfortunate announcement or decision for the prosecution to take. Am I to understand that the Crown indicated not only that in the event of a guilty plea but in the event of it being established that the extent of his drugs trading was no more than £180,000 that it would take that stance?
ADVOCATE BAKER: At the time that that indication was given there had been no discussion as to the basis for plea. I suspect that the answer to your question is yes.
SIR RICHARD TUCKER: For my part I am very disturbed that such an indication should have been given. As you have heard me say through the trial, this court was not party to it and does not feel bound by it and so the Jurats asked me to announce at the commencement of the present sentencing process."
85. On 29 July 2003 Mr Tremoceiro described to the Superior Number how the plea bargain had come to be made (transcript, pages 101-102):
"After the proceedings in Jersey were commenced, Mr O'Brien or I on behalf of Mr O'Brien was approached by the prosecution and invited to plead guilty. That was on the basis put forward by the prosecution that it was not considered in the public interest for him to serve further custody.
The prosecution was keen to obtain a guilty plea. It was a valuable plea to the prosecution. Part of the advice given to Mr O'Brien before the guilty pleas included the possibility of a plea in part based on the inability to get a fair trial in Jersey for various reasons: the passage of time, it was nearly four years since the events of the predicate offence; his arrest and subsequent events received wide publicity. It was a distinct possibility that such a plea might be successful.
The Crown would not - and this was done after consultation with the Attorney General - have offered a non-custodial recommendation if it did not (officiate) [recognise?] the value of the plea. The Crown also took into account considerations relating to double jeopardy. The Crown took into account the fact that had the Crown Prosecution Service not made a mistake in the English proceedings with the result that confiscation proceedings collapsed, Michael O'Brien would not be before this court. There was one reason and one reason only for him to be charged, to get a confiscation order in relation to his assets."
Mr Tremoceiro also referred to the obvious element of double jeopardy involved.
86. The Judge then questioned again the basis of the plea bargain, in the context of Mr Tremoceiro's submission that the prosecution of Mr O'Brien in Jersey was solely in order to obtain a confiscation order. The Judge asked Mr Baker to look into this overnight. Mr Tremoceiro then described his meeting with Crown Advocate Lacey (29 July 2003, transcript, page 117):
"ADVOCATE TREMOCEIRO: I had a meeting with Crown Advocate Lacey. I indicated to her at that meeting, which took place before indictment, the basis of the plea, and I repeat benefit of £180,000, no assistance from others. This was not accepted by the Crown. The agreement not to seek a custodial sentence was on the basis of the version advanced by the Crown, ie that there was £1.6 million plus benefit. There were no provisos and no conditions attached. This was done in the full knowledge of all concerned that the court retains discretion to sentence differently. No one was under any illusions in that regard.
But it was also reached on the understanding that the reasoning behind the Crown's decision would be conveyed to the court. My submission is that the Crown has in all but name invited the court to sentence differently. The court has singled Michael O'Brien out for allegations of impropriety. By way of example in paragraph 79 of the summary it is stated that there is an aggravating factor, namely that the effect in Jersey of the drug trafficking activity would be felt more keenly."
The Court notes that Crown Advocate Baker did to some extent seek to distance himself from what had been agreed by the Attorney General through Crown Advocate Lacey.
87. Before the adjournment on 29 July 2003 (transcript, page 121) Mr Tremoceiro said this:
"What the court is being invited to do is to ignore the conclusions of the Crown and the Crown have done everything they can to cause the court to conclude that their conclusions are unrealistic. They have undervalued mitigating factors. You yourself noted it, sir, in that the good character which Mr O'Brien should undoubtedly be entitled to is not referred to by the Crown."
88. On 30 July 2003 Mr Baker addressed the Superior Number in response to the Judge's question (paragraph 86 above) of the previous day. Mr Baker emphasised more than once that
"different prosecutors take different views of large, complicated, financially-based cases."
In saying this he ignored the fact that the plea bargain was made as a result of a decision of the Attorney General, on advice from Miss Lacey, but nevertheless the Attorney General's decision, not Miss Lacey's.
89. He went on to submit that the prosecution of Mr O'Brien (transcript, page 13)
"was not instituted solely for the purposes of obtaining confiscation. It was instituted to try drug trafficking money launderers and to remove the proceeds of that activity from them ..... The proceedings were not instituted solely to deprive O'Brien of his assets."
90. He then said this (transcript, page 14):
"In November 1999, O'Brien was sentenced to six years' imprisonment. What I am going to tell you now is to emphasise the different views that different lawyers can take of the same case. There was considerable consternation not only in the Jersey police but in the lawyers conducting the case at the level of sentence of Michael O'Brien. There was considerable surprise at how low the sentence was. The Jersey investigation into money laundering continued."
We observe that
(i) given the circumstances relating to Mr O'Brien and the assistance he had given the police in England and in Jersey, the sentence imposed by His Honour Judge Chubb was an appropriate sentence in accordance with sentencing principles in England and Wales;
(ii) it was inappropriate to inform the Jurats as to the views held by the Jersey police or Jersey advocates concerning the sentences in England;
(iii) if the Attorney General had held the view that the sentences in England were too low, he would no doubt not have permitted Crown Advocate Lacey to enter into the plea bargain which the Attorney General approved.
91. At the transcript, pages 16 to 18, Mr Baker confirmed that Miss Lacey had told Mr Tremoceiro that
"the Crown's main objective [in relation to Mr O'Brien] was confiscation rather than a custodial sentence."
He then set out the nature of the advice given to the Attorney General by Miss Lacey (effectively as stated in her message to Mr Tremoceiro of 23 December 2002), and accepted by the Attorney General, and elaborating the point that she advised that, if confiscation had been dealt with properly in England,
"O'Brien would not have been the subject of a separate prosecution, but his co-accused would have been in any event. She considered that an important distinction to make in the sentencing of all the defendants ....."
92. He went on to say this
"It may be that other prosecutors would not have taken the same steps. It may be that they would have formed a different view."
In saying this he again ignored the fact that the plea bargain flowed from a decision by the Attorney General, and not by Miss Lacey, and again tried to distance himself from the decision which the Attorney General had reached.
93. Mr Tremoceiro in reply emphasised that it had been the view of those concerned on the prosecution's side, and not only of the Attorney-General and Miss Lacey, that if confiscation proceedings against Mr O'Brien had not collapsed in England, Mr O'Brien would not have been prosecuted in Jersey. He also emphasised that Miss Lacey had approached him, not he Miss Lacey, as Mr Baker had suggested.
94. We have set out at some length the history leading to the sentencing decision of the Superior Number because it is an essential and major part of Mr Tremoceiro's submissions to this Court, and because the history has to be viewed as a whole and not merely by reference to a few of the relevant circumstances. One matter, however, we have left for later consideration, namely Mr Tremoceiro's submission that either the Superior Number must resolve any doubt as to the benefit derived by Mr O'Brien from drug trafficking (£180,000 or £1.5 million) in favour of Mr O'Brien, or there must be a Newton hearing to determine the benefit. This is a matter with which we deal separately below.
95. In the sentencing judgment of the Superior Number the Judge made it clear that the Jurats were sentencing the defendants on the basis that Mr O'Brien had benefited from drug trafficking to an amount of about £1.5 million. The Court took into account all the reports before it, the testimonials and references, and Mr O'Brien's previous good character. The Jurats did not accept the Crown's conclusions in relation to Mr O'Brien and adopted a starting point for all the defendants of twelve years imprisonment.
96. The Court stated that the position of Mr O'Brien "has given the Court special cause for concern" because
(i) he alone had pleaded guilty;
(ii) he had already received a sentence of six years in England;
(iii) he had given assistance to the police "though it seems that credit for it has already been given" in England;
(iv) the main reason for bringing the proceedings in Jersey against Mr O'Brien was to obtain a confiscation order rather than to seek a custodial sentence.
The Court accepted that the Attorney General had agreed on behalf of the Crown that Mr O'Brien
"had the legitimate expectation that no further sentences of imprisonment could follow."
The Court not being bound by that conclusion did not agree with it. The Court could and ought to pass a more lenient sentence on Mr O'Brien than on his co-defendants. But he was "the originator of these offences. But for him, none of the other defendants would be involved or sitting where they now are." The Court sentenced Mr O'Brien to four years imprisonment.
97. Before this Court Mr Tremoceiro made two overall submissions:
(i) That the sentence was wrong in principle;
(ii) That the sentence was manifestly excessive.
WRONG IN PRINCIPLE
98. Mr Tremoceiro relied on the legitimate expectation of Mr O'Brien, acknowledged by the Crown through the Attorney General, that no sentence of imprisonment would be imposed in Jersey. He referred to (i) the six year total sentence in England, (ii) the fact that if the English proceedings had been properly conducted, Mr O'Brien would not have received a second prison sentence or have faced any proceedings in Jersey; (iii) the view of the Attorney General in making the plea bargain that the main objective was to obtain a confiscation order, rather than a custodial sentence; (iv) the inappropriate statement by Mr Baker quoted in paragraph 90 above; (v) the inequity of the Royal Court in, in essence, sentencing Mr O'Brien a second time for the same criminality; (vi) the fact that the evidence was available to the English authorities in 1999; (vii) the delays between 1999 and 2003; and (viii) the conduct of the Crown in having through Mr Baker in effect resiled from the plea bargain and instead singled out Mr O'Brien for allegations of impropriety.
PLEA BARGAIN
99. Because the plea bargain with the Attorney General was at the centre of these submissions, this Court in advance of the hearing asked Advocates Tremoceiro and Baker to assist the Court with Jersey and other authorities as to the way in which the Jersey Courts should take account of plea bargains such as the one in this case. Both Advocates assisted the Court with citation of potentially relevant authorities, for which the Court wishes to express its gratitude.
100. The position of the Crown in Jersey is quite different from that in England and Wales. Crown Advocates on behalf of the Attorney General spell out to the Court the Crown's conclusions as to sentence and explain to the Court in detail the considerations which have led the Crown to arrive at its conclusions. As Mr Baker rightly observes, the Courts of Jersey are not bound by the Crown's conclusions, and on occasions impose more severe or more lenient sentences than the Crown proposes. In the ordinary way, therefore, there cannot be any "legitimate expectation" that the Court will accept the Crown's conclusions.
101. But that proposition needs to be considered in more detail in circumstances, such as here, where a plea of guilty has been secured by the Crown in return for the Crown agreeing to place before the Court reasoned conclusions for a non-custodial sentence. This is a form of plea bargain, not found in the ordinary cases coming before the Court, which needs different and fuller consideration.
102. Neither Mr Baker nor Mr Tremoceiro argued before us the question whether it is appropriate for the Crown in Jersey to make such plea bargains. As already indicated the Judge from an early stage in the trial (without having at any stage called for or heard any submissions from counsel) expressed trenchant views criticising the Attorney-General for having improperly entered into a plea bargain. Because this point has not been argued before us, we cannot express any concluded view. But we think it right to say this:
(i) the Judge should not have expressed such criticisms without having first heard submissions from counsel for the Crown and for Mr O'Brien (and certainly not at a stage when Mr O'Brien was not even represented in Court by Counsel);
(ii) the arguments for the utility and commonsense of securing pleas of guilty in return for agreement as to the sentencing conclusions of the Crown to be placed before the Court are much stronger than the Judge gave credit for, and this is apparent from the authorities in other jurisdictions to which we will turn in a moment;
(iii) however, the point must be left for later decision by this Court;
(iv) in the context of some uncertainty about plea bargaining in this jurisdiction, we consider the Judge's criticisms of the Attorney-General to be unfounded, and this Court makes no such criticism;
(v) this Court regards the plea bargain as one important factor in the sentencing of Mr O'Brien.
103. The question for us is what weight the Jurats in the Superior Number ought to have given to the plea bargain in this case.
104. There appears to be no guidance to be derived from Jersey case-law.
105. In England and Wales, the Crown does not offer any recommendations as to sentence. There have been not infrequent statements in the Court of Appeal, Criminal Division, to the effect that plea bargaining involving the prosecution and/or the Judge is usually not acceptable. Particular concern has been expressed that in some cases plea bargaining may involve undue pressure on the accused to plead guilty. But in practice frequently the Crown accepts a plea to a lesser charge, subject to the Attorney-General's guidelines, and this results in a lower sentence. It is also not uncommon for Judges in the Crown Court to give a clear indication, usually in writing, as to the upper limit of likely sentence. Indeed this happened in Portsmouth Crown Court with Mr O'Brien. Initially Mr O'Brien had not pleaded guilty to the heroin count. The Circuit Judge indicated in writing that he would not impose a higher sentence on that count, if Mr O'Brien pleaded guilty, than on the other counts concerning Class A drugs: see the letter from his solicitors to Mr O'Brien of 16 July 1999.
106. An example of a recent decision on appeal in England and Wales where a plea bargain was considered, is Att Gen's Reference No.44 of 2000 (Peverett) [2001] 1 Cr App R 27. The offender P pleaded guilty to nine offences of indecent assault of pupils at a school of which he was headmaster. P had initially pleaded not guilty. He changed his pleas to guilty following a joint approach by defence and prosecution counsel to the judge in chambers, during which prosecuting counsel encouraged the judge to impose suspended sentences. The judge did so. The Attorney-General applied for leave to refer the sentences with a view to the Court of Appeal imposing more severe sentences. The Court of Appeal, relying in particular on the earlier case of Att Gen's References Nos.80 and 81 of 1999 (Thompson and Rogers) [2000] 2 Cr App R(s) 138, refused leave to refer the case and said this:
"In our judgment, if the Crown, by whatever means the Crown is prosecuting, make representations to a defendant on which he is entitled to rely and on which he acts to his detriment by, as in the present case, pleading guilty in circumstances in which he would not otherwise have pleaded guilty, that can properly be regarded as giving rise to a legitimate expectation on his part that the Crown will not subsequently seek to resile from those representations, whether by way of the Attorney-General exercising his personal statutory duties under section 36 [of the Criminal Justice Act 1988: to refer the case to the Court of Appeal] or otherwise. For this purpose the Crown and its agents are indivisible."
The Court accordingly refused leave to the Attorney-General.
107. It is true that in Peverett and in Thompson and Rogers prosecuting counsel and the judge had gone outside the guidance laid down in R v Turner [1970] 2 QB 321, 54Cr App R 352 and subsequent cases. But in both of these recent cases the English Court of Appeal recognised the strength of the legitimate expectations on the part of the defendant that if he pleads guilty neither the prosecution, nor the judge if he is involved, will resile from the representations on which the defendant relied and was entitled to rely.
108. We have also been referred to extensive judicial and other authority in Ireland, Canada, the USA and Australia, for which the Court is grateful. Much of this authority will be of direct relevance when this Court at a later date comes to consider the propriety and appropriateness of different forms of plea bargaining in Jersey, a question which we have to leave open for the present. We take the view that it suffices in this case to take account of the views of the English Court of Appeal in Peverett and Thompson and Rogers.
109. In this case the bargain was a plea of guilty in return for the Attorney-General agreeing to put forward his conclusions to the sentencing court that in all the circumstances relating to this defendant Mr O'Brien should be subjected to a community sentence, and not a further term of imprisonment. It is plain that the Crown Advocate should not in any way have resiled from that bargain as on occasions he sought to do, not least because it appears to us that he had no authority from the Attorney General to do so.
110. It was always part of the bargain that the sentencing court could not be and was not bound by the bargain between prosecution and defence. Thus it was open to the Superior Number to arrive at a different and custodial sentence. But in our judgment it was incumbent on the Superior Number
(i) Not to announce in advance of any submissions by counsel that it would not be taking account of the plea bargain;
(ii) To give substantial weight to the decision of the Attorney-General on which Mr O'Brien had relied when deciding to plead guilty, and therefore to the legitimate expectations of Mr O'Brien.
111. Thus in our judgment the attack on the sentence as wrong in principle goes too far. Subject to all the other considerations affecting Mr O'Brien the Superior Number could impose a custodial sentence.
MANIFESTLY EXCESSIVE
112. The first matter raised by Mr Tremoceiro under this head is that there should have been a Newton hearing, because Mr O'Brien pleaded guilty on the basis that he had made £180,000 from his drug trafficking, whereas the Crown alleged that he had made £1.5 million. But the issues which would have been raised at a Newton hearing had already been before the Inferior Number of the Royal Court at the trial. Mr O'Brien was called as a witness by his wife, and it was an essential part of his evidence, and that of Mr Dunne, that apart from about £180,000 all the money received by them from Mr O'Brien was Mr Dunne's and not Mr O'Brien's money. That evidence was rejected by the Jurats when reaching a verdict of guilty in respect of Mr Dunne. The Trial Judge correctly declined to order a Newton hearing, because at such a hearing the same evidence as had been called at trial would have been called again. The technical point that the trial was in the Inferior Number before two Jurats, and that a Newton hearing would have been before at least five Jurats in the Superior Number, in our judgment makes no difference. It would have been entirely inappropriate for the Superior Number to be asked to determine afresh issues already decided by the Inferior Number. Accordingly Mr O'Brien had to be sentenced on the basis that his version of the circumstances concerning the money he transferred to Mr Dunne was rejected. A further point urged by Mr Tremoceiro is that Mr O'Brien, having pleaded guilty and being only a witness for the defence at the trial, was unrepresented at that stage and in any event was not in a position through counsel to test the relevant evidence. This point might have some force in other circumstances. Here, however, he was called as a witness by his wife. The interests of his wife and Mr Dunne were in this regard similar to his interests, and their interests were defended carefully and fully by their counsel. In our judgment there was no occasion for a Newton hearing to be ordered.
113. We turn to the central points to be taken into account in relation to the sentencing of Mr O'Brien:
(i) Due weight had to be given to the plea bargain and to the decision of the Attorney-General, leaving out of account any statements by the Crown Advocate and the Trial Judge which detracted from that due weight, and to Mr O'Brien's legitimate expectation that such due weight would be given.
(ii) The previous good conduct and character of Mr O'Brien.
(iii) The assistance given to the police in England and Jersey.
(iv) The sentences of six years imprisonment in England, and the matters taken into account by the Portsmouth Crown Court when imposing those sentences.
(v) The delays in bringing the charges to trial and sentence in Jersey.
(vi) (vi) The time spent in custody in England and in Jersey.
(vii) The views of the Parole Board leading to Mr O'Brien's early release from prison in England.
(viii) Mr O'Brien's conduct as a prisoner in England, including his selection as a "listener" for the Samaritans.
(ix) Mr O'Brien's compliance with the bail conditions.
(x) The loss of all his assets.
(xi) The pre-sentencing reports, including the recommendations made in them.
(xii) His guilty pleas.
114. In our judgment this is strong mitigation which ought to have led the Superior Number not to impose long prison sentences in addition to the six year total sentence of imprisonment in England. The sentence of four years imprisonment, which could be viewed as resulting in Mr O'Brien being sentenced to a total of ten years imprisonment, was in our judgment clearly excessive. Accordingly, we have granted leave to appeal against sentence, we have quashed the sentence of four years imposed by the Superior Number, and substituted a sentence of one year's imprisonment.
115. Mr Tremoceiro asked this Court also to quash the confiscation order including the sentence of ten years imprisonment in default. His primary ground for this submission was that in the absence of a Newton hearing a confiscation order ought to have been made on the basis most favourable to Mr O'Brien, that he had gained only about £180,000 from his drug trafficking. We have already dealt with and rejected the submission as to a 'Newton' hearing. In our judgment no sufficient grounds have been shown for altering either the confiscation order or the sentence in default. However, we emphasise that if the total sum recovered by way of confiscation proves to be less than the amount ordered through no fault of Mr O'Brien, then it will be incumbent on the Crown to apply to the Royal Court to vary the amount so as to accord with what can, in reality, be recovered (as the Crown Advocate indicated to this Court is the standard practice of the Crown in Jersey).
Mr DUNNE: SENTENCE APPLICATION
116. Mr Dunne was sentenced for assisting Mr O'Brien in the laundering of money which Mr Dunne knew or suspected were the proceeds of Mr O'Brien's drug trafficking. There was no evidence that Mr Dunne played any part in Mr O'Brien's drug trafficking, and there was no charge against Mr Dunne in that respect.
117. Advocate Preston submitted that:
(i) the starting point of twelve years imprisonment was too high, and should have been no higher than eight or nine years;
(ii) the discount for mitigation of 25% was roughly appropriate, but the discount should have been made from a substantially lower starting point;
(iii) both the starting point and the sentence of nine years imprisonment imposed were excessive and out of proportion when compared with the starting point and sentence of Mr O'Brien.
118. Having regard to the substituted sentence of one years imprisonment on Mr O'Brien, it is plain that both the starting point and the sentence on Mr Dunne were in our judgment excessive.
119. Mr Dunne, however, does not have the benefit of a plea of guilty as does Mr O'Brien. Unlike Mr O'Brien he did not provide assistance to the police. He has previous convictions between 1959 and 1979, but none since 1979, and we therefore leave the stale convictions out of account. Unlike Mr O'Brien Mr Dunne did not serve a prison sentence in England. But the delays in bringing this matter to trial affect Mr Dunne also.
120. If there were no question of disparity it would be appropriate to take a starting point of about nine to ten years in Mr Dunne's case with a discount of about 25% for the available mitigation.
121. But there is here a serious question of disparity as compared to Mr O'Brien. Even if the total prison sentences of Mr O'Brien were viewed as seven years, a sentence of nine years for Mr Dunne would not be appropriate.
122. Because of the element of disparity, we have taken a starting point of about seven years and given a discount of two years for mitigation, making a sentence of five years on each of the three counts. Accordingly we have granted leave to appeal against the sentences, quashed the sentences imposed by the Superior Number, and substituted sentences of five years, to run concurrently, on each of counts 2, 5 and 6. We make no change in the confiscation order or the sentence in default. But we repeat in relation to Mr Dunne the last sentence of paragraph 115 above.
123. Finally, we emphasise in relation to the sentences imposed on Mr O'Brien and Mr Dunne that the sentences have resulted from the special factors we have set out in this judgment, and they provide no guide whatever for the sentencing of others who launder or assist in laundering the proceeds of drug trafficking.
Authorities
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