Jersey Unreported Judgments

[2004]JRC068

royal court

(Samedi Division)

 

21^st April, 2004

 

 

 

Her Majesty's Attorney General

-v-

Lawrence Anthony Durkin

Rodney Julian Bevis

Jeremy Edwin Howard

Gavin David Norman Hartley

and

Emma Louise West

 

 

Lawrence Anthony Durkin

 

4 counts of:	conspiracy to contravene Article 6(1) of the Customs and Excise (Jersey) Law 1999: count 1: diamorphine count 22: diamorphine count 23: diamorphine count 24: diamorphine
7 counts of:	possession of a controlled drug, contrary to Article 6(1) of the Misuse of Drugs (Jersey) Law, 1978: count 3: diamorphine count 5: diamorphine count 7: diamorphine count 9: diamorphine count 12: cannabis resin count 13: MDMA count 15: diazepam
2 counts of:	supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law, 1978: count 4: diamorphine count 8: diamorphine
2 counts of:	possession of a controlled drug, with intent to supply, contrary to Article 6(2) of the Misuse of Drugs (Jersey) Law, 1978: count 6: diamorphine count 10: diamorphine
1 count of:	obstructing a police officer in execution of his duties, contrary to Article 17(5)(a) of the Misuse of Drugs (Jersey) Law, 1978: (count 11)
2 counts of:	being concerned in supplying a controlled drug to another, contrary to Article 5(c) of the Misuse of Drugs (Jersey) Law, 1978: count 14: MDMA count 16: diazepam

On 30^th January 2004 the Defendant pleaded guilty to counts 3, 4, 5, 7, 8, 9, 12 and 15 and not guilty to counts 6, 10, 11, 13, 14 and 16, which not guilty pleas were accepted by the Crown.  On 13^th February 2004, the Defendant pleaded guilty to count 1 and not guilty to count 2, which not guilty plea was accepted by the Crown.  Following the present judgment on 21^st April 2004, the Defendant was given leave to plead not guilty to count 1, and entered guilty pleas to counts 22, 23, and 24.

 

 

Rodney Julian Bevis

 

2 counts of:	conspiring to contravene Article 6(1) of the Customs and Excise (Jersey) Law, 1999: count 23: diamorphine count 24: diamorphine
1 count of:	supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law, 1978: count 21: diamorphine.

On 30^th January 2004, the Defendant pleaded guilty to count 21 and the Crown accepted a not guilty plea to count 2.  Following present judgment on 21^st April 2004, the Defendant pleaded guilty to counts 23 and 24 and the Crown withdrew count 1 to which the defendant had pleaded guilty on 30^th January 2004.

 

 

3 counts of:	conspiring to contravene Article 6(1) of the Customs and Excise (Jersey) Law, 1999: count 1: diamorphine count 22: diamorphine count 25: diamorphine
1 count of:	larceny (count 17)

Jeremy Edwin Howard

On 30^th January 2004, the Defendant pleaded guilty to counts 1 and 17; on 13^th February 2004, the Crown accepted a not guilty plea to count 2.  Following present judgment on 21^st April 2004, the Defendant was given leave to withdraw a guilty plea to count 1 and to plead not guilty thereto and entered guilty pleas to counts 22 and 25.

 

 

Gavin David Norman Hartley

 

1 count of:

supplying a controlled drug, contrary to Article 5(b) of the Misuse of Drugs (Jersey) Law, 1978: count 19: diamorphine

On 30^th January 2004, the Defendant pleaded guilty to count 19 and not guilty to counts 2 and 18; on 13^th February 2004, the not guilty pleas were accepted by the Crown.

 

 

Emma Louise West

On 30^th January 2004, the Defendant pleaded not guilty to counts 2 and 20; on 13^th February 2004, the not guilty pleas were accepted by the Crown and the Defendant was discharged.

 

 

 

Application on behalf of L.A. Durkin and J.E. Howard to change their plea of guilty to count 1 of the indictment to one of not guilty and for a declaration that count 1 in its present form is defective.

 

 

 

Crown Advocate J.C. Gollop on behalf of the Attorney General;

Advocate J. Bell for L.A. Durkin;

Advocate R Juste for J.E. Howard.

 

 

 

judgment

Deputy bailiff:

1.        This is an application on behalf of Durkin and Howard to change their plea of guilty to Count 1 of the indictment and for a declaration that Count 1 in its present form is defective.

2.        The background can be shortly stated.  Durkin and Howard, together with three others face an indictment containing a total of 20 counts, most of which are drug offences.  Count 1 is against Durkin and Howard together with one of their co-accused Rodney Bevis.  The count is in the following terms:-

"Statement of offence

Conspiracy to contravene Article 61 of the Customs & Excise (Jersey) Law 1999. 

Particulars of the offence

Lawrence Anthony Durkin, Rodney Julian Bevis and Jeremy Edwin Howard on or between 20^th February 2003 and 2^nd April 2003 in the Island of Jersey conspired with each other to fraudulently evade the prohibition on the importation of a controlled drug specified in Part 1 of the Second Schedule of the Misuse of Drugs (Jersey) Law 1978, namely diamorphine (heroin)."

3.        The indictment was first brought before the Court on 19^th December 2003 but was adjourned until 30^th January in order that the Crown might provide particulars of counts 1 and 2 and a case summary in order to assist the defendants.  These were duly supplied on 26^th January 2004.  In essence, the Crown's case at that time was that all three defendants had agreed to import heroin into the island.  It was a single agreement to import heroin generally although, as matters progressed, this was reflected in a number of small importations which actually took place together with the planned importation of 1 kilo of heroin, although this latter importation did not take place prior to the arrest of the defendants.

4.        As originally framed, the count was not bad for duplicity.  It alleged only one conspiracy to import heroin.  As a result of that single conspiracy, there may well have been committed a number of specific offences of importation contrary to Article 61.  That is perfectly possible in a count of conspiracy.  The agreement may be one to carry out several offences (e.g. R -v- Greenfield (1973) 57 Cr App R 849 and R -v- Robert (1998) 1 Cr App R. 441).

5.        However, on 20^th January, Bevis made a statement to the police.  It can be summarised as follows.  Prior to any involvement of Bevis, Durkin and Howard had planned to import a kilo of heroin.  They were trying to arrange for the necessary cash to send to a man called Tony in Liverpool in order to acquire the heroin.  Although this was discussed in front of Bevis, at no time did Durkin and Howard invite him to participate in this importation.  However, whilst awaiting completion of the large scale importation of a kilo, Bevis did agree with Durkin and Howard to import smaller amounts of heroin from the United Kingdom.  Bevis' role was to fund the travel to the UK by Durkin or Howard who would bring the heroin back into the island or procure its posting to Jersey.  On 29^th January Bevis' advocate wrote to Crown Advocate Gollop stating that he would be pleading guilty to Count 1 but this would be on the basis of only conspiring with Durkin and Howard to import the lesser amounts of heroin on four occasions.  The Crown agreed to accept Bevis' plea on that basis. 

6.        At that stage the Crown's case had therefore changed.  Whereas previously it had alleged one conspiracy by all three defendants to import heroin generally (including both the kilo and the various minor importations) the case put forward by Bevis and now accepted by the Crown was that there were two separate conspiracies.  The first was between Durkin and Howard and did not include Bevis; it had arisen prior to Bevis' involvement and related to the kilo of heroin.  The second was between Durkin, Howard and Bevis and related to the smaller importations funded by Bevis. 

7.        However there was no amendment to Count 1 of the indictment.   Pleas were entered by all parties to most of the other counts on 30^th January but the taking of pleas in relation to counts 1 and 2 was adjourned to 13^th February so that counsel for Durkin and Howard might have an opportunity of considering Bevis' statement, which had only been supplied to them that morning.

8.        On 10^th and 11^th February respectively, counsel for Durkin and Howard faxed Crown Advocate Gollop setting out the basis upon which their respective clients would plead guilty to Count 1.  They made it clear that both defendants denied any conspiracy to import the kilo of heroin but did admit to a conspiracy in respect of certain of the smaller importations. 

9.        On 10^th February Crown Advocate Gollop faxed a reply saying that the issue of the kilo should be dealt with at a Newton Hearing.  I was informed by defence counsel that this approach came as somewhat of a surprise to them but despite this, on 13^th February, Durkin and Howard entered pleas of guilty to Count 1 on the basis described in their advocates' letters.  However both counsel gave notice at the time of the possibility of their applying to divide up Count 1 so that it dealt separately with the issue of the kilo of heroin.  In the meantime a date was set for a Newton Hearing as requested by the Crown.  Since then defence counsel have considered the matter further and have now brought the application referred to earlier. 

10.      During the course of the hearing, Crown Advocate Gollop conceded that, following the Crown's acceptance of the basis of Bevis' plea (as set out in his police statement supplemented by his advocate's letter of 29^th January) it must now be the Crown's case that, contrary to what it had alleged earlier, there were two separate conspiracies.  The first involved only Durkin and Howard in relation to the kilo; the second involved all three and related to the various lesser importations which actually took place.  He accepted therefore that Count 1 infringed the English rule against duplicity. 

11.      In his written submissions, Mr Bell, who took the lead on behalf of both defendants, referred the Court only to English authorities on duplicity and contended that, once Count 1 was found to be duplicitous, that was the end of the matter and the count had to be quashed as being defective.  The Court was not referred to any Jersey authority.  In fact the law in Jersey is not the same as in England.  This was decided by the Court of Appeal in the case of AG -v- Ahier (1981) JJ 29.  The Court stated at page 35 that there was no justification for introducing into Jersey the English rule on duplicity with the complexities attendant upon it.  The Court held that the custom in Jersey for a very long period had been to allow the inclusion of more than one offence in one count provided that this caused no prejudice to the defendant. 

12.      However I am satisfied that the defendants would be prejudiced by leaving Count 1 in its present form.   The Crown's case has completely changed.  It is a very different thing to allege that one has a conspiracy involving three people to import heroin generally (including a kilo) as compared with an allegation of a conspiracy between two people to import a kilo and a separate conspiracy between three people to import the other lesser amounts.  In my judgment the defence are entitled to face a charge which accurately reflects the case which they have to meet.  In view of the way in which the Crown now puts its case, Count 1 no longer accurately reflects the Crown's case and accordingly the defence are prejudiced by Count 1 in its present form covering more than one conspiracy.

13.      Once they discovered that the Crown was content to accept the factual basis set forth in Bevis' statement, counsel for Durkin and Howard should have applied for Count 1 to be quashed on the basis that it was now duplicitous and did not accurately reflect the amended position of the Crown.  This application should have been brought before their clients entered their pleas of guilty to Count 1.  Had this happened, I have no doubt that I would have acceded to their application and would have held, for the reasons given, that Count 1 had become defective.  Mr Bell and Miss Juste very fairly accepted that, on reflection, this would have been the correct course. 

14.      Does the fact that the defendants have entered pleas of guilty to Count 1 affect the position?  There is clear authority that the law of Jersey in this respect is similar to that in England, namely that, although there is a discretion to allow withdrawal of an unambiguous guilty plea and its substitution by a plea of not guilty, this is a discretion to be exercised very sparingly, particularly where the plea is entered with the benefit of legal advice (see AG -v- O'Brien (12^th May, 1985) Jersey Unreported, approving a number of English cases including R-v- Drew (1985) 2 All ER 1061.  For a recent decision confirming there is such a discretion and that it is a matter for the trial judge which will not be interfered with by the Court of Appeal unless the judge has misdirected himself or the decision is wholly unreasonable, see R -v- Sheikh (2004) EWCA Crim 492. 

15.      However I do not consider that there has been an unequivocal plea of guilty in this case.  The defendants have at all times made clear that they deny any conspiracy to import the kilo of heroin.    The letter explaining the basis of their plea of guilty to Count 1 reiterated this.  Thus no one can have been under any illusion that, by entering their plea, they were accepting this allegation.  In my judgment, at the time they entered their pleas, the conspiracy count was hopelessly inaccurate and uncertain in that it covered two separate conspiracies involving different parties, to only one of which did the defendants intend to plead guilty and then only in respect of part.  I consider this to be an equivocal plea and I do not think it would be right to hold the defendants to that plea in the light of the changed circumstances.

16.      I therefore give leave to the defendants to withdraw their pleas of guilty to Count 1.  I also hold that Count 1 in its present form is defective because it covers two separate conspiracies involving different defendants and it would be prejudicial to the defendants were this charge to remain in its present form.  As I indicated to counsel at the end of the hearing, in my view the correct course would be for the Crown to amend the indictment by including a count of conspiracy against Durkin and Howard alone in respect of the kilo of heroin.  As to the various lesser importations, the basis of the pleas put forward to the conspiracy count by Durkin, Howard and Bevis make clear that each of them accepts having been concerned in the importation of one or more of these lesser amounts.  The best course would therefore seem to be to introduce substantive counts under Article 61 in respect of the relevant importations which actually took place.

17.      I will therefore give consideration to any application of the Crown to amend the indictment in accordance with the indications which I have given in this judgment.

Authorities.

R -v- Greenfield (1973) 57 Cr App R 849.

 R -v- Robert (1998) 1 Cr App R. 441).

AG -v- Ahier (1981) JJ 29.

AG -v- O'Brien (12th May, 1985) Jersey Unreported.

R-v- Drew (1985) 2 All ER 1061.

R -v- Sheikh (2004) EWCA Crim 492.