Jersey Unreported Judgments

[2007]JRC207

ROYAL COURT

(Samedi Division)

9^th November 2007

The Attorney General

-v-

Fabio Andre Fernandes Martins

Claudio Rodrigues de Freitas

Joao Carlo Ornelas Martins

Crown Advocate C. E. Whelan for the Attorney General.

Advocate M. L. Preston for F. Martins

Advocate P. S. Landick for de Freitas.

Advocate M. H. Temple for J. Martins

JUDGMENT

THE COMMISSIONER:

1.        An indictment was laid against the three accused in the Samedi Court on Friday 31^st August.  All three pleaded not guilty.  The indictment charged all three with "attempting to acquire property representing the proceeds of drug trafficking contrary to Article 38(1) of the Drug Trafficking Offences (Jersey) Law 1988" and the offence was particularised in this way:-

"Fabio Andre Fernandes Martins, Claudio Rodrigues de Freitas and Joao Carlos Ornelas Martins on 13^th March, 2007, attempted to acquire property, directly or indirectly, with the proceeds of drug trafficking by Vittoriano Sousa Gomes."

2.        We ordered a preliminary hearing on a point of law.  I sat alone to hear this legal argument.

3.        It may be useful to work out the relevant Articles of the Drug Trafficking Law.  Article 38(1) states that:-

"If a person who, knowing that any property is, or in whole or in part directly or indirectly represents, another's proceeds of drug trafficking, acquire that property or has possession or use of it, is guilty of an offence."

4.        Article 1(1) of the 1988 Law reads:-

"Drug trafficking offence means any of the following:

(e)       an offence under Article 30, 37, 38 or 46.

(f)        an offence of conspiracy to commit any of the offences in sub-paragraphs (a) to (e).

(g)       an offence of attempting to commit any of those offences.

(h)       an offence of inciting another to commit any of those offences."

5.        It is argued by Counsel for the defence that the indictment is defective because firstly, it omits an essential element of the alleged offence, namely the knowledge that the property that was being sought was, directly or indirectly, the proceeds of the drug dealing carried out by the convicted drug trafficker Vittoriano Gomes and secondly, that there is no offence in Jersey customary or statutory law of attempting to commit the offence created in Article 38(1).

6.        This is an inchoate offence and what is required is the full intent to commit the offence contemplated and it is clear to me that the mental element of an attempt is an intention to bring the substantive offence into effect.  There is, in Article 38(1) an element of knowledge.  The Article specifically says that:-

"a person who knowing that any property is, or in whole or in part, directly or indirectly represents another's proceeds of drug trafficking acquires it or has possession or use of it is guilty of an offence."

7.        It is not in dispute that despite careful searching of the garden which was being dug in the early hours of the morning, there was nothing there.  That does not, in my view, destroy the prosecution's case.  It is clearly not an argument since Ruban v AG [1987-88] JLR 204 makes it an offence in Jersey to attempt the impossible.

8.        Whether or not the acts done can be regarded as "immediately connected" with the crime contemplated is a matter for trial.

9.        As the Court said in Ruban (at page 218):-

"In our judgement, in Jersey law an attempt consists of a step or steps taken towards the commission of an offence which the offender intends to commit if he can.  Mere intention (mens rea) is not enough.  Some act (actus reus) must be proved to have been done by the offender directly connected with the offence.  There must be mens rea and actus reus.  But it is no defence to prove that it was physically impossible to commit the complete offence."

10.      Article 1 of the Law does not create the offence but it recognises the customary law offence of attempting to acquire the proceeds of drug trafficking.

11.      This takes me on to the second point, most ably argued by defence counsel, that there is no offence in Jersey customary law of attempting to commit a statutory offence.  The argument put more finely by Advocate Preston is whether "a definition in an interpretation section in a statute is, without more, sufficient to create an offence".  He cites, as one of many examples, Article 27 of the Road Traffic (Jersey) Law 1956 (as amended) which says specifically:-

"any person who, when driving or attempting to drive a vehicle ... on a road or other public place is unfit to drive ... through drink or drugs shall be guilty of an offence under the Article."

12.      That may well be so but Crown Advocate Whelan cites several statutes such as the Loi (1884) sur les Matieres Explosives; section 1 of the Aviation Security Act 1982 (again extended by Order in Council); and Article 2 of the Protection of Children (Jersey) Law 1994.  The statute in question - the draft Criminal Offences (Jersey) Law - is still awaiting sanction by the Privy Council but it appears to me to do no more than to codify the law in relation particularly to attempts to provide the mode of trial and to set out that the maximum penalty for an attempted statutory offence is the same as that for the substantive offence.

13.      It is clear that in England an attempt to commit an indictable offence is a common law misdemeanour unless it is made a felony by statute.  In this jurisdiction, in my view, there are clear examples where inchoate offences relating to statutory offences are regarded as part of the customary law, although they are not made criminal within the statute which creates the offence.  An example was given to us by Crown Advocate Whelan.  The Customs and Excise (Jersey) Law 1999 does not specifically mention conspiracy, yet conspiracy to evade the prohibition on the importation of controlled drugs ahs been charged, tried and punished on very many occasions.  It appears to me that the Jersey customary law of attempt is similar to the English common law and on that basis it would seem unnecessary to distinguish in this Island between attempt and other inchoate offences.  I regret that I cannot follow the passage cited to me by Advocate Preston from the 4^th Edition of Bennion on Statutory Interpretation which states:-

"It is a principle of legal policy that a person should not be penalised except under clear law (in this Code called the principle against doubtful penalisation).  The Court, when considering, in relation to the facts of the instant case, which of the opposing constructions of the enactment would give effect to the legislative intention, should presume that the legislator intended to observe this principle.  It should therefore strive to avoid adopting a construction which penalises a person where the legislator's intention to do so is doubtful, or penalises him or her in a way which was not made clear."

14.      In my view, this is not a case which calls in aid this principle.  This does not mean that there will not be legal argument at trial.  For a moment, I need to look at the mode of trial.  This will, of course, depend on whether I decide that Article 1 of the 1998 Law creates a statutory offence or whether the attempt is a customary offence.  It seems perverse that the full offence would be tried before the Inferior Number yet the lesser offence would be an assize trial.  All defence counsel were of the view that AG v Pennington [1970] JJ 1349 was wrongly decided.  I find that argument is insupportable particularly as it was followed in AG v Weston [1980] JLR 43.  In those two cases the Court summarised authorities with some care.  In my view there is no alternative as the law stands but for the defendant's to be tried before the Inferior Number, and I so order.

Authorities

Drug Trafficking Offences (Jersey) Law 1988.

Ruban v AG [1987-88] JLR 204.

Road Traffic (Jersey) Law 1956 (as amended).

Loi (1884) sur les Matieres Explosives.

Aviation Security Act 1982 (again extended by Order in Council).

Protection of Children (Jersey) Law 1994.

Customs and Excise (Jersey) Law 1999.

Bennion on Statutory Interpretation 4^th Edition.

AG v Pennington [1970] JJ 1349.

AG v Weston [1980] JLR 43.