Jersey Unreported Judgments

[2007]JRC210

ROYAL COURT

(Samedi Division)

12^th November 2007

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

The Attorney General

-v-

Jon Peacock

1 count of:

Conspiracy to contravene Article 29 of the Drug Trafficking Offences (Jersey) Law 1988 (Count 1).

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

Advocate M. L. Preston for the Defendant.

JUDGMENT

THE commissioner:

1.        This is an application by the defence to challenge the admissibility of certain 'text message' evidence which the Crown seek to adduce in the prosecution of the defendant Jon Peacock. 

Background

2.        The case concerns the exportation on 24^th March, 2006, of the sum of £97,840 in cash being the proceeds of drug trafficking.  The actual exportation was undertaken by Claire Louise Fowler (nee Peacock) and her husband, Christopher James Fowler.  Subsequent investigations have revealed the involvement in this exportation of Serge Peacock and the Crown contends Jon Peacock.

3.        Claire and Christopher Fowler were arrested and charged with offences of concealing or disguising the proceeds of drug trafficking, contrary to Article 30(2)(1) of the Drug Trafficking Offences (Jersey) Law 1988.  Guilty pleas were entered by them and they were sentenced by the Inferior Number of the Royal Court on 1^st December, 2006.  Claire Fowler's sentence was varied on appeal before the Superior Number on 20^th February, 2007.

4.        Serge and Jon Peacock have been indicted with one Count of conspiracy to contravene Article 29 of the Drug Trafficking Offences (Jersey) Law 1988.  Serge Peacock has entered a guilty plea to the one Count on the Indictment.  It is the Crown's case that Serge Peacock was the principal behind this exportation in that he was organising and co-ordinating it.  Jon Peacock, the defendant, has entered a not guilty plea to the one Count on the Indictment.  It is the Crown's case that the defendant was assisting his brother in collecting in the proceeds of drug trafficking and in particular the sum of £25,300 which sum, or an equivalent sum, was then given to Christopher and Claire Fowler.  Claire Fowler is the sister of Serge and Jon Peacock.

5.        The events with which the Court is concerned cover the period between the 1^st January, 2006, and the 24^th March, 2006, although the defendant was not arrested until January 2007.

6.        The evidence in the case against the defendant falls principally into the following categories:

(i)        Evidence from Customs Officers who arrested Christopher and Claire Fowler and who discovered the case and thereafter dealt with them through the judicial process: and

(ii)       Evidence consisting of analysis of the telephone calls and text messages relating to mobile telephones used by Claire Fowler and the contact between her, Serge Peacock and the defendant; and

(iii)      Evidence from Police Officers as to the arrest of Serge Peacock and the defendant and their subsequent processing; and

(iv)      Expert evidence of the telephone/text message analysis.

7.        On the 24^th March, 2006, Christopher and Claire Fowler were booked to travel to Portsmouth with Condor Ferries at 2050 hours.  Customs and Immigration Officers had occasion to speak to the couple.  A subsequent search of the vehicle revealed an orange bag from the store "Axle" which was found to contain 5 bundles of cash wrapped in scented nappy sacks.  When the cash was counted it was found to be exactly £25,000.  Each bundle amounted to £5,000.

8.        Claire Fowler was searched and was found to have the sum of £2,760 in cash in her handbag.  A black suitcase was located in the vehicle and inside that case 9 bundles of cash were initially found.  This cash was also packaged in the same manner i.e. wrapped in scented nappy sacks and wrapped in cling film.  This quantity of cash amounted to £45,010.  The bundles were once again split almost equally into £5,000 bundles.  Subsequently a further 5 packages were found within the suitcase and once again these packages were packaged in the same manner as the other packages already found.  The total amount of cash in these 5 packages was £25, 070.  The total amount seized by Customs Officers was £97,840.  A subsequent search by Customs Officers of Christopher and Claire Fowler's home address revealed 3 other quantities of cash totalling £1,771.

9.        The mobile telephone of Claire Fowler was seized and forensically analysed.  Stored within the memory of the mobile phone were the following relevant and significant information:-

(i)        S - 07797 855299

(ii)       Jon - 07797 771085

10.      It is the Crown's case that mobile telephone number 07797855299 was the mobile phone used by Serge Peacock during the relevant period.  During the relevant period Serge Peacock was a serving prisoner at La Moye Prison.  The letter "S" identifies, the Crown contends, the mobile phone number belonging to Serge Peacock.  In relation to the second identified telephone number, it is the Crown's case that this telephone number during the relevant period belonged to the defendant.  Evidence exists from Police records that between the 3^rd December, 2004, and the 1^st April, 2006, the mobile telephone number 07797771085 was the number provided by the defendant when requested to do so by the Police in the course of other enquiries which included an incident in which Jon Peacock was the victim of an alleged crime.  In particular on the 4^th March, 2006, the 23^rd March, 2006 and the 1^st April, 2006, this mobile number was given by the defendant as being his contact or home telephone number.

11.      The telephone analysis shows a number of text messages which were recovered.  At 1544 hours on the 23^rd March, 2006, a text message was sent from Serge Peacock's mobile telephone to Claire Fowler in the following terms:-

"There should be over £100 by the end of the evening."

12.      It is the Crown's case that the reference to £100 is a shortening of the true amount which is £100,000, being approximately the amount seized on the 24^th March, 2006 from Christopher and Claire Fowler.  There is a repeated reference to the sum of £100 by text message to Claire Fowler on the evening of the 23^rd March and again in the early morning of the 24^th March, 2006.  That message was in the following terms:-

"Is there £100 now".

13.      Both of the messages, as indicated above, were repeated and a further message was then sent to Claire Fowler from Serge Peacock's phone with a simple instruction:-

"Phone".

14.      At 0545 hours on the 24^th March, 2006, Serge Peacock sent a further message to Claire Fowler which was in the following terms:-

"How much has jon given u?"

15.      The Crown notes that the spelling of "Jon" is the same as the defendant, Jon Peacock and also the same spelling as recorded in the mobile phone memory of Claire Fowler.  Throughout the 24^th March, 2006, the telephone analysis reveals a number of calls between Serge Peacock and Claire Fowler, Jon Peacock and Serge Peacock, and Claire Fowler and Jon Peacock.

16.      It is the Crown's case that these were not simply the natural telephone contacts between siblings but are directly relevant to the finalisation of the money to be exported by Christopher and Claire on the 24^th March, 2006.  In this respect the Crown refers to a text message sent by Serge Peacock to Claire Fowler at 0545 hours on the 24^th March, 2006, which was in the following terms:-

"That's not right!  I'm fucking raging jon owed £25,300."

17.      This text clearly refers to a full amount of £25,300 rather than the earlier text of £100 which the Crown interprets as being an abbreviated figure the sum of £100,000.  It is of significance in the Crown's view that one of the packages found in the possession of Christopher and Claire Fowler was in the sum of £25,070 whilst another package contained £25,000.

The Law

18.      The law to be applied is set out in Archbold paragraph 34-60 as follows:

"Ordinarily acts done or words uttered by an offender will not be evidence against a co-accused absent at the time of the acts or declarations.  However, it is now well established that the acts and declarations of any conspirator made in furtherance of the common design may be admitted as part of the evidence against any other conspirator.  Such acts and declarations may provide evidence not only of the existence, nature and extent of the conspiracy, but also of the participation in it of persons absent when those acts or declarations were made".  (My emphasis).

19.      Paragraph 34-66c of Archbold sets out how the issue of admissibility is to be determined as follows:

"It is a matter for the trial judge whether any act or declaration is admissible to prove the participation of another.  The judge must be satisfied that the act or declaration (i) was made by a conspirator, (ii) that it was reasonably open to the interpretation that it was made in furtherance of the alleged agreement, and (iii) that there is some further evidence beyond the document or utterance itself to provide that the other was a party to the agreement R -v- Devenport and Pirano and R -v- Jones."

Submissions

20.      The defence challenge the admissibility of the text messages between Claire Fowler and Serge Peacock, which the Crown accepts constitutes essentially the case against the defendant.  There is no dispute that the first two elements of the test are met.  The issue before me relates to whether the third element is met, namely whether there is some other evidence beyond the text messages to prove the defendant was a party to the conspiracy.

21.      The Crown submitted the other evidence proving the defendant was a party to the conspiracy is as follows; firstly, that the defendant, Claire Fowler and Serge Peacock are siblings and that the proper inference to be drawn from this is that they as family members would have trusted one another; secondly, the spelling of the defendant's first name "Jon" which is contained within the mobile telephone directory of Claire Fowler and is the spelling used in the text messages passing between Serge Peacock and Claire Fowler; thirdly, the telephone contact between the three siblings on 23^rd and 24^th March, and in particular the increase in telephone communications at that period of time; fourthly, the discovery of approximately £100,000 in cash in the possession of Claire Fowler and her husband on 24^th March, 2006 and fifthly, the discovery of approximate sums equating to the amount referred to in the text from Serge Peacock of £25,300.  I take each of these in turn.

Findings

22.        Firstly, in my view the fact that the defendant, Serge Peacock and Claire Fowler are family members and by inference would have trusted each other does not constitute evidence of the defendant's participation in the conspiracy.  To hold that it does would be to implicate all family members in conspiracies undertaken by some other members of their family.

23.      Secondly, the inclusion of the defendant's alleged mobile number in Claire Fowler's telephone directory under the name "Jon" bearing in mind he is her brother does not constitute evidence that he was a party to any conspiracy.  The reference that was made in the text to "Jon" is, of course, evidence within the texts themselves and is not evidence that goes beyond the texts.

24.      Thirdly, the increase in the amount of calls on the 23^rd and 24^th March between the three siblings is evidence beyond the text in my view, but I will return to this later.

25.      Fourthly and Fifthly, had the mere fact that moneys were found in the possession of Claire Fowler and her husband is not evidence which goes beyond the texts showing that the defendant participated in the conspiracy.  It is true that of the moneys found there were two bundles, one totalling £25,000 and another totalling £25,070 very close to the £25,300 referred to in the texts as being owned by Jon.  Again in my view this is not evidence which goes beyond the texts, and which taken on its own implicates the defendant.  It is not 'other' evidence of common purpose.

26.      There has to be reasonable evidence or a prima facie case against the defendant so as to render these texts admissible (see R v Jones [1997] Cr. App. R. 119, p 124 and 125.)  Is this threshold satisfied in this case?  If you set aside the texts what evidence does the Crown have?  The Crown candidly agrees that essentially the only other evidence against the defendant is that he was the brother of Serge Peacock and Claire Fowler and was involved in an increased number of telephone calls with them over the 23^rd and 24^th March.  In my view this falls well short of the required threshold.

27.      The purpose of the principle is to ensure that an alleged conspirator is not convicted solely on the basis of evidence which would not be admissible against him, because to admit it would offend against the hearsay rule.  As in essence the case against the defendant is the texts themselves it follows in my view that any conviction would be based solely on the basis of that evidence and accordingly, I find the third element of the text is not met.  I therefore rule that the evidence of the texts is not admissible.

Authorities

Drug Trafficking Offences (Jersey) Law 1988. 

Archbold.

R v Jones [1997] 2 Cr. App. R. 119.