Jersey Unreported Judgments

[2008]JRC174B

ROYAL COURT

(Samedi Division)

8^th October 2008

The Attorney General

-v-

Helen Jeanette Bowler

Admissibility of evidence.

H. Sharp, Esq., Crown Advocate.

Advocate M. J. Haines for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The defendant in this case is charged with 3 counts of being concerned in the importation of heroin.  The counts relate to 3 packages which were sent to two addresses, one is Flat 3 in the block of flats where the defendant now lives at Flat 1, although she previously lived at Flat 3, and the other is her mother's address.

2.        The Prosecution wish to adduce certain evidence to which the Defence objects. The evidence relates to certain items found when a search warrant was executed at the defendant's flat and to the contents of her interview with the Police. 

3.        Taking the search warrant first; amongst other items found was a set of scales in the kitchen which tested positive for traces of cannabis and for traces of heroin.  Secondly there was a cling film wrap with a brown stain or residue in it; this was found on the bedside cabinet in the main bedroom and had traces of cannabis.  Thirdly there were a number of used syringes, needles and other items found in a plastic bin bag which was in turn in a communal wheelie rubbish bin used for the whole block of flats.  Other items were found to which the defence makes no objection, in particular a hypodermic syringe and a spoon with burn marks on it. 

4.        As to the interview; the defendant made reference to the fact the she had not used cannabis for a year; in relation to the scales she admitted that she had used them to weigh cannabis in order to check that she wasn't being ripped off. 

5.        Objection is taken essentially to these pieces of evidence on the basis that they show the defendant was guilty of criminal offences other than those with which she is charged, namely the possession of cannabis. 

6.        The principles that I must apply are well established and are clearly set out in Archbold paragraph 25-471.  The question is whether the evidence has sufficient probative force to justify its submission and if I conclude that it has, does that probative force outweigh the prejudicial effect?  On this latter aspect I have a discretion to exercise.  In order to decide the probative force one has to have a clear understanding of the issues in the case; these appear to be in the process of changing.  From the papers it appeared that the defendant admitted to being in London with her boyfriend Mr Such but she had no knowledge of the packages whatsoever.  Her fingerprints have been found on 2 packages for which she had no explanation other than whoever wrapped the packages and sent them must have brushed against her in the street whilst she was carrying the wrapping or must have bought the wrapping which she had fingered in a shop.  It was, she said, a coincidence that the person who had sent the packages then sent them to addresses with which she was connected. 

7.        However, it now appears that the issues are rather different.  Her boyfriend, Mr Such, has made a statement in which he admits that he organised this importation, and that he is a heroin addict.  She will apparently now say that, although she bought the wrapping paper, hence her fingerprints, she thought this was for Christmas presents.  That was her only involvement; she had no knowledge that it was to be used for sending heroin.  The defence will apparently accept that Mr Such is a heroin addict and has used heroin in the flat; hence they are not challenging items 3 and 4 on the schedule to which we have been referred. 

8.        I propose to take first those items on the schedule to which the defence object.  The first is item 5, namely the syringes, needles and other items found in the communal wheelie bin.  I have to say that I consider its probative force to be minimal.  This was a communal wheelie bin, there is nothing tying these items to the defendant or to Mr Such or to Flat 1 save for the fact that Mr Such is an acknowledged drug addict, but there is no evidence before us as to whether it could have come from any of the other flats and I consider that too tenuous a basis to allow evidence of this nature to be adduced for the purposed of using it against the defendant.  I therefore exclude item 5. 

9.        I come then to items 1 and 2, that is the scales and the cling film with the cannabis.  The Crown say that these are probative in two respects.  First in so far as the scales show traces of heroin, it supports items 3 and 4 and arguably, goes further in showing that this was a flat where heroin was openly used by Mr Such and the defendant must have been aware of this.  They say that is strongly relevant to the issue of whether Mr Such kept this importation a complete secret from the defendant.  The second way in which they say these items are relevant is that they show, together with the admissions, that she was, and possibly still is, a cannabis user; therefore she is somebody familiar with the drug world and not some totally innocent girlfriend who has been misled by her drug taking boyfriend. 

10.      I am satisfied that the first point made by the Crown is well made.  I do accept that evidence which shows that heroin was openly used in this flat, to the knowledge of the defendant, is relevant to the issue of whether she knew what was going on in relation to the posting of the packages and was concerned in it by buying the packaging.  I accept that the fact that heroin was on the set of scales adds force to that evidence, or is capable of doing so; whether it does will of course be a matter for the Jurats.  However I do not consider that the point concerning the use of cannabis is so strongly probative; I can just about accept that it has some probative force but I consider that is very much outweighed by the prejudicial effect of showing that she has previously committed the criminal offence of possession of cannabis.  I therefore exclude item 2 which related solely to that cannabis point.  As to the set of scales, I propose to admit the evidence of the finding of the scales and the fact that analysis showed that traces of heroin were found thereon but I exclude that fact that cannabis was found for the same reason as I have excluded item 2.  Mr Haines was concerned that the mere possession of scales of this nature might be thought to be prejudicial but I do not accept that; most kitchens must have sets of scales and I would certainly be willing to direct the Jurats that that is so and they must not hold the possession of scales against her.  Any relevance will be that they were used to weigh heroin, presumably by Mr Such, which is relevant to the issue I have described as to the knowledge of heroin use in the flat. 

11.      Then I come to the interview; I think my decision follows on from that which I have made.  I exclude references to cannabis use, which are the two black lined passages on page 3 of the bundle prepared and presented by the defence.  I also exclude references to the items found in the wheelie bin.  I have already indicated to Mr Haines, and he has accepted, that if I am with him on the exclusion of the cannabis use then the whole of the fourth paragraph must be excluded because it would otherwise give the impression that Miss Bowler does not and has never used any controlled drugs whereas that is not the position.  Whilst I am content that no evidence should be allowed showing that she has used drugs, she cannot of course, assert either at interview or in evidence, that she does not use drugs or has never used drugs and were she to do so the normal consequences would possibly follow. 

Authorities

Archbold.