Jersey Unreported Judgments

[2010]JRC043

ROYAL COURT

(Samedi Division)

25^th February 2010

Jon Peacock

-v-

Attorney General

Advocate R. Tremoceiro for the Appellant.

Advocate J. C. Gollop for the Respondent.

JUDGMENT

THE BAILIFF:

1.        On 8th December, 2009, the appellant was convicted before the Assistant Magistrate of attempting to pervert the course of justice by retaining or disposing of a mobile telephone belonging to his sister.  He was subsequently sentenced to four months' imprisonment on 7th January, 2010.  He filed a notice of appeal against both conviction and sentence the same day although he subsequently abandoned the appeal against sentence. 

2.        An appeal against conviction must be brought within eight days of conviction.  Accordingly the appellant sought leave to appeal out of time.  At the conclusion of the hearing, we gave leave to appeal out of time but dismissed the appeal.  We now give our reasons.

Factual Background

3.        There was little dispute about most of the facts.  The Assistant Magistrate was presented with certain agreed admissions.  She heard oral evidence from two police officers and the appellant.

4.        DS Kennea said that on 10th March, 2009, there was an ongoing investigation into the importation of a commercial amount of heroin.  A Mr Brown had been arrested earlier that day in connection with the investigation.  Mr Brown's girlfriend was Mireia Peacock, the appellant's sister.  She attended at the Police Station to see Mr Brown and was spoken to by DS Kennea.  He was interested in all mobile telephones that might assist in the investigation and he asked if she had her mobile telephone with her.  She said she had lost it.  She was subsequently arrested in connection with the drug investigation. 

5.        DS Kennea then telephoned her mobile number ("the first call").  The agreed telephone records show that this was at 19.37.36 hours.  It was answered by a male and DS Kennea said in evidence that he recognised the voice as that of the appellant.  The officer said that he told the appellant that the phone had been reported lost by its owner and that the appellant should hand the phone in to the police and not destroy it.  The call lasted 49 seconds.  He admitted in cross-examination that he may have said that the phone had been reported stolen rather than lost.

6.        There is no dispute that 3 minutes 49 seconds after the termination of the first call, the appellant telephoned Police Headquarters from his mobile phone ("the second call").  That call was recorded and there was an agreed transcript before the Assistant Magistrate.  He spoke initially to the duty officer.  He referred to the fact that there had just been a call on his sister's phone and asked if she had reported the phone as stolen.  Shortly afterwards, DS Kennea arrived and he took over the conversation from the duty officer.  The appellant identified himself and asked to speak to his sister.  He referred again to the suggestion that she had reported her phone as stolen.  DS Kennea warned him that the telephone was evidence and that if he disposed of it or did not bring it down to the Police Station, he would be arrested.  He said that the appellant could not speak to his sister because she was in custody.  Towards the end of the conversation, DS Kennea asked whether the appellant was going to bring the telephone in or whether he, (DS Kennea) would have to come and find the appellant, to which the appellant replied "I don't know".

7.        The appellant did not hand in the telephone and indeed it has never been found.  He was arrested the next day and subsequently interviewed under caution.  Initially he answered "No comment" to most questions, including whether he was the person who had answered the call made by DS Kennea to the sister's mobile telephone and whether he had ever had his sister's phone.

8.        However, later in the interview he said that someone, whom he declined to name, had called to say that Mireia was at the Police Station and had asked if he would look after Mireia's mobile telephone.  That person then brought the telephone round.  Subsequently he received the call from DS Kennea on Mireia's telephone and spoke to him.  Shortly afterwards there was a tap on the window and someone had come to collect Mireia's phone.  After that he telephoned the Police Station on his own telephone and spoke to DS Kennea.  He said that he did not know who it was who had collected the telephone.  It was one of Mireia's friends.  He also said that he had telephoned to speak to DS Kennea later that same evening after the second telephone call but had been unable to get through to him and had spoken only to an operator.  He denied disposing of or destroying the phone or altering any of the information contained on the phone, although he admitted looking at her messages.

9.        At the hearing before the Assistant Magistrate the appellant gave evidence.  He said that he was at home speaking to his mother on the telephone when there was a tap on his window from his eldest sister Claire.  The records showed that he was speaking to his mother at 18.52.  Claire told him that Mireia had gone to the Police Station to visit her boyfriend and Claire asked if she could leave Mireia's phone and house keys with him.  She said that Mireia would come and collect them later.  The appellant agreed to do this.  He said that he received a few phone calls on Mireia's phone and he then received the call on her phone from DS Kennea.  DS Kennea told him that the phone had been reported as stolen and asked him to bring it to the Police Station.  Just after that telephone conversation, one of Mireia's friends had tapped on the window and advised him that Mireia would not be coming out of the Police Station and asked for the phone and keys, which he gave to this person.  He confirmed that the person was known to him and he knew the person's name but he was not willing to give the name in Court.  He confirmed that this person told him that Mireia had been arrested.  He then telephoned the police and the second conversation took place as had been described.  He accepted that he had not told DS Kennea in that conversation that he did not have the phone anymore.  He did not know why he had not told the officer this but he did not really want to get involved.  He said that, when he gave the telephone to Mireia's friend, he did not know that it was evidence.

10.      In cross examination it was pointed out to him that the records showed that he had not received any call from Mireia's telephone that evening contrary to what he had said at police interview.  He denied that this was a lie and said that he had been confused.  He reiterated that the person who had given him the phone was his sister Claire but he had not told this to the police as he did not think that there was any need to.  He accepted that, during the first call, he had been told that the phone had been reported stolen and that he should hand it in but denied that DS Kennea had asked him not to destroy it.  He was asked about the person who, he claimed, had, within the 3 minutes 49 seconds between the two calls, arrived at his house and asked to take the mobile phone.  He said that he had given that person the keys as well as the phone although that person had not asked for them.  He confirmed that it was not his sister Claire but that he did know the person.  When he had said in interview that he did not know the person who had collected the phone, this was because he did not wish to tell the police who it was.  He maintained that position before the Court and refused to identify the person who had collected the phone.  He was pressed on why, during the second call, he had not simply said that he had not got the telephone any more.  He said that this was because he did not know what to do; he was debating whether to get the telephone back or not.  He denied he still had the telephone during the second call and that the reason he had not handed it in was that he wanted to protect his sister.

11.      In delivering her decision, the Assistant Magistrate reminded herself of the burden and standard of proof and of the elements of the offence.  She correctly said that the real issue in the case was whether the appellant knew that the phone was potential evidence in a police investigation when he was in possession of it and when he disposed of it.  She said that she did not find the appellant to be a reliable and truthful witness and that there were considerable inconsistencies in his story.  She found that he had lied when he said that there had been a phone call on his sister's phone at about 18.50.  She did not accept that it was a mistake or a misunderstanding.  She noted that he had refused initially to say that it was Claire who had delivered the telephone to him, although she did not attach too much weight to that.  However she did attach weight to the fact that he lied at interview when he said that he did not know who collected the phone, whereas in evidence he said that he did know who had collected the phone but refused to name such person.  The Assistant Magistrate did not accept his explanation that this mysterious person had come to take delivery of the phone during the 3 minutes 49 seconds between the two telephone calls.  She found that the clear implication from what he said during the second telephone conversation with DS Kennea was that he was still in possession of the telephone.  He was told during that telephone conversation that the phone was wanted as evidence and accordingly a disposal thereafter was made with the necessary intention.  She therefore found him guilty of the offence.

Submissions on appeal

12.      There was no dispute between the parties as to the elements of the offence for the purposes of this particular case.  The Prosecution had to prove two ingredients, namely:-

(i)        that the appellant did an act which had a tendency to pervert the course of justice; and

(ii)       that the act was intended to pervert the course of justice.

13.      Advocate Tremoceiro did not dispute that there was in this case a course of justice, namely the investigation into the suspected heroin importation and that a disposal of the mobile telephone, which was potential evidence in the case, was an act which had a tendency to pervert the course of that justice.  The real issue was whether, at the time that he disposed of the telephone, the appellant had the requisite intention.  It was accepted that, if he disposed of the telephone after the second call, the Court could properly conclude that he had the requisite intention because he had been told during that conversation that the telephone was required as evidence and that it should not be disposed of but should be handed to the police. 

14.      Advocate Tremoceiro submitted that there was no evidence to contradict the appellant's version of events to the effect that he had disposed of the telephone between the first call and the second call by giving it to the un-named person who had tapped at his window.  The Assistant Magistrate could not therefore be sure that, at the time the appellant was first told that the telephone constituted evidence (namely during the second call) the sister's telephone was still in the appellant's possession.  That being the case, it could not be shown that, at the time of disposal, the appellant had the requisite knowledge which would enable him to form an intention to obstruct the course of justice.

15.      He submitted that the Assistant Magistrate had also given excessive weight to the lies which she found the appellant had told.  Although she had reminded herself of the R-v-Lucas (1981) 73 Cr. App. R. 159 direction contained in the standard directions issued by the Judicial Studies Board, she had not properly applied that guidance.  The first lie she relied on was the assertion by the appellant in interview that he had received a telephone call from Mireia's phone earlier that evening.  Advocate Tremoceiro submitted that there was insufficient evidence to conclude that this was a deliberate lie.  The appellant had nothing to gain by falsely asserting that he had received a call from his sister's phone and it was far more likely that it was simply a mistake.  The second lie relied upon was whether he knew the identity of the person who had collected the telephone from him.  The appellant accepted that he had lied when he said this at interview but his explanation was that he did not want to tell the police who it was and this, submitted Advocate Tremoceiro, should be considered in the context of his arrest and prolonged detention before interview in circumstances which he did not consider fair.  He was therefore not well disposed towards the police and was in some respects feeling unco-operative.  Advocate Tremoceiro argued that lies may support a Prosecution but they do not make a case on their own.  He submitted that the Assistant Magistrate had relied almost exclusively on the lies to find the Prosecution case proved.  In short there was insufficient evidence for the Assistant Magistrate to be sure that the appellant was still in possession of the sister's phone at the time of the second call and had therefore disposed of it thereafter at a time when he knew that the phone was required as evidence.

Decision

16.      We begin by reminding ourselves of the test on appeal.  There was no dispute between the parties as to the correct test and it is summarised conveniently in Rushton-v-AG (Jersey Unreported 16th October 1989) ([2000] JLR 363) where the Court said this:-

"The court of course has on many occasions said that its duty in looking at an appeal on conviction from the Magistrate below is to examine the transcripts to see if there is evidence on which the Magistrate concerned could properly have come to the decision he did.  If there was that evidence, than even though the court might not necessarily have come to the same decision, the court does not lightly interfere with it.  The court has to be satisfied that there was insufficient evidence for the Magistrate to have come to the decision he did, or that he drew the wrong conclusions and inferences from the evidence before him."

17.      In our judgement, Mr Tremoceiro's arguments failed to distinguish between a lack of direct evidence and a lack of any evidence at all.  When he submitted that there was no evidence to contradict the appellant's evidence to the effect that he had disposed of the phone between the first and second calls, what he actually meant was that there was no direct evidence to that effect, in the sense that there was no evidence from some other witness who was present and could speak as to what occurred.  But there was plenty of circumstantial evidence that suggested that the appellant's version of the events was untrue.

18.      We have carefully considered the points put forward by Advocate Tremoceiro but in our judgement, there was ample evidence upon which the Assistant Magistrate could properly come to the conclusion that she did and her judgment sets out her reasons clearly and succinctly.  In briefest summary:-

(i)        The Assistant Magistrate had the opportunity of seeing and hearing the appellant give evidence and she found him not to be a reliable and truthful witness.

(ii)       His version of events was inherently unlikely.  It required the Court to accept that, the appellant having been told during the first call to hand the phone in to the police, a person whom the appellant refused to name came to his flat during the 3 minutes 49 seconds before the second call and that he gave his sister's phone to that person. 

(iii)      During the second call, the appellant was told specifically that the phone was evidence and that if he disposed of it or did not bring it to the police station he was going to be arrested.  The police officer was quite forceful and, at the end of the conversation, asked the appellant whether the appellant was going to bring in the telephone or whether the officer would have to come and find him, to which the appellant simply replied that he did not know.  The obvious thing to say, if he had in fact by then innocently given the telephone away, would have been to say that he no longer had the telephone.  The Assistant Magistrate was clearly entitled to infer from this conversation that, contrary to what he was now saying, the appellant was still in possession of the telephone at the time of the second call.

(iv)      The Assistant Magistrate was also entitled to find that the appellant lied when he had said at interview that he had received a call on his sister's phone earlier that evening before DS Kennea had called.  He said this a number of times at interview and it was only in cross-examination, when he was presented with the phone records which showed that no such call had been made, that he said that this must have been a mistake.  It was for the Assistant Magistrate to assess whether he had been untruthful or simply made a mistake and, having read the transcripts, we are satisfied that it was open to her to conclude that he had been untruthful.

(v)       The appellant admitted being untruthful when he said at interview that he did not know who had collected the telephone from him.  The Assistant Magistrate was also entitled to take into account that, even when giving evidence, he still declined to name the person to whom he had apparently given the phone.

(vi)      The Assistant Magistrate directed herself correctly in accordance with the Lucas direction and she specifically asked herself why the appellant might have lied.  She came to the conclusion that it was to protect himself because he knew that he had disposed of the phone in order to frustrate the police investigation and because he was in fact guilty of the offence.  This was clearly an inference that it was open to her to draw.

19.      Having heard the appellant's explanation for the delay in filing his notice of appeal, we decided to give leave to appeal out of time.  However, the Court has no hesitation in finding that the Assistant Magistrate's decision to convict was not unreasonable; on the contrary there was ample evidence upon which she could properly be satisfied as to the appellant's guilt. 

20.      We therefore dismissed the appeal.

Authorities

Rushton-v-AG (Jersey Unreported 16^th October 1989).

Rushton-v-AG [2000] JLR 363.

R-v-Lucas (1981) 73 Cr. App. R. 159.