Jersey Unreported Judgments

[2011]JRC030

royal court

(Samedi Division)

2^nd February 2011

IN THE MATTER OF E

Ms E. L. Hollywood, Crown Advocate for the Applicant.

Advocate C. Hall for the First Respondent.

Advocate C. L. Nicolle for the Second Respondent.

Advocate C. R. G. Davies for the Third Respondent.

judgment

the commissioner:

1.        The Court will now give its reasons for the decision which it announced yesterday afternoon.  The Court announced yesterday its conclusions that:-

(i)        B was taking heroin during November and December 2010; and

(ii)       That he was funding that habit by dealing. 

We now give our reasons for those conclusions. 

2.        This short judgment should be regarded as supplemental to the judgment delivered on 22^nd March, 2010.  We apply the same principles as were set out in that judgment and the same standard of proof, namely a balance of probabilities. 

3.        B has admitted that on 22^nd October, 2010, the guardian visited the family home and found a tin on top of the fridge containing needles and spoons consistent with the use of heroin.  He explained that they might have remained in the house since before the police search in November 2009.  He has admitted that he missed a drugs test on 29^th October, 2010, but attended later in the day; his urine tested positive for opiates.  He later admitted that he took heroin on this occasion; he also admitted that he relapsed into heroin use during the week before his arrest on 21^st December, 2010.  He was clearly taking heroin during that month; the question is whether he was also taking heroin in November 2010. 

4.        The crucial pieces of evidence related to a police search of the family home on 23^rd November.  According to the evidence of three police officers, there was a small toilet bag in the premises.  Two of the officers, Detective Constable Blake and Detective Constable O'Neill, saw needles in this bag.  Detective Constable Blake put the number at ten to twenty and stated that the majority of them appeared dirty and used.  Detective Constable O'Neill estimated the number at twenty to thirty and said that some were new and others were old and dirty, as if they had been used.  There were also citric wipes inside the bag; citric wipes are used for preparing the injection site. 

5.        Detective Sergeant Kemp gave evidence that A had told him in response to a question at the start of the search, that there were needles in a bag in the kitchen.  B gave evidence that there was no bag, and that there were no needles found on that occasion.  That evidence was corroborated to an extent by A, who denied telling Detective Sergeant Kemp that there were needles in a bag in the kitchen. 

6.        We reject the evidence of B and A and accept the evidence of the police officers.  Amongst other reasons, we think that the police had no motive to tell untruths.  B was not charged with any offence arising from the search and we can see no possible motivation for inventing a story about the finding of needles.  It is true that there were minor inconsistencies in the police evidence as to who found the bag and who picked it up from the floor and placed it on the counter.  Those inconsistencies seemed to us to be a natural result of the fact that the police were looking, not for needles but for something else that they did not find.  If anything, the inconsistencies indicate an absence of collusion amongst the police officers.  Quite apart from that, the evidence of the police officers was, in our judgement, patently honest and credible. 

7.        There were therefore, in our judgement, numbers of used needles in the family home, both at the end of October and on 23^rd November, 2010.  Secondly, B was found at the time of his arrest on 21^st December, to have a condom full of urine tied around his waist inside his trousers.  His explanation for this was that he was on his way to a urine test and that he was going to show Mr Saralis(sic) how easy it was to cheat the system.  B gave evidence that he had never cheated the system before and that this was the first occasion upon which he had filled a condom with urine in this way.  We reject that explanation as being wholly implausible.  There was no need to fill the condom with urine rather than water, nor indeed to go to the lengths of tying the condom around his waist in order to show Mr Saralis(sic) how it could be done. 

8.        Mr Saralis(sic) gave evidence that there had been problems with B's tests during October 2010 and that B had supplied specimens on 29^th October and 4^th November which tested positive for non-prescribed opiates.  On 1^st December B attended for a drugs test but when Mr Saralis(sic) accompanied him to the toilet he was apparently unable to pass anything.  We have no doubt that B had placed the urine in a condom before 21^st December, 2010.  The only point of such a ruse would be to cheat the system and to supply a specimen of urine which was not his; the only purpose would be to disguise the fact that his own urine would be found to contain evidence of the consumption of heroin.  For all these reasons we were satisfied on a balance of probabilities that B was taking heroin during November and December 2010. 

9.        We turn now to the second question, namely whether B was dealing during this period.  We take judicial notice of the fact that heroin is expensive; a fifty bag which might yield four injections costs £50.  B was unemployed during that period; his only income was £218 per week in state support.  The evidence of the police officers was that some twenty needles, mainly used, were found in the family home on 23^rd November; the guardian found a number of needles on 26^th October; at the search of the family home on 21^st December fifteen used needles were found in a shoe box in the kitchen bin; one needle was found in a nappy bag and other needles and paraphernalia were in a basket underneath the kitchen sink.  Putting all this evidence together, we find that the only plausible explanations are either that B was using more heroin than he could possibly afford, or that others were attending the family home for the purpose of injecting heroin.  The inference to be drawn from the presence of all these needles is that B was dealing on a relatively small scale in order to fund his habit.

10.      Secondly, this evidence must be set in the context of B's track record of dealing in drugs from the family home.  See in particular paragraph 34 of our judgment of 22^nd March, 2010. 

11.      Thirdly, police officers gave uncontested evidence of finding a set of precision scales, balloons and kinder egg plastic containers in a kitchen drawer on 23^rd November.  B admitted to police officers that the combination looked bad.  He gave evidence which was supported by A that all those items were in fact innocent; the balloons were for a children's party; the plastic containers were left over from kinder eggs which C had enjoyed and the scales, which were too small for any household use, were used to weigh gold that B had recently sold.  We do not doubt that C enjoys kinder eggs; we find it very surprising that, notwithstanding the hearing in January 2010 and the judgment in March 2010, that both B and A should not have taken the trouble to dispose of the plastic shells and scales as potentially incriminating objects. 

12.      Fourthly, there is the evidence of text messages sent to B's telephone by his brother K.  No replies were found but we think it highly unlikely that B did not respond to some of the taunting messages from his brother.  We expect that he did so with another mobile phone.  We have not heard evidence from the brother but B's explanation that the brother was trying to incriminate him and/or to cause difficulties in these public law proceedings, we do not accept.  The messages are certainly suggestive of dealing and we take them into account but if this were the only evidence we would not have found it sufficiently persuasive on its own. 

13.      Fifthly, we take account of the evidence of B as a whole which was, in our judgment, entirely unconvincing.  In our judgment of 22^nd March, 2010, we described his evidence as utterly unreliable.  One might have thought that he would have tried to present himself more sympathetically and to give straight answers to straight questions.  Unfortunately, his evidence was again evasive, glib and unpersuasive.  He resorted to long-winded and confrontational answers which seemed to be designed to disguise the fact that simple questions were not actually being answered.  We again find B's evidence to be unworthy of belief. 

14.      Putting all these factors together we were satisfied on a balance of probabilities that B was dealing during November and December 2010. 

Authorities

In the matter of E [2010] JRC 060.