Jersey Unreported Judgments

Drugs - representation brought by the Attorney General under the Proceeds of Crime (Cash Seizure) (Jersey) Law 2008.

[2019]JRC153

Royal Court

(Samedi)

31 July 2019

Before     :

T. J. Le Cocq, Esq., Deputy Bailiff, and Jurats Olsen and Christensen

The Attorney General

-v-

Elias Campbell Benyoucef

Advocate L Taylor for the Attorney General. 

Advocate A. M. Harrison for The Defendant. 

JUDGMENT

THE DEPUTY BAILIFF:

1.        Her Majesty's Attorney General brought a representation under the Proceeds of Crime (Cash Seizure) (Jersey) Law 2008 ("the 2008 Law") for an order that the sum of £965 be forfeited by Elias Campbell Benyoucef ("Mr Benyoucef") on the basis that it is tainted cash within the meaning of the 2008 Law.  The Attorney General further seeks an order to authorise the paying of the cash into a fund designated by the Minister for Treasury and Resources. 

2.        This is a "reverse burden" application in that Article 9(2) of the 2008 Law provides that the Court shall:-

"...if it receives an application under paragraph (1) in relation to any cash seized and detained under this Law, make an order (a "forfeiture order") forfeiting the cash, unless the person against whom the order would be made satisfies the court that the cash is not tainted cash."  

3.        Article 9(1) of the 2008 Law simply provides that the Attorney General may apply to this Court for such an order. 

4.        Accordingly, it is for Mr Benyoucef to satisfy the Court that the cash seized and detained under the 2008 Law is not tainted cash. 

Background

5.        On 24^th January, 2018, the States of Jersey Police executed a search warrant issued pursuant to Article 19(1) of the Misuse of Drugs (Jersey) Law 1978 on Mr Benyoucef's accommodation at Room 16, Strathmore, 80 St Mark's Road, St Helier. 

6.        During the course of that search officers seized approximately 82 grams of cannabis resin in various locations and a small amount, 475mg, of MDMA or ecstasy. 

7.        The cannabis resin seized was estimated to have a Jersey street value of between £1,230 and £1,640 and the MDMA was estimated to have a value of between £40 and £50. 

8.        In addition to finding and seizing the illegal drugs a total of £965 was also seized.  £750, made up of a variety of types of bank notes, was found in a bedside cabinet which also contained a large piece of the cannabis resin found and seized, namely 27.63 grams.  A further sum of £215 was found on top of the wardrobe, concealed in two cardboard shoe boxes. 

9.        Mr Benyoucef was arrested and interviewed and we have considered an agreed summary of that interview.  To a great extent he exercised his right to give no comment answers to the questions asked of him. 

10.      Subsequently Mr Benyoucef was charged with possession of MDMA and possession of cannabis and he was sentenced on 31^st May, 2018 to 6 months' probation in relation to each charge to run concurrently. 

11.      The cash seized as set out above was retained pursuant to the 2008 Law and that retention was renewed from time to time. 

12.      Mr Benyoucef has one previous conviction for possession of cannabis and one previous conviction for possession of MDMA both of which occurred in 2016. 

13.      At the material time, Mr Benyoucef was, as stated above, staying at Strathmore House in respect of which he was charged £129.50 per week rent which includes contributions to food, rent, bedding and utilities.  It also includes three meals a day and all snacks and hot beverages and a starter pack of toiletries. 

14.      Further, from September, 2017, to January 2018 Mr Benyoucef was employed by J & C Dry Lining Limited and we have seen copies of his payslips for that period. 

15.      Subsequently, Mr Benyoucef has been indicted before the Royal Court (on 29^th March, 2019,) and entered pleas to six counts, namely:-

(a)       Possession of a controlled drug with intent to supply (MDMA);

(b)       Possession of a controlled drug with intent to supply (herbal cannabis);

(c)       Possession of a controlled drug (cannabis resin);

(d)       Possession of a controlled drug (MDMA);

(e)       Possession of a controlled drug (MDMA);

(f)        Possession of a utensil for the purposes of committing an offence under the Misuse of Drugs (Jersey) Law 1978 which refers to a set of digital scales found to have drug residue (cannabis resin, MDMA powder and cocaine) on it. 

16.      Mr Benyoucef's guilty pleas to both counts of possession with intent to supply were made on the basis that he was minding the drugs with the intention of returning them to another person. 

17.      In evidence we heard from Mr Simon du Feu, an officer of the Jersey Customs and Immigration Service who made the original cash detention application in connection with the monies seized from Mr Benyoucef's home.  He referred in evidence to his letter to Mr Benyoucef of 17^th September, 2018, in which he said:-

"Should you wish to make a claim that the cash should not be detained or forfeited, I would urge you to provide supporting documentation or evidence to PC Woolley or myself, at police headquarters, as soon as possible."

18.      Mr du Feu's evidence was that no response to that letter was received from Mr Benyoucef. 

19.      Mr Benyoucef himself gave evidence.  Aside from confirming the essential facts referred to above, he confirmed that he had started to use cannabis resin when he was 17 years of age and that he had developed a habit which went up to possibly a gram of use a day.  He did not always find it easy to acquire and he had purchased the 82 grams from someone with whom he worked.  He had got it for £850 or perhaps a little under.  He felt that buying it in bulk would be a lot cheaper and he was allowed to repay his supplier in instalments.  He informed us that his paid him back at £200 a time and that he had paid back his drug debt in full. 

20.      He confirmed that he had been at Strathmore House in late 2017 and had been there for some three months.  He confirmed the amount of rent mentioned above but he said that he did not pay rent every week, occasionally he did not pay rent and the residents were not pressed to pay rent at all times.  He sometimes saved money for a "rainy day". 

21.      He confirmed that he was paid by J & C Dry Lining and received cash payments every week - on a Friday.  He was saving cash to move out of Strathmore House to find a place of his own and also to go on holiday with his girlfriend.  He wanted to save approximately £1200 - £1300 which would cover the first month's rent and a deposit for alternative accommodation.  Notwithstanding the seizure of his savings, he had in fact got a loan to go on holiday with his girlfriend in July 2018. 

22.      He indicated that he had no significant additional expenditure - he had no debts, hire purchase, he did not own any high value items. 

23.      In cross-examination he said that he had struggled to get his payslips from his employer but he had intended to come to police headquarters.  He confirmed that scales had been found in his accommodation but said that these were scales for personal use.  He also confirmed that he had a mobile telephone which he paid toward from time to time and that he would go out from time to time as well. 

24.      We note that Mr Benyoucef did not provide to us any independent evidence from those who operate Strathmore House to the effect that he had not paid rent on a regular basis nor are we able to quantify with precision his payment for his telephone (which he told us was a pay-as-you-go phone).  When asked why he required a set of scales, he said that he wished to ensure that he was taking the right amount of drugs for personal use. 

25.      Mr Benyoucef also told us in evidence that he did not have a bank account and therefore could not save using an account.  He did, after he commenced employment, open an account eventually but at the material time his savings were all in cash. 

26.      An analysis of his payslips show that over the relevant period he received £5,007.  His payment to Strathmore House for rent and other purposes set out above would over the relevant period have totalled some £2,460 approximately.  Assuming his repayment for his drugs debt in the way that he has told us, that would still leave a sum of approximately £1,697 available to him which might, so it seems to us, in theory cover his savings of £965, assuming that all of his other expenditure during this period had been restricted to just £732. 

27.      We remind ourselves that it is for Mr Benyoucef to satisfy us that the money is untainted.  That would depend upon us accepting a face value his evidence as to his expenditure and indeed his evidence that he used the scales in his possession for nothing more than a quantification of cannabis for his personal consumption.  We did not consider this latter explanation probable. 

28.      Furthermore, we have the juxtaposition of the larger sum seized with the large amount of cannabis resin and this to our mind, absent other evidence, creates the suggestion that these two items may be linked.  Naturally we cannot be certain of this but again we remind ourselves that it is not for the Crown to prove that these items are linked but, in effect in this case, for Mr Benyoucef to establish that they are not. 

29.      It would have been open to Mr Benyoucef to seek to bring before us evidence to confirm his story with regard to occasional lack of payment of rent at Strathmore House and perhaps even evidence from someone who could speak to his social habits. 

30.      Be that as it may, notwithstanding our acceptance of the fact that it is possible to account for the money in Mr Benyoucef's possession by reason of his savings we are not on the balance of probabilities satisfied that they do in fact represent savings on his part and not the potential proceeds of drug related activity. 

31.      We are not, accordingly, satisfied on the balance of probabilities that the sum involved is other than tainted cash and we make the orders sought in the Attorney General's representation. 

Authorities

Proceeds of Crime (Cash Seizure) (Jersey) Law 2008.

Misuse of Drugs (Jersey) Law 1978