Jersey Unreported Judgments

Drugs - application to adduce bad character

[2024]JRC045

Royal Court

(Samedi)

23 February 2024

The Attorney General

-v-

Mark James Maher

L. Sette Esq., Crown Advocate.

Advocate O. A. Blakeley for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        The Crown made an application to adduce bad character at the outset of the trial in this case.  As indicated, such applications should be made well before trial and not on the first day of the trial.  To make them on the day of the trial means that the jury or the Jurats having to wait unnecessarily, disrupts the flow of the evidence (in this case, it was necessary for the application to take place during the evidence of a prosecution witness) and some bad character applications are not without their complexities.

The Crown's case

2.        The Defendant in this case was charged with being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods, namely MDMA, between 5 and 8 January 2023. 

3.        The Crown's case, in short, was that the Defendant, whilst living at a housing shelter in St Helier received a parcel from the United Kingdom addressed to him.  Unbeknownst to him, this parcel had been intercepted by customs officers on arrival in Jersey on 6 January 2023 and found to contain a large quantity of loose sweets in a cardboard box below which was hidden a brown padded envelope.  Within that envelope was another brown padded envelope.  Within that envelope was a third padded brown envelope and within the third envelope was a grey plastic bag.  Within that plastic bag was another grey plastic bag which contained 2,640 MDMA tablets with a Jersey street value of between £50,000 and £80,000.

4.        On 7 January 2023, customs officers prepared a substitute parcel using the original label but containing a covert GPS tracking device and audio device. 

5.        This was delivered to and signed for by a member of staff at the housing shelter on 7 January at 9.30am.  Later that day the Defendant was alerted to the arrival of the parcel whilst he was queuing for his evening meal.  He insisted upon collecting it immediately and did not return for his meal.  The GPS feed showed that the package was then handled from 5.15pm to 5.18pm, after which time it was motionless.  Five minutes later, at 5.23pm, the Defendant sent a text message consisting only of an asterisk to a mobile phone using his mobile phone.  The mobile phone to which the Defendant sent the message has never been identified or seized but call data shows that the number in question was activated on 4 June 2022, first used on 27 December 2022 and last used on 9 January 2023.  It was only ever used to contact the Defendant and no one else.  Further, at 7pm on 7 January 2023, approximately an hour and a half after the Defendant had sent a text to this number containing an asterisk, he sent a further message saying "What time do you fancy coffee 2mo let me know kid".

6.        The police arrived at the Defendant's room in the shelter at 8pm that night.  He was arrested for being concerned in the importation of controlled drugs and cautioned. 

7.        The agreed expert evidence presented to the Jurats was to the effect that the role of a mobile telephone is highly significant in the world of drugs dealing and organised crime, with the telephone itself often being an unregistered "pay as you go" phone, with those involved in criminality often having one mobile telephone for use for contacting friends and family etc and another for use in criminal activity only.  These are often cheap disposable non-registered pay as you go phones, not "smart" phones, and are described as "burner" phones.

8.        The Defendant's mobile phone was downloaded (in terms of the call data being extracted) on 9 January 2023 and the Defendant was interviewed on 10 January 2023.  In summary, the Defendant agreed that he received a parcel delivered to his accommodation which he had not opened.  He did not know what the contents were and had no involvement in the delivery of the package.  He knew nothing of the origin of the package and did not know why it was sent to him.  He put it in the wardrobe in his room.  His plan was to return the package to the post office on Monday.  As to the contact with the "burner" phone, he said that the messages were sent to his friend Chris, although he did not know Chris' surname or where he worked.

9.        He denied being the intended recipient of the parcel containing the large quantity of MDMA. 

The evidence the Crown wished to admit

10.     The Crown wished to adduce evidence of two previous incidents which were evidenced by witness statements made in 2015 and 2018 respectively, but were helpfully reduced to admissions in the following form:

"Previous parcels

2015

1. On 18 November 2015, Danielle MOREL was on duty at Postal Headquarters, Rue des Pres in the Parish of St Saviour.

2. At 07:50 hours Danielle MOREL selected a Special Delivery parcel for further examination. The tracking number on the parcel was SG915003144GB, postmark Romford, Essex.

3. The jiffy parcel was addressed to: James MARR Flat 4, Penlyn Apartments, 20 West Park Avenue, St Helier JE2 3PJ

4. Within the jiffy envelope, there were two sheets of white A4 sized sheets of paper. In between the sheets of paper was a silver heat sealed packet.

5. The silver packet contained a clear heat-sealed packet containing an off-white powder within liquid. The clear heat-sealed packet including the powder was weighed using digital scales and amounted to 36.6g of Amphetamine.

6. The Defendant was interviewed about this parcel and he denied all knowledge of a package sent to him. He admitted to staying at 4 Penlyn Apartments on a few occasions. When confronted with the package name being to 'James MARR' and he is known as James MAHER (pronounced the same way) he could not give an explanation but stated he would never have ordered any drugs as he does not know how to use the internet.

2018

7. On Friday 15 June 2018 at approximately 07:30 hours, whilst on duty at Jersey Post Headquarters, Rue De Pres, St. Saviour, Customs Officer Michael SOLEY selected a small white postal box for further examination. The parcel was addressed to: Mark MAHER, Room 6 The Beach House, Le Havre Des Pas, St. Helier, Jersey JE2 4UL.

8. The box was sealed using Ebay branded tape and bore a white printed address label and silver Special Delivery sticker reference number: JS237726043GB. A Customs declaration was also attached which declared the goods as 'DDR3 Memory'. No value was declared.

9.        Inside the box was a silver heat-sealed packet wrapped in brown packing paper. Within the silver packet were two clear heat-sealed packages containing a quantity of white powder. Each clear packet was labelled in black pen '28CK' and '7CK' respectively.

10. The contents were tested and were found to be cocaine. The total of weight of both packets and their contents was found to be 40 grams.

12. At 15:25 hours, whilst Michael SOLEY was conducting a search of Room 6, The Beach House, Havre Des Pas, the Defendant, who gave his details as Mark James MAHER dob 30 March 1973 returned to the property.

13. The Defendant had cannabis on his person when he was arrested. The Defendant was arrested and interviewed. During his interview, the Defendant stated that:

           (1) the address on the package (i.e. Room 6, The Beach House, Le Havre Des Pas, St Helier, Jersey, JE2 4UL) was his address.

           (2) a friend, whose name he would not mention, asked if he could have stuff sent to the Defendant's address. The Defendant said: "I'm not grassing on anyone".

           (3) he was just doing a favour for his mate and he did not pay attention to the box.           

           (4) his friend would be 'pulled up for a start' as a result of the package containing Class A drugs.

           (5) he used to take cocaine but at the time of the interview he had stopped some years earlier and only took cannabis. The Defendant would not state where he got his drugs from.

           (6) the friend called him from someone else's phone to speak to him and he would not identify the person who asked him to take receipt of the parcel.

           (7) he was given one of the phones found in his flat, but he would not name the person who gave him the phone.

           (8) he was on income support and said he was in debt.

           (9) a piece of paper found at his address stating "Yorky, 30 quid, Danny 20 quid, Deano 20 quid" was a record of sums of money he had lent to his friends."

11.     In respect of neither matter, i.e. the 2015 delivery of amphetamine and the 2018 delivery of cocaine, was the Defendant charged, let alone prosecuted and convicted.

12.     The Crown said that this was admissible bad character evidence and, in default, if it was not bad character evidence then it was relevant evidence at customary law.  In the alternative, the Crown argued that this was "important explanatory evidence" under Article 82E of the Police Procedures and Criminal Evidence (Jersey) Law 2003 ("the Law") in that pursuant to Article 82E(5), without it the Court would find it impossible or difficult properly to understand other evidence in the case and its value for understanding the case as a whole was substantial. 

13.     I rejected the assertion that this could amount to "important explanatory evidence" without having to hear from defence counsel.  The Jurats did not need to hear about the 2015 and 2018 matters in order to properly understand the case against the Defendant.

Was this bad character evidence?

14.     Pursuant to Article 82C of the Law, bad character evidence is "evidence of, or of a disposition towards, misconduct" and "misconduct" is defined in Article 82A as "the commission of an offence or other reprehensible behaviour".

15.     As the defence quite rightly observed, it is not reprehensible behaviour to innocently receive a package of material which it is unlawful to import.  Defence counsel asked rhetorically whether it could be reprehensible to receive prohibited goods without knowing of the contents.

16.     The defence argued that the Crown was, by the back door, trying to prove that the Defendant knew of the contents of the 2015 and 2018 packages at the time they were received.  The Crown's case was that the evidence from 2015 and 2018 went to an issue in the case, namely whether or not the Defendant was an innocent recipient of the 2023 parcel and was thus admissible under Article 82F.  The Crown belatedly conceded that the Jurats would need to be sure that the Defendant knew or believed that the 2015 and / or 2018 postal packages contained drugs at the time in order for the evidence connected to those two importations to be admissible.

17.     If the Crown was adducing the evidence (which they ultimately accepted) for the purpose of showing that the Defendant was guilty of this offence on the basis that he had the requisite knowledge of the contents of the packages in 2015 and 2018 respectively, then this is bad character evidence.  As Archbold says at paragraph 13-43:

"Another situation in which evidence of bad character is admitted on the basis of coincidence rather than propensity are what are usually called "similar fact evidence" cases.  The classic examples are two famous cases which pre-date the CJA 2003 by many years: Makin v Attorney General for New South Wales [1984] AC 57 and Smith (1916) 11 Cr App R 229.   In Makin the defendants were convicted of the murder of a baby whose body was found buried in the garden of their house, partly on evidence of the discovery of the other babies in the gardens of their previous homes; and in Smith the defendant was convicted of murdering a woman by drowning her in the bath shortly after bigamously marrying her, partly on evidence of the death of two other 'brides' in circumstances virtually identical.  In both of these cases the evidence was held to have been rightly admitted, given the extreme unlikelihood of the defendants' connection with a series of such deaths being purely coincidental.

A modern case to similar effect is Wallace [2007] EWCA Crim 1760; [2007] 2 Cr App R 30.  Here the defendant was convicted of three robberies and one attempted robbery, to each of which he was connected by various pieces of circumstantial evidence, none of which was conclusive on its own, but all of which together made a substantial case.  In upholding the conviction, the Court of Appeal held that in cases of this sort the bad character evidence provisions of the CJA 2003 now apply, but in deciding whether the evidence was admissible under the statutory scheme the courts should approach it in the same way as before:

                       "In our view, the important matter in issue was not whether the defendant had a propensity to commit offences or to be untruthful but whether the circumstantial evidence linking him to the robberies, when viewed as a whole, pointed to his participation in and guilt of each offence.  Nevertheless, the definition of 'bad character' in section 98 of the 2003 Act is in our view sufficiently wide to have triggered the operation of section 101 of the 2003 Act and in particular section 101(1)(d).  Although technically within the definition of bad character, the purpose of the admission of evidence was not to prove that the defendant was of bad character in the sense that that expression is commonly understood.  Once before the jury the evidence was relevant for what it tended to prove, namely that when viewed as a whole the defendant was guilty of each of the offences.""  [My emphasis]

18.     At 13-44, Archbold continues:

"As with the identity cases discussed in §13-42, the reasoning in these 'similar fact' and 'multiple accusation' cases involves propensity as well as the unlikelihood of coincidence.  In this type of case the court is faced with two possible explanations: either that the defendant is the unlucky victim of an extraordinary series of coincidences, or that they are a repeat offender - the second explanation being much more likely than the first.  Indeed, in Chopra [2006] EWCA Crim 2133; [2007] 1 Cr App R 16, decided shortly after the new law came into force, the Court of Appeal discussed a multiple accusation case in terms of propensity alone, and with almost no discussion of coincidence.  But in Freeman and Crawford [2008] EWCA Crim 1863; [2009] 1 Cr App R 11, the Court of Appeal, in a reserved judgment, reviewed Chopra and a number of other cases before making it clear that under the new law, as under the old, the correct approach in cases of this sort is to look at the totality of the evidence 'in the round', and not - as would be done in a 'pure propensity' case (see § 13-45) - to consider the evidence in each case individually, and if persuaded of the offender's guilt in one count, to consider whether, for the purpose of the others, it demonstrates their propensity to commit this type of offence [My emphasis]:

           "[20] In some of the judgments since Hanson [2005] EWCA 824 [(§ 13-3)], the impression may have been given that the jury, in its decision-making process in cross-admissibility cases should first determine whether it is satisfied on the evidence in relation to one of the counts of the defendant's guilt before it can move on to using the evidence in relation to that count in dealing with any other count in the indictment.  A good example is the judgment of this court in Spencer [2008] EWCA Crim 544.  We consider that this is too restrictive on approach.  Whilst the jury must be reminded that it has to reach a verdict on each count separately, it is entitled, in determining guilt in respect of any count, to have regard to the evidence in regard to any other count, or any other bad character evidence if that evidence is admissible and relevant in the way we have described.  It may be that in some cases the jury will find it easier to decide the guilt of a defendant on the evidence relating to that count alone.  That does not mean that it cannot, in other cases, use the evidence in relation to the other count or counts to help it decide on the defendant's guilt in respect of the count that it is considering.  To do otherwise would fail to give proper effect to the decision in admissibility.""

19.     In respect of drugs cases, Archbold says at paragraph 30-243:

"In prosecutions for being knowingly concerned in the evasion of the prohibition upon importation of controlled drugs, the real issue in many cases turns out to be whether it has been proved that the defendant knew of the existence of the drugs: the defence is frequently to the effect that the defendant was innocently helping a third party or that the drugs must have been 'planted' on him, either for the purpose of getting them through customs using an unwitting courier or for the purpose of getting the courier into trouble.

For the purpose of proving knowledge and of rebutting the defence of innocent involvement, the prosecution were permitted in a number of cases which have been before the Court of Appeal, and which were decided at common law, to adduce evidence of matters having no immediate connection with the importation in question, but tending to show the defendant to have been otherwise involved in drugs.  There were no special rules of evidence for drug cases or importation of drugs cases, as there were once though to be for sexual cases.  The general principles in Makin v Att.-Gen for New South Wales [1894] AC 57, PC; DPP v Boardman [1975] AC 421, HL; and DPP v P [1991] 2 AC 447, HL (§ 1-287), applied here as elsewhere.  As in all cases, where the admission of this type of evidence was being considered, the most important feature to keep in mind was the issue to which the evidence was said to be relevant.

.....

Under Ch.1 of Pt 11 of the CJA 2003, such evidence will be admissible if it is 'relevant to an important matter in issue between the prosecution and the defendant' (see s.101(1)(d)).  In the cases under consideration, the matter in issue between prosecution and defendant is knowledge, but s.103(1)(a) deems another matter in issue to be whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence."

Analysis

20.     As to the relevance of Jersey customary law, it is plain from the section above that such evidence would have been relevant at English common law prior to the enactment of the Law on the footing that the Crown could argue that the 2015, 2018 and 2023 importations should be looked at together and the evidence, if the Jurats were sure that the Defendant had the requisite knowledge in relation to one, might be admissible when considering his state of mind in relation to a later importation.  However, if the Crown does not set out to prove such knowledge on the part of the Defendant in respect to the 2015 and 2018 packages, then I agree with the defence that this was evidence that would have been not relevant and therefore not admissible.

21.     The defence quite rightly went on to say that if the Defendant chose to give evidence to the effect that he had never received an unexpected package in the post, then at that stage the Crown could apply to adduce the material as evidence to correct a false impression under Article 82I.

22.     Bearing in mind the fact that the Court ought to assume that the evidence is supportive of the contentions that the Crown makes unless no Court or jury could reasonably find that to be so (Article 82B(2)), I was satisfied that the 2015 and 2018 matters did amount to bad character evidence and were admissible as such, subject to the Court's general exclusionary power under Article 76 and specific exclusionary power under Article 82E(2) which provides:

"(2)     The court must not admit evidence under Article 82F or Article 82G if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it."

Decision

23.     The facts as set out above were in a narrow compass.  Indeed the evidence was reduced to admissions, with the exception of the calling of one witness whose evidence was little more than a commentary on those admissions.  The Crown made their application to adduce the evidence late in the day and in some respects on the wrong basis - it was only in the Crown's speech in reply on their application to admit the evidence that they conceded that the Jurats would need to be satisfied that the Defendant knew of the contents of the packages to be imported in 2015 and / or 2018 for them to be able to take them into account when considering whether they were sure of the allegation on the indictment.  The Crown agreed that if the Jurats were less than sure they would need to ignore those matters.  There was a possibility that the trial could become dominated by consideration of the Defendant's state of mind in 2015 and 2018 in respect of which the Defendant had never been charged, let alone convicted.  In the circumstances, I found that the admission of the evidence the Crown sought to adduce would, in the circumstances of this case, have such an adverse effect on the fairness of the proceedings that I ought not to admit it and accordingly it was not admitted.

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003. 

Archbold Criminal Pleading, Evidence and Practice