Jersey Unreported Judgments

[2007]JRC031

ROYAL COURT

(Samedi Division)

17^th January 2007

Before     :

M.C. St. J. Birt, Esq., Deputy Bailiff.

The Attorney General

-v-

Daniel Hansen

Pawel Andrzej Karczewski

Order given with regard to the evidence of DC Kennea as an expert witness.

C. M. M. Yates, Esq., Crown Advocate.

Advocate M. Temple for Hansen.

Advocate C. G. P. Lakeman for Karczewski.

ORDER

THE DEPUTY BAILIFF:

1.        I have been asked to give a ruling on certain evidence from DC Kennea which the prosecution wish to adduce.  During the course of the hearing much has, in fact, been agreed.  Mr Temple accepts that DC Kennea can give evidence on the following three areas:

(i)        the value of the drugs;

(ii)       to define particular words or terms in the texts which the Jurats would not otherwise understand;

(iii)      to exhibit the text messages in chronological order or by reference to threads, in other words continuing conversations by text.

His agreement is subject to three conditions:

(i)        there must be an explanation as to the sorting out of the texts;

(ii)       any prejudicial comment in the text schedules must be excluded, for example that on page 74;

(iii)      any reference to drugs, other than those subject to the not guilty pleas, must be excluded.

Mr Yates agrees to those three conditions.  It is also now agreed that DC Kennea can give evidence on the lines of paragraph 6.18 of his first statement.

2.        That leaves one area at issue between the parties.  The prosecution wish to adduce evidence from DC Kennea as to the interpretation of the various text messages.  Mr Temple, supported by Mr Lakeman, objects to this.  The prosecution say that the opinion evidence of DC Kennea is necessary to explain to the Jurats matters which they might not otherwise understand themselves from their own everyday experience.  I would pick just one example; in paragraph 7.35 of the second statement there is a reference to a text reading:

"if you take one thousand give you £4.80 each".

The explanation by DC Kennea is that, given the figures and knowledge of the price of drugs, it is his opinion that this is a reference to ecstasy.

3.        Evidence concerning the interpretation of texts or other documents said to relate to drug dealing is often admitted, but I must consider whether it is proper to do so in this case.  In my judgment it is.  To take the example I have just quoted, I do not think the Jurats could be expected to understand that passage and draw the inference that it relates to drugs from their own knowledge.  It is a case where the opinion of an expert can assist on matters which are not within their own knowledge.  I am satisfied that DC Kennea is an expert in the matter of the sale and distribution of drugs, and that therefore he is qualified to express an opinion on such matters. 

4.        Mr Temple's main submission was that the opinion evidence of DC Kennea was not necessary and that the Jurats could apply their own common sense, provided technical and unusual terms were defined, as he had conceded.  For the reasons I have given, I do not accept this submission. 

5.        He made certain other points.  First, he said that DC Kennea was a police officer and therefore not impartial; he might have spoken to investigating officers.  In my judgment this goes to weight rather than admissibility and Mr Temple will, of course, be free to ask DC Kennea any questions about these areas.  I do not consider that the use of DC Kennea as an expert witness would breach any of the defendant's Convention rights.  In my judgment, the Jurats are highly unlikely to be swayed by the fact that the expert is a police officer rather than a civilian.  I decline, therefore, to exclude his evidence in my discretion on the grounds that he is a police officer.

6.        Secondly, Mr Temple says that the opinion of DC Kennea concerns whether the text messages relate to drug dealing.  He says that that is the ultimate issue which the Jurats have to decide and opinion evidence is not admissible on such an ultimate issue. In my judgment Archbold paragraph 10.66, and the cases cited to me, show that this is no longer the case.  I think it quite reasonable and proper that the officer should be able to give expert opinion evidence on such matters.  I will, of course, direct the Jurats that the issue is one for them and that they are free to disregard the expert evidence.  It is of course, in all these areas, open to the Defence to call expert evidence of their own. 

7.        Thirdly, Mr Temple says that some of the expressions of opinion by the officer in the witness statements are no more than speculation or drawing inferences.  In my judgment the witness is entitled to draw inferences where based on his expertise; it will be a matter for the Jurats whether they agree.  Speculation is not permissible and it will be up to the Crown Advocate to ensure that no such evidence is adduced orally.  Defence counsel will of course have their usual right to object, at the time, if they consider that the officer is speculating rather than applying his expertise. 

8.        In the circumstances I rule that DC Kennea may give oral evidence concerning the interpretation of the text messages.

Authorities

Archbold.