Jersey Unreported Judgments

[2007]JRC035

ROYAL COURT

(Samedi Division)

6^th February 2007

Before     :

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

The Attorney General

-v-

Daniel Hansen

4 counts of:	Possession of a controlled drug, contrary to Article 8 (1) of the Misuse of Drugs (Jersey) Law 1978  (Counts 1, 4, 5 and 14).
1 count of:	Production of a controlled drug, contrary to Article 5(2) of the Misuse of Drugs (Jersey) Law, 1978.  (Count 2).
1 count of:	Possession of utensils for the purposes of committing an offence, contrary to Article 10 of the Misuse of Drugs (Jersey) Law 1978.  (Count 3).
1 count of:	Possession of a controlled drug with intent to supply, contrary to Article 8 (2) of the Misuse of Drugs (Jersey) Law 1978.  (Count 6).
1 count of:	Being concerned in the supply of or the making of an offer to supply, a controlled drug, contrary to Article 5 (c) of the Misuse of Drugs (Jersey) Law 1978.  (Count 7).
2 counts of:	Supplying a controlled drug contrary to Article 5 (b) of the Misuse of Drugs (Jersey) Law 1978.  (Counts 8 and 12).
3 counts of:	Being concerned in the supply of a controlled drug, contrary to Article 5 (c) of the Misuse of Drugs (Jersey) Law 1978.  (Counts 9, 10 and 11).
1 count of:	Offering to supply a controlled drug, contrary to Article 5 (b) of the Misuse of Drugs (Jersey) Law 1978.  (Count 13).

Pre Trial Hearing

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

Advocate M. Temple for the Defendant.

JUDGMENT

THE DEPUTY BAILIFF:

1.        Mr Hansen faces an indictment which contains a number of counts which relate to possession and supply of drugs.  He has pleaded guilty to Count 4 which is possession of diazepam, Count 5, which is possession of ecstasy, Count 8 which is supplying cannabis to Pawel Karczewski and Count 9 which is being concerned in the supply of cannabis. 

2.        He has pleaded not guilty, however, to three counts which are due to be tried next week.  They are Count 6, possession of Ecstasy with intent to supply, Count 10 being concerned in the supply of Ecstasy, and Count 11 being concerned in the supply of cocaine.

3.        Part of the evidence which the prosecution wish to bring in relation to Counts 6, 10 and 11 consists of texts from mobile telephones used by the defendant; texts either to or from him.  There are also texts which relate to the supply of cannabis which is Count 9 and indeed possibly Count 8, but in view of the pleas of guilty to those charges the Crown did not originally intend to adduce those texts in evidence.  They intended only to adduce texts which, they said, related to ecstasy. 

4.        The Crown has now been informed that in relation to Count 10, which is the being concerned in the supply of ecstasy, the defence will be that the defendant was concerned in the supply of cannabis and diazepam, but not ecstasy.  He will say, in other words, that the texts upon which the Crown rely in relation to Count 10 are in fact referring to cannabis and or diazepam and not to ecstasy tablets as the Crown allege. 

5.        In these circumstances the Crown now wishes to adduce evidence of the texts which, it is admitted, relate to cannabis and diazepam and they wish to do so in order to show that the terminology used in relation to those two drugs is quite different to the terminology used in the text which the Crown rely upon in relation to Count 10 and, in which they say, relate to ecstasy.  Mr Temple, on behalf of the Defendant, says firstly that these texts are not admissible in relation to Count 10 and secondly that even if they are admissible they should be excluded in my discretion under Article 76.

6.        I think it is necessary first just to give examples of what is proposed.  In relation to the texts which relate to Count 10 the Crown wishes to adduce a number of texts which include, amongst other things, expressions such as garys, liveners and small ones.  They were calling expert evidence to say that these expressions relate to ecstasy. 

7.        The text which the Crown would wish to rely upon in relation to Count 9, namely cannabis, contain expressions such as, joints, rocky, smoke, mul juice and nulls.  And they refer to quantities such as ounces as oz, or 3 grand for a key, being a kilo.

8.        In relation to diazepam they wish to adduce texts which refer to valerys, dakars and yellows.  They wish to point out that in relation to the cannabis and diazepam texts there is no reference to garys, liveners or small ones.

9.        The first question I must consider is whether the additional texts are admissible in relation to Count 10.  In other words are they relevant and probative of guilty in relation to Court 10.  In my judgment the fact that the defendant uses expressions for cannabis and diazepam which are quite different and do not appear in relation to the texts for Count 10, is very relative and probative, given the nature of the defence now put forward which is that the texts in Count 10 are referring to cannabis and diazepam. 

10.      In my judgement it will be open to the prosecution to argue to the Jurats that the fact that the language used in quite different, is strongly probative of the fact that the drug concerned in Count 10 is quite different to the drugs concerned in the text which, it is admitted, refer to cannabis and diazepam.  In my judgment the evidence is admissible.

11.      The question then is whether I should exercise my discretion to exclude it, notwithstanding its relevance.   Here I must consider Article 76 and consider whether it would be unfair and that involves considering the prejudicial effect and considering it in connection with the probative effect.

12.      Mr Temple argues that it would be very difficult, in practice, to get in the various other texts referred to without also informing the Jurats of the fact that the defendant has pleaded guilty to offences of being concerned in the supply of cannabis and the possession of diazepam.  He says that that would be very prejudicial, the Jurats would know that he had committed other offences in connection with the supply of drugs and would therefore run the risk of falling into the trap of thinking he must therefore be guilty of the offence of supplying ecstasy.  I do not agree with that submission.  I have no doubt that with a suitable direction the Jurats are quite capable of ignoring the pleas of guilty and of concentrating on whether the Crown has proved its case in relation to Count 10 and indeed Counts 6 and 11.

13.      Furthermore, when considering the prejudicial effect one has to bear in mind that the very nature of the defence which will be put forward involves the defendant admitting that he was indeed concerned in the supplying of cannabis and diazepam, because he will be saying that the various texts in relation to Count 10 are to be read as referring to cannabis and diazepam and that is what he was supplying.  The additional prejudice of the Jurats learning that he has in fact pleaded guilty to an offence in connection with the supplying of cannabis and to one of possession of diazepam seems to me to be comparatively modest. 

14.      I am going to assume for the purposes of my decision that it will be necessary, if I allow in the texts, to disclose the convictions in order to weigh up the prejudicial value but I shall have something more to say about it in a moment.  I consider that the probative force of the texts in this case, in the light of the particular defence being put forward, is strong and I consider that it greatly outweighs the prejudicial effect that I consider can be satisfactorily dealt with by an appropriate direction and I have no doubt the Jurats would loyally follow such a direction.  I therefore allow the Crown to adduce evidence of all the texts and I do not exercise my discretion under Article 76 to exclude them.

15.      In the light of that ruling it will, of course, be a matter for the defence, and I merely mention this for their consideration that it might be sought that the adducing evidence of a guilty plea could even work in their favour in the sense that it will enable the defence to say that where he has done something he admits it and it is only where he has not that he denies it.  That of course is entirely a matter for the defence.  If they would prefer not to have the fact of the pleas of guilty adduced then I do think the Crown should explore with the defence whether that can be achieved, although, I repeat, I have made my ruling on the assumption it cannot be, but I nevertheless think that if the defence wish it, every effort should be made to see whether it can be achieved. 

16.      The relevance of the various texts is not to show that the defendant has committed the other offences of supplying cannabis, the relevance is to show that the language the defendant used in connection with the cannabis and diazepam is not the language used in the texts relating to the charges where not guilt pleas have been entered.

17.      It should, therefore, in my judgment be possible by means of admissions to agree the various terminologies which were used and admissions can go to say it is agreed that these relate to cannabis and/or diazepam and to go further and say that the expressions used in the Count 10 text were not used in relation elsewhere to cannabis or diazepam.   That will, of course, leave entirely open the defence that, in relation to the text which forms the subject of Count 10 and the other not guilt pleas, the defendant was referring to cannabis and/or diazepam.  In other words it should be possible to summarise the effect of the text which I have ruled to be admissible, but I leave that to counsel to see if they can work out and we will be willing to sit further if it is thought that that would assist or if any further ruling is required, but if that proves not desirable or possible my ruling is that ultimately the texts are admissible.

No Authorities.