Jersey Unreported Judgments

[2009]JRC159

ROYAL COURT

(Samedi Division)

12^th August 2009

Before     :

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

The Attorney General

-v-

Helen Jeanette Bowler

Lee Michael Boustouler

Applications seeking to adduce evidence of previous convictions.

H. Sharp, Esq., Crown Advocate.

Advocate M. J. Haines for Bowler.

Advocate I. C. Jones for Boustouler.

JUDGMENT

THE commissioner:

1.        The prosecution seek to adduce evidence of previous drug convictions, pursuant to Article 72 of PPCE.  Bowler is charged with supplying heroin to three men, namely Roland Parry, Paul Mohammed and her co-accused Lee Michael Boustouler, on or around the 4^th December, 2008. 

2.        The broad outline of the prosecution case is as follows.  Bowler was in contact with all three men by telephone during the morning of the 4^th December.  This resulted in the three men visiting her flat at the same time.  The police searched the flat and found Bowler in possession of a small quantity of heroin and £200 in cash.  Two of the three men, both of whom have convictions for possessing heroin, swallowed items on seeing the police.  Bowler appeared to accept in police interview that at least one man had taken heroin in her flat.

3.        Boustouler was one of the three men who had visited the flat.  He was stopped outside in the street by police officers who searched him for drugs.  Boustouler had something in his mouth.  He refused to open his mouth and instead swallowed.  The prosecution say that he swallowed heroin and that he obstructed the police officers in the course of their duty.

4.        When the police searched the flat, Mohammed was found in the lounge.  On seeing the police he took a white coloured item out of his shirt pocket and put it in his mouth.  He swallowed despite forceful attempts by the police to prevent him from doing so. 

5.        Boustouler is charged with obstructing the police in the execution of their duty, contrary to Article 19(7)(a) of the Misuse of Drugs (Jersey) Law 1978.  He is also charged with possession of the heroin he is alleged to have swallowed, the formal plea for which is to be taken at the commencement of the trial.

6.        Parry is not being charged with any offence, and the prosecution offered no evidence against Mohammed when his case came before the Magistrate's Court.

7.        Both Mohammed and Boustouler, as previously indicated, have previous convictions for the possession of heroin and have been described, when being sentenced, as drug addicts.  The prosecution say that the previous convictions of Boustouler and Mohammed are highly probative evidence in this case.  They say it goes to the following issues in the case:-

(i)        the reasons why the two men attended Bowler's premises;

(ii)       whether Bowler provided the two men with a package or wrap; if so

(iii)      whether or not the contents of the package or wrap was heroin. 

The prosecution say that there is little or no prejudice caused to Bowler by admitting these convictions against her.  In respect of Mohammed, Bowler accepted in interview that she knew, or thought, he was a heroin user.  She also made other admissions in interview about her background that revealed her to be acquainted with those who take heroin.  She said that she had met both Parry and Mohammed through her ex-boyfriend who is a heroin addict.  In respect of Boustouler, Bowler said she only knew him through his girlfriend and did not know him personally.  There cannot therefore be, say the prosecution, guilt by association.  Either it is an extraordinary coincidence that Bowler unwittingly invited three heroin users to her flat at a time when she had heroin in her possession, or it is not.  I find it helpful to consider the application in respect of each accused, namely Bowler and Boustouler separately and I start with Bowler.

8.        Mr Sharp referred me to the English Court of Appeal decision in R-v-Rothwell [1994] Cr App R 388.  Quoting from the headnote in that case:-

"The appellant was convicted of a number of offences of possessing and supplying heroin, a class A prohibited drug, and of one offence of attempting to possess cocaine with intent to supply. The case against him arose out of police surveillance, during which he was seen to pass small packages or wraps to various people.  At the trial a police officer, who had kept observation on the appellant, gave evidence that four of the recipients were known to him as heroin users.  Counsel for the defence had submitted unsuccessfully that that evidence should be excluded on the ground that it was hearsay and therefore inadmissible or, alternatively, if it was admissible, that the judge should have exercised his discretion under section 78 of the Police and Criminal Evidence Act 1984 and have excluded it.  On appeal against the judge's ruling on the ground that it was clear that the officer was relying upon information given to him by others.

Held, dismissing the appeal, that (1) where the Crown wish to adduce evidence that the recipient of a package from a defendant charged with supplying controlled drugs was a known user of the drug supplied, the judge should enquire into the basis of the prosecution witness's evidence and that evidence should only be admitted, subject to the court's discretion to exclude it under section 78 of the Police and Criminal Evidence Act of 1984, where it was based on the alleged recipient's convictions for possession of the drug in question, or e.g on the observation by the witness of hypodermic needle marks on the recipient, or on first hand knowledge of the witness that the recipient was in possession of the drug or had received treatment for addiction to the drug.  If the basis for the evidence proves to be statements made to the witness by others, including the recipient, the evidence would be inadmissible as hearsay.  (2) In the present case, as the police officer did not have direct personal knowledge which would justify him in concluding that the aforesaid four persons were heroin users, the judge had erred admitting that part of his evidence.  However, notwithstanding that there had been a material irregularity in the trial, the Court was satisfied that there had been no miscarriage of justice, for on the admissible evidence with a correct direction the only reasonable and proper verdicts would have been ones of guilty.  Consequently, the proviso to section 2(1) of the Criminal Appeal Act 1968 would be applied."

Although the case was concerned with the issue of hearsay evidence the facts were broadly analogous. 

9.        The issues at the trial were i) had the prosecution proved that the appellant handed a package or wrap to a named individual and ii) if he had, had the prosecution proved that the package or wrap contained heroin?  The Court of Appeal accepted that evidence that the named individual was a user of heroin, was probative of the Crown's case on both issues.  In his judgment  Lord Justice Roch referred to the case of Warner and Jones (1993) 96 Cr. App. R. 324 as follows at page 393:-

"In the course of argument we were referred to this Court's decision in the case of Warner and Jones (1993) 96 Cr. App. R. 324.  In that case the appellants were convicted of conspiracy to supply heroin.  At their trial the prosecution had applied under section 74 of the Police and Criminal Evidence Act 1984 for leave to call evidence of the convictions of eight persons who had attended the premises of one of the appellants during police observation of those premises for offences of possession or dealing in heroin.  In that case Stuart -Smith L.J. at p. 329 said:

"The first question must always be: to what issue in the case is that evidence relevant".

This Court in that case decided that the convictions of those eight persons were relevant to the issue in the case, namely whether the appellants were conspiring to supply heroin.  The Court in that case pointed out at p. 329 that they were not concerned with hearsay rule.  At p. 330 Stuart-Smith L.J. said:

"The character of the visitors, as demonstrated by their convictions, was relevant to provide supporting evidence of the character of the transactions and of the purpose to which the defendants were letting visitors into the house and apparently doing business with them.  Kearley was not such a case."

The evidence of Detective Constable Groom was, therefore, in our judgment, admissable from the point of view of relevance."

10.      Mr Haines, for Bowler, submitted the facts of Rothwell were very different and pointed to the following features.  Firstly the police surveillance was of the premises over 15 days; secondly the police observed on several occasions the passing of small packages or wraps to various people; thirdly the police observed that sometimes the person receiving a wrap would give the appellant money; fourthly two of the persons had had contact with the appellant on more than one occasion; fifthly observation was undertaken at the appellant's house and public places; sixthly the deposit and withdrawal of substantial sums of money from the appellant's account, although he was unemployed; seventh the drug paraphernalia found on the property; and eighth on one occasion a police officer had a close-up view of the wrap received by one person and saw it was a brown powder.  Mr Haines accepted that on those facts the relevance of the previous convictions of the recipients was very clear, but he said that the facts in this case were very different being one if not two steps removed.  There was a real danger, he said, that admitting the convictions would be to allow in evidence of doubtful value and do no more than invite the Court to speculate.  Even if admitted under Article 72(1) of PPCE I should exclude the same under Article 76 because its probative value outweighed its prejudicial effect.  That prejudice, he submitted, goes to the character of Bowler showing that she frequented with people who had previous drugs convictions, but the main thrust of his argument was that evidence of heroin use by the recipients was not probative in any material way. 

11.      I disagree.  I accept that the evidence in Rothwell differs from the evidence in this case but the essential issues are very similar.  In my view, in the context of the charges of supplying heroin, evidence that the recipients were users of heroin is probative of the prosecution's case and therefore admissible from the point of view of relevance.  That probative value outweighs any prejudicial effect.  No issues of hearsay would arise because the convictions would be admitted under Article 72.  References to the convictions could be avoided by the defence agreeing an appropriate admission as suggested by the prosecution and I leave that for discussion between counsel. 

12.      For the purposes of the case against Bowler I therefore grant the prosecution's application to admit into evidence the drugs convictions of Mohammed and Boustouler.

13.      I turn now to the case against Boustouler.  Here I can see no basis for finding that evidence of his previous drug convictions is in any way probative either of the charge of obstruction or of the charge of simple possession.  The purpose of admitting the conviction is to show that Boustouler is a heroin user.  Such evidence in the case against him does no more than raise or strengthen a suspicion that he committed the two crimes of which he is charged.  There will be no evidence of the circumstances in which these previous offences were committed which might point so strongly to his guilt of these current offences, that only an ultra cautious jury, if they accepted it as true, would acquit on the face of it.  This is not a case for the application of similar fact evidence so-called.  Furthermore, admission of his previous drug conviction is very obviously highly prejudicial to him.  I therefore conclude that evidence of Boustouler's previous drug convictions cannot be adduced by the prosecution in the case against him.

14.      Thus I have reached a position in which I have concluded that evidence of these convictions can be adduced by the prosecution in the case against Bowler but not in the case against Boustouler.  The nature of the evidence and its potential prejudice is such that it cannot safely be dealt with by directions even to professional judges such as Jurats.  Pursuant to Rule 6 of the Indictment Rules 1972 I therefore order that the offences on the Indictment against Boustouler be tried separately.  The case against Bowler will proceed this Monday.  Consideration will need to be given to the imposition of reporting restrictions so as not to prejudice any subsequent trial of Boustouler.  The case against him will therefore be adjourned until Friday week. 

15.      A further issue has arisen between Counsel over certain passages in the transcripts of the interview of Bowler which the defence want excluded.  I rule as follows:-

(i)        References to any of Parry, Boustouler and Mohammed, the alleged recipients of the supply are to be retained, as her observations in relation to them are clearly relevant.  So too are references to her boyfriend Mark to be retained because it is clear that her relationship with and the knowledge of the recipients is inextricably linked to her boyfriend.  He is a heroin user but so by her own admission is the defendant;

(ii)       the section of the transcript dealing with the possession charge to which she has now pleaded guilty is to be retained.  The explanation she gave to the Police may constitute a lie and that would go to her credibility as opposed to relating to any material issue in the case.  It is clear from Blackstone's Criminal Practice 2009 Edition F1.20 that a Lucas Direction is not required where a lie goes only to credibility, although it may be sensible for a modified direction to be included in this case to warn the Jurats against the forbidden territory that lies necessarily demonstrate guilt.

16.      I have reached the conclusion in (ii) above because we are dealing with two interviews given by the defendant covering the events of 4^th December and it seems to me to be fair that, subject to the deletion of obviously prejudicial material, the Jurats should be able to assess her credibility by reference to the interview as a whole.  To delete those parts where she has apparently lied is to present an unbalanced picture.  As a consequence, and by reference to the page numbers and draft deletions in the extracts contained in Mr Haines' defence bundle, page 1, the prosecution have agreed that the reference to possession of that drug with intent to supply can be deleted, pages 3-5 are to remain in, pages 9-10 are to remain in and pages 12, 13 and 19 are to remain in.  The prosecution have agreed to the deletion on page 18.

17.      Finally in his skeleton argument Mr Sharp has made reference to the Jurats being able to use conclusions as similar fact evidence.  For example, if they conclude that Bowler supplied heroin to Mohammed, they can use that conclusion in deciding whether she supplied heroin to the others.  I reserve my position on this pending hearing the evidence in the case and will discuss this issue with counsel in the context of my summing up to the Jurats.  However, I have to say at this stage that whilst I can understand the concept of evidence which is similar, so called similar fact evidence, being used in the manner contemplated in the specimen directions contained in the Crown Court Bench Book, I have difficulty with a notion of conclusions being used in this way.  My starting point is that each count and the evidence on it must be considered separately.

18.      Mr Boustouler, the case against you is now remanded to Friday 11^th September at 10 am and you are remanded on the same terms.

19.      Miss Bowler, the case against you will now continue on Monday at 10 am and you are, of course, remanded in custody.

Authorities

Police Procedures and Criminal Evidence (Jersey) Law 2003.

Misuse of Drugs (Jersey) Law 1978.

R-v-Stanley Rothwell [1994] Cr App R 388.

Warner and Jones (1993) 96 Cr. App. R. 324.

Indictment Rules 1972.