Jersey Unreported Judgments

[2009]JRC222

ROYAL COURT

(Samedi Division)

24^th November 2009

Before     :

Sir Philip Bailhache, Kt., Commissioner, sitting alone.

The Attorney General

-v-

Kevin Metzner

J. C. Gollop Esq., Crown Advocate for the Attorney General

Advocate I. C. Jones for the Appellant.

JUDGMENT

THE commissioner:

1.        This is an application by Kevin Metzner for costs arising out of the abandonment by the Crown of a prosecution for importing a medicinal product contrary to Article 8(3) of the Medicines (Jersey) Law 1995.  The facts, very briefly, are these.  The applicant was stopped by customs officers on 14th May, 2009, at Elizabeth Harbour Terminal, having driven his car off the ferry from Portsmouth.  He explained that he was on a short holiday to visit a friend who lived in Jersey.  He stated that the friend had often visited him in England, and had in fact borrowed his car a few days before.  Customs officers conducted an ION scan and found traces of cocaine both on the steering wheel and on the passenger door.  The applicant suggested that his friend must be responsible.  The officers removed the spare wheel, and an x-ray revealed the presence of packages secreted inside the tyre. 

2.        The applicant was arrested.  Six packages were found inside the tyre containing white tablets and pink powder.  The tablets appeared to be ecstasy, but were in fact Benzylpiperazine (BZP) which is a synthetic derivative used for treating worms in animals.  It is a medicinal product which is not controlled under the Misuse of Drugs (Jersey) Law 1978.

3.        On 15th May, 2009, the applicant was interviewed but gave no comment to any of the questions put to him.  He was charged with an offence under the Medicines Law and remanded in custody.  Later he was presented before the Magistrate and reserved his plea.  On 15th June, 2009, there was an uncontested committal to the Royal Court on the papers.  On 31st July, 2009, he appeared before the Royal Court on Indictment, pleaded guilty, and was remanded for sentence to 4th September, 2009.  On that date he made it clear, for the first time, that his position was that he knew nothing about the packages in the spare wheel.  His counsel had advised that the alleged offence under the Medicines Law was an absolute offence, and that no mens rea was required.  This view of the Law was doubted by the Crown Advocate and by the presiding Judge who directed that the case should be adjourned for argument. 

4.        On 11th September, 2009, the applicant sought leave to change his plea to "not guilty", and leave was granted.  He was remanded to a Plea and Directions Hearing on 21st October, 2009, and for trial on 23rd November, 2009.  On 13th November, 2009, the Crown withdrew the Indictment and the applicant was discharged from the prosecution. 

5.        Both counsel agree that the starting point for my consideration is Article 2(1)(c) of the Costs in Criminal Cases (Jersey) Law 1961.  That Article provides:-

"2       (1)        Subject to the provisions of this Article, where any person is prosecuted or tried before a Court to which this Article applies, the Court may;

(a) if the accused is convicted, order the accused to pay the whole or any part of the costs incurred in or about the prosecution and conviction;

(b) order the payment out of public funds of the costs of the prosecution;

(c) if the accused is discharged from the prosecution or acquitted, order the payment out of public funds of the costs of the defence."

6.        Counsel also agree that, although the Court has a discretion, costs should ordinarily be awarded to a person discharged from a prosecution.  One of the circumstances where costs are not awarded is where it can be said that the defendant's own conduct has brought suspicion upon himself and has misled the prosecution into thinking that the case against him is stronger than it is.  In Attorney General-v-Bouchard [1989] JLR 350 it was held that these phrases were to be read conjunctively so that the defendant's conduct should be such, not only as to have brought suspicion upon himself, but also to have misled the prosecution into thinking that the case against him was stronger than in fact it was.

7.        Mr Gollop has conceded that the applicant is entitled to his costs from the period when he was given leave to change his plea (11th September) to the date of his discharge from the prosecution (13th November).  Mr Jones has conceded that an order for costs should not be made for the period from the applicant's guilty plea on Indictment (31st July) to the date when he was given leave to change his plea (11th  September).  The only question for me is therefore whether costs should be awarded from the date of his arrest (14th May) to the date of Indictment (31st July). 

8.        There is no doubt that the applicant's conduct was such as to bring suspicion upon himself.  He drove a car in St Helier which contained prohibited medicinal products concealed in the spare tyre of his car.  Traces of cocaine were found inside the car.  Did he mislead the prosecution into thinking that the case against him was stronger than in fact it was?

9.        Mr Jones submitted that the applicant did and said nothing to that effect.  He had exercised his right of silence on legal advice.  He had been entirely co-operative with Customs Officers until his arrest when he had decided that he should say nothing, and he had declined to sign the notes in the Customs Officer's pocket book.  He had reserved his plea in the Magistrate's Court, but there was nothing significant about that.  He had had no choice, given the legal advice received, other than to consent to a committal on the papers to the Royal Court.  None of this had misled the prosecution.

10.      Mr Gollop contended that the applicant's silence had indeed misled the prosecution into thinking that the case against him was stronger than it was.  He had had every opportunity to indicate that he did not know of the presence of the tablets and powder concealed in the spare wheel, but had not taken those opportunities.  If his position had been made clear at an earlier stage, the prosecution would have been able to give consideration to the new situation. 

11.      I prefer the submissions of the Crown Advocate.  A defendant is of course not obliged to say anything to the Police or other investigating officers, but this right is in fact a privilege against self-incrimination.  Nothing prevents a defendant from giving information which might exonerate him.  He cannot be compelled to give such information but, if he fails to do so, and as a consequence the investigating officers are misled into thinking that their position is stronger than in fact it is, there seems to me no reason why the public should pay the price of that silence.  In the exercise of my discretion I decline to make an order for costs in favour of the applicant other than for the period conceded by the Crown Advocate, namely 11th September to 13th November, 2009. 

Authorities

Medicines (Jersey) Law 1995.

Misuse of Drugs (Jersey) Law 1978.

Costs in Criminal Cases (Jersey) Law 1961.

Attorney General-v-Bouchard [1989] JLR 350.