Form 1 - CHARGING or REVIEW of CHARGING DECISION

Transcription

1 Form 1 - CHARGING or REVIEW of CHARGING DECISION DEFENDANT(s) NAME(s) Mr Green and Mr Yellow EVIDENTIAL STAGE Refer to the evidence and determine if a reasonable prospect of conviction: Mr Green On 17 th June Mr Green was the driver of a car with Mr Yellow who had 500 grams of cocaine wrapped in brown paper in a plastic bag. This bag was seized by the police from his feet. I will be considering the following charges: Possession with intent to supply contrary to section 7(3) of the Drugs (Prevention of Misuse) Act (the Act ) and being concerned in the supply of drugs contrary to section 6 (3) (b) of the Act. The issue in relation to possession with intent to supply will be whether Mr Green was in joint possession of the cocaine. What has to be established is that Mr Green not only knew of the presence of the drugs, but had some control over them and/or that he was a participant in their possession by being party to a joint enterprise with Mr Yellow: Searle [1971] Crim LR 592, Conway and Burker [1994] Crim LR 826. As Mr Green was the driver of the car, then, depending on all the circumstances, knowledge maybe inferred (R v Strong and Berry [1989] LS Gazette, March 8, 41, CA) Mr Green s Knowledge of the cocaine can be inferred from circumstances of the 17 th June. Mr Green stated in interview that he had not been in contact with Mr Yellow before he saw him at the bus stop. The telephone, which he accepts as his was in contact with Mr Yellow before he arrived at the bus stop. There is therefore ample to infer that the meeting was pre-arranged. It is against all

2 commonsense that Mr Green should be calling Mr Yellow just by chance, just before he collects him at the bus stop. This call was not by coincidence. Also found on Mr Green was a note with the number of Mr Yellow and then an amount of money and the telephone number for a Mr Red. No explanation has been provided for this by Mr Green. I have been informed that the amount is consistent with the amount for the price of 500g of cocaine. This is admissible evidence and will be important to establish Mr Greens part in this joint enterprise R v Bryan unreported, November 8, 1984 CA.; R v Hodges [2003] 2 Cr.App.R 15); The fact that Mr Green ran away from the police adds weight to the assertion that he did not want to be arrested. Although this alone does not prove knowledge placed alongside the fact he lied in interview about contact with Mr Yellow, leads to an irresistible inference that Mr Green knew that Mr Yellow had cocaine in his possession. The amount of 500g proves intent to supply. Section 33 confirms that a defence will be if the defendant neither knew nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution where it is necessary for the prosecution to prove. Mr Green in interview is alleging that he didn t know the bag contained drugs. From the facts his knowledge can be inferred through his earlier contact with Mr Yellow, his lies in interview and conduct by running away. I have also considered an offence pursuant to section 6(3)(b) of being concerned in the supply of drugs. This would be an appropriate charge if there was any concern in relation to proving joint possession. In my view not only did Mr Green have joint possession but he also had a joint intention to supply the drugs with Mr Yellow. Therefore the correct charge to proceed with is possession with intent to supply.

3 Mr Yellow On the facts Mr Yellow is clearly in possession of the cocaine and the amount proves the intent as outlined above, therefore there is a reasonable prospect of conviction. Money laundering Money laundering contrary to section 127 (1) (c) of the Proceeds of Crime Act 2009 includes possession of criminal property Pursuant to section 123 (1) property is criminal property if (a) it constitutes a person's benefit from criminal conduct or it represents such a benefit, in whole or part and whether directly or indirectly; and (b) the alleged offender knows or suspects that it constitutes or represents such a benefit. Section 1 defines criminal conduct as conduct which constitutes an offence or would constitute an offence if it had occurred in Anguilla; Offence is described as an offence punishable with 12 months or more imprisonment. Therefore money derived from a drug trafficking offence would constitute a persons benefit from criminal conduct for a money laundering offence contrary to section 127. On the facts Mr Yellow resides at the property himself therefore there is sufficient evidence with only his personal belongings at the property to establish the money was in his custody and control. Therefore in my view there is reasonable prospect

4 of conviction that Mr Yellow was in possession of the money through the commission of a drug trafficking offence. This is on the basis that: 1. Mr Yellow has been involved in a drugs deal; 2. Has a number of items of drugs paraphernalia at his home address consistent with drug supply; 3. Failed to give an account when questioned [for both if appropriate] The possession with intent to supply will be an alternative charge to one of conspiracy to supply cocaine. Mr Green and Mr Yellow were part of a common design to supply cocaine. Of course it is not necessary to prove that all parties came together and actually agreed in terms to have the particular common design. Each conspirator may have a particular part to play in the pursuit of the attainment of the common design. Mr Green was essential as the driver to secure delivery of the cocaine and Mr Yellow was in possession of it. Therefore both had a role to play in the common design of supplying the cocaine to another party. Proof of the existence of a conspiracy is generally a matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them (R v Brisac (1803) 4 East 164 at 171, cited with approval in Mulcahy v R (1868) L.R.3 H.L 306 at 317). On the facts, Mr Green s actions in driving Mr Yellow who was in possession of the cocaine, Mr Green s possession of the note and the telephone contact with Mr Yellow, all demonstrate they were both party to the common design and their intention to carry out the agreement.

5 Complete on a separate sheet if necessary PUBLIC INTEREST STAGE I am satisfied that it is in the public interest to prosecute on all charges as both could receive custodial sentences and it is in the public interest to prosecute offences of drug trafficking and laundering the proceeds of drug trafficking. CHARGES 1.S/EW/I 2.S/EW/I 3.S/EW/I 4.S/EW/I 5.S/EW/I REPRESENTATIONS ON VENUE Prosecutor to indicate general nature of decision and advice (one box only) A Charge X H Refer for financial investigation B Charge different offences C Further investigation-resubmit D NFA Evidential E NFA Public Interest F Other (Please specify) G TIC Further action agreed: Action date by: 1. Test package and plastic bag for fingerprints 1 month 2. Financial investigation to confirm lifestyle 2 months 3. Obtain valuation statement re drugs 2 weeks 4. Investigate Mr Red 2 weeks Asset recovery case: Yes

6 Further consultation needed pre-charge: N/a Prosecutor name (print):dan Suter Contact details: Date: Investigation stage at which advice sought: Post Charge How advice delivered: Written