The Attorney General v Joshua Peter O’Brien and Sophie Amber Rose Lusk

Legal Argument - Crown Bad Character applications x 3 Lusk, Lloyd, O'Brien [2024]JRC177 Royal Court (Samedi) 29 July 2024 Before : R. J. MacRae, Esq., Deputy Bailiff, sitting alone The Attorney General -v- Joshua Peter O’Brien And Sophie Amber Rose Lusk Crown Advocate C. L. G. Carvalho for His Majesty’s Attorney General. Advocate I. C. Jones for Defendant Lusk Joshua O’Brien self-represented (serving prisoner) – refused to attend Ex tempore JUDGMENT THE DEPUTY BAILIFF: 1. I will give brief reasons for my decisions on these issues now and reserve the right to amend or add to those reasons when the draft judgment is to hand.

2. Sophie Lusk is 28 years old faces trial with her co-defendant Mr O’Brien. She is charged with being concerned in the supply of cocaine and cannabis into the prison at La Moye. It is the Crown’s case that whilst O’Brien was a serving prisoner Miss Lusk and Mr O’Brien agreed that she would supply him with controlled drugs when she visited the prison with their daughter.

3. Miss Lusk denies any such activity or participating in any such activity. Today the Crown seeks to adduce evidence of Miss Lusk’s previous bad character. The evidence arises from her conviction in 2014 and sentence in 2015, in this Court, for possession of a Class A controlled drug with intent to supply, namely MDMA. The Crown argues that this is evidence of misconduct as defined, which it plainly is, and argue that it admissible under Article 82 (F) of the Police Procedures and Criminal Evidence (Jersey) Law 2003 as evidence showing that she has a propensity to commit offences of the kind with which she is charged.

4. The Crown says that the fact of Miss Lusk’s 2014 conviction establishes such a propensity; it shows a willingness to be involved in controlled drugs and a preparedness to be a custodian of such drugs, and such a propensity indicates that it is more likely that she has committed the offence with which she is charged.

5. The defence resists the application and point in particular to the circumstances of an appearance before this Court almost 10 years ago. The 2015 judgment of Commissioner Clyde-Smith notes that the Crown accepted that Miss Lusk was a temporary custodian of drugs which she came into possession of unexpectedly - finding they had been delivered through the letter box of her home at First Tower, and that she was in the process of delivering them to an acquaintance who she named to the police when she was stopped and arrested. The Court went on to say that her involvement in the drugs trade was minimal, such that the offence was not so serious that custody could not be avoided. The defence rely on the fact that approximately eight years separate the offence in 2014 and this alleged offence - which is said to have occurred in 2022.

6. Having regard to all the circumstances of this case, I have concluded on balance that the circumstances of the 2014 conviction do not establish a propensity to commit the offence with which Miss Lusk is charged, and if I am wrong on that then under Article 82 (E) of the Law I would have found that the admission of this evidence would have such an adverse effect on the fairness of the proceedings that it ought not to be admitted. So I decline to admit the evidence of the 2014 conviction. Mr Lloyd 7. The second matter that is before me today relates to telephone evidence which the Crown’s skeleton argument describes as non-defendant bad character evidence but is more properly categorised as relevant evidence. It is evidence which has to do with the alleged facts of the offence and is therefore not bad character evidence (so far as Mr O’Brien is concerned) under Article 82 (C) of the Law. The evidence itself is best understood by reference to the sentencing remarks made by the Royal Court in July 2023 when imposing sentence on Shane Lloyd, particularly the contents of paragraphs 6 and 7 of the judgement which deal with exchanges between Mr Lloyd and a serving prisoner between the 19 and 29 October 2022 in relation to the supply of drugs into the prison, in particular cocaine and cannabis. The Crown was not then aware, but now claims to have evidence which proves that the prisoner in question with whom Mr Lloyd was corresponding was Mr O’Brien. It is said that all relevant evidence has been disclosed by the Crown.

8. Plainly, if the Jurats are not sure that the messages in question can be attributed to Mr O’Brien then this evidence will be disregarded, but as things stand this evidence in my judgment is relevant and accordingly admissible. I pause to observe that if this matter does go before the Jurats then the evidence on this matter should not be adduced in the terms suggested at paragraph 9 of the Crown’s skeleton, but broadly in the terms contained at paragraphs 6 and 7 of the Royal Court judgment or at least in a way that captures what is said in those paragraphs. Mr O’Brien 9. Finally, some further specific applications relevant to Mr O’Brien only. As I have said the Crown’s case is that the defendant O’Brien received controlled drugs from Miss Lusk whilst he was in a prison, and the supply of drugs was disguised by a supply that took place surreptitiously during a prison visit.

10. The Crown invites me to rule in relation to what is on any view bad character evidence arising from Mr O’Brien’s antecedents. The first led to Mr O’Brien’s conviction in June 2017 for unlawful conveyance of a prohibited item contrary to Article 25 of the Prison (Jersey) Law 1957. The circumstances in short were that in February 2017 Mr O’Brien conveyed a mobile telephone into the prison to another prisoner (a Mr Anderson) during a visit. The offence was captured by CCTV. Mr O’Brien was observed as being restless during the visit, having a clenched fist whilst leaning forward talking to the prisoner and was overheard saying, “you will be fine I got it through the metal detector, don’t worry about it…” and so on, and at the end of the visit they hugged and the mobile phone was apparently passed. The Crown say this is relevant as establishing a propensity to be involved in the conveyance of a prohibited item into prison. I accept that, and have considered arguments to the contrary and my powers to exclude the material nonetheless admit this evidence.

11. The Crown also seeks to adduce the circumstances of Mr O’Brien’s 2021 conviction. The circumstances are set out in the Royal Court’s judgment from 1 November 2021 reported at [2022] JRC 272. The principal offences with which the court was concerned on that occasion were three counts of being concerned in the making to offer a supply of a controlled drug. The circumstances are set out in the Court’s judgment at paragraph 2 and concern the defendant being concerned in the supply of cocaine, MDMA and cannabis. There is evidence that he had arranged for the supply of those drugs using his mobile telephone. He was sentenced to a total of 7 years’ and three months’ imprisonment, 6 years of which related to the longest sentence imposed in relation to the drug trafficking offences.

12. Mr O’Brien is now 35 and would have been in his early 30’s at the date of the offending to which I have just referred. The Crown says that the circumstances of this conviction establish a propensity to commit offences of the kind charged and those circumstances make it more likely that he was concerned in the supply of controlled drugs as alleged on this indictment, and indeed make it more likely that he caused or arranged Miss Lusk to assist in that regard. These are described as recent and relevant convictions including the same controlled drugs, at least insofar as they relate to cocaine and cannabis. I have considered inter alia the court’s exclusionary jurisdiction under Article 82, and in the circumstances, admit the circumstances of that conviction as well.

13. Finally, the last request by the Crown to admit bad character evidence arises from Mr O’Brien’s defence case statement in which he says, “I would also wish to request all of my search and swab history since I have been imprisoned. I have been swabbed more than any other prisoner, yet I have never failed a single one of them. And in fact, the very next day after the drugs were seized from my cell I was swabbed, and it came again came back negative - as had not consumed any of them therefore if I had not consumed them where could they have possibly been?” 14. The Crown has secured Mr O’Brien’s prison drug swab history and for the year 2022, it shows he did indeed pass tests in February, March and April but he refused the June test. In relation to the period that the court is most concerned with he failed the tests in September, on 30 October and the 12 December. During those three occasions various controlled drugs where identified as present.

15. The Crown says that under Article 82 (I) this is evidence of his bad character which is admissible to correct a false impression given by him. I agree. That evidence is prima facie admissible if the defendant either pursues these contentions at trial or the Crown succeeds in adducing the contents of his defence case statement.

16. A copy of this judgment will be transcribed and provided to the parties. I am conscious that Mr O’Brien is not here today and has to this point in the proceedings elected to be unrepresented. If he secures representation in the near future by which I mean sufficiently in advance of trial his Advocate is at liberty within 14 days of being instructed and receiving a copy of the Court’s judgment to, if he or she thinks it appropriate, invite me to reconsider the decisions I have made by making a written application to the Court, which I will consider on the papers.

17. Miss Lusk you are bailed until the day of your trial. You need to be here no later than 9:30 a.m. on the day of your trial. In the meantime you must comply with your conditions of bail. Do you understand. Authorities Police Procedures and Criminal Evidence (Jersey) Law 2003. Prison (Jersey) Law 1957. AG v Akhonya [2022] JRC 272.