Andrew Ryan Ferrell v The Queen

From the Court of Appeal of Gibraltar

The appellant was convicted of two counts of possession of a controlled drug (cocaine) (counts 1 and 3), two counts of possession of the controlled drug with intent to supply (counts 2 and 4),  hereinafter referred as ‘drug counts’ and nine counts of concealing or transferring the proceeds of drug trafficking (counts 7 to 15) hereinafter referred as ‘money laundering counts’.

  The appellant was sentenced to five years’ imprisonment on each of counts 1 to 4, which were to be served concurrently but consecutively to 18 months’ imprisonment on each of counts 7 to 15 to be served concurrently. He was thus sentenced to a total of six years’ and six months’ imprisonment.

Facts of the case were that police officers with the aid of a camera, observed the appellant on a number of occasions when he visited a relatively remote area of the Rock of Gibraltar. On  a particular day the police decided to search him . Nothing was found on him but the police searched the area of the driver’s seat of his car where they found drugs. Nearby in an earth wall, where the appellant had been seen to go on previous occasions, there was found a cache of drugs in half gram deals which could be scientifically matched with the drugs in the car.

Also it was found that though he worked only for 18 days, he had a bank account with the NatWest Bank into which he had made frequent payments of total of £69,835, always in cash in amounts of under £1,000 only to avoid the need for the bank to report an unusually large deposit. The appellant had also a total of seven vehicles registered in his name. Counts 7 – 15 were specimen counts relating to deposits of cash on various dates. Counts 1 and 3 alleged possession of cocaine contrary to section 7(1) and (2) of the Drugs (Misuse) Act 1973 (‘the 1973 Act’) and counts 2 and 4 alleged possession of cocaine with intent to supply contrary to section 6(1) and 7(3) of the 1973 Act. Counts 7 to 15 alleged concealing or transferring proceeds of drug trafficking contrary to section 54(1)(a) of the Drug Trafficking Offences Act 1995

The issue raised before the Board on behalf of the appellant was

– whether ‘money laundering counts’  were properly joined with ‘drug counts’;

– if not, what are the legal consequences of the appellant having been tried and convicted on the two sets of counts;

The  principles relevant to joinder in Gibraltar are the same as in England ( sections 4 and 138-142 of the Criminal Procedure Act 1961) Rule 9 of the Indictment Rules 1961 provide:

“Charges for any offences may be joined in the same indictment if those charges are founded on the same facts or form or are part of a series of offences of the same or a similar character.”

The issue both before the Court of Appeal and before the Board was whether the two sets of offences ‘form or are part of a series of offences of’ a ‘similar character’. The Court of Appeal held that they were. The Board too  affirmed.

After referring to the relevant principles as set out in  Archbold, it had to consider whether, in the circumstances of the case there was a sufficient nexus between the offences charged in the money laundering counts and in the drugs counts.

The Court of Appeal accepted the submission made by the Attorney General that there was both a legal and factual nexus between them. Drug counts which alleged possession of cocaine with intent to supply, all dealt with the supply of drugs. The drugs would of course have been sold for money, which would then require to be banked and, in all likelihood, laundered. It held that the Attorney General correctly accepted that the prosecution had to show, in the case of each of the money laundering counts that some at least of the money derived from drug dealing. He further  submitted, however, that on the facts set out above, it was open to the jury to infer that the money was indeed the proceeds of drug dealing. He accepted of course that all the money laundering counts related to transactions that pre-dated the possession of the drugs in the drugs counts but submitted that, in the absence of a credible explanation to the contrary, it was open to the jury to infer that the appellant had had a system of selling drugs and laundering the money over an extended period. The Court of Appeal as well as the Board accepted that submission.

The only question was whether a jury was entitled to infer that it was drugs money. The  Board held that , at any rate in the absence of a credible explanation to the contrary, the answer should be in the affirmative.

It was submitted on behalf of the Appellant, both to the Court of Appeal and to the Board, that the evidence on the drugs counts would not be admissible in evidence on the money laundering counts. The Board as well as the Court of Appeal rejected that submission. The evidence of later drug dealing was held  evidence probative of the allegation that the appellant was laundering drugs money.

The  Board was thus satisfied that both sets of counts charged a series of offences of a similar character which could and should be tried together.  The counts were thus properly joined. It  further held that  if an application had been made to sever the two sets of counts and to order separate trials, it would have failed. The court had power under section 5(3) of the Indictments Act 1915 to order separate trials if it is of the opinion that the accused may be prejudiced or embarrassed in his defence by being charged with more than one offence in the same indictment or that for any other reason it is desirable to direct separate trial of separate counts but there was no proper basis for the exercise of such power in the circumstances of the case. The Appeal was thus dismissed.