Andrew Ryan Ferrell v The Queen (Gibraltar)

For joinder under the “same or a similar character” limb of Indictment Rules 1961, offences must have a sufficient nexus and features showing that they can properly and conveniently be tried together in the interests of justice. Admissibility under the former similar-fact principle is sufficient to establish a nexus, but is not essential. Both legal and factual similarities matter.

Drug-possession charges and money-laundering charges may be joined where later evidence of drug dealing, together with unexplained cash deposits, permits a jury to infer that earlier deposits were proceeds of drug trafficking. Separate trials should be ordered only where prejudice, embarrassment or another proper reason is shown.

Following a trial before Pitto J and a jury, the appellant was convicted of cocaine possession, possession with intent to supply, and concealing or transferring the proceeds of drug trafficking. The convictions arose from two groups of counts: drug offences and money-laundering offences based on earlier cash deposits.

The Court of Appeal in Gibraltar dismissed the appeal on 16 September 2009. Leave was granted to appeal to the Privy Council. The appeal concerned whether the two groups of counts were properly joined, the consequences of any improper joinder, and whether the money-laundering convictions were safe if joinder was proper.

1. Disposition. The Board dismissed the appeal and advised that the convictions should stand.
2. Joinder. Rule 9 of Indictment Rules 1961 permits charges to be joined where they are founded on the same facts or form, or are part of, a series of offences of the same or a similar character. The first-instance finding that the offences arose from the same facts was accepted to be wrong. The relevant question was therefore whether the offences were of a similar character.
3. Sufficient nexus. The principles in Kray (1969) 53 Crim App R 569 and Ludlow v Metropolitan Police Commissioner [1971] AC 29 show that admissibility under the former similar-fact principle is not a necessary condition of joinder. A sufficient nexus may arise from similar features which establish a prima facie case that the offences can properly and conveniently be tried together in the interests of justice. The law and facts must both be considered.
4. Application. The evidence showed substantial unexplained cash deposits, generally below £1,000, despite the absence of an apparently lawful means of accumulating significant cash. The later evidence that the appellant dealt in drugs was probative of the allegation that the earlier deposits were proceeds of drug dealing. In the absence of a credible explanation, the jury was entitled to draw that inference. The evidence therefore supplied both a legal and factual nexus between the counts.
5. Severance and safety. The issue of the consequences of improper joinder did not arise. Under section 5(3) of Indictments Act 1915, separate trials could be ordered where joinder might prejudice or embarrass the defence or where separation was otherwise desirable. There was no proper basis for exercising that power. The jury was entitled to reject the appellant’s explanation and the verdicts were safe.

• Privy Council: In [2010] UKPC 20, the appeal was dismissed.
• Court of Appeal in Gibraltar: The appellant’s appeal against conviction was dismissed on 16 September 2009.
• Trial court: Following conviction on 26 May 2009, the appellant received a total sentence of six years and six months’ imprisonment.