- The application for leave came before Macpherson J on 28th June 1990. Each
Ground of Appeal was considered, and leave refused.
- On 12th July 1990, Matthew Farmer advised in writing that an application for leave
should be renewed to the full Court.
- A notice of abandonment dated 31st July 1990 appears to have been lodged with
the Court of Appeal. It was signed and/or lodged by mistake.
- A Second Opinion was sought from Stuart Stevens of Counsel, and in January
1991 De Silva was advised in writing in the following terms:
"In my opinion, the strong point, which may well succeed on appeal is the fact that
in any attempt specific knowledge of the drug (heroin) must be proved. There was
very little evidence of this and indeed it can be cogently argued that the two counts
are incompatible, as the duress argument being rejected (which would have
afforded a defence to both charges). The jury must have found as a fact that the
Defendant was a willing party and therefore knew what he was carrying. If he was
a knowing importer then he was a party to the sting or the principle in the sting.
There is no evidence whatsoever of any third party "duping" him and the jury's
finding in this regard must be total speculation.
"It is my opinion that this sole point has a good chance of succeeding, which will,
if successful, reduce the sentence to one year's imprisonment".
"In any event, on Count 2, as is apparent from the summing-up, there was
abundant evidence to convict of importation simpliciter of unknown drugs, even
without the interviewers or the interviews (customers as opposed to Customs for
example) being accepted wholly in the Defendant's favour".
"I would advise renewing the appeal on Count 1 on the best point only, as lesser
arguments would detract from the strength of this".
- On 23rd April 1991 the matter came before Lord Lane CJ, sitting with Hutchinson
and Martell JJ. De Silva was unrepresented. The Court declared the notice of
abandonment a nullity and granted leave to argue whether on Count 1 there was
sufficient evidence to prove that De Silva knew or believed that the contents of the
package was heroin.
- On 28th October 1991 McCowan LJ, Tucker and Kennedy JJ considered the
appeal in respect of one point taken on the first count. The Appellant was again
represented by Matthew Farmer. In the course of the judgment at page 4,
paragraphs D and E, the Court observed:
"So far as the Single Judge was concerned, he appears to have concentrated upon
what he thought the important points were being raised in the Defence; namely
that the interview evidence should never have been admitted and that the defence
of duress ought to have succeeded".
"It was the Full Court that fastened upon the real points in the Appeal, which is
whether there ever was sufficient evidence to go to the jury that this man believed
that the packages contained heroin. If he believed that they contained what in fact
they turned out to contain he would be guilty of Count 2, as the jury found. But
he would not be guilty of Count 1. They went on to quash Count 1 on the basis
that De Silva may well have been a party to a plot to import Class B drugs into the
country hoping the buyer would be duped into believing that he was buying heroin".
- De Silva remains convicted of Court 2 and has served the sentence of 12 months'
imprisonment. A recommendation for a deportation was made, and until recently
he has been held at Pentonville Prison in relation to immigration proceedings. He
is now on bail. De Silva seeks to appeal his conviction on Count 2. The outcome
will affect the decision of the Home Office as to deportation.
- The questions that now arise for consideration are as follows:
- Is the conviction on Count 2 safe and satisfactory; and if not why not?
- Has the Court of Appeal effectively considered Count 2 in the course of
the appeal on 28th October 1991, and if so, is there power to relist the matter?
- If the answer to (ii) above is yes, can De Silva petition the Home Secretary
to refer the matter back to the Court of Appeal?
- If the answer to (ii) above is no, is De Silva best advised to seek to have
appeal relisted before the Court of Appeal, or petition the Home Secretary.
- It is necessary first to summarise the evidence on Count 2, presented to the jury at
the original trial.
On 15th November 1989, Customs Officers Williams and Farrant boarded a vessel
at Felixstowe docks, and posing as prospective drug purchasers, met the
Defendant. The following conversation took place:
De Silva: Be careful, they are looking.
Williams: Have you anything for me?
De Silva: Yes 2K. Yes. Toni is you.
Williams: Yes.
De Silva: Keep quiet. Sleep next door. Money.
Williams: I want to see the 2K
De Silva: No. Hidden on deck..Show me the money.
De Silva subsequently produced four packages from inside the legs of his overalls
which Farrant examined. The conversation continued:
De Silva: Money now.
Williams: Good quality?
De Silva: Yes. Very good stuff.
The Defendant was subsequently arrested and interviewed. I leave to one side the
contents of the interviews, much of which were disputed and which were the
subject of an unsuccessful argument to exclude them.
On 4th December 1989, the four packages, which had been secured by Farrant
and sealed in two plastic bags [Farrant A] were deposited with Scientific Officer
Cain who concluded that the powder in Farrant A weighed 2.02 kilos and contained a
minimum of 10% by weight of Phenobarbitone and a minimum of 2% by weight of
Methaqualone. These were the drugs specified in Count 2.
On the face of the evidence summarised above there was a prima facie case against
the defendant on Count 2, irrespective of what he was alleged to have said in the
interviews.
- Counsel originally instructed for De Silva Matthew Farmer appealed against
Count 2 on the basis of the admission into evidence of the interviews and of
the failure of the Recorder to direct the jury on the unreliability of the
Conversation on the ship, of which no proper note had been made. However, in
paragraph 18 of his Advice of 25th March 1990 which accompanied the Grounds of
Appeal, Mr. Farmer wrote:
"There is of course a strong inference in cases of possession of drugs that a man
has knowledge of the contents he is carrying: [Warner -v- Metropolitan Police
Commissioner (1969) 2 AC 256 per Lord Pearce at p.427]. On that basis, and
with no other evidence of knowledge derived from another source, the only fair
adverse conclusion that a jury could draw is that he knew that the contents were
Phenobarbitone and Methaqualone and that he was a party to a "rip-off"....putting
the Defence case at its lowest, there must, at the very least, always be a reasonable
possibility that as a party to the "rip-off" he would have known the content of
what he was carrying. As in cases of alleged possession there must be a strong
presumption that he knew the nature of the contents of the parcels he was
carrying. The Prosecution were seeking ....to rebut that inference and replace it
with speculation that although De Silva was a party to the "rip-off" he too had been
fooled into thinking it was heroin when it was not".
Thus Mr. Farmer countenances the point seized on by Mr. Stevens in his
subsequent advice - that prima facie evidence of guilt on Count 2 should have
provided a complete defence on Count 1 - a view with which the Court of Appeal
subsequently agreed.
- It therefor appears that the basis for an appeal on Count 2 was the time of the
hearing rather tenuous and that although the grounds were technically before the
Court on 28th October 1991, the conviction on Count 2 was sacrificed to the
appeal on Count 1.
- I now turn to the questions posed in paragraph 10 of this Advice.
Is the conviction on Count 2 safe and satisfactory and, if not, why not?
- As I have indicated, on the face of the evidence the conviction was safe.
The Defence was that the Defendant had been forced to take possession
of the parcels, and was ignorant of their contents. When the matter came
before the Single Judge on 28th June 1990 he observed "There was
strong evidence against you (particularly as to what happened on the ship)".
- In fresh grounds of appeal dated 11th November 1991, settled by Mr.
Koupparis, the authorised representative of the Applicant, it is averred
that reliance will be placed on fresh evidence of a forensic nature and refers
to a preliminary expert opinion of Dr. Candy dated 16th October 1991.
In it Dr. Candy expresses concern "as to the validity of the procedure
used by Mr. Cain when he "combined" the contents of Farrant A "to form
one lot", which he then tested, possibly without regard to the homogeneity
or the possible inherent chemical interactions of the components in the
resultant mixture.
This appears to mean, according to Peter Ashman from Justice, in his letter
of 5th December 1991, that "if it can be demonstrated that the
[previously lawful] substances, when mixed, would result in the natural
occurrence of the unlawful substance, then clearly any conviction would be
unfair". He goes on "if, however, it was not possible to demonstrate that,
then it seems to me there can be no basis for arguing that the conviction on
Count 2 is an unjust one".
- In the course of my conference on 28th February 1992, with Instructing
Solicitors and Mr. Koupparis, I gave the same advice and concluded that
without scientific evidence capable of shedding doubt on the conclusions of
the forensic scientist, Mr. Cain, it would be idle to consider whether to
renew our appeal to the Court of Appeal or to petition the Home Secretary.
De Silva must identify a forensic issue of substance which is capable of
rendering the conviction unsafe and unsatisfactory before choosing the
procedural route to challenge the conviction.
- On 12th March 1992, Mr. Koupparis wrote to Instructing Solicitors
having visited Mr. De Silva. My advice appears to have been ignored.
Mr. Koupparis states "with regard to a further forensic report, I feel it
would be an impossible and prohibitively expensive task to prove that a
particular chemical can be precipitated by combining some unknown
mixture. It would make more sense , in legal and practical terms, to allow
the Prosecution to disprove that point (beyond reasonable doubt) if it is an
issue and concentrate instead on showing that the Prosecution's forensic
evidence did not prove their case up to the required level of proof"...He
goes on "I think there is little prospect of a retrial because the original
evidence no longer exists and this in itself would render it all but impossible
for the Prosecution to challenge any Defence expert's report".
Mr. Koupparis' proposals are not practical. The Defence must
demonstrate that there is a basis for questioning the scientific evidence.
This can only be done by obtaining a further forensic report or by inviting
the Prosecution to conduct the necessary tests or provide the necessary
information. The Prosecution cannot be asked to disprove a point which
has, as yet, no scientific foundation. Without such a foundation, we cannot
challenge the safety of the conviction from a scientific point of view.
- The Admission of the Interviews
It may well be that there were breaches of the Code of Practice, and that
the interviews should not have been placed before the jury. However,
in my view, there was a strong prima facie of knowing importation of drugs
without the interviews for all the reasons given by Mr. Farmer in paragraph
18 of his Advice. In my opinion, the additional evidence of the interpreter's
trial transcripts does not render the conviction on Count 2 unsafe.
- The Fifth Parcel
On 16th April 1992, Mr. Koupparis wrote to Instructing Solicitors
about "the latest developments" in Mr. De Silva's case.
De Silva now gives instructions that:
- A few days before his arrest, Customs Officers boarded his ship,
identified him "covertly" and "subjected him to intensive cabin search".
- On 14th November 1991 De Silva was visited by two people
"known to him".... and gave them a "fifth parcel to deliver to an
unknown third party according to the instructions he had been given".
- The two people arrested by Customs Officer Williams but released
without charge when the parcel "proved to contain a mixture of
herbs, spices and curry powders".
- The parcel was returned to them but, in panic, they disposed of it.
- When De Silva handed over the parcel to the two individuals he
opened it and expressed the view that it contained "very good stuff".
- The witnesses have been located in the Middle East.
Assuming all the detailed above to be correct, and assuming
that the witnesses are prepared to come forward and give testimony
on oath, I do not believe this necessarily undermines the facts as
they related to Count 2. The substances seized and exhibited as
Farrant A contained small quantities of controlled drugs, and unless
new forensic evidence can undermine that finding, then the fact that
De Silva supplied a parcel which contained mere herbs and spices a day
before his arrest is irrelevant. However, if Dr. Candy finds that a
form of synthesis took place which converted uncontrolled substances
into controlled drugs, the events preceding De Silva's arrest might be
significant.
- Dr. Candy's views are therefore essential.
Assuming that Dr. Candy's conclusions are capable of rendering the
convictions unsafe, then the next question to be considered is whether the
Court of Appeal have the power to hear the matter of whether the
appropriate course is to petition the Home Secretary pursuant to Section
17 of the Criminal Appeal Act 1968.
- Section 23 of the 1968 Act gives the Court the power, if they think
it necessary or expedient in the interests of Justice, to receive
evidence provided it is (a) likely to be credible, and (b) there is a
reasonable explanation for failure to adduce it.
- Once the Court of Appeal has disposed of all issues arising from an
appeal, it is generally assumed that the Court is functus officio and
has no further power to relist and redetermine matters. There are,
however, exceptions to the general rule.
See R -v- Daniel [1977] 64 Cr. App. R. 40 Lawton LJ observed:
"What the authorities show is a more general inherent power to relist
for rehearing an appeal where;
- the previous hearing is a nullity
- there is a likelihood of injustice having been done because
the Court failed to follow the rules of well-established
practice or was misinformed as to some relevant matter.
IN R -v- Grantham (1969) Cr. App. R. 369 the Court observed
"No trace is to be found of the Court [of Appeal] reopening an appeal
on its merits on fresh evidence subsequently coming to light.["]
- The {possible} evidence of the witnesses {who visit(ed) De Silva on the ship prior
to his arrest} is completely new material which, as I understand it, De Silva never
mentioned to his legal advisers at any stage.
Since there is no reasonable explanation for this, other than his "failure" to
understand its significance, and since it constitutes fresh evidence the only
procedural course open to De Silva is a petition under Section 17 of the 1968 Act.
- CONCLUSION
- I hope Dr. Candy will be able to submit a further report based on
the statements in the case, the forensic records and any substances
still retained in the laboratory of the Government Chemist.
- If Dr. Candy's conclusions cast doubt on the Scientific Officer's
findings then we should invite HM Customs to confirm details relating
to the arrest and release of other suspects and any scientific
examination of a "fifth package".
- If there is no way of questioning the scientific evidence which
supports Count 2, then, in my opinion, there is no alternative factual
or legal basis upon which to mount an appeal.
I hope this Advice and final opinion assists those Instructing me.
Christopher Sallon
Christopher Sallon
27th April 1992
Doughty Street Chambers
11 Doughty Street
London
WC1N 2PG
|