R v Castillo
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE STUART-SMITH |
| Judgment Date | 27 October 1995 |
| Judgment citation (vLex) | [1995] EWCA Crim J1027-6 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 94/7451/Y3 95/0765/Y3 |
| Date | 27 October 1995 |
[1995] EWCA Crim J1027-6
Before : Lord Justice Stuart-Smith Mr Justice Ian Kennedy and The Recorder Of Leeds (His Honour Judge Savill QC) (Acting as a Judge of the CACD
No. 94/7451/Y3 95/0765/Y3
95/0943/Y3
IN THE COURT OF APPEAL CRIMINAL DIVISION
MR N PAUL appeared on behalf of the Appellant CASTILLO
MR N FOOKS appeared on behalf of the Appellant CABA
MR C CONWAY appeared on behalf of the Appellant ALMANZAR
Friday 27th October 1995
On 1st December at the Crown Court at Croydon the appellants, Caba and Almanzar, pleaded guilty on a change of plea to being fraudulently concerned in the evasion of a prohibition of the restriction on the importation of Class A controlled drug, namely cocaine. On 7th December 1994 the appellant Castillo was convicted of the same offence, and on 13th January 1995 Mr Castillo was sentenced to 16 years imprisonment and a Confiscation Order was made in the sum of £1,676.14. Miss Caba was sentenced to ten years detention in a Young Offender Institution and a Confiscation Order was made in the sum of £231.98. Mrs Almanzar was sentenced to 11 years imprisonment with a Confiscation Order of £161.25.
Mr Castillo appeals against conviction and sentence by leave of the Single Judge. Miss Caba and Miss Almanzar appeal against sentence by the leave of the Single Judge. At the moment we are concerned with Mr Castillo's appeal on conviction.
The prosecution case was this. On 16th February 1994 the appellants Caba and Almanzar, who travelled to this country from Barbados, were arrested at Gatwick Airport. Strapped to the thighs of these ladies was a total of 6.16 kilograms of cocaine of 100 per cent purity and with a street value of just over £1 million. It was the Crown's case that the appellant Castillo was also involved in the importation.
On 5th February 1994 the co-defendants Caba and Almanzar flew in from New York via Caracas to Porlamar, Venezuela. There was evidence that Almanzar stayed at the Hotel Margarita in Porlamar from 6th to 13th February.
A Mr Julio Maciel, whose statement was read, gave evidence that his office received $50,000 odd from a Mr Luis Castillo for four return tickets from Porlamar to Barbados. The tickets were numbered consecutively and were in the name of Almanzar, Caba, Castillo and Santana. The tickets were found on the three defendants when they came to the United Kingdom.
Mrs Cook, who was the chief immigration officer in Barbados, produced the four landing cards of the four people who landed in Barbados. Santana described himself as a tourist staying for four days at the Hotel Nautilus. Almanzar and Caba described themselves as tourists attending for a wedding for two weeks, and they were staying at the San Remo. Castillo said that he too was a tourist and that he was also staying at the San Remo for five days. In fact, all four of them stayed at the San Remo and the three appellants only stayed for two nights.
That same day, 14th February 1994, a travel agent in Bridgetown, a Miss Stuart, received a request from a man with a Barbadian accent for a quotation for three people to travel to London, Gatwick, and return travel the next day. The man gave her the names of the passengers as Castillo, Caba and Alcazar, later amended to Almanzar, and a joint booking in those names was made. The next day a Mr Luis Castillo went to the travel agent and paid for the ticket purchased in his name and produced a Venezuelan passport. Two hours later two females went to the travel agent and collected the tickets for Almanzar and Caba.
There was evidence that the three then travelled to the United Kingdom together. Miss Harris, from British Airways, confirmed that all three appellants checked in within three minutes of each other and were allocated consecutive security numbers. However, they did not sit in the seats shown in the itinery. Castillo sat in seat number 31F which was a seat which had been allocated to Almanzar. The two female appellants sat together in Row 51.
Mr King, a Customs Officer, interviewed Castillo on his arrival at Gatwick Airport with the aid of a Spanish—speaking colleague. Castillo said that he was travelling alone. He was searched but nothing of interest to Customs was found. After being questioned about his movements he was arrested. On one of his travel documents a fingerprint was found which was discovered to be that of a Mr Baragon. Evidence was read to the jury to the effect that Baragon, a Colombian, was an illegal immigrant into Venequela. He had been granted a residence permit which had expired in May 1985. It was the Crown's case that either Castillo was travelling on false papers or that he might have changed his identity to conceal the fact that his entry permit to Venezuela had expired.
Miss Caba's baggage was searched and a filofax was found. Inside was an entry for "Willie Castillo" and a telephone number. Miss Almanzar's luggage was also searched and a card from Hotel Margarita was found which had the same number on the back.
The appellant Castillo did not give evidence, and none was called on his behalf.
The appeal relates to the admission of the evidence of Mr Maciel. That was proved under the provisions of section 23 of the Criminal Justice Act 1988 which provides, so far as is relevant —subject to various subsections which are not material —as follows:
"(1)…..a statement made by a person in a document shall be admissible in criminal proceedings as evidence of any fact of which direct oral evidence by him would be admissible
if -
(i) the requirements of one of the paragraphs of subsection (2) below are satisfied; or…
(2) The requirements mentioned in subsection…
(b) that -
(i) the person who made the statement is outside the United Kingdom; and
(ii) it is not reasonably practicable to secure his attendance;…."
It was those provisions that the Crown relied upon.
The evidence in relation to Mr Maciel's inability to attend was provided by a witness called Mr Tyler. He was an officer of the Customs and Excise. He was acting as a drugs liaison officer based in Caracus, Venezuela. It is accepted by Mr Paul in his attractive and frank submissions to us that if Mr Tyler's evidence was itself admissible, then his evidence showed that it was not reasonably practicable for Mr Maciel to attend. However, Mr Paul's submission is that the judge ought not to have accepted that it was not reasonably practicable for Mr Tyler to attend to give evidence orally and, secondly, that in any event, it is not open to the court to apply, as it were, section 23 twice —first, as to the statement of Mr Maciel and, second, as to the inability of Mr Tyler to attend to give evidence that Maciel himself could not reasonably attend.
Dealing with that second point first, namely that it is not open to a person to rely on section 23 of the Act to satisfy the condition in...
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