R v Da Silva
| Jurisdiction | England & Wales |
| Judge | Lord Justice Longmore |
| Judgment Date | 11 July 2006 |
| Neutral Citation | [2006] EWCA Crim 1654 |
| Docket Number | Case No: 2005 02160 B1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 11 July 2006 |
[2006] EWCA Crim 1654
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT
SITTING AT THE MIDDLESEX GUILDHALL, LONDON
His Honour Judge Martineau
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Longmore
Mrs Justice Gloster and
His Honour Judge Diehl Qc
(Sitting as a Judge of the Court of Appeal, Criminal Division)
Case No: 2005 02160 B1
ROSSANO CIFONELLI Esq for the Appellant
RICHARD MILNE Esq for the Respondent
On 2nd March 2005 in the Crown Court at the Middlesex Guildhall, the appellant, Hilda Gondwe Da Silva, was convicted of assisting another person to retain the benefit of criminal conduct knowing or suspecting that that other person was or had been engaged in criminal conduct contrary to section 93A(1)(a) of the Criminal Justice Act 1988 (counts 14 and 15 on the indictment). She was acquitted on counts 1 to 10 which charged her jointly with her co-accused husband of obtaining money transfers by deception. Her husband, Mario Da Silva, was convicted of obtaining money transfers by deception (counts 1 to 13). She appeals on one ground only with the leave of the Full Court, namely whether the judge should have given to the jury (as he did) a dictionary definition of the word "suspecting" and then (as he did) have added a further gloss to that definition.
In summary the facts were these. AMT is a company which runs coffee-bars. The coffee-bars at King's Cross Railway Station were managed by the co-accused who was responsible for submitting employee time sheets to head office upon which employee wage payments were based. Between 7th June 2001 and 21st July 2003, on ten occasions, sums of money representing the wages of three different people, "ghost workers", were transferred directly into one of two bank accounts operated by the appellant at the Halifax. The Crown alleged that three individuals, two of them sisters, had been employees of the company but at the material times had not worked at all. It was further alleged that the appellant had given encouragement and assistance to the co-accused knowing that the wages were being received dishonestly.
As an alternative against the appellant, count 14 alleged that between 11th November 2001 and 2nd September 2003 knowing or suspecting that her husband was or had been engaged in criminal conduct or had benefited from it, she entered into or was otherwise concerned in an arrangement which involved the deposit and withdrawal of sums into and from her bank account facilitating his retention or control of proceeds of his criminal conduct. The sums of money covered by count 14 related to the wages of the sisters. Count 15 was a similar offence in respect of a second bank account for the period June 2001 to September 200The sums of money here related to one Daniella Mateus. These two counts charged offences, as we have said, against section 93A(1)(a) of the 1988 Act. That sub-section provides:-
"…. if a person enters into or is otherwise concerned in an arrangement whereby –
(a) the retention or control by or on behalf of another ("A") of A's proceeds of criminal conduct is facilitated (whether by concealment, removal from the jurisdiction, transfer to nominees or otherwise)
……………… . .
knowing or suspecting that A is a person who is or has been engaged in criminal conduct or has benefited from criminal conduct, he is guilty of an offence."
The judge observed to the jury that if they concluded the appellant knew her co-accused husband had engaged in criminal conduct or had benefited from it, they would convict her as a participant in the principal offence. If they acquitted her, however, of the first 10 counts of the indictment and moved on to consider counts 14 and 15 of the indictment, he only needed to direct them about the question whether the Crown had proved that she suspected her husband was engaged in criminal conduct or had benefited from it.
He then said this:-
"So, probably, 'knowing' will not arise and what will arise instead is 'suspecting', which is a very different state of mind to knowing. To suspect something, you have a state of mind that is well short of knowing that the matter that you suspect is true. It is an ordinary English word. Members of the jury, if the Crown can show that the defendant said to herself, 'I suspect that this money is the proceeds of criminal conduct, but it may be, on the other hand, that it is not', that would fall within the definition of 'suspicion'. The dictionary definition, which I direct you is relevant, to the meaning of the word, is this. The dictionary definition of 'suspicion': 'an act of suspecting, the imagining of something without evidence or on slender evidence, inkling, mistrust'. Therefore, any inkling or fleeting thought that the money being paid into her account 9950 might be the proceeds of criminal conduct will suffice for the offence against her to be proved."
The passage to which exception is taken, and in relation to which leave to appeal has been given, is the passage where the judge referred to the (Chambers) dictionary definition which he directed the jury was relevant and then added the concept "fleeting thought" to the word "inkling". The Full Court, granting leave, thought that it was arguable that the judge should not have given that dictionary definition to the jury and that in so doing he introduced a gloss or qualification to the ordinary English word of suspecting or suspicion which was uncalled for and indeed potentially misleading. The court added that it might be the case that, whatever view the court hearing the appeal took about the direction that was given, they would nevertheless conclude that the evidence against the applicant was sufficiently strong for there not to be any doubts about the safety of her convictions on counts 14 and 15. That however is another matter.
Mr Cifonelli, who appeared for the appellant, sought to extend the ground on which he was given leave to appeal by arguing that the word "reasonably" ought to be read before the word "suspecting" in the statutory wording or (which comes to the same thing) the word "on reasonable grounds" ought to be read in after the word "suspecting". He submitted that it was impossible to suppose that Parliament intended that a facilitator should be guilty of an offence if he or she suspected that the relevant other person was or had been engaged in criminal conduct but had no reasonable grounds for that suspicion.
We regard this as an impossible argument. This court could not, even if it wished to, imply a word such as "reasonable" into this statutory provision. To do so would be to make a material change in the statutory provision for which there is no warrant. This is all the more the case when one sees that the draftsman is aware of the difference between "suspecting" and "having reasonable grounds to suspect" and on occasion uses the latter phrase in preference to the former word. Thus in section 93C which deals with "concealing or transferring proceeds of criminal conduct", we see sub-section 2 which provides:-
"A person is guilty of an offence if, knowing or having reasonable grounds to suspect that any property is …. another person's proceeds of criminal conduct, he
(a) conceals or disguises that property; or
(b) converts or transfers that property … ."
In the light of this express reference to "reasonable grounds" for suspicion in section 93C of the 1988 Act, it is impossible, in our judgment, to read in similar words in 93A(1) when the words are just not there.
Mr Cifonelli sought to explain the distinction between the two...
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