R v Hennessey (Timothy)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE LAWTON |
| Judgment Date | 01 November 1978 |
| Judgment citation (vLex) | [1978] EWCA Crim J1101-1 |
| Docket Number | No. 2999/A/77 No. 3291/A/77 No. 4391/A/77 No. 5260/A/77 |
| Court | Court of Appeal (Criminal Division) |
| Date | 01 November 1978 |
[1978] EWCA Crim J1101-1
Lord Justice Lawton
Mr. Justice Kenneth Jones
and
Mr. Justice Smith
No. 2999/A/77
No 3200/A/77
No. 3291/A/77
No. 4391/A/77
No. 5260/A/77
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. H. GODFREY appeared on behalf of the Applicant Hennessey.
MR. R.B. TANSEY appeared on behalf of the Applicant Shaheen.
MR. D. CROFT appeared on behalf of the Applicant Alkassar.
THE APPLICANTS SZAROWICZ and McDERMOTT were not present and not represented.
MR. D. JEFFREYS and MR. J. BEVAN appeared on behalf of the Crown.
The reasons for judgment which I am about to read have been seen by all three members of the court and have been approved.
These 5 men were indicted at the Central Criminal Court, together with 3 others, two of whom were acquitted. The third man has not applied for leave to appeel. There were 20 counts in the indictment, charging theft, handling stolen goods and various conspiracies. The trial started on February 28th, 1977, before His Honour Judge Karmel. McDermott pleaded guilty to 4 counts, 3 charging him with theft and one with burglary. He was remanded in custody for sentence but was not in fact sentenced by Judge Karmel as appears hereafter. On arraignment Szarowicz pleaded not guilty but on March 24th he changed his plea to Count 2, which charged him with conspiring with Shaneen, Alkassar and others to contravene section 20 of the Misuse of Drugs Act, 1971, and on the Judge's direction the jury found him guilty on that count. The prosecution seem to have been content with that plea although he was charged with another offence in Count 22. He was remanded in custody to come up for judgment "at the appropriate time". That time never arrived so far as Judge Karmel was concerned, because on April 1st he felt compelled to discharge the jury because of an untoward incident occurring with which we are not concerned.
The trial restarted before His Honour Judge Abdela on April 20th, 1977, and ended on June 3rd. At the end of this trial Szarowicz was sentenced to 4 years' imprisonment. Shaheen was found guilty of conspiring to commit theft (Count 1), conspiring to contravene section 20 of the Misuse of Drugs Act, 1971, (Count 2), of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug (Count 14) and handling stolen goods. He was sentenced to 8 years on Count 2, 6 years on Count 14 and 3 years on Count 7, all those sentences to run concurrently with one another He was sentenced to 3 years on Count 1 but that sentence was to run consecutively to the other sentences. Hennessey was found guilty of being knowingly concerned in the fraudulent evasion of the prohibition of the importation of a controlled drug (Count 14) and was sentenced to 2 years' imprisonment. A suspended sentence of 10 months' imprisonment imposed on June 12th, 1974, was reduced to 4 months and ordered to take effect consecutively to the sentence of 2 years. The jury were unable to agree about Alkassar and were discharged. A retrial was ordered. This started before His Honour Judge Grant on September 12th, 1977, and ended on October 18th with a verdict of guilty of conspiring to contravene section 20 of the Misuse of Drugs Act, 1971, but not guilty on Count 14. He was sentenced to 2½ years' imprisonment.
We granted all 5 appellants leave to appeal, McDermott, Szarowicz and Shaheen against sentence, Hennessey, Alkassar and Shaheen against conviction. Counsel for Hennessey, Alkassar and Shaheen agreed to the hearing of their clients' applications being treated as the hearing of the appeals.
For the purposes of this appeal the facts can be stated shortly. Shaheen, who is aged about 34, is a criminal with a long record. Between July, 1975 and April, 1976 be conspired with others to steal motor cars. The prosecution's case against him, Alkassar, Szarowicz and Hennessey was that in various capacities they took part in two schemes for the illegal handling of cannabis. It was alleged that the brains and drive in respect of both schemes came from Shaheen and Alkassar. The jury's verdict, however, exonerated Alkassar from criminal participation in the first scheme although the evidence showed a close association between Shaheen and Alkassar at all material times. The first scheme involved the adaptation of stolen cars so that cannabis could be hidden in them and the use of such cars to bring cannabis into the United Kingdom. The adaptations were to be done by a man named Evans. Early on the police discovered what he was doing. Thereafter he co-operated with the police. On February 14th, 1976, Evans delivered an adapted car to Shaheen. The next day Hennessey drove to the Continent in it. He returned on February 20th, 1976, by way of Dover. There Customs Officers searched his car and found 28.14 Kg of cannabis resin in the hiding places made by Evans. When the packets of cannabis resin were found Hennessey said, "I don't know anything about them." About a month later he made a written statement in which he said that he thougbt he was bringing back "blue" films to England and the context in which he said it showed that he knew that what he claimed to be bringing back was a prohibited import. This was the basis of his defence at his trial. It did not succeed. The jury found him and Shaheen guilty of being knowingly concerned in the fraudulent evasion of the importation of a controlled drug. His counsel, Mr. Godfrey, has submitted that he might not have been found guilty if the trial judge had not directed the jury in accordance with the decision of this court in R v. Hussain, (1969) 2 Q.B. 567, which he submitted had been wrongly decided and ought not to be followed.
The failure of the Hennessey jaunt did not discourage Shaheen or, so submitted the prosecution, Alkassar. It was alleged that they thought up a new scheme. A motor car was to be stolen and adapted in England for the carrying of drugs, driven to the Continent, filled with cannabis in the Balkans, and then driven to Germany and Denmark where the cannabis was to be sold. All who agreed to take part in this scheme were guilty of conspiring to contravene section 20 of the Misuse of Drugs Act, 1971. A Daimler car was stolen and a man named Smith adapted it for carrying drugs. There was evidence that Shaheen and Alkassar were interested in the progress of this work of adaptation. On March 6th, 1976, Szarowicz drove the car to the Continent. Shaheen and Alkassar went there by air the next day. There was ample evidence that Shaheen and Szarowicz travelled through Yugoslavia, Germany and Denmark together, Szarowicz acting as a driver. For some or the time, but not all of it, Alkassar was with Shaheen. About March 20th, 1976, whilst in Munich, the Daimler broke down. A garage there told Szarowicz that a new engine would have to be fitted. Instructions were given for this to be done and Shaheen paid for the repairs. Then chance intervened. A garage mechanic giving the car a test run after the fitting of the replacement engine appreciated that someone had tampered with one of the two petrol tanks. Investigation showed that a secret compartment had been constructed inside it for what was clearly an illegal purpose. The police were informed. Szarowicz and Shaheen made no attempt to collect the car. Indeed, on the day the mechanic found the secret compartment both Szarowicz and Shaheen returned to England. The day after Shaheen got back Alkassar visited him. All three were arrested on April 6th, 1976.
Mr. Godfrey on behalf of Hennessey submitted that Judge Abdela had misdirected the jury. He told the jury what the relevant section of the Customs and Excise Act, 1952, namely section 304(b), provided and went on at pp. 5 - 6 of the transcript of the summing up as follows:-
"You can see from the terms in which the statement of offence is set out that the crux of the matter is, in fact, being knowingly concerned in the fraudulent evasion of a prohibition. "Now this is where I have to correct Mr. Godfrey when he was addressing you about the question of knowledge and I noticed that one or two of you were taking down what he said and I must correct it. 'Knowingly' in this section of this statute is concerned with knowing that a fraudulent evasion of a prohibition in respect of goods is taking place. It is not a question of knowing whether you have got a particular commodity in your pocket or container or car and there is quite a considerable amount of legal authority for that proposition.
"If, therefore, an accused person knows that what is afoot is the evasion of a prohibition against importation and he knowingly takes part in that operation, it is sufficient to justify his conviction under this section of the Act, even if he does not know precisely what kind of goods are being imported."
By directing the jury in these terms Judge Abdela was following, as he told the jury he was, the judgment of Widgery, L.J. (as he then was) in R v. Hussain (supra). In that case the appellant had submitted that the trial judge should have directed the jury that the prosecution had to prove that the accused knew what was the subject of the prohibited importation. Mr. Godfrey made the same submission in this case. The Court in Hussain rejected the submission (see p. 571 H). Mr. Godfrey boldly submitted that this Court had been wrong to do so and that we should not follow Hussain. We intend to follow it for the best of reasons - it was correctly decided. On his own story Hennessey did know that he was concerned in a fraudulent...
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