R v Hussain
Jurisdiction | England & Wales |
Judge | LORD JUSTICE WIDGERY |
Judgment Date | 02 May 1969 |
Judgment citation (vLex) | [1969] EWCA Crim J0502-1 |
Court | Court of Appeal (Criminal Division) |
Docket Number | No. 7266/68 |
Date | 02 May 1969 |
[1969] EWCA Crim J0502-1
Lord Justice Widgery
Lord Justice Karminski
and
Mr. Justice Geoffrey Lane
No. 7266/68
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. D. BLAIR appeared on behalf of the Appellant.
MR. M. GALE appeared on behalf of the Crown.
This appellant was convicted last October at the North- East London Quarter Sessions on one count of being knowingly concerned in a fraudulent evasion of the prohibition against the importation of cannabis (which was charged as being contrary to Section 304(b) of the Customs and Excise Act 1952) and on a second count of unlawful possession of dangerous drugs, namely, cannabis. He was sentenced on those counts to eighteen months' imprisonment on each concurrent, and he now appeals against conviction by leave of the single Judge.
The evidence in this case was somewhat complex, but the essentials can fairly readily be ascertained. On the 6th September 1968 a ship called the M.V. Aziz Bhatti came into Liverpool. An Assistant Preventive Officer called Godfrey went into a cabin occupied by this man together with two other crew members. He removed the bulkhead panel in the cabin and inside he found some ten concealed packages which, on investigation, proved to contain approximately twenty pounds of cannabis resin.
The appellant was questioned about this, and his immediate reaction when questioned in English seems to have been that it was nothing to do with him but he would take the blame, and he repeated this on a number of occasions. This Court feels that little importance can be attached to that because of the language difficulties which existed at that time.
The ship went on to London, and the appellant was further questioned after arrival in London, and he then gave a very much more comprehensive explanation of what had occurred: and it will not unfairly represent that explanation if I put it in these terms. His case, both when he made a statement in London and at the trial, was that when the ship was on passage from Las Palmas to Liverpool the Second Engineer (whom he described as "a very big officer") and the carpenter came into the cabin and said they wished to put something in his cabin. The carpenter had a bucket containing these ten packets, and the appellant said he was in no position to demur. The bulkhead was taken out, and the packages were duly secreted behind it. The appellant said he was threatened that he would have his throat cut if he said anything about it and, alternatively, was promised some kind of reward if he kept silent. Really his defence to the whole case was that this was nothing to do with him; he had not demurred at what was done in view of the threats hanging over him; and the whole thing was engineered by the officer in question and the carpenter, and he was little more than a passive spectator.
Everything in this appeal turns on the terms of the summing-up. The Court has great sympathy with the learned Chairman and all other Chairmen who are summing-up in this kind of case at the present time. So far as the first charge is concerned, Section 304 is in these terms: "Without prejudice to any other provision of this Act, if any person- … (b) is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion of any duty chargeable thereon or of any such prohibition or restriction as aforesaid or of any provision of this Act applicable to those goods, he may be detained" and then it provides for the appropriate penalty.
The way the learned Chairman dealt with the first charge was as follows. At page 7 of his summing-up he told the jury that the phrase they had to consider was "being knowingly concerned in a fraudulent evasion of the prohibition against importation of cannabis resin". Then he proceeded to go through that phrase in some detail; he pointed out there was a prohibition against the importation of cannabis (which was not disputed); and he further pointed out that there was an importation of cannabis in the present case: any difficulties on the law in that regard having disappeared in the course of the trial. He then proceeded: "The question is: Has it been proved that the defendant was knowingly concerned in that operation? … 'Knowingly concerned in that operation' means that he was co-operating with the smugglers, if I may so put it, and it does not matter if he did not know precisely the nature of the goods the smugglers were dealing with. He would be just as guilty if he had thought they were dealing with brandy, for instance, but what has to be proved is that he was knowingly and to that extent consciously and deliberately concerned in co-operating in what he must have known was an operation of smuggling or getting prohibited goods into this country." The learned Chairman illustrated the difference between being knowingly concerned and not knowingly concerned by contrasting examples which he then referred to.
Two main complaints are made against that passage in the summing-up. First of all, it is said that the learned Chairman was wrong in saying that the Crown did not have to prove that the accused knew that cannabis was the subject of the importation. It is submitted on behalf of the appellant that proof of knowledge on the part of the accused that the goods being smuggled were cannabis was part of the obligation of the prosecution, and since the learned Chairman had directed that it was not necessary for the accused to know precisely the nature of...
To continue reading
Request your trial-
R v Taaffe
...of the offence with which he is charged. 8I also agree with the Lord Chief Justice that this case differs upon its facts from Reg. v. Hussain [1969] 2 Q.B. 567 and Reg. v. Hennessey [1978] 68 Cr.App.R. 419. While there can be no doubt that Hussain was correctly decided, it may be that Hen......
-
R v Hennessey (Timothy)
...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. 6 The failure of the Hennessey jaunt did not dis......
-
R v Forbes (Giles)
...in any fraudulent evasion … of any prohibition"… on the importation of goods under section 42 of the Customs Consolidation Act 1876. 5 In R. v Hussain [1969] 2 QB 567, 572A Lord Widgery LJ stressed that the relevant question is whether the accused knows "that what is on foot is the evasion......
-
R v Luke Steven Derwood Datson
...that it was well established that a mistaken belief as to the type of controlled drug was not a defence. By reference to Hussain [1969] 2 QB 567 he further concluded that a mistaken belief in the nature of the item imported was not a defence, provided that it was believed that a prohibited......
-
BOARD OF CUSTOMS & EXCISE V. BARAU
...and Excise Act 1952 of England the English decisions on which the Federal Court of 25 Appeal relied, particularly R. v. Hussain (1969) 2 All E.R. 1117, were not applicable. The effect of section 168 on this case was tremendous. It imputes to the respondent herein intent to evade (Count 2) a......
-
The criminal sanction under the Environment Management Act of Malawi: a critical analysis
...the effect of the decisions in R v Ellis, Street and Smith (1987) 84 Cr App R 235; RvHennessey (1979) 68 Cr App R 419; and R v Hussain [1969] 2 QB 567.41 Cf R v Taaffe, above note 38; G J Bennett & B Hogan ‘Criminal law and sentencing’ (1983) AllER Rev 129, 132-133. In such a scenario, actu......