R v Martinez-Tobon
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 26 November 1993 |
| Judgment citation (vLex) | [1993] EWCA Crim J1126-17 |
| Court | Court of Appeal (Criminal Division) |
| Date | 26 November 1993 |
| Docket Number | No. 92/0062/Y3 |
[1993] EWCA Crim J1126-17
IN THE COURT OF APPEAL CRIMINAL DIVISION
Before: The Lord Chief Justice of England (Lord Taylor of Gosforth) Mr Justice Schiemann and Mr Justice Wright
No. 92/0062/Y3
MR JAMES MONTGOMERY appeared on behalf of THE APPELLANT
MR DAVID RADCLIFFE appeared on behalf of THE CROWN
Friday 26 November 1993
THE LORD CHIEF JUSTICEThis appeal is brought upon one ground only. Indeed, it is based upon one sentence only in the learned judge's summing-up.
The question raised has been considered many times in this Court against varying factual backgrounds, but the answers have not all been consistent. What is the scope of a judge's discretion in commenting on the defendant's failure to give evidence?
On 29 November 1991 at Isleworth Crown Court the appellant was convicted of being knowingly concerned in the fraudulent evasion of a prohibition on importing cocaine. He was sentenced to ten years imprisonment; a confiscation order under the Drug Trafficking Offences Act 1986 was made in the sum of £2,000; and a sentence of 45 days imprisonment consecutive to the ten-year sentence was imposed in default of payment. A recommendation for deportation was also made.
There were two co-accused. Hector Hose Diaz-Martinez (Diaz) had pleaded guilty on 13 August 1991 to the same offence and was sentenced at the same time as the appellant to four years imprisonment. He gave evidence for the prosecution. Umberto Valencia was acquitted of the same offence.
The appellant was refused leave to appeal against conviction and sentence by the Single Judge. However, on 4 March 1993 the Full Court granted him leave to appeal against conviction whilst refusing leave in relation to sentence.
It was not disputed that on 30 March 1991 Diaz had knowingly brought in 2.48 kilogrammes of cocaine in his briefcase and had been arrested with it on his arrival at Heathrow Airport. In brief the prosecution case was that the appellant was deeply involved in arranging the drug run for Diaz and was to be involved in the receipt of the drugs upon Diaz's arrival. The defence case at trial was that the appellant was expecting and had discussed with Diaz a consignment of emeralds not cocaine. Diaz denied that and the appellant did not give evidence in support of it.
The prosecution case fell under three heads:
(1) Transactions in early 1991.
(2) The events of 30 March and 1 April 1991.
(3) Evidence of events during the criminal proceedings.
(1) Transactions in early 1991:
In January 1991 Diaz came to London from Colombia. He stayed at the St Giles and Bedford Hotels. He used the false name 'Abelleira'. He said in evidence he had come to Europe to collect some money. He met the appellant. Although there was no discussion about drugs at first, he later saw a suitcase containing cocaine whilst with friends of the appellant. A few days later the appellant told him to move to the Bedford Hotel because one of those friends had been arrested with drugs. Diaz wrote certain detail on a piece of the Bedford Hotel notepaper and gave it to the appellant. It was later found in the appellant's bedroom when his house was searched on 2 April 1991. The appellant gave him £4,000 to send to his wife and required him to go to Sao Paulo and return to London via Copenhagen and Brussels with a suitcase containing drugs. Diaz bought an airline ticket for Caracas on 21 January and sent the £4,000 to his wife in Colombia. On 24 January a further sum of over £1,000 was sent to her. On the document detailing that payment there were typed the words "Remite: Tony". Diaz testified that Tony was the appellant. A receipt for the sum of £1,000 was subsequently found in the appellant's bedside cabinet.
On 12 February 1991 the appellant bought a ticket to travel from Panama to Brussels via Sao Paulo and Copenhagen. The name of the traveller was given as 'Abelleira', and the ticket was addressed to Hector Diaz in Bogota. The ticket details were given to the travel agent by the appellant. He saw Diaz off at Victoria Station and gave him for contact purposes his sister's telephone number. Diaz was told to call the appellant 'Tony'. Diaz claimed he had not wanted to go to Sao Paulo or to carry the drugs. When he was in Colombia the appellant had telephoned him at his mother's home and given him instructions. In Sao Paulo he was given the briefcase containing the drugs for transport to London.
(2) 30 March to 1 April 1991:
On 30 March Diaz arrived at Heathrow using the name 'Abelleira'. On arrest he was found to have, in addition to the cocaine, an airline ticket routed Sao Paulo/Copenhagen/Brussels, a piece of the Bedford Hotel notepaper with various entries, including the name 'Tony', the appellant's sister's telephone number in code, and another piece of the hotel's notepaper showing calculations similar to those written on the headed notepaper found at the appellant's address. Finally, he had a piece of paper detailing his false identify and route. He agreed to assist the Customs & Excise authorities and was taken to the St Giles Hotel, room 857.
On the afternoon of 31 March the appellant and Valencia (acquitted by the jury) were seen looking through a window into the hotel. On 1 April two calls were put through to Diaz's room. On each occasion he was out, and a message was left that 'Tony' had called. Later that day the appellant Valencia and another were seen in the foyer of the hotel. They left, returned and were arrested.
The appellant was searched. A diary was found referring to the Giles Hotel, its telephone number, and Diaz's room number 857. Another entry referred to the route Panama/Rio/Geneva/Brussels. The items found on the appellant were put in a bag. Later, he grabbed the bag from an officer and smashed it against a window in his attempt to throw it out.
Next day, the search of the appellant's home revealed a document bearing the name 'Hector J Diaz', a Bogota telephone number, the name 'Abelleira', and an airline route Sao Paulo/Copenhagen/Brussels. The telephone numbers of Diaz's mother and wife in Colombia were also found, together with the Bedford Hotel notepaper bearing the calculations.
The appellant was interviewed. He denied knowing Diaz, denied being known as Tony, denied knowing anyone staying at the hotel, denied attempting to throw the bag away, and could not remember why he had put "Giles Hotel 857" and its telephone number in his diary.
(3) The evidence of Nino Sua:
Evidence was given by one Nino Sua that during the trial the appellant had approached him in the cells at the back of the court with a view to getting a message to Diaz to give a version of events favourable to the appellant. Nino Sua was himself serving a sentence of five years imprisonment for smuggling drugs. The learned judge in summing up suggested the jury might not find his evidence very helpful.
The Judge's Direction :
After reviewing the evidence for the Crown, and before reviewing that given by Valencia, the learned judge referred to the appellant's absence from the witness box. He began with a conventional direction as follows at page 43F of the transcript:
"Now Tobon. He did not give evidence; that is his choice. He does not have to; he may or may not —entirely as he pleases —and obviously because he has a choice you do not say: 'Well, the reason he hasn't given evidence is because he is guilty.' The fact that he has not given evidence adds nothing to the prosecution case and it adds nothing to the defence case, but it does have this effect: that he has done nothing to rebut, contradict or explain the prosecution case, and so, except in so far as his counsel had established various points in cross-examination, it means that the prosecution evidence stands uncontradicted."
No criticism was made or can be made of that passage as being in any way unfair or unusual. The learned judge then went on as follows:
"As you have been told, perfectly correctly, suggestions by counsel are not evidence …. Evidence is what I described to you at the beginning as what you hear from the witness box, admissions, the documents, not suggestions by counsel ….
So suggestions are not evidence, and the comment I make —and that I am entitled to make —is that if in fact Tobon thought it was emeralds and not drugs, one might have thought that he would be very anxious to say so."
It is the final sentence of that passage which is said to be improper and a mis-direction.
The Case-law :
what comment may the judge make when a defendant does not give evidence, only arose after the Criminal Evidence Act 1898, since the defendant had no right to give evidence before that. The statute expressly prohibited comment by the prosecution, but no such prohibition was imposed on the judge. We have been shown by counsel the many reported decisions since 1898, and it is right to say that they have not all been in agreement. The first reported case was Rhodes [1899] 1 QB 77. Lord Russell of Killowen CJ said (at page 83):
"The only question that we have to consider is whether the Chairman of Quarter Sessions had a right to comment on his absence from the witness box. It seems to me that he undoubtedly had that right. There is nothing in the Act that takes away or even purports to take away the right of the Court to comment on the evidence in the case and the manner in which the case has been conducted. The nature and degree of such comment must rest entirely on the discretion of the judge who tries the case; and it is impossible to lay down any rule as to the cases in which he ought or ought not to comment on the...
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