R v Moustakim
| Jurisdiction | England & Wales |
| Judge | SIR ANTHONY MAY,MR JUSTICE SIMON |
| Judgment Date | 27 November 2008 |
| Neutral Citation | [2008] EWCA Crim 3096 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No: 200801397/C1 |
| Date | 27 November 2008 |
[2008] EWCA Crim 3096
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Sir Anthony May
(President of the Queen's Bench Division)
Mr Justice Simon
Mr Justice Blake
No: 200801397/C1
Mr A Darlington (Solicitor Advocate) appeared on behalf of the Appellant
Mr G Cammerman appeared on behalf of the Crown
As long ago as 24th May 2006 the appellant, now aged 44, appeared in the Crown Court at Croydon before His Honour Judge Pratt and a jury and was convicted of being knowingly concerned in the fraudulent evasion of the prohibition on the importation of a controlled drug of Class A, that is to say cocaine. She was sentenced to 10 years' imprisonment. She was then represented by solicitors and counsel, and counsel, as we understand it, advised at the time that there was no basis for an appeal against conviction. She applied for leave to appeal against the sentence but on 6th November 2006 the Full Court, presided over by Tuckey LJ, dismissed a renewed application to that effect.
She now appeals against conviction by leave of the single judge upon one ground, who also granted the necessary long extension of time, something over a year and 8 months in which to do so. This came about because Mr Darlington was asked to look into the matter by a charity concerned with the welfare of female prisoners in the United Kingdom. He has formulated the one ground of appeal which requires substantial consideration. He has also done much investigation, covered much paper and advanced numerous applications which on investigation do not readily advance any substantial or coherent further grounds of appeal against conviction. We put it in those terms because Mr Darlington has not addressed us this morning and it would be quite unfair to come to any final conclusion on the matter. A number of these were disposed of by directions given by the full court on 24th October 2008 and nothing more for present purposes need to be said about them.
The facts upon which the appellant was convicted are briefly these. On 7th January 2006 at about 7.45 in the morning, she arrived by aeroplane at Gatwick on a flight from St Lucia. She spoke to a customs officer and told him she was in transit to Madrid. She said she had nothing to declare. A search of her hand luggage was conducted and a field test indicated the presence of cocaine. Her suitcase was searched and three bottles of Johnson's baby powder were found. The manufacturer's seals on the bottles had been cut and stuck back with adhesive. The bottles were found to contain plastic bags with white powder inside which on analysis was found to constitute 645 grams of cocaine, equating to 523.5 grams at 100 per cent purity.
The prosecution case was that she knew that she was carrying drugs in the bottles. The defence case was that she did not know that she was carrying drugs in the bottles and the issue for the jury accordingly was whether they should be sure that she had knowingly brought these drugs into the country.
A customs officer gave evidence that she had no previous convictions in this or any other country. A customs officer who questioned her established that she worked as a cleaner in Spain. She had gone to St Lucia to visit her boyfriend, whom she called “Peter Johnson”. They were planning to get married in the August. Her ticket had been paid for by her, her mother and her boyfriend. She was interviewed and in her interview gave an account which was in the main the same as the evidence which she gave at trial. That evidence in summary was as follows.
She was 42 years old at the time and lived with her 13-year-old daughter in Madrid. She worked as a cleaner for an agency and earned between 1200 and 1300 Euros a month after tax. Her rent was 200 Euros a month and she received 250 Euros a month as maintenance for her daughter which had increased to 300 Euros in the December. Peter Johnson was her fiancée. He was a Canadian national but had been born in Nigeria. They were to be married in August. They met at the end of 2002/the beginning of 2003 in Madrid. She was then working for the Red Cross and he had a Red Cross badge. He got a job in St Lucia and moved there in December 2004. She stayed in Madrid. They spoke on the telephone almost daily during 2005. She visited him in August 2005 for three weeks. Her sister and her husband paid for the trip. She visited him again in the November for 10 days. He paid half of that trip and she paid the rest from her savings. Her last trip had been paid for by her mother. She stayed, she said, at Peter's house in St Lucia. She did not know the address and could not find her way there now. It was 10 to 15 minutes away from the airport. Lots of his friends visited the house including his friend, Raj. Raj worked as a volunteer for the Red Cross. Peter was a nurse. They both wore hats and T-shirts with Red Cross logos. She had been in custody since her arrest and had spoken to Peter on the telephone, the last time being on 25th March. Since then his telephone had been switched off. She told him everything after her arrest. She had received a letter in April from Raj, giving an address care of the Red Cross in St Lucia.
In so far as she had given an account in interview that her boyfriend was concerned with the Red Cross in St Lucia as a nurse, other evidence established that the Red Cross in St Lucia had never heard of a Peter Johnson. Her account continued that she met Peter's neighbour, Jack, in St Lucia. Raj also knew Jack. She did not know Jack's surname. He asked her to take a gift to a woman in Spain but did not mention her name. He said that this woman was pregnant and he wanted to help her. He gave her a bag of bottles of baby powder, shampoo and some body lotion. They looked as if they were new. She believed him. She would not have taken them if he had told her there were drugs inside. He told her he would give his friend her telephone number so that she could call her and arrange for them to meet. Peter gave Jack her telephone number. On one occasion Raj had used her telephone in St Lucia and had put his SIM card in her telephone. Raj gave her his number and she wrote it on a piece of paper. She did not know or suspect that there were drugs in the bottles. She still hoped to marry Peter in August. She had hoped he would have attended her trial. They planned to live in Madrid after the wedding. She had met Jack on her previous trips to St Lucia. Asked about Jack, she said that Jack was a real person, she had not invented him. He lived in the same street as Peter. She did not have a telephone number for him. She had called, she said, Raj, to find out what was going on with Peter and Raj had told her that Peter was travelling. That was her account. She said that she did not know how the traces of cocaine came to be on her bag. Her mobile telephone had been in several other people's hands. She did not know where Raj and Peter were now. She had hoped they would be at her trial.
The jury unanimously convicted the appellant and may be taken to have surely rejected her evidence that she did not know that she was importing cocaine. Her account was, as we have said, shown to be false in one particular, that is that Peter Johnson did not work for the Red Cross in St Lucia.
As we have said, the full court in October disposed of a number of matters which Mr Darlington had raised on 24th October. Those were relevant to other possible grounds of appeal for which leave had not been given and for which in other circumstances Mr Darlington would probably have been seeking to persuade this court that leave should be given.
The one substantial ground of appeal is that the judge's summing-up, with reference to the appellant's good character, was deficient. What the judge said in this respect was as follows. He said this:
“You know from the officer that the defendant is aged 42 and you know Mrs Lieden and the defendant that she has no convictions in this or any country, she therefore falls to be dealt with by you as a defendant of good character. Now, how does that impact upon her trial?
Well, a defendant of good character is entitled to say that I am as worthy of belief as anyone, so in the first place it goes to the question of whether or not you believe Mrs Moustakim's account. Secondly, she is entitled to have it argued on her behalf that she is perhaps less likely than a defendant of bad character to have committed this or any criminal offence. Good character is not a defence to a criminal charge. We all start life with a good character, some of us lose it on our way through, and it will be for you to decide what weight is proper to put upon this lady's good character when you come to consider the evidence which is your principal focus.”
Mr Darlington says that this was a deficient direction and Mr Cammerman, on behalf of the prosecution, agrees that it was deficient.
Mr Darlington refers us to the case of R v Lloyd [2000] 2 Cr App R 355, which itself cites the well-known case of R v Vye (1993) 97 Cr App R 134, where Lord Taylor LCJ said this:
“To summarise, in our judgment the following principles are to be applied.
(1) A direction as to the relevance of his good character to a defendant's credibility is to be given where he has testified or made pre-trial answers or statements.
(2) A direction as to the relevance of his good character to likelihood of his having committed the offence charged is to be given, whether or not he has testified, or made pre-trial answers or statements.”
The case of Lloyd quotes a further passage...
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