R v Siracusa and Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE O'CONNOR |
| Judgment Date | 26 May 1989 |
| Judgment citation (vLex) | [1989] EWCA Crim J0526-8 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 2066/R/87 No. 2090/R/87 No. 2199/R/87 |
| Date | 26 May 1989 |
[1989] EWCA Crim J0526-2
Lord Justice O'Connor
Mr. Justice Boreham
and
Mr. Justice Ian Kennedy
No. 2066/R/87
No. 2067/R/87
No. 2090/R/87
No. 2199/R/87
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. A. HOOPER Q.C. and MR. P. CORRIGAN appeared for the Appellant Siracusa.
MR. R. FERGUSON Q.C. appeared for the Appellant Monteleone.
MR. A. RAWLEY Q.C. appeared for the Appellant Di Carlo.
MR. D. NATHAN appeared for the Appellant Luciani.
MR. R. DU CANN Q.C. and MISS Z. SMITH appeared for the Crown.
(As approved by the Judge)
After a trial lasting 79 working days, these four men were convicted on two counts of conspiracy on 11th March 1987. Siracusa, Monteleone and Di Carlo were each sentenced to a total of 25 years' imprisonment, Luciani to 22 years. All appeal by leave of the single judge against sentence. Siracusa appeals against conviction by leave of the full court. The other three renewed their applications for leave to appeal against conviction after refusal by the single judge. We granted the applications for leave to appeal against conviction and, with the consent of counsel, treated this hearing of the applications as the hearing of the appeals. On 25th April 1989, we dismissed all four appeals against conviction. We allowed the appeals of Siracusa, Monteleone and Luciani against sentence, but dismissed that of Di Carlo. We give our reasons. Conviction.
The case arises out of the operations of an organisation of smugglers engaged in moving massive quantities of heroin from Thailand and cannabis from Kashmir to Canada via England. The scheme was simple. The drugs were to be housed in secret compartments in selected items of locally produced furniture, which would be included in substantial shipments of furniture. The object of passing the consignments through England was to support the manifests to be presented to the Canadian customs declaring the country of origin of the goods as England.
On 13th December 1984, a consignment of 52 packing cases of furniture from India consigned to Elongate Ltd. arrived at Felixstowe. Customs officers found in some articles of furniture cannabis with a street value of £0.5 million in England and £3 million in Canada. They repacked and waited and watched. The consignment was cleared by shipping agents and delivered to a warehouse, Unit 5, Batsworth Road, Mitcham. The customs moved in on 18th December 1984, seized the consignment and arrested Siracusa and a man named Gaultieri. Unit 5 is a spacious warehouse. There was nothing in it except the 52 cases of furniture and a fork-lift. The work in hand was the painting out of the Indian shipping marks with black paint.
On 28th May 1985, a consignment of 84 packing cases of furniture from Thailand consigned to Ital Provisions Ltd. arrived at Southampton. Customs officers found in some articles of furniture heroin with a street value of £15 million in England and £75 million in Canada. They repacked some of the heroin and waited and watched. The consignment was not delivered in this country, but trans-shipped and left for Canada on 8th June 1985.
After delivery in Canada on 21st June 1985, enforcement officers moved in, seized the consignment and arrested three men. It was found that they had gone unerringly to the cases containing the pieces in which heroin was concealed. In England, Monteleone, Luciani and Di Carlo were arrested on 21st June 1985.
The importation of controlled drugs into this country is prohibited by section 3(1)(a) of the Misuse of Drugs Act 1971. That section does not create any offence. The offence is created by section 170(2)(b) of the Customs and Excise Management Act 1979 which provides: "(2) …. if any person is, in relation to any goods, in any way knowingly concerned in any fraudulent evasion or attempt at evasion: (b) of any prohibition or restriction for the time being in force with respect to the goods under or by virtue of any enactment ….. he shall be guilty of an offence ….."
At the relevant time, the effect of section 170(4) and Schedule 1 of the Act was that importation of drugs of Class A or Class B was punishable with up to 14 years' imprisonment.
In cases where controlled drugs are imported into this country and a substantive offence is charged as a contravention of section 170(2)(b), the particulars of the offence identify the drug and the class to which it belongs so that the appropriate penalty is not in doubt. Case law has established that although separate offences are created as a result of the different penalties authorised, the mens rea is the same. The prosecution must prove that the defendant knew that the goods were prohibited goods. They do not have to prove that he knew what the goods in fact were. Thus it is no defence for a man charged with importing a Class A drug to say he believed he was bringing in a Class C drug or indeed any other prohibited goods: R. v. Hussain (1969) 53 Cr.App.R. 448; R. v. Shivpuri (1986) 83 Cr.App.R. 178; R. v. Ellis (1987) 84 Cr.App.R. 235.
The appellants contend that where conspiracy to contravene section 170(2)(b) is charged, the position is different so that in this case the prosecution had to prove against each defendant that he knew that the Kashmir operation involved cannabis and that the Thailand operation involved heroin. If this submission is well-founded, then it is said that the learned judge's direction on conspiracy is flawed and strength is added to the contentions of those appellants who submit that in respect of one, other or both counts, there was no case to go to the jury at the end of the prosecution case.
The appellants found their submission on the decision of the House of Lords in R. v. Anderson (1986) 1 A.C. 27. Before we examine the effect of that case, it is necessary to set out at some length how matters stood at the end of the prosecution case. We start with the two conspiracies charged. In each case, the statement of offence was the same: "Conspiracy to contravene section 170(2)(b) of the Customs and Excise Management Act 1979 contrary to section 1(1) of the Criminal Law Act 1979."
The particulars of offence for the first conspiracy were that the appellants between 1st July 1982 and 30th June 1985 "conspired together and with Alfonso Caruana, Pasquale Caruana, Heis Ahmed Gami, Emmanuel Guaragna, Farook Baktoo, Alberto Gualtieri, Antonio Zambito, Guieseppe Gargano and other persons unknown to be knowingly concerned in the fraudulent evasion of the prohibition on the importation into the United Kingdom of controlled drugs of Class B, namely, cannabis resin."
A second conspiracy was charged in the same way save that in the particulars, some of the named co-conspirators were different and the prohibition was "on the importation of drugs of Class A, namely, diamorphine hydrochloride."
The story starts in July 1982 when Luciani, an Italian, who came here in the 1970s and who had worked with Monteleone and Di Carlo in a food importing company, Fanci International, gave instructions to solicitors, Messrs. Colombotti, in connection with the acquisition by him and Monteleone of Ital Provisions Ltd. (Ital) from its then owners. The prosecution case was that this company was to be a vehicle for smuggling and any legitimate business done by it was a blind to conceal its real purpose. The acquisition of Ital was completed on 6th December 1982. Luciani got 99 shares, Monteleone one share and both became directors. Luciani became guarantor of the lease of the warehouse.
On 8th October 1982, Siracusa arrived in India where he stayed until he came to London on 22nd November. On 4th November 1982, Guaragna, a named conspirator, registered the Santa Rita company in Montreal. The prosecution case was that this was a bogus company whose sole purpose was to act as consignee for the shipments of furniture in which the drugs were concealed. The address given was a three-roomed flat, there was no sign of any business and there was no evidence as to where the first three shipments in fact went.
On 4th December 1982, Monteleone's car was seen at Di Carlo's home and later at that of Alfonso Caruana. A document dated 16th December 1982, purporting to be an order for furniture to the value of 170,000 rupees from Ital to Shalimar Enterprises in Kashmir was discovered during investigations in India. Many of the printed parts of the document, such as the identity of Ital's bankers, are false and it purports to be signed by a "Mr. Roger (Director)": the document is bogus.
On 30th December, a bank account for Shalimar was opened at Srinigar in Kashmir with the Punjab Bank. Shalimar in Kashmir was as bogus as Santa Rita in Canada. At its address, Gami ran a curio business and nearby Baktoo ran a tour business. In the meantime, in London, Ital had imported a container of foodstuffs such as olive oil and canned tomatoes from Asaro, a firm in Sicily, at a cost of some £14,700.
On 16th February 1983, £11,500 in cash was paid into Ital's bank account with Barclays to fund a letter of credit in favour of Shalimar for 170,000 rupees which cost £11,191.57. The documentation to support the first shipment of furniture from Kashmir came into existence. An invoice from Shalimar of 5th March 1983 was lodged with the Punjab Bank in April in the terms of the bogus order of 16th December. On 4th April, there was an order from Santa Rita for the goods.
The first consignment of 54 packages came in at Felixstowe on 3rd May 1983, delivered to Ital's warehouse in London, and exported on 18th May to Canada, consigned to Santa Rita. Thereafter...
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