Vinh Van Dao and Others v R
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE GROSS |
| Judgment Date | 31 July 2012 |
| Neutral Citation | [2012] EWCA Crim 1717 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2011/02284 2011/02229 |
| Date | 31 July 2012 |
[2012] EWCA Crim 1717
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM
Mr Recorder Morgan
T2010 1627
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Gross
Mr Justice Eady
and
Mr Justice Blair
Case No: 2011/02284
2011/02232
2011/02229
Mr Greg Unwin (instructed by Mirza Solicitors LLP) for the Appellants
Mr David Perry QC (instructed by The Crown Prosecution Service) for the Respondent
Hearing dates: 21/01/2012
INTRODUCTION
This appeal against conviction potentially raised interesting issues as to the scope of the defence of duress and also, as it turned out, as to "trafficking". In the event, considerations as to trafficking caused us to delay our judgment pending the decision of another constitution of this Court presided over by Lord Judge CJ in R v N; R v Le [2012] EWCA Crim 189. That decision has since been handed down. Subsequently, we received written submissions from the parties as to R v N. In the light of R v N and the view we take of the facts of the present matter, our judgment can be significantly shorter than it might otherwise have been.
On the 18 th March, 2011, in the Crown Court at Snaresbrook, before Mr. Recorder Morgan, the Third Appellant ("Nguyen") was convicted of cultivating cannabis (count 1) and possessing criminal property (count 5). On the same day, the Second Appellant ("Mai") was convicted of cultivating cannabis (count 1) and possessing criminal property (count 4). On the 21 st March, 2011, the First Appellant ("Dao") was convicted of cultivating cannabis (count 1) and possessing criminal property (count 3).
Sentencing proceeded on the 21 st March, 2011:
i) Dao was sentenced to 3 years' imprisonment on count 1, with 6 months' imprisonment on count 3 concurrent, less the time spent in custody on remand. A forfeiture order was also made in respect of the money seized from this Appellant.
ii) Mai was sentenced to 3 years' imprisonment on count 1, with 6 months' imprisonment on count 4 concurrent, less the time spent in custody on remand. A forfeiture order was also made in respect of the money seized from this Appellant.
iii) Nguyen was sentenced to 3 years 4 months' imprisonment on count 1 with 9 months' imprisonment on count 5 concurrent, less the time spent in custody on remand. A forfeiture order was also made in respect of the money seized from this Appellant.
A further count (count 2) of possession a controlled drug with intent to supply was left on file in the usual terms against all three Appellants.
The Appellants appeal to this Court by leave of the single Judge, who observed:
" I would be surprised if the Court were to allow these 3 appeals. However, it may be helpful for the Court to have an opportunity of considering imprisonment short of an imprisonment which causes death or serious injury as a possible route to a duress defence. "
In the event, Dao abandoned his appeal and Mai has been deported. Nguyen remains a serving prisoner. Accordingly, the appeal did not concern Dao at all. Though Nguyen and Mai remained represented by the same counsel, in practical terms the appeal was essentially concerned with Nguyen.
THE FACTS
At 10.30 on the 25 th October, 2010, police forced entry to premises at unit 6, 61 Sutherland Road, E17. Inside they found a fully functioning cannabis factory and the three Appellants. On commencing their search, they found Nguyen in the kitchen area; she was using her mobile telephone to communicate her imminent arrest to a friend. The wholesale cost of the cannabis recovered was approximately �42,000.
The Appellants were all Vietnamese and were unable to speak English. They were arrested and cash was seized (reflected in the counts recorded above): �297 from Dao; �242 from Mai; �741 from Nguyen's handbag. Nguyen and Mai were partners.
In the living area of the unit there was a satchel containing keys. One key fitted a lock on the door of the unit. A mobile telephone seized from the kitchen belonged to Nguyen and was found to contain the address of the unit and another unit; it also contained incorrect personal details of Nguyen.
In interview, Dao stated that he had been asked to clear a warehouse for �300. He had been approached by a woman at a bus stop. He had been taken to the unit and a "western" male had put the money in his hand. Once he got there he was locked in and realised what was inside. The same man and woman brought food and drink to the unit. He had two mobile telephones but both were without credit. His co-accused arrived a day or two after him. Once he had arrived at the unit and realising that he had been duped, he telephoned a friend who advised that as he had agreed to do it, he should get on with it and get paid. At first he was scared but then he just got on with it. He could not escape because he had been locked in by four padlocks.
In his interview, Mai admitted harvesting the plants.
In her interview, Nguyen said that she had cut the cannabis and therefore cultivated it. Her solicitor indicated that she had been advised not to answer questions but she proceeded to answer some, though not all, of the questions put to her. Her account was that she had been threatened with a knife. She had met a woman, Thuy, in the street and she had forced her to go to the premises. The cannabis was already in the unit. She had not known that there was cannabis there until she arrived. "They" (it would seem Thuy and some "western" men) had not injured her but had threatened her with a knife. They had paid her but she had been unable to leave; she had wanted to but they had locked the door. She stated that she had only been given �500 of the money found on her, believing it to be for cleaning out and dismantling a factory and that the remainder was derived from previous legitimate income.
When giving evidence, Nguyen added to her account in interview. She now said that she had not only been threatened with a knife but also that they had threatened to kill her. Two mobile telephones recovered from the kitchen had been hers and she had used one to telephone a friend when the police had attended. She said that she had not known of the satchel or the keys within it.
Both Dao and Mai, when giving evidence, expanded on their accounts in interview, in particular as to threats made to them.
All the Appellants had been of good character.
The prosecution case was that the police had caught the Appellants red handed. The Appellants were fully involved in cultivating and harvesting the cannabis. They were paid � and had provisions � in order to stay inside the premises.
The defence case for each Appellant was that they had been duped and had attended the unit believing that they were there to clean. Once they realised they had been duped they wanted to leave but were threatened to the extent that their will had been overcome. They were locked in to the premises with no means to escape and any assistance in the cultivation or harvest of the cannabis was under duress.
The issue for the jury on count 1 was whether the prosecution had made them sure that the accused whose case they were considering had cultivated cannabis plants voluntarily. On counts 3�5, the issue for the jury was whether the prosecution had made them sure that the money found on the accused whose case they were considering was criminal property from that accused's willing participation in count 1 and that the accused in question knew or suspected that it was payment for cultivating cannabis. As posed by the Judge (summing-up, at pp. 26 and following), the questions to be asked in the light of the raising of the defence of duress, were, in essence, as follows:
i) Whether the accused whose case they were considering had been threatened by someone with death or serious injury if he/she did not cultivate the cannabis plants?
ii) Whether the accused in question reasonably believed that the threat would be carried out imminently if he/she did not comply?
iii) Whether the threat endured throughout that accused's participation and was it reinforced by incarceration?
iv) Whether the threat was the direct cause of that accused's decision to stay?
v) Whether a reasonable person with the characteristics of the accused would have been driven to act as the accused did, considering the opportunities that the accused had to escape?
In each case it was for the prosecution to disprove, to the criminal standard, the suggestion in issue.
As already recorded, all the Appellants were convicted.
THE JUDGE'S RULING AND THE GROUND OF APPEAL
Very properly, there was a discussion between the Judge and counsel on the Judge's written steps to verdict. Counsel for the Appellants submitted that the Judge should direct the jury that they should consider the threat of a continuing false imprisonment which abated only when they complied with the instructions they had been given.
The Judge ruled that the facts of the Appellants' cases were that they had been compelled to go into the premises, having been duped because of a threat. The false imprisonment of which they complained had only arisen after the threat. If the jury rejected the contention that they had been threatened, the Judge questioned the relevance of the false imprisonment thereafter. There had been threats of violence but it was only after those threats that they were told "no violence will occur if you stay here". The Judge determined that that was not a threat of false imprisonment.
The ground of appeal advanced on...
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