England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL
(CRIMINAL DIVISION)
ON APPEAL FROM
The Crown Court at Woolwich
HHJ Dunn QC 9802984

		Royal Courts of Justice Strand. London. WC2A 2LL
		04/12/2007

LORD JUSTICE HOOPER:

1. On the 27^th April 1998 in the Crown Court at Woolwich before HHJ Dunn QC, the appellant was convicted of a large scale conspiracy to supply heroin. He was sentenced to 22 years' imprisonment.
2. He appeals his conviction following a referral from the CCRC, for whose thorough analysis of the case we are very grateful. His first appeal against conviction was dismissed in 2002: [2002] EWCA Crim 925.
3. At the conclusion of the hearing we announced that the appeal was dismissed for reasons which we would give later.
4. The prosecution's case against the appellant, as Mr Black QC accepted at trial, depended upon the evidence of a fingerprint found on a piece of sellotape-type tape, ADB/10. The judge said that the case was not strong but because of the fingerprint he would allow the case to go to the jury.
5. We take an outline of the facts from the decision of the CACD dismissing the appeal:
6. On the 1^st April ... Sehitoglu and ... Onbasi went to 20A, Fairbourne Road where they were joined by Ozakan and Kuni who was also named as a co-conspirator, but who escaped arrest and fled out of the jurisdiction to the Turkish Republic of North Cyprus.
7. On the 2^nd April the police saw two holdalls being taken into 10, Burleigh Court. The first was taken in by Sehitoglu, from the boot of the Nissan driven by Ozakan. They both entered and then left the premises. Later, the Nissan returned and the second holdall was taken into the premises by Ozakan from the car's boot. Again both went into the premises. Meanwhile Kuni was seen driving the Honda in the area. Sehitoglu and Ozakan were arrested as they left the premises. Sehitoglu had £1,253 in cash on him and keys including those of 20A Fairbourne Road. When asked about the holdall he said "The man in the Honda told me to carry it". Ozakan had on him the tenancy agreement for 10, Burleigh Court and a gas bill for 20A Fairbourne Road. The Nissan was searched and a plastic carrier bag containing 9.1 grams of heroine was found. 10, Burleigh Court was searched and the two holdalls were found concealed in the bases of two beds in the main bedroom. In them were respectively 25 packages and 33 packages, containing a total of 44 kgs of compressed heroin to the value in excess of £7 million. £28,890 in cash was found behind a bath panel.
8. Officers then went to search 20A Fairbourne Road. Hydraulic compressing machinery, two moulds, a split tyre and a food mixer were found all contaminated with heroin. A number of other items were discovered which also bore traces of heroin. While the police were in the premises, Kuni and Onbasi approached the premises, but realised that the police were there and fled. Onbasi was subsequently arrested in June 1996.
9. As a result of what was found at both premises and on Sehitoglu and Ozakan, other premises were raided where documents were discovered which clearly related to heroin dealing. On the 4^th April, the BMW belonging to Onbasi was found and searched and contained a small foil package containing heroin. On the 24^th April 1996, the police searched 19, Darwin Road as a result of information that they had received, where they found 12 sealed packages of heroin, which, on forensic examination, showed characteristics similar to heroin found from one of the holdalls at 10, Burleigh Court.
10. Sehitoglu [who gave evidence for the prosecution], Ozakan, Kuni, and Onbasi were charged with conspiracy to supply heroin based on this evidence. Sehitoglu and Ozakan both pleaded guilty. As we have said, Kuni absconded.
11. ADB/10 was found on one of the 58 packages found in 10 Burleigh Court.
12. The Court had this to say about the appellant Esat:

10.... The appellant Esat Kaan was at the time resident in North Cyprus. He was connected, albeit distantly, to both Kuni and Kulunk. He had been sentenced in May 1986 to 7 years imprisonment but had absconded while on home leave in 1988. The jury were told of the conviction, but not the nature of the offence. The prosecution case was that the package of heroin within which the clear tape was found was one which had been packaged in Turkey, and that the only sensible inference from the presence of the tape was that he had been present at its packaging and involved in arranging the consignment. There was evidence to show that he had travelled to Turkey on a number of occasions in the early months of 1996 from North Cyprus which would have enabled him to have been involved in that arrangement. There was also evidence of frequent visits to this country despite the danger to him of arrest as an absconding prisoner. He came to this country on the 2^nd April 1996, and was arrested when the forensic evidence was made available to the police. In interview he said that he had not been out of Cyprus at any time during the early months of 1996 because of the pregnancy of his wife. The prosecution allege that this was a relevant lie which the jury were entitled to take into account when deciding whether or not he was involved in the conspiracy.

13. It was the prosecution's case at trial that ADB/10 was a single piece of tape bearing one right forefinger fingerprint of the appellant on the adhesive side and that ADB/10 had been found inside the package, that is, underneath the brown sticky tape outside covering. It was Esat's case that the only proper inference to be drawn from the evidence was that the drugs had been repackaged in England during cutting and could not therefore support an argument that the packaging as found had been effected in Turkey. The prosecution disputed that.
14. How then did Esat explain the presence of the fingerprint? He denied being involved in the packaging. In the words of the CCRC he put forward the following hypothesis both in interview and at trial.

29.... One of the conspirators, Mr Mustafa Zafir, had a cousin, Mr Yusuf Taser [or Tasher] Tasbey. Mr Tasbey had stayed at Mr Esat's flat in Brownlow Road after Mr Esat had left England (in order to clear it and return some items to Cyprus for Mr Esat). The fingermark finger mark on the package of drugs could have been left on some clear tape (like sellotape) which Mr Esat had left at the flat for normal domestic purposes. It was suggested that Mr Zafir could have taken the clear tape which had Mr Esat's fingermark finger mark on it and it had then been used when the drugs were re-packaged in the UK.

32. When giving evidence Mr Esat demonstrated how he

would detach a piece of clear tape from the reel using his teeth and how this could result in a single mark from his right forefinger being left on the end of the tape still on the reel.

15. At an earlier hearing of this appeal the respondent, whilst maintaining their position that ADB/10 was beneath the outer wrapper, nonetheless conceded that a reasonable jury could conclude in the light of fresh evidence that ADB/10 was on the outside of the package. At one point the respondent was content that this Court allow the appeal on this basis, although, no doubt, they would have sought a new trial. We however decided that upon the application of the respondents, we thought it appropriate to consider the safety of the conviction on the assumption that ADB/10 was on the outside of the package.
16. Both since the trial and since the start of this appeal there have been many continuing developments surrounding ADB/10 which we now summarise.
17. The first such development related to the tape ADB/10. It was found to be 3 pieces of tape, not one piece of tape as thought at trial. ADB/10 had originally been one piece of tape about 10 inches in length. During the appeal the three pieces were numbered and mock-ups of the individual pieces coloured as:

piece 1 - blue,

piece 2 - red

piece 3 - green.

18. Each piece had been laid on the package with a degree of overlap, piece 3 at the bottom, piece 2 in the middle and piece 1 on the top.
19. Miss Hamer, for whose help and dedication to detail we are very grateful, told us that ADB/10 was originally attached to about a further 12 inches of tape torn into about 3 pieces which we shall call the Davies tape (named after another expert who worked with Miss Hamer). There were no fingerprints on the Davies tape. Two pieces (at least) of the Davies tape appear (and we shall so assume) to have been placed under ADB/10 and one on top.
20. On the last day of the appeal Miss Hamer told us that in her opinion (unchallenged) the leading edge of ADB/10 was on piece 3. She had changed her mind since the last hearing having considered the evidence of the appellant given at that hearing. The appellant had described how he would tear off a piece of tape using his teeth and then fold the new leading edge over. There was such a fold on piece 3.
21. She said that piece 3 had been torn from piece 2, which itself had been torn from piece 1. The Davies tape had been attached to piece 1.
22. The second development was that on the deconstruction of ADB/10 into 3 tapes, it was found that there was more than one fingerprint on the adhesive side of its constituent tapes, and, on the basis of comparison with the tests on the appellant's fingerprints then available, it was concluded (and not challenged) that there was a second print of the appellant's right forefinger.
23. One print made by the appellant's right forefinger was in the middle of piece 1 and the other in the middle of piece 2. On 20 June 2007 we adjourned the hearing to enable further tests to be conducted. On 18 October we adjourned for a comparison to be made between a new set of the appellant's fingerprints and an unidentified fingerprint believed to be on piece 3 and possibly overlapping piece 1. The appellant gave a further set of prints and the unidentified fingerprint was found to have been made by the right middle finger of the appellant. There was no overlap. On the last day of the hearing the respondent's experts opined that the newly identified fingerprint was on piece 3. A statement made by the appellant's expert Mr Lloyd was served minutes before the start of the hearing. In that statement he said that the newly identified fingerprint was on piece 1 next to the right forefinger print, suggesting that Mr Esat had touched the tape with his two fingers at the same time. Mr Lloyd gave evidence to that effect. We granted a short adjournment for Mr Lloyd to explain his findings to the respondent's experts; Following the short adjournment they changed their mind and agreed with Mr Lloyd.
24. At the time of making the fingerprints, the fingers which made the prints were covered by a brown substance. Although there was some fresh post trial evidence that the brown substance in one fingerprint contained heroin, that was challenged and for this reason not relied upon by the respondent for the purposes of this appeal and we ignore it.
25. Using a new diagram prepared by Miss Hamer on 19 November, we were able with her help to make various measurements. From the leading edge of piece 3 of ADB/10 to the middle line of the first fingerprint on piece 2 was about 5 inches. The distance of that fingerprint to the two fingerprints on piece 1 was about 4 inches. Thus the two fingerprints on tape 1 were about 9" from the leading edge.
26. Given the many developments in the evidence since the trial, at the penultimate hearing the appellant gave evidence explaining how his fingerprints could have been on the tape. He effectively repeated the evidence which he had given at trial. He showed how he would use his teeth to tear off the tape from the roll leaving a fingerprint just behind what would be the new leading edge which he then turned over.
27. His explanation does not account for the fact that one of his fingerprints was five inches from the new leading edge and the others 9 inches.
28. Mr Robertson submitted that this could have occurred if the appellant, having touched the tape in the way he described, had somehow rewound the piece back on to the roll (to be used months later by a conspirator), not something which the appellant had ever said that he had done. Miss Hamer demonstrated how the rewinding could be done.
29. We turn to the law. In R -v- Pendeleton [2002] 1WLR 72, Lord Bingham said (paragraph 19) he said:

"The Court of Appeal can make its assessment of the fresh evidence it has heard, but save in a clear case it is at a disadvantage in seeking to relate that evidence to the rest of the evidence which the jury heard. For these reasons it will usually be wise for the Court of Appeal, in a case of any difficulty, to test their own provisional view by asking whether the evidence, if given at the trial, might reasonably have affected the decision of the jury to convict. If it might, the conviction must be thought to be unsafe."

30. Mr Robertson relies on certain passages in the judgment of this court on the first appeal. The court said this of the fresh evidence:

16. The fresh evidence which we were asked to consider under s.23 of the Criminal Appeal Act 1968 consisted of reports from a fingerprint expert, Peter Swann, and reports and oral evidence from Pamela Hamer, a forensic scientist. It was submitted that this evidence, if accepted, threw doubt on the forensic evidence called, and accepted, at trial to the effect that the clear tape was a folded piece of tape containing one finger print of the appellant which was found inside the relevant package. The tape, it was said, in fact consisted of three separate strips of tape adhered together which contained two, not one of the appellant's fingerprints. More important was the evidence of Pamela Hamer which, it was submitted, suggested that the clear tape could have been on the outside of the package. It did not seem to us, and was not seriously argued on behalf of the appellant that the fact that the clear tape could have consisted of three strips containing two fingerprints was of itself of any great significance. The important question was not the detailed makeup of the clear tape, or of the existence of one or more than one fingerprint, but whether or not it could properly be inferred that the tape was within a package which had its origin in Turkey.

22. ... The real question was whether or not there was, above that layer, a second layer of tape. That question was not answered by Pamela Hamer's investigation. ...

23. ... Despite, therefore, the very careful and expert examination carried out by Pamela Hamer, to which we pay tribute, we do not consider that her findings or conclusions could have raised any doubts in the mind of the jury as to the evidence of Paul Swinge and Andrew Beange as to the provenance of the piece of clear tape.

31. In the light of the fresh evidence placed before us, we have decided, as we have said, that a reasonable jury could conclude in the light of the fresh evidence that ADB/10 was on the outside of the package. Mr Robertson argues that the underlined passages show that if the court which heard the first appeal had reached the same conclusion, it would have quashed the conviction and he reminds us that the prosecution were initially minded not to contest the appeal if that position were to be demonstrated.
32. He submits that this differently constituted Court of Appeal should not take a different view, relying on R -v- CCRC ex p Maria Pearson [2000] 1 Cr App R 141. We find no help in that case.
33. We also find no help in the views expressed by the court on the first occasion. The evidence which we have heard makes this case very different from the case as it stood when the first appeal was heard.
34. Mr Robertson submitted that, because the Davies tape had no fingerprints on it, that suggested whoever put the pieces of the Davies tape on the package must have been wearing gloves. That supports what he called the Tasher theory (referring to the hypothesis set out in paragraph 9 above). That is no more than speculation.
35. Mr Robertson submits:

In any event it cannot now be said that the Esat trial was 'fair' as required by Article 6 ECHR. It proceeded upon a Crown case of irresistible inference that Esat was involved in packaging in Turkey - based upon a 'fact' that cannot be established. A conviction resulting from an unfair trial cannot be 'safe'.

36. We do not accept this argument. The trial was not unfair simply because we now know that a reasonable jury could conclude in the light of the fresh evidence that ADB/10 was on the outside of the package.
37. He submits that had the judge known at half time that the fingerprint may have been on the outside of the package, he would not have allowed the case to proceed. We have no doubt that he would have allowed the case to proceed even if it had been admitted that it was on the outside. He made it clear that the prosecution case stood or fell by the existence of the fingerprint, and indeed it did and does, save that we now have three fingerprints. He also would have allowed it to proceed if he had had before him all the evidence which we now have.
38. He submits:

All the Crown can say now in terms of safety is 'well there were three fingerprints not one'. But now its 'overlap suggestion' has been conclusively refuted it cannot exclude the [Tasher] theory ie the possibility that those prints were put on the sellotape at a time prior to its use by others to seal the heroin package, which they may have done at the time when they removed the packages from the lorries, or during the 5 days or so when the packages remained in the cars at Wood Green, or in the diluting and re-packaging process which was going on at Fairbourne Road - all times at which Esat was out of the country. The possibility is now further confirmed by (a) Mr Lloyd's evidence today that the middle fingertip mark was beside the index finger mark on tape 1, as would be expected from Esat's demonstration and (b) Ms Hamer's evidence that there is now evidence to identify the turned down end of the tape as described by Mr Esat.

In sum there is nothing in what is now known about the tape and the fingerprint distribution to refute the [Tasher] defence. That defence was left to the jury at trial but was overborne by unchallenged prosecution evidence that ADB/10 was inside the packaging. That evidence was wrong and the alternative overlap theory has been conclusively refuted, so the Court cannot substitute its own opinion about the jury issue, especially where there is some new expert evidence from Hamer and Lloyd today to support it.

39. We disagree. In our view and applying Pendleton this is a clear case where the fresh evidence taken as a whole could not reasonably have affected the decision of the jury to convict. Even if the appellant's explanation could possibly account for the fingerprint on piece 2, we have no doubt that his explanation cannot possibly account for the presence of the two fingerprints on piece 1 which are about 9 inches from the leading edge. If he was tearing the tape with his teeth, his right fore and mid fingers could not be 9 inches from the tear he was making. Even though, as Miss Hamer demonstrated, it is possible to rewind sellotape-type tape on to the roll, it is no more than speculation to suggest that that is what happened here. There is no credible explanation for the fingerprint being 9 inches from the leading edge other than that he was in some way involved in the packaging or repackaging of the drugs and therefore guilty. The conviction is safe.
40. For these reasons we dismiss this appeal.