England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Kingston-Upon-Thames Crown Court
HHJ Dodgson
T20127043

		Royal Courts of Justice Strand, London, WC2A 2LL
		10/03/2015

Lord Justice Fulford

Introduction

1. On 23 October 2012 in the Crown Court at Kingston-Upon-Thames before H.H. Judge Dodgson and a jury the applicant was convicted by a majority (11-1) of conspiracy fraudulently to evade the prohibition on the importation of a controlled drug of Class A. On the same day he was sentenced to 28 years' imprisonment.
2. He had various co-accused who had been convicted at an earlier trial (2 June 2011) of the same offence (the applicant's trial was delayed because he had left the country and it was necessary to extradite him from Spain; this occurred on 31 January 2012). Jamie Green, Zoran Dresic and Jonathan Breere were each sentenced to 24 years' imprisonment. Daniel Payne was sentenced to 18 years' imprisonment and Scott Birtwistle was sentenced to 14 years' detention in a Young Offender Institution.
3. Applications for leave to appeal against sentence for Green and Breere were refused, and Payne's appeal against sentence was dismissed, by the Full Court on 7 March 2012 ([2012] EWCA Crim. 656). Green's application for leave to appeal against conviction was refused by the full court on 3 October 2012 ([2012] EWCA Crim 2177).
4. Dresic lodged an application to appeal against conviction and sentence. No grounds were submitted and it was treated as ineffective. Birtwistle lodged an application for leave to appeal against conviction. It was refused by the single judge and has not been renewed.
5. Before this court the applicant has renewed his application for leave to appeal against conviction and sentence.

The Facts

6. Between March and July 2010, officers from the Brazilian police conducted a successful investigation into a group of Eastern European men who were believed to be smuggling cocaine from Brazil into Europe by ship. In the early hours of 30 May 2010 a Brazilian commercial container ship called the MSC Oriane was observed travelling east through the English Channel. Between 01.12 and 01.38 it passed close to another vessel, the "Galwad-Y-Mor" (Galwad), which had ventured out in a force 8 gale. The Galwad was owned and operated by Jamie Green, who was on board together with Daniel Payne (an occasional crew member), Scott Birtwistle (a regular crew member) and Zoran Dresic (who had no seafaring experience). At one point the Galwad made a number of erratic manoeuvres in the vicinity of the route taken by the Oriane, which was consistent, the prosecution said, with the retrieval of holdalls containing drugs that had been jettisoned from the Oriane. During the journey calls were made via the Galwad's satellite to the alleged leader of the conspiracy, Daniel Dugic (unapprehended), who had arrived in the United Kingdom on a false passport on 1 May 2010 with another man called Dominik Danilovic, a convicted drug trafficker. The Galwad also received calls from a telephone number ending 5034 (referred to at trial as the "Mustard" telephone), the apparent main use of which was to send and receive text messages from a Dutch telephone. It was linked, according to the prosecution, with the present applicant who had been observed on 18 and 28 May 2010 in the company of Dugic. On 18 May 2010 a man called George Copley was also present. He was convicted in 2011 of possession of cocaine with intent to supply and possession of a shotgun without a certificate. The applicant met with Copley again on 20 May 2010 but this time they were alone.
7. On 27 May 2010, Dresic and Dugic (whose exit from the country had not been noted) arrived in the United Kingdom and on 28 May 2010, the applicant, Dugic and Dresic travelled to Portsmouth where they met with Jonathan Breere, the man who the prosecution said linked Green with the organisers of the importation. At 14.16 the applicant, Dresic, Dugic and Breere boarded a hovercraft bound for the Isle of Wight. Between 16.37 and 16.50 two mobile telephones were purchased using false details from Phones 4U in Newport, Isle of Wight. One, registered in the name of Tony Perelli, was recovered from Dresic on his arrest. It contained one contact number under the name "Dexsa" (which the prosecution suggested referred to Dugic). The other, registered in the name "John Wilson" (6752) and used almost exclusively to keep in contact with Breere on the Isle of Wight, was attributed to the applicant. Evidence showed that top up vouchers for the Dexsa and Mustard phones were purchased at the same time and place on 27 May 2010.
8. At 18.53 on 30 May 2010 police officers observed the Galwad from the cliff edge overlooking Freshwater Bay. They said they saw 10 to 12 packages being deposited into the sea. The Galwad then sailed off and berthed at Yarmouth Harbour. Green, Payne, Dresic and Birtwistle disembarked. Over the next few hours there was telephone contact between the accused. On 31st May 2010 a number of holdalls, that were watertight and manufactured by a Brazilian company, were recovered a few hundred yards from the south coast of the Isle of Wight. Each had been tied to short lengths of rope which, in turn, had been tied to a longer length of rope, one end of which was tethered to a large buoy. A total of 11 holdalls were recovered. An examination revealed that they contained a total of 255 packages each containing approximately 1kg of cocaine of between 74% and 92% purity with an estimated street value of £53,857,788.

The Prosecution Case

9. The prosecution case was that the applicant was party to a conspiracy to import cocaine, based on evidence of meetings with his co-conspirators and cell site evidence. It was the prosecution case that the applicant's association with Dugic and Copley solely concerned the importation of cocaine.
10. Given the issues raised on this appeal, the prosecution highlight the following particular matters. It is noted that in his defence statement dated 14 August 2012 the applicant did not suggest that there was an innocent explanation for his meetings with Dugic and Copley, and instead he simply denied that he had any knowledge of, or involvement with, drugs.
11. It was only when the applicant's trial was due to commence on 8 October 2012 that an amended defence statement was served. In this document it was averred for the first time that Dugic had a business in Sierra Leone called "D and D" which worked for both the government and private sector clients. It was claimed that at least some of the applicant's meetings with Dugic related to the latter's attempts to locate JCBs for export (although this was not said to apply to the visit to the Isle of Wight). It was suggested that the reason the applicant met with Copley was to discuss diggers.
12. We note in this context that the prosecution did not resist the suggestion that Dugic had business interests in Sierra Leone. Instead, once this issue had been raised, the Crown contended that the applicant's links with Copley and Dugic were unconnected with locating and exporting earth moving equipment.

The Defence Case

13. At trial, the applicant denied in evidence that he had been a party to a conspiracy to import cocaine, and he denied having used the "John Wilson" phone. He said he lived in Spain but came back to the Kent area from time to time to see his family. He knew Dugic as an acquaintance from a local pub in the Malaga area. Dugic's main activity, at least when they were together, was seeking to buy earth moving equipment to ship to Sierra Leone where he had a business that undertook contract work for both the Government and private companies. The two realised they would be visiting England at the same time and made a loose arrangement to see each other. When they met up, Dugic asked the applicant to drive him around. Most of the driving, including the meeting with Copley, was in order to attend meetings to discuss possible purchases.
14. They went to the Isle of Wight because Dugic said he had a friend who was travelling there in order to start a job. The applicant drove them to the port; they took the hovercraft to the island; and the applicant spent the day the area of Ryde, in a pub and walking around the shops. Dugic met up with him later in the day. They dined together and took a late boat back to the mainland. By the time they reached the southeast of England it was late and Dugic accepted an invitation to spend the night in the applicant's spare room.
15. The applicant called two witnesses. Their evidence was unchallenged by the prosecution. Nicholas Coombs, who ran a bar in Spain, said that the applicant worked as a builder, he did not have an extravagant lifestyle, he lived in rented accommodation and drove an elderly car. He said that Dugic (whose photograph he was shown) had been a customer at the bar in the past. The applicant's sister, Lois Austin, said that when she met him once or twice during the May/June 2010 visit he was the same as normal and showed no signs of having come into wealth.

The Grounds of Appeal against Conviction

16. The two grounds of appeal against conviction argued before this court have been advanced in two stages.

Ground 1

i) The sole ground of appeal before the single judge was that the judge, during the summing up and in an answer to a question from the jury, erred in his directions as to the offence conspiracy in that they encompassed the possibility of a conviction even if the jury was not sure the applicant had joined the conspiracy.

Ground 2

ii) Following the decision of the single judge, the applicant applied to introduce an additional ground of appeal based on fresh evidence. He seeks to rely on evidence from Dermot Ryan, a close friend of his father, who suggests he was told by his ex-partner that a) Dominic Danilovic lived in Sierra Leone and was involved in mining, and b) Dugic is an associate of Danilovic in Sierra Leone. It is argued that this evidence is important because a central feature of the applicant's defence was that Dugic was trying to buy diggers to ship to Sierra Leone.

Ground 1: submissions

17. The judge discussed the directions in law with counsel prior to the commencement of the summing up in a manner now long approved by this court. Following those discussions, and with the consent of counsel, the written directions provided to the jury were as follows:

Conspiracy

Just as it is a criminal offence to import cocaine into this country, so is it a criminal offence for two or more persons to agree with one another to commit that offence. An agreement to commit an offence is called a conspiracy; and that is the offence which is charged here.

Before you could convict Mr. Austin of this offence, you must be sure:

1. That there was an agreement, on or before 1/6/10, between two or more of the persons named in this count to contravene the prohibition on the importation of a controlled drug namely cocaine into this county.

2. That Mr. Austin on or before 1/6/10 and while that agreement was in existence

(i) agreed with one or more of the other persons referred to in the count that the crime should be committed and

(ii) at the time of joining the agreement he intended that he or some other party to it should carry the agreement out.

3. If you are sure only that he was aware of Dugic's activities but took no part in them then he must be found Not Guilty

18. Thereafter, on 18 October 2012 the judge directed the jury in the following terms:

What is it that he is charged with?  Well, he is charged - if you have got the indictment, a document that I think we looked at on the first day and have not really looked at since - with conspiracy.  (Pause)  And it is conspiracy to contravene section 170 subsection 2 of The Customs & Excise Management Act contrary to section 1(1) of The Criminal Law Act 1977.  You need not worry about any of that.  That is just stating the offence that Parliament created.

The particulars: that he on or before 1^st June -- why 1^st June?  Well, that is the date by which the conspiracy had finished.  So the prosecution are saying that on a day before that end date he conspired with those named men (all of whom have been convicted save for Dugic) and with other persons unknown fraudulently - and that means "dishonestly" - to evade the prohibition on the importation of a controlled drug of Class A namely approximately 250 kg of a powder containing cocaine hydrochloride, and then setting out the section that prohibits the importation of that drug.  That is legalese, and legalese is there for a reason.  Lawyers do not just invent it for the sake of it.  It is there because it sets out precisely what it is that he is charged with.  In every day language, what the Crown say is "Well, he entered into an agreement to import cocaine into this country."

I have prepared a written sheet -- a typed sheet, I am sorry.  Of course it was

written, otherwise it could not be printed.  And you will get a copy each now which just sets out in terms what a conspiracy is.  (Pause while same distributed.)  But before we look at that, let us just stand back and think about what a conspiracy entails.

If I mention "conspiracy" to most members of the public, they probably think about Guy Fawkes or something of that sort.  A "conspiracy": it always conjures up, does it not, visions of people in black hats and cloaks and candles and candlelit passageways, that sort of thing.  Well, I suppose on one level that is true.  But conspiracy is actually a crime in itself.  Why is it a crime in itself?  Well, because sometimes one attracts criminal liability before you actually complete what it is you set out to do.

So let us just stand back from this case and think about a robbery, for example.  You have got absolutely no problem, I am sure, with the idea that if four men go into a bank, one of them is on the pavement outside keeping watch, two have gone in with stocking masks over their face, and another one has got a stocking mask and a gun in his hand, they go into the bank and they say "Hand over the money!", the money is handed over and they all leave.  Are they all guilty of robbery?  Well, you may think undoubtedly they are.

However, what if on their way to the bank, just as they get out of the car and as the three of them are about to go into the door of the bank dressed in the stocking masks carrying a gun, etc, etc, what if at that point the police - who have been topped off - say "No, you don't.  You're under arrest"?  Well, would it be open in law for them to say "Sorry, haven't done it yet.  We haven't done anything wrong"?  Well, you may think it would be an affront to common sense if in those circumstances they would be entitled to say that.  And indeed it is not our law.  The law is that they have conspired to commit a robbery.  They have agreed to commit a robbery.  And therefore they attract criminal liability even though they have been prevented from carrying out the agreement.

Here you might have thought to yourselves "Well, hang on!  They tried to import the cocaine and they did actually import it into our national waters.  But what they wanted to do with it they did not achieve because the Customs took it."  Well, it does not matter.  It is the agreement.

If we look at the sheet I have given you, this really sets it out, going now to our particulars.  Just as it is a criminal offence to import cocaine into this country, so it is a criminal offence for two or more persons to agree with one another to commit that offence.  An agreement to commit an offence is called a "conspiracy", and that is the offence which is charged here.

Before you could convict Mr. Austin of this offence - the offence on the indictment - you must be sure first of all that there was an agreement on or before 1^st June 2010 between two or more of the persons named in this count to contravene the prohibition on the importation of a controlled drug, namely cocaine, into this country.

Now as I have already told you and I will repeat to you: you decide the facts, I do not.  But I would venture to suggest that as regards paragraph 1 you might have no difficulty ticking that off.  It is a matter for you.  But you have heard that the men named on the indictment have been convicted of that conspiracy.  You may think that the defence in this case have not sought to challenge that there was such a conspiracy.  The defence here is "There may well have been a conspiracy.  I was not a part of it."

So the first question: "Was there that agreement?"  The next question - and this is where we become really focused on your task - the Crown have to prove that Mr. Austin on or before 1^st June 2010 and while that agreement was still in existence -- in other words, take as the cut-off point the point when the men were arrested which is on I think 31^st May or 30^th May.  Whilst that agreement was still in existence, he agreed with one or more of the other persons referred to in the count that the crime should be committed.

Well, there is no evidence that the Crown have called to show that he ever knew of the existence of Scott Birtwistle or of Mark Payne.  He says, of course, that he never met Jamie Green.  Well, that does not matter because the Crown say that he certainly met Jonathan Beere who they say has been convicted of this conspiracy - and indeed he has been - and they say that he certainly was in the company of Daniel Dugic.  The Crown say that those two men at least were party to this conspiracy and that Mr. Austin knew full well what the conspiracy was and that he agreed with at least one or more of those other persons - indeed the Crown point particularly to Dugic - and they say that Mr. Austin agreed at least with Dugic that the crime of importing cocaine should be committed.  And the Crown have to prove that at the time of joining that agreement - whenever it was - he (Mr. Austin) intended that he or some other party to it should carry the agreement out.  In other words, he was a knowing party to the agreement and was intending that the agreement should be carried out.  That is what the Crown have to prove.

I have put paragraph 3 there.  It is in fact not the prosecution's case and it is not the defence case, but it is a question that might occur to you.  If you were to take the view that he knew what Dugic was up to but he actually took no part in it, well then he would be not guilty, because the Crown would have failed to prove that he agreed to the crime being committed and he intended that he or some other party should carry it out.  If he were just aware of what was going on, well then he would not have joined in.  But of course, as I say, it is not the defence case.  The defence case is that he knew nothing about it at all.

The Crown's case is this: that he was aware of Dugic's activities.  And the Crown say "If you are sure that he was aware of Dugic's activities, there is no room for thinking or for doubting that he took any part in it", because they say that clearly if he was aware of Dugic's activities then he would have been perfectly aware that his actions in taking Dugic to the Isle of Wight, bringing him back, etc, etc would all have been actions indicating or evidencing that Mr. Austin intended that the agreement should be carried out.

So paragraph 3 is there because it is a theoretical possibility.  It is for you to consider it.  But you may -- it is a matter for you, not me.  You may take the view that in fact in the circumstances of this case it is only a theoretical possibility which in fact can be disregarded.

Well, that is the basis of conspiracy.  It is not rocket science by any means.  And the only reason I have given you the written direction is because some people sometimes get concerned as to what a conspiracy entails.  It is not a word we encounter in everyday.  It is only right that I give you that help, if indeed you needed it.

It makes me remind you of one other matter which is this.  If at any time during your deliberations you want help as to the law, if at any time - as I made it clear - you want to be reminded of any of the evidence, you have only to send a note.

19. The judge returned to the issue of conspiracy, and the role of the applicant, a little later:

So in deciding whether there was a criminal conspiracy and - most important in this case - whether Mr. Austin was a party to it, look at all the evidence as to what occurred during the relevant period, including of course the behaviour and the actions of each of the alleged conspirators.

Now as I have said, it would be rare to have a formal agreement.  There does not have to be any formality about an agreement to commit an offence.  Indeed, an agreement may arise on the spur of the moment.  If you take a street fight, for example: ten seconds before, everybody was walking along the street quite happily.  Ten seconds later, there is a brawl going on.  One or two bystanders look for a few seconds and run.  Another couple of bystanders look for a few seconds and join in.  They have joined in that agreement to commit the offence.  Nothing need be said at all.  That agreement may arise on the spur of the moment.  An agreement can be made with a nod or a look.  And indeed an agreement can be inferred from the behaviour of the parties.

However, the essence of a conspiracy is that Mr. Austin in this case -- what the Crown have to prove is that he shared that intention to commit the offence and he intended that it should be carried out, as I have set out in paragraph 2.

Now, the level of involvement is another matter.  The Crown do not have to prove that Mr. Austin was at the top, the bottom or the middle.  If they prove to your satisfaction that Dugic was the main man and Mr. Austin was to be his assistant, then providing the constitute parts of the offence as I have directed you are made out, well then he is guilty, even if it is in a fairly subsidiary way.  It may well happen that one or more of the conspirators is more deeply involved and has a greater knowledge of the overall plan than the others.

It may also be the case that people join in at different times.  Some may join right at the beginning.  They may form the conspiracy.  Others may join in after it has been formed.  Others can perhaps drop out before it has been finally completed.  Provided you are sure that Mr. Austin at some stage agreed with a co-conspirator that the crime in question should be committed and at that time he intended that it should be carried out, it does not matter precisely where he is on the scale of involvement and neither does it matter when he precisely became involved.  He would be guilty.

It really comes to this.  If after having considered all my directions you are sure there was a conspiracy and he was a party to it, you will convict.  If you are not sure, you will acquit.

20. When the jury retired at 1.10 pm, no request was made to the judge to amend or correct any part of these directions
21.  The jury's retirement spanned a number of days. On 22 October 2012 the jury sent the judge a note: 

Can we please ask: if Austin is aware of importation of drugs and continues to drive, is this partaking in Dugic's activities?

22. There was discussion in open court with counsel as to the guidance the judge proposed to provide to the jury in response. In due course these were as follows:

Members of the jury, you have sent me a note that reads as follows.  "Can we please ask: if Austin is aware of the importation of the drugs and continues to drive, is this partaking in Dugic's activities?"

You will remember I gave you a written direction as to the meaning of "conspiracy", and I am just going to go over that again because I think that will deal with the question.

As I explained to you, a conspiracy is a criminal offence in itself.  The agreement to commit a crime is itself a crime.  So it is a criminal offence for two or more persons to agree with one another to commit that offence.  Therefore before you could convict Mr. Austin, you would have to be sure first of all that there was an agreement on or before 1^st June between two or more of the persons named in this count to import cocaine into this country.

So the first question: was there a conspiracy?  You may think - but it is for you and not for me - that it has really been the background to this case that, yes, there was a conspiracy.

The next question: did he (Mr. Austin) on or before 1^st June and while that agreement was still in existence -- did he agree with one or more of the other persons referred to in the count that the crime should be committed, and that at the time of joining the agreement he intended that he or some other party to it should carry that agreement out?  And as I said to you, if you were sure only that he was aware of Dugic's activities but took no part of them, then he would be entitled to be found not guilty.  Now your question is clearly relating to that.

As I said to you, there does not have to be any formality about entering into a conspiracy.  Entering into an agreement may occur by your actions, by what you do.  It may occur by a nod or a knowing look.  An agreement can be inferred from behaviour of the parties.  And the essence of joint responsibility is that each defendant shared the intention to commit the offence and took some part in it - however great or small - so as to achieve that aim.

As I said to you, it may well be the case in a conspiracy that one or more of the conspirators may be more deeply involved.  You may have the people at the top, you may have the people at the bottom, you may have people who play a very small role.  But everybody who joins in that agreement intending that it should be carried out - no matter what the role they play - if they have joined in that agreement then they are guilty of conspiracy.

It does not matter either at what time they join in.  So you do not achieve criminal liability only by being there at the beginning.  If there is an agreement that is ongoing and you become aware of that agreement and by your words or actions indicate that you are joining that agreement intending that it be carried out in no matter what role, why then you would be guilty of the offence.

So that is the question.  Go back to the basic written direction that I gave you.  Examine that carefully.  Was he a party to the agreement?  Did he intend that it should be carried out?  Did he join in the agreement whilst it was still in existence?  If he did, it does not matter what his role was.

Now those are the directions that I repeat to you.  Because it is obviously a very important question that you have asked, I am just going to ask you to go outside while I just discuss with counsel whether there are any other matters that they believe I should add to that direction.  Okay?  So if you would not mind just going outside for a second or two, please.

23. At this point Mr Bennathan QC expressed, for the first, time a reservation as to the circumstances in which the applicant could be convicted: 

 My concern focused on the word "continues" which maybe one reads too much into a jury note as if it is the words of a statute.  But "continues" does suggest "realised at some stage".  Well, given the uncertainty as to when he was and was not driving Dugic about, my concern would be he has been driving him around and after he has played a useful role he realised that something was afoot.

24. The judge declined to vary his direction and the jury then retired once again to consider their verdicts.
25. Thereafter, Mr Bennathan elaborated in oral submissions the substantive issue that now constitutes his criticism of the judge's directions in law.  The judge declined to give the jury any further directions and in due course the applicant was convicted. 
26. Mr Bennathan submits that the judge erred in the final part of the written directions – "if you are only sure that he was aware of Dugic's activities but took no part in them then he must be found not guilty" – for two principal reasons. First, it is suggested it provided the jury with a possible factual scenario which, on the rival cases of the prosecution and the defence, was never going to arise for their consideration. It is submitted the last occasion when there was clear evidence of the applicant having contact with Dugic was during the drive back from the Isle of Wight, and if at that stage the applicant had knowledge of this criminality, it was because he was involved in the importation. Thus, it is suggested that on the prosecution case at no relevant stage could the applicant have known of the plot whilst not being a party to it.
27. Second, Mr Bennathan critically contends that in light of this final part of the written directions, it was possible the jury may have convicted the applicant on the basis that he agreed with Dugic's activities, in the sense that he assisted him once he realised what was happening, but that he did so without having joined a conspiracy as defined by section 1 Criminal Law Act 1977. Section 1 is in the following terms:

The offence of conspiracy

1 (1) Subject to the following provisions of this Part of this Act, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either –

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question.

28. Mr Bennathan submits it was critical that the jury were not permitted to convict in the absence of an agreement to commit the offence. Furthermore, he argues that not only was it necessary for the jury to conclude there was a relevant "agreement" but that since conspiracy is an inchoate offence, it is also necessary that there was an explicit, as opposed to an implicit, agreement.
29. In the alternative, Mr Bennathan argues that, at the very least, there should have been a proven "meeting of minds" which resulted in the applicant agreeing with at least one other individual to import class A drugs.
30. Finally, it is contended that although the judge unexceptionally informed the jury that there did not need to be any formality about the agreement that underpinned the conspiracy, the example he provided of the street fight was a direction that was more apposite to a direction on joint enterprise rather than on a charge of conspiracy.

Ground 1: discussion

31. In our judgment the law in this area is clear. An "agreement" self-evidently lies at the heart of conspiracy, given the statutory provision. It need not have the trappings of a conventional contract, and the courts have counselled against introducing into the straightforward concept of an agreement to pursue a course of conduct ideas that are derived from the civil law of contract (see R v Anderson [1986] AC 27 at 37). There is no requirement of formality, and it is possible to have conspiracies in which some participants never meet others, for instance in "chain" and "wheel" conspiracies (see Ardalan [1972] 2 AER 257). As Toulson LJ observed in R v Shillam [2013] EWCA Crim 160 "Conspiracy requires a single joint design between the conspirators within the terms of the indictment. […] but it is always necessary that for two or more persons to be convicted of a single conspiracy each of them must be proved to have shared a common purpose or design [19]".
32. Mr Bennathan is correct in his observation that the judge's example of a street fight and an agreement in those circumstances being formed on the spur of the moment was perhaps somewhat inapposite as regards a conspiracy to import drugs which is unlikely to occur as a result of a nod or a look. However, he misunderstands the reason for the illustration: the judge was doing no more than indicating to the jury that there is no requirement for agreements of this kind to have any formality. These observations were immediately preceded with the direction "Now as I have said, it would be rare to have a formal agreement" and followed by the direction "However, the essence of a conspiracy is that Mr. Austin in this case -- what the Crown have to prove is that he shared that intention to commit the offence and he intended that it should be carried out […]". And a little later the judge directed the jury that they needed to be "sure that Mr. Austin at some stage agreed with a co-conspirator that the crime in question should be committed and at that time he intended that it should be carried out". There could have been no doubt in the minds of the jury that they had to be sure that the applicant had agreed to join this conspiracy, howsoever that agreement was reached.
33. Turning to Mr Bennathan's central submission that the judge's directions created the possibility of a conviction even if the jury was not sure the applicant had joined the conspiracy, it is critical in our judgment to look at the judge's directions overall. At the centre of the judge's directions, he indicated:

Before you could convict Mr. Austin of this offence - the offence on the indictment - you must be sure first of all that there was an agreement on or before 1^st June 2010 between two or more of the persons named in this count to contravene the prohibition on the importation of a controlled drug, namely cocaine, into this country.

Now as I have already told you and I will repeat to you: you decide the facts, I do not.  But I would venture to suggest that as regards paragraph 1 you might have no difficulty ticking that off.  It is a matter for you.  But you have heard that the men named on the indictment have been convicted of that conspiracy.  You may think that the defence in this case have not sought to challenge that there was such a conspiracy.  The defence here is "There may well have been a conspiracy.  I was not a part of it."

So the first question: "Was there that agreement?"  The next question - and this is where we become really focused on your task - the Crown have to prove that Mr. Austin on or before 1^st June 2010 and while that agreement was still in existence -- in other words, take as the cut-off point the point when the men were arrested which is on I think 31^st May or 30^th May.  Whilst that agreement was still in existence, he agreed with one or more of the other persons referred to in the count that the crime should be committed. 

34. That was entirely in accordance with the definition of conspiracy as it applied in this case, namely that the prosecution needed to prove there was an agreement that a course of conduct was to be pursued that, if carried out in accordance with their intentions, would necessarily involve the commission of an offence by one or more of the parties to the agreement. The final part of the direction relating to Dugic, and the applicant's awareness of his activities, was wholly in the applicant's favour, in the sense that it ensured that the jury understood that if the applicant was simply aware of "Dugic's activities" (viz. the scheme to import a class A drug) but took no part in those activities he should not be convicted ("if you are sure only that he was aware of Dugic's activities but took no part in them then he must be found Not Guilty"). 
35. We are wholly confident that this passage concerning Dugic's activities would not have caused the jury to ignore everything that had preceded that direction, and have led them to convict solely on the basis that he undertook some activity that assisted the drug enterprise without joining the conspiracy. Instead, the elements that needed to be proved as regards participation in a conspiracy were emphasised throughout, and they were repeated in clear terms when the judge answered the jury's question whilst they were in retirement, as set out above. This single short passage should not be viewed in isolation, outside its true context. As a part of the wider summing up it was wholly unobjectionable; indeed, it was necessary in order to ensure that the applicant was not convicted on a false basis.
36. Mr Bennathan has rehearsed a number of the arguments, based on the facts that he deployed at trial, in support of the contention that the applicant may not have been involved in the conspiracy. Those matters do not assist on this issue as to the adequacy and correctness of the judge's direction on the charge the applicant faced. There is no suggestion that there was no case for the applicant to answer.
37. The judge was not under a duty to direct the jury that the agreement must be explicit. There is no rule of law, founded on statute or the common law, to the effect that because this is an inchoate offence, the agreement needs to be explicit rather implicit. Instead, the requirement is that the jury is sure from all the evidence that the defendant they are considering agreed with others that the offence of importing cocaine was to be committed. We consider that it is entirely plausible that agreements of this kind could be implicit rather than explicit in nature – it all depends on the circumstances and the relationship between those involved.
38. When the directions are considered overall, they were clear, balanced and correct in law, and they ensured that the applicant would only be convicted if he had joined the agreement, and that he was to be acquitted if he was simply aware of Dugic's activities but took no part in what was occurring.

Ground 2: submissions

39. Turning to the suggested fresh evidence from Dermot Ryan, the applicant's case at trial was that his dealings with Dugic, as set out above, solely concerned buying earth moving equipment to ship to Sierra Leone. There was an obvious Sierra Leonne connection through Danilovic who had a driving licence issued in Freetown. The prosecution at trial probed the applicant's account as to Dugic's business involvement in Sierra Leone in some detail, but it was not suggested that his account on this issue was untrue.
40. After the applicant's conviction it is said his lawyers tried and failed to make enquiries in Sierra Leonne. Thereafter, the applicant's father revealed that a friend of his travelled to Sierra Leonne and, following further enquiries, the statement from Mr Ryan was obtained. After a preamble, that statement contains the following:

Ted (the applicant's father) had never discussed his son's court case with me until about six months ago. I can only assume that he was embarrassed to do so. Ted told me about his son's conviction and the circumstances surrounding his case. He told me that his lawyers were preparing an appeal and that is when the subject of Sierra Leone came up.

Ted knew that I had connections with Sierra Leone but was reluctant to ask me favours as he knows of the political situation there. However, he did ask me whether I was able to make enquiries about certain individuals who had featured in his son's case. He told me that his lawyers had made enquiries in Sierra Leone but they had gone cold.

It was at this point that Ted mentioned the two names stated above (Dominic Danilovic and Daniel Dugic). I telephoned my ex-partner who surprisingly told me that our daughter was good friends with Dominic Danilovic's daughter, that she had met him and knows him and are on first name terms. I have not asked her whether they socialise together. My ex-partner is able to obtain the address of Dominic Danilovic if necessary as he lives in Sierra Leone.

My concern is for the safety of my ex-partner, my daughter and myself if it comes to light that his details were passed on by me to the authorities in the UK.

My ex-partner also told me that Danilovic is involved in mining.

I asked her whether she knew a man by the name of Daniel Dugic. She told me that she had met him in Sierra Leone in the company of Dominic Danilovic. I have not asked anything else as I have plans to go to Sierra Leone in October and can make further enquiries if required.

41. It is suggested this material is admissible given the link to earth moving equipment was an issue in the case; it is capable of belief (Mr Ryan is a man of good character); there is a reasonable explanation for failing to adduce it earlier (the applicant's father only revealed this connection after the trial); and it may afford a ground for allowing the an appeal, given it is suggested the nature of the relationship with Dugic was at the heart of the case.
42. Finally, it is argued that the prosecution have failed to use the resources at its disposal to investigate whether there was information in this context that might have been of assistance to the applicant in establishing this aspect of his defence at trial or his appeal before this court.

Ground 2: discussion

43. Applications to introduce fresh evidence are governed by section 23 of the Criminal Appeal Act 1968. The court has a discretion to receive any evidence which was not adduced in the proceedings from which the appeal lies if it is necessary or expedient in the interests of justice to do so. We have noted that Mr Bennathan in oral argument advanced this ground of appeal as not being higher than "a slight but important basis for arguing there should be a retrial". The court, when considering whether to receive any evidence, must have regard in particular to whether the evidence appears capable of belief; whether the evidence may afford any ground for allowing the appeal; whether it would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and whether there is a reasonable explanation for the failure to adduce the evidence.
44. Given the importance to the applicant at trial of the nature of his relationship with Dugic and the suggested exports of earth moving equipment to Sierra Leone, we observe that efforts to make enquiries in that country seemingly only began after the applicant had been convicted, and that the applicant's father failed to reveal this connection until after the trial had ended: Ted Austin and Mr Ryan apparently see each other on a weekly basis.
45.  Additionally, the suggestion that Dugic had business interests in Sierra Leone was not challenged by the prosecution and at its highest this material from Mr Ryan simply tends to confirm that Dugic has been seen in Sierra Leone in the company of Danilovic and that Mr Ryan's ex-partner told him that Danilovic is involved in mining. The focus of the Crown's submissions was that the trip to the Isle of Wight had nothing to do with Sierra Leone or earth moving equipment.
46. The statement now relied on does not reveal whether Mr Ryan's ex-partner has direct knowledge of this suggested state of affairs or whether this in turn is dependent on evidence from at least one other person. There is a real possibility, therefore, that this is based on multiple hearsay. Furthermore, given what is said about the dangers in Sierra Leone, it is unlikely that further evidence from the applicant on this issue will be forthcoming.
47. We do not consider that it is necessary or expedient in the interests of justice to receive this evidence. Given Mr Ryan's account does no more than provide slender support – based potentially on multiple hearsay – as regards an issue that was not in dispute at trial (albeit the Crown properly probed the applicant's evidence on the subject), this evidence would not have had a material impact on the decision of the jury. Moreover, we do not consider that there is a reasonable explanation for the failure to adduce this material at trial: enquiries of this kind could realistically have been pursued in advance of the proceedings at Kingston Crown Court. It would have been possible to make discreet enquiries in Sierra Leone without endangering the person carrying out the investigations. Furthermore, on the evidence before this court the applicant and his advisers have failed to take any further steps since his conviction to explore this aspect of the applicant's case, which in our view could have been done without exposing Mr Ryan and his ex-partner to risk.
48. It has been suggested that the prosecution should have investigated whether there was a relevant connection with Sierra Leone. Particularly given the late delivery of the defence statement, this is a wholly unrealistic submission as regards the period covering the trial. Furthermore, following the applicant's conviction there is no obligation on the prosecuting authorities to carry out further enquiries about an issue which, as we have observed, was not in dispute during the original proceedings.
49. We stress that the position before and after trial are significantly different. The Supreme Court in R (Nunn) v Chief Constable of Suffolk Constabulary [2014] UKSC 37; [2014] 2 Cr App R 22 has addressed the contention whether the disclosure obligations of the prosecution remain the same pre-appeal as they were pre-trial. In dismissing the submission that the common law disclosure obligation remains constant throughout, Lord Hughes (with whom the rest of the Supreme Court agreed) observed:

31. The fallacy in this argument lies in the implicit assumption that the common law duty, as it evolved, was identical before and after conviction. […] it does not at all follow from the fact that the common law developed the Crown's duty of disclosure with the object of minimising the risk of miscarriages of justice that a convicted defendant such as the claimant, who asserts that his conviction was wrong, is or ever was entitled to the same duty continuing indefinitely after that conviction. The common law developed the duty as an incident of the trial process, to ensure that that process was fair to defendants. It was designed to avoid trials creating miscarriages of justice, not as a means of investigating alleged miscarriages after a proper trial process has been completed. It was not devised in order to equip convicted persons such as the claimant with a continuing right to indefinite re-investigation of their cases, and the fact that some such persons assert that their convictions were miscarriages of justice does not mean that it was.

50. In any event, the prosecution has reviewed the unused material in its possession in light of the submissions of the applicant on this issue. There is nothing to be disclosed. We reject the suggestion that at this appellate stage of the proceedings the Crown had an obligation to investigate this hearsay statement, particularly given it is based on such insubstantial foundations. We similarly do not accede to Mr Bennathan's application that this appeal should be adjourned to allow further enquiries, directed by this court, to take place in order to discover whether Dugic and others had connections in mining. It is for the applicant to introduce any fresh evidence on which he seeks to rely. As Lord Hughes observed, although "there can be no doubt that if the police or prosecution come into possession […] of something new which might afford arguable grounds for contending that the conviction was unsafe, it is their duty to disclose it to the convicted defendant. […] This is, however, plainly different from an obligation […] to afford renewed access to something disclosed at time of trial, or to undertake further enquiries at the request of the convicted defendant" [35]. On these facts it is not necessary to analyse when, if at all, the court should order investigations: this material on any view would not justify such a step.
51. In the event, there is no sustainable material to found an argument either that the prosecution failed in its disclosure obligations to the applicant or that the suggested fresh evidence reveals that his conviction is unsafe.
52. The renewed application to appeal against conviction is dismissed.

Sentence

53.  The applicant was sentenced on the basis that he played a managerial role above that of Green. The judge unsurprisingly observed that the drug trafficking trade carries huge rewards and brings misery to thousands of people. Society is severely damaged by crimes of this kind, and in consequence long sentences were considered necessary.
54. The applicant is 49 years of age and he has previous convictions including for possessing a controlled drug of Class A in 1996.
55. It is suggested the term of 28 years was manifestly excessive for the role the applicant could be shown on the evidence to have played. Furthermore, it is argued that the judge failed to distinguish between the roles of the applicant and Dugic, the absent leader of the conspiracy.
56. In refusing leave, the single judge observed:

The huge quantity of cocaine involved in this conspiracy justified the approach taken in the case of Clough. The judge heard the evidence and was uniquely qualified to assess, as well as fully entitled to make findings about, the part played by the applicant in the conspiracy. There was ample evidence on which he could form the view he did. The sentence passed was consistent with those passed at the conclusion of the previous trial and in line with Clough. There are no grounds for believing that the sentence was manifestly excessive or wrong in principle

57. In our view the judge in the court below was entitled to conclude that the applicant played a role "over and above that of the skipper of the boat" and that by his actions, movements and the telephone calls he was revealed as someone who played an integral role in the conspiracy. The judge considered that the applicant was present in this country solely in order to facilitate the importation of ¼ ton of cocaine of high purity. He clearly reflected on where the applicant fell within the structure of this conspiracy, and it was open to the court to determine that his role was greater than that of Green, Beere and Dresic (who were all sentenced to 24 years' imprisonment). Judge Dodgson presided over these trials and as Hallett LJ observed when refusing Green and Breere's applications for leave to appeal against sentence and dismissing Payne's appeal against sentence "In our judgment this court should bear very much in mind that the sentencing judge was the trial judge. He was far better placed than the members of this court to place the accused in the appropriate place in the hierarchy. He drew clear distinctions between the offenders and he gave sound reasons for so doing. He had had the advantage of seeing and hearing all the accused give evidence […] [35]".
58. We next consider whether it was necessary for the judge to retire before passing sentence, having given counsel an indication as to his non-final view as to where in the scheme of the offending the particular defendant falls to be sentenced. Mr Bennathan has suggested a complicated exercise that involves, whenever there are two or more trials of co-conspirators, a requirement on the judge to provide counsel with an explanation in advance of passing sentence as to why he has provisionally placed a particular defendant at an identified point in the hierarchy. This is unrealistic: it is clearly open to a judge to adopt this course but it is not in any sense compulsory. The applicant and his counsel would have known that the judge necessarily needed to assess the ambit of the accused's offending and the part he played in the conspiracy, in light of the roles of his co-accused. Mr Bennathan had a clear opportunity to advance submissions on that basis. Ultimately, it was a matter for the judge to resolve. The applicant suggests the evidence revealed that he was no more than Dugic's assistant. The judge was entitled to reject that contention: his duty was to determine on the evidence he had heard the right basis for the applicant's sentence and he was not bound to proceed on the most favourable interpretation of the jury's verdict for the accused (see Solomon [1984] 6 Cr App R (S) 120). The sentence must be consistent with the jury's verdict and it must be sustainable, given the evidence. Such was the case here.
59. This was a long, but wholly justified, sentence. This renewed application is also dismissed.