Senior & Anor, R v [2004] EWCA Crim 454

Case No 2003/2410/C1+2003/02171/C1[2004] EWCA Crim 454
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM ISLEWORTH CROWN COURT
(MR RECORDER MACKIE)
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Thursday 4 March 2004
Before
LORD JUSTICE POTTERMR JUSTICE HOOPERMR JUSTICE ASTILL
Between
DIANNE SENIOR AND SAMANTHA SENIORAppellants
Mr Sam Stein for Dianne SeniorMr Charles Judge for Samantha SeniorMr Jeffrey Lamb (instructed by HM Customs and Excise) for CrownHearing Hearing date : 16.02.2004
JUDGMENT
[1]On 10 March 2003 in the Crown Court at Isleworth before Mr Recorder Mackie and a jury the appellants Dianne Senior and her daughter Samantha Senior, were convicted by a majority verdict (10:2) of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods (cocaine) contrary to section 170(2) of the Customs and Excise Management Act 1979. On 16 April 2003 Dianne Senior was sentenced to 15 years’ imprisonment and Samantha Senior was sentenced to 14 years’ imprisonment. They appeal against conviction by leave of the single judge, an extension of time of 7 days having been granted in respect of Dianne Senior’s application for leave to appeal.[2]The appellants both live in North London. Before these offences they had been unemployed for some time. Samantha has a son aged 6 called Milan. The appellants had made four trips to the Caribbean in the six months prior to 14 October 2002: 10 days in April/May, 11 days in July, 7 days in August and 7 days in 7/14 October. Each of those journeys was paid for in cash by someone other than the appellants. Shortly after they landed they were involved in two sets of telephone calls. The first, prior to the collection of their luggage, consisted of five calls to someone whom Samantha said was her boyfriend ‘Joe’. After collection of the luggage, Samantha was seen to use her mobile telephone call before going through Customs, the first of which was said by Samantha to have come from ‘Cheryl’ who was the sister of Kevin Berkley.[3]Having landed, the appellants proceeded to collect their luggage from the luggage belt. There were two suitcases and one black bag. One suitcase, an ‘Eminent’ suitcase, was examined by a Customs Officer before it emerged on the luggage belt. On opening it contained a chemical smell. The officer ‘spiked’ the case and saw some paste which he field-tested as cocaine. Once in the open, the officers saw Samantha take off the suitcases with assistance from Dianne. The black bag was left on the belt. As the appellants came through the Green Channel (‘Nothing to Declare’), they were stopped and asked a series of questions which they answered as follows:
“Officer (O’Donoghue): “Where have you come from? Dianne: “San Maarten. Paris before that.”
Officer: “Are you home now?” Dianne: “Yes, we live here.” Officer: “Are you travelling together?” Dianne: “Yes.” Officer: “How are you related?” Dianne: “Mother and daughter.” Officer: “How long have you been away?” Dianne: “Eight days.” Officer: “What was the reason for your trip?” Dianne: “To visit her boyfriend.” (referring to Samantha) Samantha: “Pleasure.” [These last two answers were spoken more or less simultaneously.] Officer: “Which are your bags, please?” Dianne Senior then identified the Eminent suitcase as hers and Samantha identified the second case as hers. Officer (addressing Dianne): “Did you pack your bags yourself?” Dianne: “Yes.” Officer: “Are you carrying anything for any body else?” Dianne: “No.” Officer: “Did any body give you anything to bring back?” Dianne: “No.” Dianne: “San Maarten. Paris before that.” Officer: “Are you home now?” Dianne: “Yes, we live here.” Officer: “Are you travelling together?” Dianne: “Yes.” Officer: “How are you related?” Dianne: “Mother and daughter.” Officer: “How long have you been away?” Dianne: “Eight days.” Officer: “What was the reason for your trip?” Dianne: “To visit her boyfriend.” (referring to Samantha) Samantha: “Pleasure.” [These last two answers were spoken more or less simultaneously.] Officer: “Which are your bags, please?” Officer (addressing Dianne): “Did you pack your bags yourself?” Dianne: “Yes.” Officer: “Are you carrying anything for any body else?” Dianne: “No.” Officer: “Did any body give you anything to bring back?” Dianne: “No.”

Samantha: “Pleasure.” [These last two answers were spoken more or less simultaneously.]

[4]The appellants were then arrested and placed into separate rooms. The second suitcase which had been identified as Samantha’s was then field-tested and also proved positive for cocaine. A short while later a Customs Officer heard Dianne say to no-one in particular “I knew it was too good to be true. No-one can be so kind.” He also saw Dianne mouth to her daughter through a glass partition “I’m sorry.”[5]The suitcases were then examined on behalf of the Customs and Excise. One was found to have a false lid. It contained 10kg of cocaine powder and 7.77kg of liquid cocaine. The other case contained two separate lots of liquid cocaine weighing 3.7kg and 4.7kg respectively. The purity of the cocaine was 100%.[6]The prosecution case was that the appellants were involved in a professional drug-smuggling operation. The defence advanced by Dianne Senior at trial was that, while she knew she was importing cocaine, she had been acting under duress. It was the defence of Samantha that she did not know that any drugs were in the suitcases or that she was importing cocaine. Following their arrest, the defendants received advice from solicitors before giving their interviews. At interview Samantha answered “No comment.” throughout to questions put to her. Dianne on the other hand gave short and evasive answers to questions about the trip such as “I can’t.” “I’m scared.” “I’ve been used as well.” “I’m upset.” “I don’t feel good.” “I’m frightened.” “I’m in shock.” When asked if a friend had paid for the trip, she replied “Some friend.”[7]At the close of the prosecution case it was submitted for the appellants that the question and answer session between the officer and the appellants should be excluded. That was because, before asking his first question, the officer had ascertained that one of the suitcases contained drugs, had opened and spiked it and noticed a strong smell of chemicals, and had seen it collected off the carousel by the two appellants. It was submitted that his suspicions were such that he should have cautioned the appellants at once so they could have been afforded the protection of the “Police and Criminal Evidence Act 1984” (PACE) and Code C thereunder. It was submitted that in relation to the answers to the questions asked (which we have rehearsed above), the appellants were denied a proper interview procedure and access to legal advice. In those circumstances, they had not been able to understand the significance or importance of what they were saying and there was no guarantee that what was later recorded by the officer (when making up his notes an hour or so afterwards) was accurate.[8]The Recorder ruled that there had not been a breach of PACE or of Code C but that, even if there had been, it would not have been appropriate to exclude the evidence. He said this in his written reasons given later:
“7.I do not consider that there has been a breach of C.10. The questions are those put to anyone stopped in the Green Channel and we hear them in this court in case after case. The context is a process in which every traveller half expects to be stopped, knowing that, if asked, he or she has to do so and to answer questions. It is a context different from being stopped by a policeman in the street. The requirement of C.10 is that a suspect must be cautioned before any questions are “put to him regarding his involvement or suspected involvement in that offence.”
It seems to me that the questions here are put for the “other purposes” mentioned in the code, those of Customs routine and not interrogation about involvement in an offence. As soon as the routine questions were completed, the officer cautioned the defendants who were interviewed later that day. The offence is not importing cocaine but being knowingly concerned in doing so. It does not seem to me that there are grounds for suspicion of knowledge until at least something is asked about the traveller’s state of mind. It seems to me that there is no breach of the code or its spirit unless the questions move away from the conventional into areas of interrogation such as those later found at interview. 8.If I am wrong and there has been breach of the code, it does not seem to me to be sufficiently serious to warrant the exercise of my discretion to exclude the exchanges under Section 78. Both sides have focused on the passages at page 1479 of Archbold 2003 to consider the question of whether the breaches, if there were any, were significant and substantial. The defence rely on the gravity of the charges and the consequences faced by the Defendants. There is also the importance of the charges to the Crown. There is no suggestion of improper conduct or bad faith by Mr O’Donoghue in asking what appeared to be the standard questions. There is no significant difference between prosecution and defence about what was actually said. There is nothing overtly unfair or oppressive about the questions. The questions seek basic information about the Defendants and their journey in conventional terms. The jury would have a false picture if deprived of the knowledge of what happened when these Defendants came into England, and of what was said. Looking at all the circumstances of this case I do not consider the inclusion of this evidence would have such an adverse effect that justice requires it to be excluded.”[9]In her evidence, Dianne Senior said that she had met Kevin Berkley at the beginning of 2001 and had formed a friendship with him. He had paid for her and her daughter, and on one occasion Milan, to travel to San Maartens in the Caribbean. She knew that Kevin Berkley had business dealings there. She went on four trips with him, being again accompanied by Samantha on the fourth trip in October 2002. In San Maartens they were met by a cousin of Berkley’s, staying in at least two different hotels. On this trip her relationship with Berkley had become a sexual one.[10]She said that everything was fine until the Saturday before they were due to leave when he had asked her a favour by the swimming pool. He told her he wanted her to bring cocaine back into the United Kingdom. She refused and he ducked her head under the water three times. He insisted she should do it, saying that she could easily disappear in his country. She said that Berkley had threatened to push her off a cliff and that they had had a struggle during which she had hurt her knee. He also grabbed her right breast and pushed himself over her. He had threatened her that harm would come to her daughter and Milan.[11]Dianne Senior said she had left Berkley and gone back to her room where she saw Samantha. Samantha had asked her what was wrong and she (Dianne) had made up a story about having had an argument about another man and said she would be no longer seeing Berkley. She then telephoned Milan’s father. She then went to do some last minute shopping and when she came back to the room, Berkley, his cousin and others were there in the room where the suitcases were kept. She said that she had not totally unpacked when she had arrived and that she had simply thrown things into the back of the suitcases. At her daughter’s insistence they had then gone out to celebrate the last night of the holiday. That night she and her daughter had shared a room.[12]She said that, once back in the United Kingdom, she had received a call from Cheryl to Samantha. She could not talk so she passed the telephone to her daughter. She said that Samantha had taken both suitcases and then been intercepted by the officer. When it was put to her that the suitcases must have been much heavier than justified by her own packing (the total of the drugs in one suitcase was 10kg and in the other over 7kg), she said she had not seen the suitcases until they were at the check-in on the following day and she had had no opportunity to feel their weight. She said that Berkley had also produced the black bag at the last minute containing wrapped presents for Milan. When she had thrown things into the suitcases she had swept up cosmetics and put them into the suitcases, giving them little thought as Berkley’s trade included cosmetics. She had not smelt anything out of the ordinary when packing. She said it had occurred to her that drugs might have been in the black bag (which was left on the carousel) but not the suitcases. In respect of the second set of phone calls (see paragraph 2 above) she denied that one of the calls had been from Berkley, maintaining it was from Cheryl. She said she was scared about what Berkley would do because of fears for Milan. She said no-one had witnessed the episode by the pool. She said the suitcases were the same as the ones she had taken away with her. She said there had been plenty of opportunity to put the drugs in the suitcases without her knowledge. She had no idea how Berkley would have accessed the drugs in the suitcases except that, on leaving he had said to her “See you in a couple of days”.[13]She said that when answering O’Donoghue’s questions on arrival, she was not giving much thought to her replies because she was thinking about Milan and what might happen to him. She was also trying to put all thoughts about Berkley out of her mind before being stopped. She said that Berkley was not Samantha’s boyfriend. Samantha’s boyfriend was called Joe and Samantha had been very anxious to ring him once they had landed. She agreed she had made no mention of threats from Berkley in interview. She said she was constantly thinking about the welfare of Milan.[14]When Samantha gave evidence, she said she had met Berkley in a restaurant in Dalston. He had plenty of money and gave the appearance of someone who was a successful importer of Afro skin and beauty products. When he had paid for her to go to San Maartens, she had jumped at the chance to go on a free holiday especially when on one occasion she had been able to take Milan. She said Berkley had made the arrangements for the fourth trip. She also said the suitcases brought back were the same ones she and her mother had taken out. She had not heard any commotion by the pool, although she was aware that her mother and Berkley had broken up before he went back. When it came to packing she had thrown stuff into the suitcases or given them to her mother. Her mother had reminded her to pack the bottles of cosmetics which had been given to them. She said there was nothing unusual about the bottles. She too had not smelt anything. She recalled Berkley saying he would see them a couple of days later when they were at the airport. When they had arrived back in England there had been a phone call from Cheryl. She explained that, when questioned by Officer O’Donaghue, Dianne’s answer that Berkley was her boyfriend was a lie, but not a big lie.[15]In cross-examination she said there was nothing odd about having someone else pay for a trip to the Caribbean or that one of the trips was only six weeks after the last. She said that the suitcases had been purchased on the third trip. Coming back on the fourth trip, the suitcases had been carried by the men to the airport in San Maartens. She said she had not made her own position clear in interview about not knowing about the drugs, because she had relied upon her solicitor’s advice to say nothing.[16]The grounds of appeal on behalf of both appellants are that the Recorder erred in finding that there had been no breach of PACE Code C: 10.1(Failure to Administer Caution) and in failing to exclude the evidence of the questions and answers set out at paragraph 3 above under s.78 of PACE.[17]We have been referred to a number of authorities upon the proper approach of the court in relation to cases where a breach of Code C is asserted and is found by the court to have been committed by officers concerned in the questioning of a suspect.[18]Code C paragraph 11.1A provides that:
“An interview is the questioning of a person regarding his involvement or suspected involvement in a criminal offence or offences which by virtue of paragraph 10.1 of Code C is required to be carried out under caution.”
Paragraph 10.1 in turn provides that:
“A person whom there are grounds to suspect of an offence must be cautioned before any questions about it (or further questions if it is his answers to previous questions which provide the grounds for suspicion) are put to him regarding his involvement or suspected involvement in that offence if his answers or his silence (i.e. failure or refusal to answer a question or to answer satisfactorily) may be given in evidence to a court in a prosecution. A person need not be cautioned if questions are for other necessary purposes e.g. … (c) in furtherance of the proper and effective conduct of a search e.g. to determine the need to search in the exercise of powers of stop and search or to seek co-operation while carrying out a search;”
[19]This rule applies to customs officers as well as police officers: see Okafor [1994] 3 All E R 741.[20]In that case, the appellant, a Nigerian national, arrived at Gatwick Airport from Nigeria with a single item of luggage, namely a suit carrier. He was asked a number of questions, in particular whether he had packed the luggage himself and whether everything in it belonged to him, following which his luggage was searched. Packages of cocaine were discovered in his luggage but he was not arrested or informed of what had been found, the officer wishing him to be released in order to see whether he would lead customs officers to anybody else involved in the importation. He agreed to undergo a body search. Whilst this was in progress (and other officers being deployed by way of surveillance) he was asked various questions and gave various answers without being cautioned or advised of his entitlement to have legal advice before being interviewed. Objection was taken at trial to the admission in evidence of the conversation during the body search.[21]The trial judge found breaches of the Code but allowed the evidence to be admitted on the basis that the appellant would not be unfairly prejudiced by admitting the disputed conversation. This court stated (per Lord Taylor CJ at 747d-e:
“We have come to the conclusion that the learned judge ought to have excluded this conversation. There were clear breaches of the rules and breaches which were of significance in the context of this case. Therefore we conclude, because it seems that this matter has been ventilated by Mr Issard-Davies with a view to future conduct by the Customs and Excise, that where a Customs Officer has reason to suspect that an offence has been committed, he must either avoid asking questions in relation to the offence, or he must follow the provisions of the Code and administer a caution. In the circumstances of the present case it would have been an option for the Customs Officer to talk about anything other than the case whilst conducting the search, and to have allowed the suspect to go into the concourse and then ask him questions only when he was ultimately arrested. In that way the object of trying to catch others who might be waiting to meet the suspect could have been pursued.”
[22]Counsel for the appellant has placed substantial reliance upon that case and also upon the decision in R v Nelson and Rose [1998] 2 Crim App R 399. In the latter case the court stated that, in relation to persons who come under suspicion of drug importation (notably two sisters and a brother who despite buying their tickets and travelling together prior to arrival, split up and proceeded separately through customs):
“The appropriate time to administer the caution in a situation such as this is when, on an objective test, there are grounds for suspicion, falling short of evidence which would support a prima facie case of guilt, not simply that an offence had been committed, but committed by the person who is being questioned.”
[23]In Nelson and Rose the trial judge had made no finding as to whether, and if so when, a customs officer had grounds to suspect that one of the defendants had committed an offence and the court itself proceeded to that task. This court stated:
“We are satisfied that there were grounds for suspecting that Nelson had committed a drug related offence before .. [the officer] .. started to ask her any of the questions that he asked. As is apparent from the extracts of his evidence that we have quoted, [the officer] conceded that he suspected that Nelson had brought the drugs into the country. He asked questions without first cautioning her because he wanted to be 100% sure that the bag belonged to the suspect. His interpretation of the Department’s policy was that questions could be asked without caution in order to “tie the passenger to the baggage”
. There may well be circumstances in which the requirement that there be grounds for suspicion will not be satisfied unless the officer is sure that the suspect can be “tied to the baggage”. We would also accept that the mere fact that the officer suspects a person of having committed an offence is not determinative of the question whether he had grounds for entertaining that suspicion. In our judgment, however, the fact that an experienced officer does have such a suspicion is powerful evidence that there were grounds for having it. Moreover, we remind ourselves that the requirement that there be grounds for suspicion is substantially less stringent than the prima facie case test.”[24]In this case it is submitted for the appellants that, the information known at the time when they were first approached in the Green Channel provided grounds for suspicion that they were jointly involved in an offence. That being so, the absence of the caution at the outset was a clear breach of Code C paragraph 10.1.[25]Elaborating upon the case for suspicion, counsel for the appellant points out that the officer was aware of the following prior to the interception of the appellants. The suspect suitcase bore a label marked Samantha Senior; Samantha Senior was travelling with Dianne Senior; the side of the case was unusually thick and heavy; there was a chemical and mothball smell within the case (a common attempt to disguise); an off-white paste was removed from within; the field test proved positive for cocaine; the two suitcases were claimed by the appellants together; Samantha Senior was using her mobile telephone once the luggage had been collected. Counsel submits that this was sufficient for the test for suspicion clearly to have been met; yet the appellants were nonetheless asked questions relating to their suspected involvement in an offence, in particular those as to the reason for their trip and the packing of their luggage. The questions asked were not within the exceptions to the Code as stated therein and it was obvious that such ‘dialogue’ might be given in evidence to the court in a prosecution.[26]It is submitted that the failure to caution was a ‘significant and substantial’ breach: c.f. R v Walsh 91 Cr App R 161. At trial the prosecution placed reliance on the answers given and used them to attack the credibility of the appellants and it cannot be said that, had the caution been given, the position would have been the same.[27]It is submitted that the reasons given by the Recorder for holding that there had been no breach of the Code (which reasons we have already quoted at paragraph 8 above) were wrong. In particular, the fact that the questions asked were in the nature of routine or accepted practice could not override the proper application of Code C to the individual case. This was not a random stop and search, without suspicious facts being already known. Accordingly there was a duty on the officer to act in accordance with the Code, the test not being what the traveller might expect, but what the officer suspected in the particular case. Further, the breach being serious and significant, the accepted good faith of the officer did not constitute an excuse: see R v Walsh (above).[28]In support of their assertion that the breaches were serious and significant, the appellants’ counsel analysed the matter as follows. Had the caution been administered at once and the appellants refused to answer questions thereafter, there were grounds on which they could and should have been arrested. This would have triggered the requirement of Code C:11.1 that they ‘must not be interviewed about the relevant offence except at a police station or other authorised place of detention’; of Code C:6 and 11.2 (information and entitlement to free legal advice); and Code C:11.7 (proper records of interview): see R v Cox (1993) 96 Cr App R 464 at 470-471.[29]Finally, with specific reference to the question of fairness under s.78, it is submitted that the effect of the breaches was to give material to the prosecution on which to cross-examine the appellants at trial. The appellants had been asked questions by the customs officers in each other’s presence and thus their defences were inextricably intertwined. The answers to the questions were used to test the defence of duress subsequently advanced by Dianne Senior. In particular, it was put to her that, had her plea of duress been true, she would have advanced it at the time, instead of asserting that the purpose of the trip was to visit her daughter’s boyfriend. In the case of the daughter, she was cross-examined on the basis that she joined in, or at any rate she did not contradict, her mother’s lie because she knew it to be untrue but was intent on backing her mother’s story as a matter of solidarity in the course of a joint enterprise.[30]For the respondents, by his written skeleton argument, Mr Lamb has sought to support the ruling of the judge. He has also confirmed to us that the series of preliminary questions asked by the customs officer in this case is routinely asked of persons who are stopped when arriving with their baggage through the Green Channel in order to establish whether there are good grounds for suspicion that they have committed an offence and that, in the case of persons travelling together, it is in principle regarded as inappropriate to detain one or both unless the one who is the owner or custodian of the bag has been identified. That having been done, it is customary to ask that person whether he or she has packed the bag themselves and whether they are carrying it or any of its contents on behalf of someone else. Once such routine has been performed, a judgment will then be formed on whether or not to detain the person for formal interview on grounds of suspicion of the offence of fraudulent evasion on the prohibition on importation of drugs.[31]It seems to us that, in principle at least, that is a sensible and proper procedure and that the judge rightly found no reason to doubt the bona fides of the officers in this case in carrying it out. Certainly, in making application to the judge for exclusion of the evidence, the defence did not require the officers to give evidence as to the time at which, or the grounds upon which, they decided that their suspicions were sufficiently well founded to detain both appellants, and then good faith was not challenged.[32]That said, however, the good sense and propriety of such routine questioning as a proper protection against error and/or wrongful arrest does not preclude the need to approach each case on the basis of the state of knowledge of the investigating officers in relation to the individual traveller under investigation. In this case the judge appears to have taken the view that the routine questions may in every case be regarded as put for the ‘other purposes’ referred to in Code C:10.1 and that in every case it is right to take the view that proper grounds for suspicion will not be established until some question has been directed to the state of mind of the traveller, given that the ingredients of the offence require knowledge. We do not think that is so. When objection is taken in cases of this kind on the basis that Code C has been breached, it must be adjudicated on the merits of the individual case rather than by rule of thumb. By the same token, however, it would be incorrect to proceed (as the appellants’ arguments suggest) on the basis that, simply because two persons are apparently travelling together and one may be seen to help the other with a bag which is known to contain drugs, both are involved in the offence of fraudulent evasion. In principle, it seems to us that it will usually be right to seek by questions to both persons to establish who is the custodian of the bag and in an appropriate case the circumstances in which he or she is in possession of it.[33]In recognition that this is indeed the proper approach, Mr Lamb for the respondent modified his position in his oral submissions to us. He maintained his argument that the preliminary questions to both women up to and including the words “Which are your bags?” were no more than routine and proper questions, properly administered to any traveller whom it has been decided to question on passage through the Green Channel. As such, he submitted that the questions were within the exception contained in example (c) in Code C: 10.1, so that no caution was required. However, he conceded that thereafter, upon identification by Dianne Senior of the bag known to contain drugs as hers, a caution should have been administered to her before asking her the last three questions which were indeed directed to her. In the case of Samantha, he submitted that there was simply no breach of the Code at all, because suspicion of her position did not harden to the point where arrest was justified until the questioning of Dianne was complete.[34]We pause for a moment to observe, in relation to the final limb of that submission that, if it is submitted that the position in relation to Samantha was sufficiently suspicious to arrest her immediately following those last three questions, it must surely have been so before, because the last three questions were addressed entirely to Dianne Senior and answered by her in a manner which did nothing to further the cause for suspicion against Samantha beyond the fact that she was travelling with her mother following a holiday with her.[35]However, we consider that the argument for the Crown falls down upon a broader ground than that. As a result of what he had seen and already knew, Mr O’Donoghue had already seen the two travelling together and assisting each other in relation to a suitcase heavy with drugs. They had been watched and were approached together and it must have been plain that, in addressing preliminary questions to them which were directed towards both of them, the answers which one gave in the other’s presence were likely to be given in evidence in any proceedings which followed, following the tying of one to the suspect suitcase. In those circumstances, as it seems to us, the proper procedure was immediately to ask each to identify her bag without preliminary questions of a kind which might later be treated as admissions or inconsistencies at trial.[36]In the absence of evidence from the Customs Officers to suggest a different position, we would infer that the officer suspected both women of being involved in a smuggling operation. Even if that were not so, on the basis that the state of mind of the officers was such that all they needed was confirmation that the bag belonged to one of the appellants, it seems clear to us that the question as to ownership should have been asked at the outset and, thereafter, a caution administered to both, both were to be questioned further.[37]Even so, and accepting such breach of the Code as having been significant and substantial, we do not consider that this is a case where fairness required exclusion of the questions and answers under s.78 of PACE. As to surprise or unfairness at the time the questions were asked, like the judge we consider that the questions were of a type which any traveller, and certainly one involved in drug smuggling, must expect to face upon entry to this country, and to suggest that the appellants might not have so expected and were not ready to answer the questions without the presence of a solicitor is in our view fanciful. Nor, as pointed out by the judge, is this a case where there was dispute over the content of the questions and answers; thus the absence of protection as to the recording of the “interview” is of no significance whatever. The questions were straightforward and able to be answered without any difficulty or error of understanding. Any refusal to answer them at that stage following caution (if one had been administered) and whether with or without a solicitor, would have been bound to give rise to a degree of prejudice in the eyes of the jury in the sense of opening the appellants to adverse inference by reason of their refusal to answer. Nor were the appellants under any difficulty or disadvantage in the trial process in explaining their position to the jury.[38]The core of the suggestion of unfairness against Dianne Senior is that, as a result of her admittedly untruthful answer that the appellants had been abroad to see Samantha’s boyfriend, it was used to discredit the late advancement of her plea of duress. However, it was submitted by Mr Lamb and acknowledged by Mr Stein on behalf of Dianne Senior that the gravamen of the attack upon her was less her statement at the outset as to the reason for the trip than her total failure, with the benefit of advice, her solicitor present and ample opportunity to ask for protection from the authorities, to advance the defence of duress in her interviews, when, albeit stressed and distressed as she asserted she was, she had full opportunity to do so. Furthermore, at the beginning of her interview, when the questions and answers previously asked and given were repeated over to her, she agreed them to be fair and the answers correct. Thus any prejudice to Dianne Senior stemmed in reality from the interview, the evidence as to which was admissible and was dealt with by her as best she could.[39]As to Samantha Senior, when the question of her silence and/or her reply ‘Pleasure’ as the reason for her trip without contradicting her mother was put to her in cross-examination, she explained to the jury that, they had given their reply simultaneously and that, though she had heard the answer of her mother to the effect that they had been visiting her (Samantha’s) boyfriend, it did not appear significant as it was only a little bluff.[40]Finally, we are quite satisfied that, if (contrary to our view) fairness required the exclusion of the questions and answers, their inclusion in no way goes to the safety of the conviction. The reasons are essentially those already given. So far as Dianne Senior was concerned, there was no evidence whatever to support her assertion of duress, either from Samantha or elsewhere. She was plainly convicted on the basis that the jury did not believe that defence. In her case, the judge gave no weight to the ‘boyfriend’ answer, but invited the jury to consider the defence in the light of her failure to raise it during the interview and the conviction plainly depended upon the jury’s assessment of her overall credibility in respect of a somewhat exiguous plea. So far as the knowledge of Samantha was concerned, the jury no doubt regarded as incredible, as do we, her plea of absence of knowledge bearing in mind her close relationship with her mother, her free trips on previous occasions, her insistence with her mother that the suitcases brought back were the same as had been taken out and the increase in weight of the suitcases which must have been apparent with the addition of 10kg of drugs.[41]For the reasons above, both appeals are dismissed.