Maillet, R v [2005] EWCA Crim 3159

Case No 04/5758/C3[2005] EWCA Crim 3159
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 8 November 2005
Strand
London, WC2
B E F O R E:
LORD JUSTICE LONGMORE
MR JUSTICE DAVID STEEL
RECORDER OF WINCHESTER
HIS HONOUR JUDGE BRODRICK
Between
R E G I N ACrown-v-
Between
MENELIK TUTAN PHILIP DANIEL MAILLET
Computer Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR JEFFREY LAMB appeared for APPELLANTMISS SALLY THOMPSON appeared for CROWN
J U D G M E N T

LORD JUSTICE LONGMORE:

[1]On 18th August 2004 in the Crown Court at Croydon before His Honour Judge Macrae this appellant, Menelik Maillet, was convicted following a retrial of being knowingly concerned in the fraudulent evasion of a prohibition on the importation of goods, namely 2.5 kgs of cocaine. He was, after conviction, sentenced to a term of twelve years' imprisonment.[2]There was a co-accused who pleaded guilty a month earlier to being knowingly concerned in the fraudulent evasion of the prohibition on the importation of goods and he was sentenced to a term of eight years.[3]Maillet now appeals against conviction by leave of Field J, who in granting leave said this:
"This being a case where the credibility of the applicant was of major importance, it is arguable that the judge was wrong to decline to give a good character direction as to the credibility (and possibly also as to propensity) on the ground that the applicant had been cautioned for the possession of cannabis in Denzil Road NW2 for personal use."
[4]The evidence was mainly that of the Customs. The Customs officer was attracted by the excessive weight of the co-accused's cooler bag, which tested positive for cocaine. The bag weighed 5.25 kgs. The bag carried by the co-accused weighed 2.47 kgs on its own and the bag carried by the appellant weighed 2.37 kgs.[5]The appellant said that he had decided to go to St Lucia in August 2003, but it appeared that no booking was made until 9th December, ten days before the appellant and the co-accused flew out. They were due to fly back on 31st December. The booking for the return flight was made on 30th January 2004. The appellant told the Customs officers that he had been on holiday. He had seen relatives but had stayed in a hotel.[6]He gave evidence. He said that he had taken £500, some clothing in his suitcase and a cooler bag. He had known the co-accused Hector for ten years. He did not know that Hector had cocaine in his bag. It was also Hector's idea to go out to St Lucia as he had friends over there. Hector's friend Tiny found them somewhere to stay on the island. Tiny said that there was a festival on the island that they would enjoy, so they decided to stay. Tiny said he would sort out their tickets. They relied on him for the following month as neither of them had any money left. He understood that Tiny was not expecting to get reimbursed for the tickets.[7]On one occasion the appellant did say that he noticed one of the cooler bags had been moved from their room into the lobby. He thought that was a bit strange. He picked one up and put it back in his room. He did not notice anything different about it. He got his ticket from Tiny two days before they left.[8]In cross-examination he agreed that it was intended to be a two-week holiday but was in fact a six-week break. He agreed that he could not get it right in interview. He agreed that he had not purchased any souvenirs, even during the first two weeks of his stay. The festival was a one-day affair. It occurred about a week after they were due to leave. They had stayed longer because they had no money. He acknowledged that it was very generous of Tiny to pay for their flights.[9]This appeal is centred on the refusal of the judge to give a good character direction. The way the question of character arose was that in the first place counsel then acting for the appellant said that he wished to raise the question whether he could adduce from the relevant police officer in cross-examination that Hector had significant previous convictions. The judge then himself raised the question of the caution which the appellant had received some five years before for the possession of cannabis for his personal use, only to be told that Aikens J, at the first trial, had directed the previous jury that no convictions were recorded against the appellant and that learned judge then proceeded to give the defendant the benefit of a good character direction. His Honour Judge Macrae disagreed that that was the right way to proceed; and the matter was left over to the next day, when counsel then appearing for the appellant decided not to pursue the matter of a good character direction on behalf of his client and made no mention of Hector's previous convictions to the jury. The learned judge said that in his view it was not right to put the appellant forward as a man of good character as that would be to mislead the jury.[10]Mr Lamb, who did not appear below, now submits to us that the judge was wrong not to have given a good character direction, and indeed a full good character direction, because the appellant's credibility and lack of propensity in committing such offences was an essential part of his defence. He also submits that the judge was wrong to regard the caution received by the appellant in May 2000 as disbarring him from being treated as a man of good character and thereby preventing his counsel in practical terms from adducing the previous convictions of the co-defendant Hector.[11]In the case of Martin [2000] 2 Cr App R 42 this court noted the helpful article of the late Sir Richard May in [1997] Crim LR page 491 identifying the problem raised by defendants being previously given cautions. That case shows that an accepted way of dealing with the problem is to direct the jury that the defendant has no previous convictions and that that should be a matter which they should bear in mind when they are considering whether to believe his evidence. That is the first limb of the normal good character direction. The actual decision in the case of Martin was that the judge there was right not to have given the second limb of the good character direction, namely propensity, and the court therefore dismissed the appeal.[12]But, in our view, when a caution is in issue, a judge is not bound to give such a direction as was given in the case of Martin. It is a matter for the judge's discretion. It is, in our judgment, difficult to criticise a judge who decides in a drug case that, when the caution is for the possession of another drug, albeit for a lesser offence and in respect of a lower class of drug, a good character direction should not be given. The fact is that this defendant, as he was entitled to do, decided to conceal from the jury a potentially relevant matter, namely that he had on a previous occasion been cautioned for possession of cannabis. It is not for the defendant to dictate to the court the terms of such a concealment and insist that, as a matter of law, a good character direction, whether one or both limbs of it, be given.[13]The result of that may be that in some cases some defendants may be more fortunate than others. But when a defendant is himself the instigator for the concealment of his past from a jury, that, in our judgment, is no injustice. For those reasons, despite the understandable grant of leave by the single judge, we find it impossible to say that His Honour Judge Macrae exercised the discretion (which he undoubtedly had) on a wrong basis in this case, and this appeal will be dismissed.