Dika & Anor v R. [2011] EWCA Crim 2459

[2011] EWCA Crim 2459Case No 201003976 D5 & 201003966 D5
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT KINGSTON-UPON-THAMES
Her Honour Judge Barnes
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 28/10/2011
Before
LORD JUSTICE STANLEY BURNTONMR JUSTICE ROYCEHIS HONOUR JUDGE ANDREW GILBART QCTHE HONORARY RECORDER OF MANCHESTER(sitting as a judge of the Criminal Division of the Court of Appeal)
Between
BEHAR DIKAApplicantsJASPREET SINGH GILLApplicantTHE QUEENRespondent
Michel Massih QC and Katy Thorne for Behar Dika for Jaspreet Singh Gill was not represented and did not appear.Hearing Hearing date : 14 October 2011
Judgment

Introduction

[1]On 20November 2009 at the Crown Court at Kingston upon Thames before Her Honour Judge Barnes, the applicant Jaspreet Singh Gill pleaded guilty to the following offences: conspiracy to enter into an arrangement to facilitate the acquisition, use or retention of criminal property; conspiracy to possess a class A drug – cocaine with intent to supply; and possessing a prohibited weapon.[2]On the 21 June 2010 the applicant Behar Dika was convicted of the offences of conspiracy to possess a class A drug with intent to supply and of conspiracy to enter into arrangement to facilitate the acquisition, use or retention of criminal property[3]On 8July 2010, before the same judge Dika was sentenced as follows to 18 years’ imprisonment on the conspiracy to possess a class A drug; and to 9 years’ imprisonment on the count charging conspiracy to enter into arrangement to facilitate the acquisition, use or retention of criminal property, those sentences to run concurrently. The judge made a direction under s.240 of the Criminal Justice Act 2003 that 190 days should count towards sentence.[4]On the same date, the same judge sentenced Gill as follows: on the count of conspiracy to enter into arrangement to facilitate the acquisition, use or retention of criminal property, 5 years’ imprisonment; on the count of conspiracy to possess a class A drug – cocaine with intent to supply, 4 years imprisonment consecutive, and on the count charging possessing a prohibited weapon , 12 months’ imprisonment (concurrent to the sentence on the conspiracy to possess a class A drug with intent). Thus his total sentence was 9 years imprisonment. The judge made a direction under s.240 Criminal Justice Act 2003 that 554 days should count towards sentence.[5]Dika renewedhis application for leave to appeal against conviction and sentence following refusal by the single judge. Gill renewed his application for leave to appeal against sentence following refusal by the single judge.[6]Having heard counsel’s submissions on behalf of Dika and considered the grounds of appeal and advices lodged by him and Gill, and the response of the prosecution to Dika’s application for leave to appeal conviction, we refused their applications and said we should give our reasons in writing. We now do so.

The facts in summary

[7]The prosecution of the applicants arose out of the police investigation of a vast conspiracy to import and to supply class A drugs, principally cocaine, and to launder the very substantial proceeds of their supply. Eight defendants, including Gill and Dika’s younger brother Elton Dika, pleaded guilty to conspiracies in relation to the drugs and/or the laundering of their proceeds.[8]Dika was said to be involved, along with his co-defendants, in the conspiracies to supply drugs and to launder the profits from the supply of the drugs. The drugs were bought into the UK via Germany, Holland, Belgium and France, and were concealed in lorries and other vehicles, in particular Mercedes motor cars, where they were concealed in the housing of the vehicles’ windscreen wipers. The packages were sealed in brown tape and smeared with toothpaste to avoid detection by sniffer dogs. The defendants’ passports showed travel routes undertaken across Europe to Albania. The cocaine imported into the UK was of a consistently high level of purity of between 76 and 82 per cent. It was cut with agents not typically used as adulterants in the UK. A sufficient quantity of drugs had been successfully imported in order to have generated profits that permitted the laundering of £9.8 million. The apparent wealth, hierarchy, and the nature of the membership of the organisation demonstrated that it was principally controlled through elder siblings who introduced their younger siblings to perform the more visible roles within the organisation. Recruitment to the organisation has been almost exclusively from the Albanian community in north London.[9]The police investigation (“Operation Montecarle”) began with the arrest of Gill and Deol on 21January 2009 following observations of 111 Long Lane, Hillingdon. Long Lane was a safe house rented by Gill and another defendant, Deol, and used by them for the supply of drugs. 1.25 kilos of cocaine (with a street value of £149,268) was found at Long Lane. Analysis showed that this was a composite match with cocaine later found at 7A Princess Parade, Golders Green. During searches of Long Lane and at Gill and Deol’s home addresses, documents were recovered which showed their involvement with the defendant Raja and two false bureaux de change, Exchange TR Limited and Exchange JG Limited, and the laundering of £9.8 million undertaken through those bureaux.[10]A related police investigation into Raja’s activities (“Operation Sentinel”) was already under way by January 2009. Surveillance of Raja and Gill was undertaken on 29 September 2008. Raja was arrested on 30March 2009. On 31 March 2009 police attended Priory Gardens, Wembley following the investigation into the activities of Gill and Raja (who had been seen to go there on 29September 2008). At Priory Gardens, the police found 8 kilos of cocaine (which had a street value of over of £4.5 million, the majority of which was above 76 per cent purity) and bags of cash containing over £100,000 and €20,000. The police also found a 50 ton press, moulds, a money scanner, scales, clingfilm, blenders, white powder in a sink, telephones and ticklists in co-defendant Emigan Shega’s bedroom (which set out the profit and the membership of an extensive and entrenched conspiracy to supply drugs and to launder money). Defendants Emigan Shega, Fabiol Beqiri, Xhovan Gripshi and Besniq Alla were arrested at Priory Gardens In addition to the eight kilos of cocaine, the police also found a further half kilo of Class A drugs, including crack cocaine, diamorphine, and cocaine, with a variety of cutting agents. Over £20,000 was found later that day at Alla’s home address at 7A Princess Parade. Following the arrests the police also seized 31 mobile telephone sim cards, a variety of diaries, ticklists and documents revealing the extent of those involved in the activities and the laundering of 9.8 million.[11]Following the arrests the other members of the conspiracy continued with its business. Between 6 January and 11 March 2009 proceeds of the conspiracy were transferred to pay for the refurbishment of a ship called the Destiny Empress. At the same time an unrelated police investigation into the extended membership of this entire conspiracy (“Operation Briary”) was under way. Dika was the principal subject of that operation. 3 kilograms of cocaine seized in Operation Briary was found to be a strong match with the cocaine recovered from Princess Parade and bore imprints consistent with the same press, and had DNA from Emigan Shega on the packaging. Other individuals not on the indictment were also arrested with large quantities of drugs. Analysis of telephones, documents and ticklists in Operation Montecarle and Operation Briary linked Dika to the operations and led to the police pooling the resources of Operation Briary and Operation Montecarle. Cocaine, cutting agents and a 25 ton hydraulic press were recovered from 22B Second Avenue on the 18th June 2009. Operation Briary also revealed the involvement of Elton Dika and Anwar Breich who had been involved with Gill and Raja on 29 September 2008. On 17 June 2009 Breich had been stopped in Frankfurt in a Mercedes vehicle with a concealed compartment which bore traces of cocaine. Breich and his companion were in possession of €65,000 in €500 notes, which was later returned to a person named Clodian Dika who had travelled to Germany to claim ownership of the money.[12]On 27 October 2009 Behar Dika and Elton Dika were arrested. Digun Shega had travelled to Germany the previous day and had not returned to the UK. On 20 December 2009 Spanish police boarded the Destiny Empress 200 miles from the coast of Spain. The ship was found to be transporting 1.5 tonnes of cocaine into Europe for onward distribution. On 2 February 2010 Dutch police, intending to arrest Digun Shega, instead arrested a number of his associates. Documents and telephones recovered from them demonstrated links to the members of the conspiracy, and in particular the occupants of Priory Gardens. The Dutch police also recovered a large quantity of cutting agents consistent with those used in the UK cocaine seizures, false dashboards from Mercedes vehicles, a quantity of ticklists, drug packaging and paraphernalia, industrial quantities of toothpaste and €85,000.[13]Telephone analysis showed frequent contact between Raja and Behar Dika using a number of different telephone numbers. This took place on significant dates when surveillance was taking place and when transfers were made. The continuity of their contact correlated with contact with the other occupants of Priory Gardens. Raja was shown to generally only have had contact with Behar Dika.[14]Behar Dika was interviewed and gave an explanation of his business dealings. He said that he had given £15,000 – £20,000 to help set up a café called the Mocha Café. He had purchased the lease for approximately £9,000. He gave details about his living arrangements and his vehicles. He said that he had had two Nokia phones but he could not remember the numbers for them. He had also had SIM cards for Italy and Albania. Behar DIKA had been to Priory Gardens to do building work for Mr Lee. He had also gone there to collect rent from number 7 for Mr Lee. He did not know the names of the occupants at number 7 Priory Gardens. He said that he did not know Alla, Xhovan Gripshi or Emiljan Shega. Having been shown a photograph of Raja, he said that he had seen him at the Mocha café with his brother. Raja had said that he was a lawyer. He was shown photographs of Gill and Breich and said that he did not know them. He did not know Deol. He said that he did know anything about money laundering and had not been told anything by his brother. The events of 29 September 2008 were nothing to do with him. There was no telephone contact linking him. The diary entries detailing sums to “Behari” were nothing to do with him. He knew Raja as ‘T’ but knew nothing else about him. Raja had come to the café with his brother. Raja did not talk to him. He knew Genshin Mehta (who had given Dika as a contact) as a carpenter. It was put to him that Hisni Mehta had referred to the applicant as ‘Hari Dika’ and had given his contact number as 55738. The applicant did not remember that number. The applicant had been using a 659745 at that time. It was put to him that Raja and Gill had the 55738 number as a number for him and he repeated that the number was not his. He had not been brought any money. He was not laundering drug money and knew nothing about drugs. He had not been involved in telephone calls with RAJA and GILL regarding the transfer of cash. He denied that GILL and RAJA had a called him when they were arrested. The applicant did not know why GILL was in possession of a note saying ‘Hari £56,000’ at 101. He had never met or spoken to Gill. He agreed that he had hired a white Mercedes YA08 AEM He did not remember going to Priory Gardens with two men on the 18th March 2007. He had never been there with two men. He had never collected nor delivered anything. He might have gone there to check the place. He denied that he had ever been to 22B Second Avenue. He did not know that Mikey (whom he was arrested with him at Dover) knew Raja as well. The applicant was not involved with drugs and did not know anything about money laundering.[15]It was the Crown’s case that the Albanian Defendants were the principal importers and suppliers of the cocaine, both at commercial and street level. Gill and Deol received supplies of cocaine from them and onwardly supplied it in their own right, Gill’s primary role was exchanging the currency of the proceeds of the drugs conspiracy and assisting in their transfer abroad. Raja was the demonstrable link between Gill and Deol. Breich was the link with the Albanian contingent, particularly through his relationship with Behar DIKA. BREICH, RAJA, on occasions GILL and even less frequently DEOL, were in contact with Behar DIKA and Elton DIKA. Behar DIKA and Elton DIKA were the direct link between the money laundering and the supply of drug. On the Crown’s case the hierarchy was headed by an unnamed individual in charge of the entire conspiracy. Just below them on the drugs side Behar DIKA and Digun Shega and his very close associates. On the money laundering side was Behar DIKA and RAJA. Beneath them were the other Defendants.[16]The prosecution case was that Behar DIKA was at the heart of the conspiracy. He directed and controlled the activities of the network. He had controlled the premises at 22B Second Avenue and 7 Priory Gardens. After the raid and arrest of the other defendants on the 1st April 2009 he paid the rent for Priory Gardens. On the 18th March 2009 he had been observed going into Priory Gardens with two other men and coming out carrying a bag, and then going to the other factory at Second Avenue. The prosecution relied upon the pattern of telephone calls between the applicant and RAJA, and calls from RAJA to GILL and DEOL. The applicant was the person named as ‘Hari’ or ‘Behari’ in the ticklists and the in the conspirators telephones. The applicant had a lavish lifestyle. He had leased a number of expensive cars and had made frequent trips to Europe with his wife. The applicant had lied in interview. He had failed to give evidence as he had no answer to the prosecution case.[17]Gill, Deol and Rajahad set uptwo false bureaux de change and had laundered £9.8 million through the bureaux. The money laundering operation was under the control of Raja and Behar Dika. Gill and Deol worked under them. Raja was the link to the other conspirators and was in frequent telephone contact with Behar Dika. In a subsidiary role,Gill and Deol had used the safe house at Long Lane for the supply of drugs. A large amount of cocaine was found at the address and it provided a composite match with cocaine found at Princess Parade.[18]Elton Dika was Behar Dika’s younger brother and deputised for him. He was observed with the occupants of Second Avenue and Priory Gardens. He collected the proceeds of the drug supply and arranged for their exchange.[19]The defence case for Behar Dika was that the applicant was not involved with the conspiracy. There was no evidence to link the applicant to the conspiracy. He had only been to Priory Gardens to carry out building work. There was no evidence that the applicant was the ‘Hari’ or ‘Behari’ mentioned in the ticklists or on the conspirators’ telephones. The police had deliberately recorded the applicant as having an alias of ‘Duka’ to ensure that the applicant was convicted. There was no support for the correctness of the identification of the applicant at Priory Gardens. The applicant did not give evidence and put the prosecution case to proof. He relied upon his account given in interview. The applicant relied upon his good character. The applicant relied upon evidence from his wife in support of his case and from an accountant, Mr Cohen, who confirmed that the applicant ran a legitimately profitable business.

The principal issues on the application for leave to appeal Dika’s conviction

[20]The principal evidence against Dika consisted of: i) His visits to 2 addresses used for the conspiracy, 7 Priory Gardens and 22b Second Avenue, on 18 March. If he had visited those premises, it would have been impossible to miss the drug equipment. This evidence depended on identification by the police. ii) Telephone traffic with other members of the conspiracy. iii) Transfers of money through Western Union to recipients common to other members of the conspiracy. iv) His luxurious lifestyle, which included his driving a Bentley and Mercedes motor cars, which he sought to explain as being derived from the profits of his café.[21]There are numerous grounds of appeal, all of which we have considered. The principal ground pursued orally by Mr Massih QC was the contention that the identification by the police referred to in paragraph 20(1) above was so unreliable and/or was deliberately false that it should not have been allowed to go before the jury. The prosecution conceded, and the judge accepted, that there had been substantial breaches of the Code of Practice; this should have led the Court to disallow this evidence.[22]The identification evidence was important. If accepted by the jury, it pointed to Dika’s guilt, since, as Mr Massih accepted, he could not have visited the premises in question without being aware of the drug equipment there.[23]Prosecution counsel accepted that the witness statements and logs of the police surveillance were limited. However, the police officers had been provided with a photograph of Behar Dika during their briefing and each police officer had the photograph with him.[24]In refusing the applicant the learned Judge ruled that she had to consider whether the defects were such that the applicant could not fairly defend himself against the observations. She noted that there was other evidence that Behar Dika had visited 7 Priory Gardens that night but he was only linked to 22b Second Avenue by the police observations. She ruled that there had been failings and breaches of the Codes of Practice but not such that it would be unfair to admit the evidence. There was much that defence counsel could cross-examine the witnesses on.[25]Mr Massih entirely failed to satisfy us that there is any arguable case that the judge was not reasonably entitled to make this decision. As the single judge said:
“The Judge had detailed arguments addressed to her as to whether the identification evidence should be excluded. She was in the best position to make that judgment. No error in her approach has been identified. Although she accepted that there had been breaches of the Codes she justifiably concluded that they were not so serious as to require the exclusion of the evidence. Although no description of the applicant was noted in the surveillance logs and no identity parade had been held it is important to bear in mind that this was in the context of identifications made from a photograph. It was not a “blind” identification in relation to which such matters would be of more obvious importance.”
[26]Mr Massih had cogent arguments to address to the jury as to the defects in the police identification. However, the correctness of the police identification of Dika was powerfully supported by the fact that he had subsequently insured the Mercedes motor car in which the police said he had been as its sole driver. We mention at this point that this made it impossible for Mr Massih to submit successfully that by reason of the defects in the police identification evidence there was no case to answer or that the case should have been withdrawn from the jury after the close of the prosecution case.[27]The second item of evidence of which complaint is made is the evidence adduced by the prosecution that an invoice put forward by Dika’s café was a forgery. Again, we see no basis for criticising the judge’s decision to allow that evidence to go before the jury. It went to the plausibility of the suggestion that the café was the source of the moneys that financed his extravagant life style. Again, we agree with what the single

judge said:

“As to the forgery evidence, the Judge justifiably concluded that the forged invoice had to do with the alleged facts of the offence and came within s.98. It was the prosecution case that the Mocha café was used to launder money, that it was falsely made to look like a legitimate business and that the use of fraudulent documents was one means of so doing. The forgeries came to light as a result of the investigations made in response to the evidence of the Defence’s own expert, which is why the issue only arose at a late stage. I am not satisfied that it was wrongly admitted or that any unfairness was caused thereby. As the Defence stress and stressed at the trial, it is not evidence of any great weight in the context of the overall case and there is no reason to suppose that the jury were unduly or inappropriately influenced thereby.”
[28]Like the single judge, we are satisfied that there was adequate evidence to go before the jury at the close of the prosecution case, and no basis for a finding that failures of disclosure by the prosecution or the police or malpractice by the police could conceivably have justified staying the prosecution as an abuse of the process of the court.[29]Dika complains of prejudicial comments made by a police witness and by the prosecution in their closing speech. These were of minor significance, were adequately dealt with by the judge and could not affect the safety of the verdict.[30]There was an unfortunate confusion of Dika with a man called Duka or Dukha who had been convicted of rape. This was cleared up during the trial.[31]We agree with the following observations of the single judge:
“This was clearly a challenging trial for all involved. I am satisfied that the Judge conducted the trial in a conscientious and fair manner. Many of the challenges raised relate to matters of discretion or evaluation which she, as the trial judge, was best placed to decide.”
[32]Nonetheless, the judge summed up the case concisely and clearly. Her direction on the police identification evidence cannot be faulted. There is no justifiable contention that her directions contained any error of law.[33]We endorse all of the single judge’s reasons for refusing leave to appeal against conviction. Like him, we consider that “Whether the grounds are considered individually or collectively [we] do not consider the verdict[s] reached to be arguably unsafe or that the trial was unfair”.[34]In relation to the application for leave to appeal against the sentences imposed on Dika, the single

judge said:

“The applicant was convicted of being a major player in a conspiracy to supply Class A drugs and launder the proceeds on a ‘vast” scale. Given the size, sophistication, complexity and detailed administration behind the conspiracies the Judge was justified in imposing a “long, severe, deterrent” sentence. The Judge found the applicant to be one of the most senior managers with hands-on control of the drug factories and vast network of money launderers. I consider that the Judge would have been entitled to impose a sentence of 18 years in respect of the conspiracy to supply drugs alone. When the conviction on the money laundering conspiracy is also taken into account her sentence cannot possibly be described as excessive, still less manifestly so.”
We entirely agree.[35]In relation to the sentences imposed on Gill, the single

judge said:

“The applicant’s sentence has to be considered in the context of the vast scale of the conspiracy to launder money with which he was involved. Given the size, sophistication, complexity and detailed administration behind the conspiracy the Judge was justified in imposing a “long, severe, deterrent” sentence. She found that the conspirators were “well aware of the seriousness of the events you were involved in” and that they were all “aware, to a greater or lesser degree, about how this operation was working”
. In relation to the money laundering count the Judge found that the applicant was “close to the heart of the operation”. It was a sophisticated and well thought out operation involving the setting up by the applicant of false money bureaux and the laundering of over £9 million. In relation to the count concerning the sub-conspiracy to supply the cocaine found at Long Lane this too involved serious offending. The Judge found that the drugs there were 124.39 grams at 100% which was cut and ready to go out on the street and came to 1.25 kilos with a street value of over £100,000. The Judge was justified in imposing a consecutive sentence for this offence. On the applicant’s own case this was a sub-conspiracy and not part of the principal cocaine conspiracy. In the final analysis what matters is whether the overall sentence imposed was justified, rather than precisely how the Judge arrived at it. Although there were other defendants who were involved at a higher level in both conspiracies (and who received higher sentences in relation to each such conspiracy) I consider that the seriousness of the offences to which the applicant pleaded justified a total sentence of 9 years, all the more so when one bears in mind that the applicant also pleaded to possessing a prohibited weapon, a tazer gun. In all the circumstances I do not consider the sentence ‘imposed to be manifestly excessive.”[36]Again, we entirely agree.[37]We cannot leave our judgment on these applications without commending the trial judge for the careful way she dealt with the trial, despite the challenges it presented. Her summing up was a model, and impressed this Court. The single judge, Hamblen J, considered the disparate and somewhat diffuse contentions advanced on behalf of Behar Dika carefully and comprehensively, which enabled this Court in our judgment to adopt his conclusions and reasons in their entirety.