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England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Choudhury & Anor, R v  EWCA Crim 3179 (18 December 2008)
Cite as:  EWCA Crim 3179
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London, WC2A 2LL
B e f o r e :
MR JUSTICE MADDISON
HIS HONOUR JUDGE STEPHENS QC
(Sitting as a Judge of the CACD)
|R E G I N A|
|MUNAJ ALAUR RAB CHOUDHURY|
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Mr K Metzger appeared on behalf of the Appellant Abbas
Mr M Burrows QC appeared on behalf of the Crown
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"If you are satisfied about certain matters that the prosecution have established then the onus of proving that the defendant whose case you are considering did not know the contents of the holdalls contained drugs moves to that defendant and it is for the defendant to prove that he did not know, believe or suspect that the holdalls contained drugs. But where as the law requires in this particular case the onus moves to a defendant once the prosecution have satisfied you about certain matters it does not mean that the defendant has to make you sure of those matters. All the defendant has to do when the onus is placed upon him is to satisfy you of the matters on a balance of probabilities; in other words, that it is more probable than not that what the defendant tells you about his statement of knowledge is correct."
That was in fact the second passage in the summing-up in which the Recorder placed the burden squarely on the defence to prove lack of knowledge of the contents of the holdalls.
"...you must be sure, not simply that Mr Abbas had custody or control of the drugs, but also that he knew that they contained the drugs and only then could you convict him. Just be very clear, you must be sure that the defendant knew that the bags contained drugs before you could find him guilty of the charge on the indictment."
Unfortunately, however, the Recorder went on to give a further and inconsistent direction about the issue of knowledge in these terms:
"It is a defence to this charge for the defendant to say, as he does in this case, that he neither believed nor suspected nor had reason to suspect that the bags contained controlled drug, or, indeed, to open them to inspect their contents. If you consider that it is more likely than not in all the evidence that the defendant did not believe, suspect or have reason to suspect that the bags contained drugs or to open them to inspect them then you should acquit him.
On this issue, the one I have just described, as a matter of law the burden is on him. It is on the defendant... As a matter of law it is on the defendant to prove this defence as an exception to the general principle and you do not need to be sure. The standard of proof is different. On this occasion in relation to this issue you need to consider whether it is more likely probable than not."
"He says that he had no control over the holdalls, but you will remember that when questioned by Mr Burrows for the prosecution he conceded first that he knew the holdalls were in the boot and that if he wished to get access to them during the journey the configuration of the car was such that he would be able to do so."
Mr Price submits that this direction was inadequate. The Recorder ought to have made it clear to the jury that the scenario that he described was not sufficient to prove control unless Choudhury was actually exercising control over the holdalls directly or indirectly. The mere fact that there was a potential for him to take hold of the bags physically was not enough to establish control. It would have been easy enough, it is submitted, to have given a clearer direction on how control was to be established, whether in terms of actual control by each defendant individually or joint control, and the Recorder should have gone on to do this.
"It must be comparatively rare for a drug dealer to entrust such a valuable parcel of drugs to an innocent. In any event the appellant's detailed story stretches judicial credibility beyond breaking-point. Even if the judge had directed the jury in accordance with law as I have held it to be the appellant's conviction would have been a foregone conclusion."
"We see the force of the prosecution case and its strength but, having regard to the fundamental importance of the burden of proof, as highlighted by their Lordships [in Lambert], a verdict adverse to the appellant upon a proper direction was not inevitable."