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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Flook, R v [2009] EWCA Crim 682 (08 July 2009) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2009/682.html Cite as: [2010] 1 Cr App Rep 30, [2010] Crim LR 148, [2009] EWCA Crim 682, [2010] 1 Cr App R 30 |
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COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
HH J MARRON QC
T200706165
Strand, London, WC2A 2LL |
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B e f o r e :
MR JUSTICE PENRY-DAVEY
and
HH JUDGE RADFORD
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Regina |
Respondent |
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- and - |
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Robert Daniel Flook |
Appellant |
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WordWave International Limited
A Merrill Communications Company
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Miss S Canavan, Mark Heywood and Ben Temple (instructed by The Crown Prosecution Service) for the Respondent
Matthew Barnes for HM Revenue and Customs
Hearing dates: 1 and 2 April and 24 June 2009
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Crown Copyright ©
Lord Justice Thomas:
Introduction
i) A container containing tables and chairs consigned to Play Away Events Ltd, a defunct UK company, by Incognito Trading (Pty) Ltd, trading as Megatrade, a South African Company and sent via a unit at 18 Gillets Road, Pinetown, South Africa, was shipped in August 2006 to Felixstowe on board the MSC Aniello. After arrival at Felixstowe, it was inspected by HM Revenue & Customs (HMRC) on 10 September 2006 and found to contain about 7.5 tonnes of cannabis.ii) South African police raided premises at Tongaat, South Africa on 4 October and found 165 kg of cocaine hidden in a consignment of mirrors intended for P& G Mirrors UK Ltd
The shipment in the container on the MSC Aniello had been the 26th in what was said to be a series of shipments from South Africa to the United Kingdom which formed the basis of the conspiracies; the consignment of mirrors was to be the 27th. The issue in the trial was whether the appellant had been a party to both the conspiracies alleged by the Crown and whether his co-defendant, David Norris, had been a party to the conspiracy to import cocaine. David Norris was acquitted by the jury.
i) Did the Crown comply with its obligations in respect of disclosure of documents held by the police and other government authorities in South Africa?ii) Did the judge set out in his summing up evidence in relation to the practices of HMRC which had not been given at the trial?
iii) Did the summing up set out the defence case and was it fair and balanced?
A further ground was raised at one stage during the hearing of the appeal whether there had been a mis-direction on character. It became clear that the direction given had been agreed and the application on this ground was not pursued.
The factual background and the cases advanced at trial
(i) The undisputed factual background
i) This and the 12th -16th containers (which were shipped between March and November 2003) were not sent from Josgo's premises directly to the vessel at Durban.ii) They were diverted to premises at Constantia Park before being sent onto the vessel. The premises at Constantia Park were rented by the appellant in March 2002.
iii) After discharge from the vessel at Tilbury, they were all delivered to Unit 3D at Denton's Wharf, which the appellant accepted he had rented. Eagle Cargo Services continued to act as forwarding agents until October 2003 when FIS Tilbury Ltd took over. The evidence of Mr White of FIS was that he invariably dealt with Mr Tutton.
iv) The 11th container (which was a shipment from Josgo to PAE in September 2002) was not diverted via the premises at Constantia Park.
i) In January 2004, another South African Company, PFG Building Glass (Pty) Ltd sold 12 cases of mirrors to P&G. These were loaded into a container (the 17th) and sent direct to Durban and on arrival at Tilbury delivered direct to P&G in Brixham, Devon.ii) The 18th container (shipped in February 2004) was shipped in the same way.
i) In 2004, Mr Tutton and "Mr Ron Rust" made an arrangement with Tonlee Glass, another South African Company. 2 containers with mirrors (19th (February 2004) and 24th (April 2006)) were consigned from Tonlee to P&G. The containers were sent from Tonlee to the premises at 18 Gillets Road before being loaded onto the vessel and delivered in the UK to Denton's Wharfii) One container (20th) was shipped in April 2004 from Josgo to PAE. It was sent direct to the vessel by Josgo. This was the last shipment by Josgo which went out of business.
iii) The 21st container shipped in June 2004 contained glass consigned by PFG to P&G; it was delivered to Denton's Wharf.
iv) As Josgo had gone out of business, a new supplier of furniture became involved at the South African end Megatrade. Mr Ungar, its managing director made the arrangements with Mr Tutton, claiming to act for PAE. In April 2005 and December 2005, 2 containers of furniture (22nd and 23rd) were sent by Megatrade via Gillets Road for shipment at Durban. The containers were consigned to PAE and on arrival were delivered to Denton's Wharf.
v) In April 2006 a container with mirrors (24th container) was sent by Tonlee Glass via Gillets Road for shipment at Durban. It was consigned to P&G and on arrival in the UK was taken to Denton's Wharf.
vi) In May 2006, a container with furniture (25th container) was sent by Megatrade via Gillets Road for shipment at Durban. It was consigned to PAE and on arrival in the UK was taken to Denton's Wharf.
(ii) The Crown's case
i) The evidence of Mr Strickland that the appellant suggested smuggling cigarettes and evidence pointing to the fact that the appellant knew that PAE would be struck off unless accounts were filed.ii) Evidence that the appellant had claimed to others that he was still involved in importing furniture in 2006 from South Africa, though it was his case that he had ceased doing this in 2004.
a) Superintendent Bracken recalled the appellant and Mr Tutton discussing with him in January 2006 that they were in business together importing furniture from South Africa.b) On 20 March 2006, the appellant was stopped at Heathrow on his way to South Africa and found to have £21,000 in cash. His explanation given at the time was that he was currently importing furniture into the UK by ship. The cash was seized and he did not contest its forfeiture.c) His c.v. found on his arrest stated: "October present: Timber Merchant South Africa".iii) The appellant's conflicting accounts of why he rented Constantia Park and the lack of documentation to support the account that he gave as an explanation.
iv) Evidence of connections with Unit 3C at Denton's Wharf (used in and after 2004 for importation) though the appellant claimed he had nothing to do with Unit 3C.
a) Documents found at the appellant's house when it was searched in October 2006 after his arrest. These principally comprised a torn Megatrade invoice addressed to PAE relating to shipment 22 or 23 and a boot bag containing various documents said to connect him with the conspiracy.b) Evidence in a witness statement from Wayne Ely connecting the appellant with Unit 3C at Denton's wharf, though Ely's evidence at trial was to the contrary. He was cross examined on his statement.c) Evidence from the owner of Denton's Wharf, Mr Ellicott, that "Ron" rented Unit 3D and then those renting it moved into Unit 3C. A man in a Jaguar had a lot to do with this. The appellant owned a Jaguar.d) Evidence from Mr Parker, the proprietor of Walkers Transport (which was the road haulier which transported the containers to Denton Wharf), that he had had lunch with Mr Tutton and the appellant in late 2005 or early 2006 from which he thought that the appellant dealt with the UK end of the garden furniture business. He also gave evidence of telephone calls from "Bob" in connection with the seizure of container 26; there was some phone evidence that was said to lend support to those telephone calls being from the appellant.v) An insurance claim form in respect of the theft of the appellant's Range Rover Vogue in which he claimed he was the managing director of "P&G Mirrors UK Ltd and Josgo UK Ltd."
vi) Connections with 263 Knights Manor Way premises accepted to be involved in the conspiracies. It was rented from its owner by "Ron Rust" in September 2003.
a) The statement of the appellant's brother in law, Mr Hart, that it was rented in 2004 from Ron Rust. The truth of the statement was challenged by the appellant. Mr Hart could not be traced and the statement was read. Mr Hart's statement also stated that the appellant told him he was making a lot of money from the garden furniture business.b) Documents in the boot bag.vii) The absence of documentation in respect of what he claimed was a legitimate importation up to 2004.
viii) He had made a "no comment" interview.
(ii) The appellant's defence
i) He had gone into the business of importing garden furniture from South Africa as the rand was at a low exchange rate relative to sterling. He had used PAE in ignorance of the fact that it had been struck off. The containers sent by Josgo were legitimate importations of furniture. He had subsequently rented the premises at Constantia Park so that he could fill the empty spaces in the containers with parasols and cushions which would then be carried to the UK at no additional cost. He had no paperwork in respect of this, as he kept no paperwork to avoid paying tax.ii) He pulled out of this trading in April 2004 after the two final importations from Josgo (containers 16 and 20), because it had become unprofitable after a rise in the value of the rand.
iii) Mr Tutton had set up his own import/export business in 2003 and, at Mr Tutton's request, he had helped him in the UK, but the help had principally been given by Roger Hills and Dave Harding who ran the UK end of the business. He remained close friends with Mr Tutton
iv) PAE was being used after April 2004 without his knowledge by Mr Tutton. It was Mr Tutton who used the identity of Ron Rust. It was also Mr Tutton who had rented Unit 3C at Denton's Wharf and he had not been involved. He had nothing to do with P&G. He relied on the evidence of Mr White of the freight forwarders, FIS Tilbury Ltd, who had arranged all the consignments other than the first 6, that he had dealt with Mr Tutton.
v) The appellant had visited South Africa because of his interests in Rugby and other businesses, including property; the meetings with Mr Tutton in South Africa were not to do with drugs and he knew nothing of the premises at Gillets Road.
vi) The documents found in his house in October 2006 were given to him when there was a clear out of the old Unit 3D at Denton's wharf when Unit 3C was rented. He was given the Megatrade invoice addressed to PAE by Mr Hills who thought that as PAE was no longer trading, the appellant ought to have it. He spoke to Mr Tutton on the phone and received an explanation which he accepted.
vii) He gave detailed explanations of the matters through which the Crown sought to link him with the conspiracy.
The trial
The issues on the appeal
Issue 1: Did the Crown comply with its obligations in respect of disclosure of documents held by the police and other government authorities in South Africa?
(i) The history of the disclosure of the South African documents
i) In November 2008, the Crown Prosecution Service (CPS) issued an International Letter of Request (LOR) dated November 2006 under Article 9 of the UN Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances 1998 (the Drugs Convention).ii) The LOR was for the most part specific in the requests it had made for evidence in relation to certain matters, but it contained a general sweep up request of "any other evidence which would be of use to the investigation or which is known to the South African Authorities in relation to the facts included in this [LOR]."
iii) Between 21 January 2007 and 1 February 2007 Detective Inspector Turner and Detective Sergeant Floyd visited South Africa pursuant to the LOR.
iv) It is clear that during that visit both officers conducted, under the supervision of the South African authorities, a full review of all the material held by the South African police in relation to the investigation. That review was carried out to obtain the evidence sought in the LOR and to ensure there was nothing held that could undermine the prosecution or assist the defence in the proceedings in the United Kingdom.
v) The review included all the material held by the South African police after the arrest on 4 October 2006 of Mr Tutton and Mr McKinnon the prosecution file (or docket) and bags of unused material. Although about two thirds of the requests set out in the LOR had been met by the conclusion of the visit and the South African authorities permitted the two officers to obtain copies of documents within the scope of the LOR and to have those sent back to the United Kingdom, the South African authorities would not permit the officers to copy or make notes of other documents or to list them in a schedule.
vi) Although the officers were there for a number of days, we understand that they very properly followed this prohibition to the extent that they did not make notes when they finished with the South African authorities during the day. The South African authorities' reason for the position they adopted was that they did not want to compromise their prosecution of Mr Tutton, Mr McKinnon and Mr Smith.
vii) The officers recalled, however, that they viewed an observation file and report made on the appellant, Mr Tutton, Mr McKinnon and others a bulky document which the appellant's newly instructed solicitors obtained long after the trial from the docket held by the South African court. The observation report sets out the detailed movements of the appellant during his visit in June 2006 and makes it clear that the log was made as a result of the attachment of a tracking device to a car. The report shows the appellant meeting Mr Tutton and Mr McKinnon, going to hotels, golf courses and other such places but not visiting either the premises at Gillets Road or at Constantia Park or at Tongaat during the course of that visit. The report also set out subsequent surveillance of Mr Tutton, Mr McKinnon and Mr Smith.
viii) A statement was provided under the LOR by Peter Mollison, a Superintendent in the South African police, on 1 February 2007 in relation to the covert surveillance undertaken in relation to the appellant. This statement made it clear that he was in possession of the surveillance reports as well as photographs taken during the period of the appellant's visit to South Africa between 29 June 2006 and 5 July 2006. A similar statement was made by Captain Ford dealing with the surveillance of Mr Tutton and Mr McKinnon at 18 Gillets Road.
ix) These statements were served on the defence on 26 April 2007.
x) At all times thereafter contact was maintained between the South African police and the police officers conducting the investigation in the United Kingdom. A further visit was made by another police officer in May 2007 in connection with financial investigations. He received further documentation which was brought back to the United Kingdom and served on the defence.
i) On 21 June 2007 the appellant's defence statement was served on the prosecution. It set out in general terms the nature of the defence and made requests for disclosure.ii) The requests for disclosure included observation evidence in South Africa and details of all information and documents that the South African authorities had not handed over to the UK investigation team.
iii) The police officers who had reviewed the files in South Africa in January 2007 tried to recall from memory what they had seen in South Africa. They could recall nothing that they thought would assist the defence case or undermine the prosecution; an enquiry was made of Superintendent Mollison as to whether the position of the South African authorities had changed and was told it had not. No further LOR was issued.
iv) The Crown's response to the defence statement and the request for disclosure was served on 19 July 2007 in which it was stated that all the observation logs had been served and that the prosecution was not in possession of the South African police file in relation to Mr Tutton, Mr McKinnon and Mr Smith. In respect of the details of the information and documents the South African authorities had not handed over to the UK investigation team, the Crown's response was "nothing to disclose". In the light of what is now known the response was a most unsatisfactory document.
v) An application was made on the appellant's behalf in writing on 19 July 2007 under s.8 of the Criminal Procedure and Investigations Act 1996 (CPIA). The application contained a detailed request for disclosure, seeking in particular the extent of the surveillance operation in South Africa and confirmation that the Crown had satisfied themselves that there was nothing in the documentation in South Africa relating to the appellant or to Mr Tutton or Mr McKinnon that could undermine the prosecution case or assist the defence. The application stated:
"It is submitted the disclosure process has not been conducted effectively without the prosecution obtaining both the used and unused material in South Africa, particularly if they wish to rely on some of the documentation obtained there. The exercise should not be selective if the documents seized have an explanation or may have a different interpretation. The unused material schedule rather unusually in this type of case has no South African items upon it at all."The points were amplified in the skeleton argument dated 22 July 2007 that was used on the application made to the Judge.vi) Apart from the statements of Superintendent Mollison and Captain Ford which had been served on the defence in April 2006, there was, as we understand it, no written response to the application. We were told by Ms Canavan, who appeared at the trial and before us, that it was made plain to the appellant's legal team at trial that the South African authorities would not hand over any papers other than those that had been served by the Crown. It is very unfortunate that we had no written record of that statement, but after enquiry of the appellant's trial counsel, Ms Canavan's explanation was not disputed.
vii) It appears that it was then agreed that the issue in relation to the surveillance of the appellant would be covered by admissions which were made in these terms:
"On 29 June 2006 [the appellant] arrived at Durban Airport, South Africa where John Tutton meets him at the terminal. They then drive to the Protea Hotel, Umhlanga Rocks.There is no evidence that [the appellant] was either at Gillets Road or at the David Whitehead Complex in Tongaat during his visit to RSA between 29 June and 8 July 2006. "It appears that matters were left there. Although Captain Ford and Superintendent Mollison of the South African Police had provided the statements to which we have referred at paragraph 26.viii), no application was made to call them, though they were, we understand, fully bound witnesses. Their statements were, we understand, read.viii) A little later during the trial Senior Superintendent Laartz and Superintendent Meedings of the South African police came to the United Kingdom. They brought with them a portion of the South African case file and documents in relation to identification procedures. Superintendent Meedings gave evidence. The documents were shown to the appellant's team at trial by Superintendent Laartz. There is no record of what was brought and we were told that neither counsel for the prosecution nor anyone from the CPS or police team was present when the appellant's counsel examined the file.
ix) On 12 October 2007, after the conclusion of the trial, Superintendent Laartz, accompanied by Superintendent Meedings, brought with them further papers including the prosecution file in connection with a LOR from the South African authorities to the United Kingdom authorities for evidence to be used in the South African proceedings. The papers were examined by the police officers who had been to South Africa. We were told that nothing was identified that could have undermined the prosecution of the appellant or could have assisted the defence case.
x) In December 2007 new sensitive material was brought to the attention of the police officers by the South African authorities. The material was examined by the police and we were told it did not undermine the prosecution of the appellant or assist the defence.
(ii) The contentions on the appeal
i) It was the Crown's duty to have examined the whole of the South African materials from the time the police force in South Africa began their enquiries about the appellant and made available any documents that undermined the prosecution case or assisted the defence. Without prejudice to the generality of the information that should have been disclosed, there were three particular matters which the appellant had so far identified the failure to disclose the surveillance report on the appellant and Mr Tutton and Mr McKinnon, any other surveillance information about Mr Tutton and Mr McKinnon and any information about a South African informant.ii) When the defence was served, a further request should have been made to the South African authorities to examine the material they held. If the South African authorities had not agreed, the procedures in Article 7 and the dispute resolution mechanism under Article 32 of the Drugs Convention should have been invoked.
iii) The judge was never told the true position. If he had been, he could have given consideration as to what steps to take to ensure that the proceedings were conducted fairly; one of the decisions he could have made was to adjourn the trial until after the proceedings against Mr Tutton, Mr McKinnon and Mr Smith were concluded so that all the South African material could be available.
iv) The failure was so serious that the appellant had been deprived of information which was essential if he was to have a fair trial.
i) No duty arose to disclose any documents other than those supplied under the LOR; the material examined by the United Kingdom police officers in South Africa was not material that had to be disclosed.ii) The police and the CPS had discharged their duties to pursue all reasonable lines of enquiry in relation to material held by the South African authorities and take all steps they reasonably could in relation to obtaining the material. Given the position taken by the South African Authorities, there was nothing further that they could have done.
iii) The appellant's team had been provided with a great deal of information from South Africa and, in particular, the existence of the surveillance report had been made known. There were no grounds for contending that the appellant had not had a fair trial or the conviction was unsafe.
The Crown's general obligations of disclosure
i) The Code provides at paragraph 3.5:"In conducting an investigation, the investigator should pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances. For example, where material is held on computer, it is a matter for the investigator to decide which material on the computer it is reasonable to inquire into, and in what manner."ii) The Guidelines provide at paragraphs 51-54:
"51. There may be cases where the investigator, disclosure officer or prosecutor believes that a third party (for example, a local authority, a social services department, a hospital, a doctor, a school, a provider of forensic services) has material or information which might be relevant to the prosecution case. In such cases, if the material or information might reasonably be considered capable of undermining the prosecution case or of assisting the case for the accused prosecutors should take what steps they regard as appropriate in the particular case to obtain it.52. If the investigator, disclosure officer or prosecutor seeks access to the material or information but the third party declines or refuses to allow access to it, the matter should not be left. If despite any reasons offered by the third party it is still believed that it is reasonable to seek production of the material or information, and the requirements of section 2 of the Criminal Procedure (Attendance of Witnesses) Act 1965 or as appropriate section 97 of the Magistrates Courts Act 1980 are satisfied, then the prosecutor or investigator should apply for a witness summons causing a representative of the third party to produce the material to the Court.53. Relevant information which comes to the knowledge of investigators or prosecutors as a result of liaison with third parties should be recorded by the investigator or prosecutor in a durable or retrievable form (for example potentially relevant information revealed in discussions at a child protection conference attended by police officers).54. Where information comes into the possession of the prosecution in the circumstances set out in paragraphs 51-53 above, consultation with the other agency should take place before disclosure is made: there may be public interest reasons which justify withholding disclosure and which would require the issue of disclosure of the information to be placed before the court."
"Under paragraph 3.5 of the Code the investigator should, in conducting an investigation, pursue all reasonable lines of inquiry, whether these point towards or away from the suspect. What is reasonable in each case will depend on the particular circumstances."
This manual is a service level agreement between the police and the CPS and this paragraph deals only with the duty of the investigating authority.
"63. . the prosecutor is not under an absolute obligation to secure the disclosure of the material or information. He enjoys what might be described as a "margin of consideration" as to what steps he regards as appropriate in the particular case. If criticism is to be made of a failure to secure third party disclosure, it would have to be shown that the prosecutor did not act within the permissible limits afforded by the Guidelines.
64. In saying this, we are not ruling out the possibility that in an extreme case it might be so unfair for a prosecution to proceed in the absence of material which a third party declines to produce that it would be proper to stay it, regardless of whether the prosecutor is in breach of the Guidelines. .. However, in so far as [the appellant], suggests that the trial was unfair because of breach of the Guidelines, it is important to bear in mind the limits upon what was required of the prosecutor under the Guidelines."
"If material does not weaken the prosecution case or strengthen that of the defendant, there is no requirement to disclose it. For this purpose the parties' respective cases should not be restrictively analysed. But they must be carefully analysed, to ascertain the specific facts the prosecution seek to establish and the specific grounds on which the charges are resisted . Neutral material or material damaging to the defendant need not be disclosed."
"The prosecuting authorities in this jurisdiction simply cannot compel authorities in a foreign country to acknowledge, let alone comply with, our disclosure principles."
The obligation is one to take reasonable steps. Whether the Crown has complied with that obligation is for the courts to judge in each case on the provision of full information to the court. It is not necessary for us to decide whether the Crown any longer has the margin of consideration referred to in Alibhai.
Inspection on behalf of the prosecutor
No unfairness which would require a stay
Issue 2: Did the judge set out in his summing up evidence in relation to the practices of HMRC which had not been given at the trial?
"I asked for statements from customs indicating whether, if something has been scanned, does that mean there are no drugs in it? Customs will neither say one way or the other. They refuse to cooperate, insofar as this particular subject matter is concerned. They will not give us an answer in relation to this quite astonishing position. Because your Honour, obviously the fact that they scanned a container and it goes through does not mean that there is nothing in it, but they won't say that in evidence because they feel it might undermine the scanning process at ports.
So your Honour, there won't be anybody coming to say that, because they refuse to say it; even though privately they might admit that that is true."
"Ladies and gentlemen, in a perfect world, that indeed may well be correct but it may be that the customs would be loath to detail how they do things and what measure of success they enjoy in deploying those initiatives.
Investigating authorities guard jealously indeed the manner, means and methods and indeed the techniques they employ.
If the information falls into the hands of the enemy, as it were, then measures to counter those initiatives can be deployed and that discretion applies also to the measures of success in their operations.
If a criminal enterprise knew, for example, that an X-ray technique was only successful in detecting a modest number of cases and failed in a significant number of others; or, if in fact, criminals discovered that the operation detected one hundred per cent successfully, then criminals might well modify their approach to importation."
"We go on Ladies and Gentlemen and say this; the Crown also are entitled to say: Is it likely that all of the ones which were x-rayed were the ones which did not contain drugs. Are you interested by that particular good fortune?"
Issue 3: Was the defence case properly put before the jury and the summing up fair and balanced?
i) After reviewing the evidence of the course of the shipments, the judge made clear that the Crown's case was that, contrary to the appellant's assertions that he had left the importation business at the beginning of 2004, he was connected to transactions later than that.ii) He set out the reasons that the appellant gave for going into business with Mr Tutton and Mr McKinnon and his use of PAE.
iii) He set out the reasons why the appellant stated he rented the premises at Constantia Park and why the containers were diverted there.
iv) He set out the appellant's evidence that he had nothing to do with PAE after early 2004 or the use of Unit 3C at Denton's Wharf or Gillets Road or Tongaat or Tonlee Glass, or Megatrade.
v) He set out the appellant's explanation of the boot bag.
i) After setting out the appellant's case that he did not know that PAE had been struck off, the judge said:"This is an area, ladies and gentlemen, of the evidence in relation to which you will have to pause and carefully examine:If Mr Flook knew that Play Away Events was no longer a registered company and had been struck off as a casualty, does that assist you in deciding Mr Flook's later intentions?If his intentions really were honest and honourable from the outset would he ever have used knowingly a defunct company?If, on the other hand, the purpose was to import drugs then the status of the company really, you may think, would be absolutely relevant?"ii) After setting out the appellant's explanation of the circumstances in which he received the Megatrade invoice from Mr Hills, he said:
"Again, ladies and gentlemen, this is an area you will have to examine very carefully indeed.We know that Hills was Tutton's man, do we not, at that stage; dealing with the UK side of the conspiracy business, the conspiracy to import drugs.He would know, you might conclude, that Play Away Events (as this document betrays) was being used in a pivotal role in these importations and that factor must have been known to Mr Hills and that factor was deliberately, accordingly to Mr Flook, being kept away from him.If that is right, ladies and gentlemen, ask yourselves why, if that is the case, was Hills risking that Mr Flook might find out about the deception to which they had subjected him in relation to the use of Play Away Events (Mr Flook's company) in the course of that exchange.You have to ask yourself: is that explanation presented and advanced by Mr Flook one which is credible?Why, you must ask yourselves, would Mr Hills be so silly, I suppose is the appropriate word, to volunteer a document to Mr Flook which might enable Mr Flook to discover the deception which was being practised on him?Mr Flook went on and said to explain this aspect he telephoned John Tutton to seek an explanation why on the face of it the document had been raised which was using Play Away Events quite wrongly; in a transaction which you will see I think was valued at about £24,512, about £25,000, and a transaction in which merchandise was being routed through the Tilbury Docks. Why should that exist?Mr Flook explained that it was simply a pro forma and that he was not using Play Away Events at all.Again, ladies and gentlemen it is your duty to look at that explanation. Examine it carefully, would an explanation you may think as bland as that satisfy Mr Flook.That document details Mega Trade which Flook denies knowing anything about at all. Ask yourselves is the explanation credible?"iii) In dealing with the appellant's evidence in relation to the renting of the premises at Constantia Road and using those premises to pack parasols into the containers, he said:
"Ladies and gentlemen, just pause and think about the parasols.The parasols explanation may, I emphasise may, have more importance than at first was appreciated.You see, the parasols and the cushions would be relevant, you may think, to the garden furniture: as opposed to the dining room tables which Mr Flook said that he simultaneously imported.No one seems to have seen any parasols or indeed any cushions. Large quantities of garden furniture were, in fact, imported and there were, you may think, every reason why (if the garden furniture remained at Denton's Wharf) nothing was found there.You know that certain items were kept under tarpaulins but no one seems to have seen at any stage the parasol or a cushion.Nor indeed is there any documentation apparently relating to parasols: which you will recognise immediately does contrast quite conspicuously to the copious documentation we have seen in relation to the acquisition of mirrors and garden furniture in South Africa. Just a thought."
Conclusion