Czyzewski, R. v

1. THE VICE PRESIDENT: On 22nd August 2002 at Birmingham Crown Court following a trial before His Honour Judge Marshall, the appellant was convicted, on the second and third counts in the indictment, of being knowingly concerned in fraudulently evading duty on cigarettes. He was sentenced to 4 years' imprisonment on each count concurrently. He appeals against conviction by leave of the Single Judge.

2. There were two co-accused called Rzechowski and Sarzala, who were also convicted on the same two counts, and each sentenced to two-and-a-half years' imprisonment.

3. There were three counts in the indictment relating to three separate consignments of cigarettes hidden in plastic pipes and imported from the continent of Europe into the United Kingdom. Arrangements for these consignments had been made in the name of Richard Musvyda of Beamlex Ltd. Two of the consignments referred to as LHT 29 and LHT 59, in relation to which the appellant was convicted, were to be delivered to premises at Unit 23 Whitworth Industrial Estate, Birmingham, on 24th July 2001. Count 2 related to LHT 29 which arrived at Immingham on 22nd July. The load was searched by Customs and Excise officers and they found two-and-a-half million cigarettes concealed in 168 plastic pipes. Surveillance was kept on Unit 23 and that consignment was delivered there on 24th July.

4. Count 3 related to LHT 59. That had arrived from the Continent at Felixstowe on 23rd July when a similar amount of cigarettes, similarly concealed, were discovered. That load was seized and held back by Customs and Excise officers. The third load was also delivered to Unit 23 on 24th July. At the time of delivery a number of people, not including the appellant, were arrested.

5. It was the Crown's case, so far as the appellant is concerned, that, on 24th July, between 9.08 and 9.10 in the morning, he had been seen leaving an Asda supermarket near West Bromwich, with the two co-accused to whom we have referred. He was seen again at 1.27 pm, near the Whitworth Industrial Estate.

6. There were documents found at the appellant's home after he had been arrested on 3rd August, which linked him to the co-defendant, Sarzala. There was also adduced in evidence a fax message, dated 20th June 2000, addressed to the appellant from Ferryline Trailers, informing him that a trailer consigned to Eurominute Ltd, which was a company the appellant owned, had arrived in the United Kingdom via Dartford and had been seized by Customs and Excise officers. The reason for that seizure was that over two-and-a-half million cigarettes had been found in the consignment, hidden in timber. To that matter, which gives rise to the appeal in relation to conviction, in a moment, we shall return.

7. In the course of being interviewed by the police following his arrest, on 3rd August, the appellant claimed that he had gone to the Whitworth Industrial Estate on 24th July, having been told the previous day by a Polish gentleman, called Andrew, that he could there buy a small quantity of cigarettes. He travelled from Manchester that day to meet two Polish lads at Asda at about 10.00 am. He claimed that they had seemed surprised at the small quantity of cigarettes that he wanted to buy. There were three or four other men there, none of whom he had previously met. He was, he said, a heavy smoker, but he had not been there to buy cigarettes before. He said that he had met a man who told him to hire a van and put some money under the seat, following which the van would be filled up with the cigarettes he wanted. But he then decided that perhaps it was a set up and he would be robbed and so he left the scene without buying any cigarettes. He had never seen any of the people before. He did not give evidence before the jury. Sarzala did not give evidence either. He claimed in his interview not to know the appellant.

8. The focus of this appeal, which has been attractively and succinctly presented to this Court by Mr Khan on behalf of the appellant, relates to the admission in evidence of the fax of 20th June 2000, to which we have referred, and the way in which that aspect of the case was dealt with in the summing-up.

9. The submission made by Mr Khan is that that fax was simply inadmissible in evidence. It did not go to any issue which the jury had to determine.

10. There was no relevant inference capable of properly being drawn from the appellant's possession of that fax, 12 months later, in relation to the consignment to his company of timber 12 months before.

11. Furthermore, Mr Khan submits that when, in the course of his summing-up, the learned judge dealt with that matter, the way in which he first dealt with it was a misdirection. It is accepted by Mr Morse, on behalf of the Crown, that the judge did misdirect the jury as to the significance of the evidence in relation to the fax, when he first dealt with it. It is, however, common ground that, that misdirection having taken shortly before the lunchtime adjournment, Mr Morse, on behalf of the Crown, having alerted the judge to the misdirection, the judge, immediately the case resumed after the short adjournment, gave the jury a further direction as to the significance of the fax. What he then said was this, as appears at 39C of the transcript:

"Members of the jury, may I in fact clarify something I said just before we broke for refreshment. The importance of the evidence about what occurred in June 2000, which I am just about to deal with fairly shortly, is that it goes to the defendant, Czyzewski's knowledge of what he was doing in 2001 and you are entitled to use that evidence to support the view that he was knowingly concerned. Do you understand? It does not prove he did it as such, which is what I said, but it is evidence which will assist you in deciding whether he was knowingly concerned."

Mr Khan submits that that was an inadequate direction and that the judge could have gone further.

12. As it seems to us, the judge clearly could have gone further. He could have ventilated before the jury the possible inferences that were open to them in relation to the knowledge of the defendant in July 2001, having regard to the consignment which, 12 months previously, he knew the Customs and Excise had seized.

13. The first question which arises is whether that evidence was properly admitted. Mr Morse submits that it went to prove knowledge. We agree. The crucial question for the jury's determination in this case was whether or not the appellant knowingly participated in this importation. As it seems to us, it was relevant to this that he had in his possession a fax in relation to a consignment of timber, 12 months before which, from the terms of the fax, he knew Customs and Excise had seized.

14. As it seems to us, there were a variety of inferences which the jury were capable of drawing in the absence of any explanation from the defendant (for there was none), as to what he did or did not do in June 2000 in the knowledge of that fax and what bearing if any that had on his crucial knowledge in relation to July 2001.

15. The second question is whether that evidence having, as we conclude, properly been admitted, the judge, in the passage which we have rehearsed, corrected the earlier misdirection. In our judgment, he did. He made it plain that the jury must approach that evidence, which he set out in the summing-up, on the basis that it was relevant to the defendant's knowledge in July 2001. Accordingly, as it seems to us, there are no grounds for regarding this conviction as unsafe and Czyzewski's appeal against conviction is accordingly dismissed.