Hansford v R.

On 13^th March 2003, at the Crown Court at Southampton, before His Honour Judge Boggis QC and a jury, the appellant Paul Hansford was convicted of an offence of conspiracy to cheat the public revenue. On 3^rd April 2003, he was sentenced to 7 years imprisonment. Seven co-accused were either convicted or pleaded guilty to offences arising out of the same conspiracy and were sentenced to terms of imprisonment ranging from 15 months to 7 years. All applications by co-accused for leave to appeal against either conviction or sentence have either failed or lapsed. The appellant now appeals against conviction by leave of the full court.

The Crown case at trial was that the appellant and co-accused were participants in a diversion fraud centred on a warehouse in Southampton operated by Southern Bond Ltd (SB). This company was owned and operated by the appellant who was an accountant by profession and also had a practice known as SMS Accounting. In September 2000, permission was granted by HM Customs and Excise for SB to operate a bonded warehouse, receiving wines and spirits for storage without payment of excise duty. Duty was payable when the goods left the warehouse, unless they were to be sent abroad or to another bonded warehouse in this country. Duty was evaded and the fraud perpetrated in that goods were sent from SB to various destinations in this country and the true destinations were concealed. This was done either by failing to prepare any documentation to show the transactions concerned or by creating false documentation, which gave the impression that the goods had been sent to another bonded warehouse, either Stanton Bond, on Merseyside or to Connaughton & Sons, in Dublin. The Crown’s case was that the appellant was deeply involved in the fraud; he controlled SB and was responsible for the creation of much of the false documentation.

The appellant did not dispute that the alleged fraud had taken place and that it had involved SB. His defence was that he had not been knowingly involved at the time when the fraud was set up in the autumn 2000 or during the following weeks. At the end of February 2001, he had discovered what was happening. At least one of the conspirators knew that he had made this discovery. He claimed that, soon after making this discovery, he received anonymous threats to the safety of his family. For that reason, he did not report his discovery to Customs. He went along with the conspirators although, he claimed, trying to put obstacles in their way. When arrested, he did not say in interview that he had been threatened. He put forward this explanation when he served his defence statement and later relied on it at trial.

Ian Maxwell was convicted of conspiracy and was sentenced to 7 years imprisonment. He was the main beneficiary of the fraud. Through his company, Riga Wines Ltd, he imported large quantities of spirits, mainly whisky and vodka, from Latvia. These spirits were stored at SB, so Riga Wines was a customer of SB. The Crown case was that Maxwell controlled two other companies named Baltic Wines and Abbeytex Services. However, according to the Crown, these were not real trading companies but were a front for Maxwell. Abbeytex was registered with HMCE as the owner of excise goods; a person named Joe Kindred was said to be in charge of Abbeytex. It was the Crown’s case that Kindred did not exist although the appellant said that he had met him. Documentation was created to show that spirits had been transferred from Riga Wines to one of these front companies, thereby creating a distance between the avoidance of excise duty and Maxwell’s company Riga Wines. The use of the name Abbeytex allowed Maxwell to make it appear to Customs that any failure to pay excise duty was the responsibility of Kindred, not Maxwell.

Another important conspirator was Christopher Screen. He was employed by SB (in effect by the appellant) as the store man at the warehouse. He was responsible for removing goods from the warehouse and arranging for their transport. He pleaded guilty to the conspiracy and was sentenced to 4 years 9 months imprisonment. The Crown put Screen’s conviction in evidence at the appellant’s trial and contended that, if he knew about the fraud, it was highly likely that the appellant also knew of it.

John Anthony Dennis ran a transport company which was responsible for delivering the spirits. He knew that the goods were not being taken to the destinations shown on the documentation. He was convicted of conspiracy and sentenced to 4 years imprisonment. He had a driver called Paul Mead who was also convicted. He knowingly delivered goods to destinations other than those shown on the documentation.

Simon Pierce-Jones was involved in the fraud but had a less clearly defined role. He pleaded guilty to one count of being knowingly concerned in the fraudulent evasion of excise duty and one count of transferring the proceeds of criminal conduct. He was sentenced to 2 years 6 months imprisonment. He liaised between Maxwell and one of the transport drivers and on one occasion he paid the proceeds of sale of spirits into a bank account. He appears to have been closely associated with and trusted by Maxwell. As we will later explain, he had a number of criminal associates.

Another conspirator was Raymond Hughes who was a business associate of the owner or director of Stanton Bond. He pleaded guilty to the conspiracy and was sentenced to 3 years imprisonment.

Before explaining the course of events which the Crown alleged had taken place, it is convenient to explain the essential aspects of the document system which was imposed by Customs upon the operators of bonded warehouses such as SB.

Customs required operators who wished to operate a bonded warehouse to seek approval and registration. Once approved, an operator had to notify Customs of all the customers whose goods he intended to receive into bond. Operators had to submit, on form W2, periodic returns of goods received into and leaving bond. The movement of excise goods between approved bonded warehouses within the UK had to be recorded on Customs Forms W81. The despatching warehouse (in this case SB) had to complete the form, creating three copies. The first copy (form W81(1)) was sent to the receiving warehouse for its records. The second copy (form W81(2)) was also sent to the receiving warehouse; they had to endorse it to record receipt of the goods and return it to the despatching warehouse. The third copy (W81(3)) was kept by the despatching warehouse for its own records. A similar set of forms (known as forms AAD) were required where excise goods are sent to another bonded warehouse within the EEC. If goods were moved out of the bonded warehouse and were not covered by completed and endorsed documentation (either W81 or AAD), excise duty became payable.

Forms W81 comprised 15 boxes. Boxes 1 to 12 were completed by the despatching warehouse and contained information about the nature and quantity of goods, the owner of the goods, the destination of the goods, the date of transfer and the identity of the transport company. An authorised signatory of the consignor had to sign in Box 1. Box 15 was a certificate of receipt. It was to be completed only on the W81(2). It had to be completed by an authorised signatory of the receiving bonded warehouse and stamped with that company’s stamp.

In addition to the documentation required by Customs, SB kept collection/delivery notes for their own records. These identified the goods being consigned and the consignee. The name of the driver or the number of the vehicle was recorded. A security PIN number was allocated to the movement of the goods.

The course of events alleged by the Crown was that SB was approved by Customs as a bonded warehouse in September 2000. In October 2000, SB informed Customs that it had three customers, namely Riga Wines, Baltic Wines and Abbeytex Services. By that time, some spirits belonging to Maxwell had already been received into the warehouse. In October and November, some consignments left the premises and were sent to various destinations in this country. Excise duty should have been but was not paid. For most consignments, there was no documentation showing where the goods had gone to. At a later stage, false documentation was created to cover some consignments, so as to give the impression that the goods had gone to Connaughtons and Stanton Bond. A W2 monthly return was completed by the appellant during November. It did not include any spirits which had ostensibly been sent to Stanton Bond.

From 3^rd to 5^th December 2000, the appellant, Maxwell and Hughes went to Germany together on a business trip in connection with the importation of alcohol. The Crown alleged that this was an important event in furtherance of the fraud. Soon afterwards, on 8^th December, two stamps in the name of Stanton Bond were ordered from a company called Dax Printing, which was a client of the appellant’s accountancy practice. Dax Printing sub-contracted the manufacture to another firm and the stamps were supplied on the 15^th December 2000. It was the Crown’s case that the appellant had been responsible for obtaining these stamps. In the ensuing weeks, these stamps were used on forms W81(2) which were designed to show that excise goods had been transferred from SB to Stanton Bond and that Stanton Bond had acknowledged receipt. Some of these forms were backdated to cover transactions that had supposedly taken place in October and November.

On 19^th December 2000, a representative of Customs was due to visit SB to inspect the systems and documentation being kept by this new bonded warehouse. In the early hours of 19^th December, a computer at the appellant’s home was used to create a letter of instruction (backdated to 31^st October 2000) from Abbeytex to SB. The letter instructed SB that various consignments of vodka and whisky would be collected from SB on 1^st, 2^nd and 3^rd November, all for delivery to Stanton Bond. The letter was printed on Abbeytex paper. The prosecution contended that the appellant had created this paperwork in order to give the impression to Customs that SB was trading legitimately with Abbeytex and to satisfy the visiting Customs officer. The appellant was later to admit that his wife had written this letter on his computer and on his instructions. He had wanted this to be done because he was concerned about the apparent lack of paperwork being generated by the Abbeytex business, which was, he said, genuine business. His intention had been to create a template for Abbeytex to use. However, the backdated letter provided all the necessary details of six consignments of spirits, including a PIN number assigned for security purposes. The PIN numbers were identical to those on a series of delivery/collection notes also found by Customs when the premises of SB and SMS were searched. On its face, this Abbeytex letter appeared to be more than an example or template of what was required.

During December, January and February, substantial quantities of spirits were despatched from SB to various destinations in the UK. Excise duty was not paid. For many of these consignments, false documentation was created to give the impression that the goods had gone to Stanton Bond. Customs found 40 completed forms W81(2) stamped to show receipt by Stanton Bond. These related to over 100,000 cases of spirits.

A further inspection visit took place on 7^th February 2001. On that occasion the appellant gave the customs officer details of what he said were the last three movements of goods from SB. These totalled 4,480 cases. He omitted to mention five other removals (totalling 35,617 cases) of spirits within that time span. Two days later, Customs imposed a ban on the removal of spirits belonging to Abbeytex. On 13^th February, Customs imposed a ban on the removal of all spirits from SB.

Thereafter the premises were kept under surveillance. Goods were despatched from the Bond on at least two occasions after this ban had been imposed. In early March, a listening device was fitted in the SB premises which enabled Customs to hear conversations between various co-accused and the appellant. A conversation which took place on 8^th March 2001 was put before the jury. The Crown claimed that this demonstrated the appellant’s knowledge of and complicity in the fraud. The appellant was heard discussing the apportionment of profits and also saying, inter alia:

On 16^th March 2001, Customs raided SB’s premises and seized all relevant documentation. Later that day they raided the offices of SMS. They arrested the appellant.

Three stamps were found in a drawer at the premises of SMS. One was for Stanton Bond - it had been made by Dax and two were for Connaughtons. All three were false.

A number of completed forms W81(1) were found at SMS. These stated that the goods identified which belonged to Abbeytex had been despatched to Stanton Bond. No such completed forms should have remained at SB or SMS because they should all have been sent to the consignee, ostensibly Stanton Bond. No goods had been received from SB by either Connaughtons or Stanton Bond. It was common ground at the trial that boxes 1 to 12 had been completed by the appellant and signed by him on behalf of SB. The Crown’s case was that he must have known that the goods were not in fact being sent to the destinations identified in the forms but were going elsewhere. The appellant accepted that the information in these W81s was false but he claimed that he had completed them in good faith, believing the information to be accurate, and relying on information provide to him by Screen. It was Screen who was in day to day charge of the movement of goods into and out of the warehouse and who knew to where goods were going. The reason why a large number of forms W81 had been found at his office was that he had a habit of collecting paperwork and taking it to his office for sorting into files. His explanation for the presence of forms W81(1) which should have been sent to the receiving warehouse was that these must have been completed in error and never used. However, he might have just picked them up with other papers.

A number of completed and stamped Forms W81(2) were found in the appellant’s briefcase. The Crown suspected - but was unable to show - that the appellant had completed the boxes 15 on the forms W81(2) which had ostensibly been completed by Stanton Bond. The appellant denied that he had done this and denied that he had ever used the Stanton Bond stamp. The forms W81(2) were subjected to ESDA analysis and it was found that some of the entries in Box 15 had been written when the W81(3) was immediately underneath. However, as we have said, the completion of the boxes 15 on the forms W81(2) could not be positively tied to the appellant.

The prosecution drew attention to the large number of telephone calls which had been made during the period of conspiracy between the appellant and Maxwell and the appellant and Screen. It was the appellant’s case that these were entirely consistent with a legitimate business relationship.

The appellant was a man of good character. His case was that he had set up a legitimate business. He had arranged to do business with other customers besides Riga Wines. He believed Abbeytex to be a legitimate business and independent customer. He knew nothing about the ordering of a Stanton Bond stamp from Dax Printing, although he had told Screen that SB would need some stamps for its own business purposes. He now believed that Screen must have ordered the stamp. He did not know that Dax Printing, one of his own accountancy clients, had been instructed to supply it. The stamp must have been delivered direct to the warehouse without his knowledge. His trip to Germany with Maxwell and Hughes (who was associated with the director of Stanton Bond) had been an ordinary, legitimate business trip and it was a coincidence that the stamp had been ordered soon after that trip. After Customs had discovered that the Stanton Bond stamp had been ordered from Dax Printing, they searched Dax’s premises in an attempt to find the invoice under which it had been supplied. It was missing. All the invoices (which carried a serial number) were available save this one. There was evidence that the appellant, who as we have said was Dax’s accountant, had visited the premises after his arrest and release on bail and had had access to all Dax’s papers. The Crown suspected that he had removed the relevant invoice.

The appellant accepted that he had completed and signed many forms W81. Screen had provided him with the information about the consignments which he believed were being sent to Stanton Bond. He had no idea that the goods had been sent to other destinations or that excise duty was being avoided. He had not been responsible for the completion of Box 15 on forms W81(2) and had not used the false stamps. He said that he had been under a great deal of pressure in late 2000 and early 2001 and had not been able to devote as much time to SB as he would have wished. In particular this had been caused by the illness of his elderly mother.

He said that he had been duped by Screen, who had been responsible for SB’s part in the fraud. He said that he had no knowledge of the fraud until he came across the false stamps at the SB warehouse on about 27^th February 2001. He panicked and took the stamps to the SMS premises and hid them in a drawer. He challenged Screen about the stamps and after some prevarication, Screen admitted knowing about the stamps but would not say who had used them. Soon afterwards he received a telephone call from a man who said that he knew the appellant had found the stamps, that he should keep quiet about them and that he knew where the appellant’s families lived – a reference to his children by his first wife and his second wife and her children with whom he then lived. A day or so after that, he had received a second call from the same man to similar effect. He thought that a man named Fred whom he had met on 21^st February might be responsible for the threats. Fred was present at SB on 8^th March when the recorded conversation took place. The appellant accepted that the recording made it appear that he was involved in the fraud but he maintained that he was ‘play-acting’; he was going along with what the others were saying, so as to assure the others that he was not going to report what he had found out. He had done so out of fear. Far from being in league with the conspirators, he was putting obstacles in their way. In evidence he did not identify any such obstacles. He said that on 13^th March, his wife told him that Fred had telephoned the house and had asked whether the appellant was all right. Fred had thought that the appellant had been upset on 8^th March and Fred did not like his mates to be upset. The appellant considered that this call was designed to demonstrate that the person who had threatened him did indeed know where at least one of his families lived.

After his arrest, the appellant had not mentioned the finding of the stamps or the threats during his interview. He said that he had not done so because he did not know whether or not Fred had been arrested. He was still fearful for the safety of his family. He first mentioned the threats in his defence statement. At the trial, the Crown invited the jury to draw an adverse inference against the appellant on account of his failure to mention these threats in interview. For the appellant, it was submitted that no adverse inference should be drawn.

On receipt of the defence statement, the Crown was under a duty to re-examine the unused and confidential material. No further disclosure was made. When the appellant gave evidence, to the effect we have just indicated, counsel for the Crown cross-examined him on the basis that the threats he had described were a complete fabrication.

After the completion of the appellant’s evidence, the Crown discovered information which was relevant to the defence contention that he had received threats to the safety of himself and his family. The Crown did not wish to disclose this information to the defence on public interest grounds and informed the defence of their intention to make an ex parte application to the judge. That was done. The judge decided that there were sound public interest reasons why the material itself should not be disclosed to the defence. However, he directed that the Crown should make an admission comprising the gist of the information. The judge gave a brief ruling stating in open court that he was satisfied that the proposed disclosure note was adequate. It appears that it was his intention that this note should go before the jury. The disclosure note was in the following terms:

“HM Customs and Excise have information showing the involvement of Simon Pierce-Jones with other people not known to be connected the spirits in this case who are believed to have been involved with him after the period in the indictment in smuggling excise goods into this country and to be disposed to making threats of violence towards other involved in the activity.”

Counsel for the appellant were not satisfied with that admission and sought to persuade the judge to order disclosure of the source material. It was contended that the information was highly relevant to the defence and that the defence was hampered by the refusal to allow access to the source material. If that application were to be refused for a second time, the appellant’s team were (reluctantly) prepared to put the admission before the jury. However, Counsel for Maxwell opposed the use of this admission in the trial on the ground that it would damage his credibility. Pierce-Jones was an associate of his.

The judge then gave a much longer ruling, most of which was concerned with the question of whether he could overrule Maxwell’s objection to the admission going before the jury. He ruled that he could and that in the interests of fairness to the appellant he would do so. He confirmed his earlier ruling that the source material could not be disclosed to the defence. A refined version of the disclosure note was prepared for use in the trial. This said:

“HM Customs and Excise admit the involvement of Simon Pierce-Jones with other people not known to be connected with the spirits in this case, after the period in the indictment, in smuggling excise goods into this country.”

“HM Customs and Excise admit that the other people referred to above are disposed to making threats of violence towards others involved, innocently or not in the smuggling of excise goods.”

This went before the jury. The judge mentioned the admission twice in the course of summing up. At page 23 F, while directing the jury that they must consider the case against each defendant separately, the judge said:

“You have been told that the Crown accept that Mr Pierce-Jones is known subsequently to associate with smugglers who make threats of violence. For Mr Hansford, it is submitted that this supports his evidence about threats.”

Also when directing the jury about the circumstances in which they could draw an adverse inference against the appellant on account of his failure to mention the threats in interview, the judge said, at page 69E:

“The defence invite you not to draw any conclusion from his silence on the basis that, having been threatened by Fred, he was too frightened to say anything as he did not know whether Fred had been arrested. He said that he was threatened twice by telephone – threats that made him fear for his family’s safety – and because of these threats he did not tell Customs and Excise of the circumstances in which he found and kept the stamps. The Crown admit that Mr Pierce-Jones has associates involved in smuggling who do make such threats. Mr Hansford’s counsel says that the fact that Mr Pierce-Jones’ associates make such threats supports the evidence that Mr Hansford was indeed threatened. The Crown say that he is not telling the truth when he says he was threatened The Crown say that there is nothing in what he said when he was at the bond with Fred that gave any indication of fear, that there was no change in his manner after Fred and the driver had left and that the allegation of threat is just an excuse.”

The appellant was duly convicted.

The appellant then sought leave to appeal on the ground that the appellant’s position at the trial had been prejudiced by the judge’s refusal to order disclosure of the source material which supported the claim that he had been threatened. The material was relevant; that was conceded. The appellant had been deprived of the opportunity to deploy the source material at trial. The conviction could not be said to be safe.

The single judge refused leave to appeal and, after some delay, the application was renewed to the full court.

When the undisclosed material was being prepared for use by the full court, Customs were made aware of additional relevant material which ought to have been brought to their attention so that it could be shown to the trial judge at the appropriate time. A further bundle of material was prepared for the hearing before the full court.

The matter came before the full court (Scott Baker LJ, Walker J and HH Judge Findlay Baker QC) on 31st January 2006, when there was an ex parte hearing in camera. The court expressed the opinion that the trial judge had been right to refuse to disclose the source material and to direct that the admission to which we have referred should go before the jury. The full court also considered the new material. They expressed the view that, if that material had been available at the trial, it could not have been shown to the jury. They themselves would not direct its disclosure for the purpose of the appeal. However, the admission that had been put to the jury was now seen to have been inaccurate. An amended admission was drafted and provided to the appellant’s counsel. This was:

The full court then granted leave to appeal on the basis that the admission which would have gone before the jury if the Crown had had possession of all the relevant material was different and more helpful to the appellant than the admission that was used. It was arguable that the jury might have come to a different conclusion and the conviction was therefore unsafe. Because the appellant was not present and had not waived his right to attend, the final hearing of the appeal was adjourned and came before this constitution on the 20^th March 2006.

We had access to all the undisclosed material well before the hearing and also had the opportunity to read the transcript of the whole of the hearing on 31^st January. We directed that there was no need for the witness who had given evidence on that occasion to attend again. We considered that we were not bound by the decision of the court on 31^st January. However, having considered all the undisclosed material and the submissions made to the trial judge, we consider that the trial judge had been right to hold that the material then before him could not be disclosed for important public interest reasons and that, on the basis of what the judge then knew, he was right to rule that the appellant’s interests were properly protected by the making of the admission then made.

As to the view expressed by the court on 31^st January that the new information should not be disclosed to the appellant, it was submitted that the appellant’s counsel had not had a proper opportunity to make submissions about this. We heard Mr Leonard’s submission, to the effect that it was clear that one of the associates of Pierce-Jones was a co-conspirator in the conspiracy which was the subject of the indictment. In those circumstances, it was essential that the source material should be disclosed to the appellant. We recognise that it is frustrating for the appellant and his team not to know what the source material is. We can only say that there are compelling public interest reasons why the source material should not be disclosed. Further, it is the view of each member of this court that the actual source material would not assist the appellant any more than the admission itself; indeed one might even say that the admission gives a more helpful impression than the full source material would.

The real question on this appeal is whether, if that admission had been before the jury rather than the original admission, it would or might have made any difference to the result.

Mr Leonard’s submission was that of course the new admission might have made a difference. Now it was admitted that one of Pierce-Jones’s associates, who was disposed to make threats of violence, was actually involved in this conspiracy. Originally, it had been suggested that the association post-dated the conspiracy on the indictment. The appellant’s claim that he had been threatened was of great importance in the case. If accepted, it explained why he had not told Customs about his discovery of the false stamps. It would explain his contribution to the discussions on 8^th May; he was play-acting and making it appear that he was going along with the conspiracy. His fear that the person who had threatened him was still at large would or might explain why he did not tell the police in interview that he had been threatened.

Mr Christopher for the Crown submitted that the new admission made very little difference indeed. The Crown’s case had always been that the appellant had not been threatened but that was not because his claim that he had been threatened was not feasible. The Crown accepted that it was feasible even plausible. Pierce-Jones was the kind of man who had associates who might well make threats of violence. The argument of the Crown was that there was an abundance of evidence to show that this appellant was fully involved in the conspiracy from the start. He did not discover the stamps in late February; he had known about them all along and had probably ordered them himself. Therefore, the jury’s attention would not have been focused upon the detail of the admission. They would not have been thinking about the lack of any known link between Pierce-Jones’ associates and the case they were trying. They would not have been concerned about any distinction between threats of violence to an individual as opposed to threats to members of his family. The whole point of the admission was that it meant that it was plausible that a person who had become innocently entangled with this conspiracy might be threatened with violence either to himself or to his family. In rejecting the defence and convicting the appellant, the jury must have been satisfied that the appellant’s claim to have been threatened was untrue and that he was involved from the start as the Crown claimed. That being so, it was fanciful to suppose that the jury would or even might have reached a different conclusion just because the person who might have threatened the appellant was rather more closely connected with the conspiracy than had been thought. In any event, if all the evidence after 27^th February were excluded from consideration, there was still a powerful case against the appellant. The conviction was safe.

We accept Mr Christopher’s submission. In our view, the importance of the admission which the jury heard was that it confirmed that which they might well have suspected for themselves, that the kind of people who get involved in this sort of organised crime, where the stakes are fairly high, are quite likely to resort to violence either themselves or by instructing others in order to achieve their ends. The admission was useful to the appellant in that it showed that his claim that he was threatened was plausible. But the admission did not make it likely that he had been threatened. Whether or not the jury would believe that he had or might have been threatened was dependent upon whether they thought it might be true that the appellant had not been involved in the conspiracy from the start. If they were satisfied that he had been involved from the start, it would not make any difference whether the associate of Pierce-Jones who was disposed to use violence had been connected with this conspiracy at the time or was only involved in smuggling spirits at a later time. We note that, when summing up, the judge dealt with the admission broadly; he did not stress the details. He could have summed up using virtually the same words even if the second and more accurate admission had been made at that stage.

In our view, there was an abundance of circumstantial evidence pointing to the appellant’s involvement from the start. The fraud began very soon after the bond had been set up. The appellant was in charge at SB; he was the person with whom Customs dealt. He completed the paperwork which Customs required. In our view, it was fanciful to suggest that he would not have known what was happening to so large a proportion of the spirits in his warehouse. His explanation for the creation of the Abbeytex post-dated letter of instruction was feeble and that evidence was significant in that the letter was written just before a visit from Customs. So was his explanation for the presence of completed forms W81(1) at SMS. There was telling evidence in the fact that Stanton Bond stamps was ordered from Dax Printing a few days after the appellant had met Hughes on the trip to Germany, Hughes being an associate of the director of Stanton Bond. All that evidence predated the supposed finding of the stamps and the threats which followed. In our view, there was a very strong case against the appellant even before the jury were asked to consider the recorded conversation of the 8^th March. Plainly the jury rejected the claim that the appellant was playacting on that occasion.

If the second admission had been before the jury, we regard it as highly likely that the jury would have reached the same conclusion. However, the test we apply is whether we ourselves are satisfied that the conviction is safe notwithstanding the new information which should have comprised the Crown’s admission. Each member of this court is satisfied that the conviction is safe and for that reason this appeal is dismissed.