Case No: 2004/06413/B2
Neutral Citation Number: [2006] EWCA Crim 419
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT ISLEWORTH
(JUDGE LOWEN)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: Tuesday, 7th March 2006

Before :

LORD JUSTICE SCOTT BAKER
MR JUSTICE OWEN
and
THE COMMON SERJEANT
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Between :

	Gabriel Solomons	Appellant	
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	The Queen	Respondent	

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(Transcript of the Handed Down Judgment of
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Mr Michael Mansfield Q.C and Mr Joel Bennathan (instructed by Saunders, Solicitors) for the Appellant
Ms Alison Ginn and Mr Thomas Allen (instructed by Solicitors, HM Revenue and Customs) for the Respondent

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Judgment
Lord Justice Scott Baker: 
1.	On 12 December 2003, after a lengthy trial in the Crown Court at Isleworth, Gabriel Solomons, now aged 66, was convicted of 6 offences of importing Class A drugs namely cocaine. He was sentenced by Judge Lowen to 24 years imprisonment on count 6, with concurrent 10 year sentences on each of the other 5 counts. He appeals against conviction with the leave of the single judge who granted an extension of time.
Facts
2.	On 5 September 2005 the appellant arrived at Heathrow Airport on a flight from Lagos, Nigeria. He was stopped by custom officers, asked if he was aware of all the contents of his luggage to which he replied in the affirmative and his luggage was then searched. In it were found 15 dried fish containing bags of powder packed so as to form the shape of the body of a fish with a fish head protruding at one end and a fish tail at the other, thus giving at first sight the appearance of commonly exported fish.
3.	The total quantity of cocaine packed in this way was 46.9 kilos, which equates to 37.7 kilos at 100% purity. It was, by any account, a massive quantity with a street value of £3.1m. In all there were 471 packages of which two, which were distinguishable from the rest, were crack cocaine. 
When the appellant was interviewed he made no comment.
4.	When searched the appellant was found to have £8,372 cash in his possession and, more significantly, a diary which revealed what appeared to be 5 previous importations of drugs from Lagos to the United Kingdom.
5.	His mode of operation was to travel to Nigeria and return with cocaine in his heavy luggage. He would take the drugs to his home in Oxfordshire before transporting them to Manchester where they were sold. In between his trips to Nigeria he would go to Manchester to collect the proceeds of sale. His defence was that he knew nothing about the drugs in his luggage. He did not deal in drugs and he was operating a legitimate business.
6.	At the trial, he adduced evidence from Martin Ike, an employee, who had had control of his luggage up to and including checking in at Lagos airport. He had confessed to placing the packages in the appellant’s luggage and was serving a 5 year sentence in Nigeria for conspiring with one Mustapha to export hard drugs to the United Kingdom. It was Ike’s evidence that the appellant knew nothing about the drugs. The jury did not, however, believe this.
7.	We have now heard fresh evidence from Mustapha by video link from Nigeria, its purport being that he commissioned Ike to put the cocaine into the appellant’s luggage. The appellant, he contended, knew nothing of it and had the customs been successfully negotiated at Heathrow his, Mustapha’s, agents would have robbed the appellant of his luggage at gunpoint without any knowledge on his part that it contained this vast quantity of cocaine. This was a procedure that Mustapha had followed successfully on 4 previous occasions with other unsuspecting passengers, albeit without the assistance of Ike.
8.	There was a very strong case at trial against the appellant. Some of the packages were in “Lagos Sheraton Hotel” carrier bags, the hotel at which he had been staying in Lagos, and one of the packages contained pieces of paper from a Summerfield supermarket leaflet.
9.	The appellant’s house, Pinto House, Aston, Oxfordshire was searched on the morning of his arrest. A suitcase on the floor of his wife’s bedroom contained 9 carrier bags each tied at the top and full of cash. There was also in the suitcase a brown envelope with foreign currency and in the same room a holdall with more cash and papers in it.
10.	In another bedroom there was a trunk with three carrier bags full of cash, more loose cash and a brown case containing yet more cash. In the wardrobe there was a Luigi bag.
11.	The total cash found at his house amounted to £388,532 plus U.S $12,000 and 3,630 euros. The Luigi bag contained a set of electronic scales contaminated with crack cocaine and bearing the appellant’s fingerprints. Also, it contained razor blades and other drug paraphernalia. There were three passports at the house, two in the name of Dr Gabriel Solomon Amadi, date of birth 25/6/39, and the third in the name of Dr Gabriel Iwecha Solomons date of birth 26/6/43. The passport in his possession when he was arrested made a fourth.
12.	Investigation into his travel revealed that his 6 trips to and from Nigeria in 2002 were all made first class and paid for in cash. The weight of his luggage varied between 70kg and 100kg. On the date of his arrest his luggage weighed 100kg (the allowance for first class passengers being 2 x 32 kg).
13.	Three motor vehicles were registered in his name, a Ford Focus and two Mercedes, one of which was found at his chauffeur’s address. All were forensically examined and two were found to contain traces of cocaine. Some of the cash at Pinto House was contaminated with higher then normal levels of heroin, suggesting it had come from a source closely connected with heroin such as a drug dealer.
14.	The appellant’s previous trips to Lagos, reflecting the first 5 counts on the indictment, were:
•	out 17 Jan 	return 1 Feb 	Gatwick.
•	out 21 Feb 	return 4 March 	Gatwick.
•	out 2 April 	return 19 April 	London Heathrow.
•	out 8 May 	return 19 May 	London Heathrow.
•	out 11 July 	return 21 July 	London Heathrow.
And then out 15 August 	back 5 September. He used three of his four passports in rotation for these six trips in 2002.
15.	The Crown relied heavily on entries in his diary for example 18 April 2002, the date on which he left Nigeria for the United Kingdom (count 3):
“…..proceeded to the airport to check in as usual. But to my horror and great shock a lot of changes have been put in place regarding what can be exported and what cannot be. All the materials I usually used for export of goods and for packing them are now banned. Even the procedure completely changed. Was now asked to take everything home and repackage them…..even the officials who used to be helpful in the past were not prepared to risk their jobs…..After much horse trading the official agreed to help but warned that I had a lot to combat with at London Heathrow….The flight finally took off at just before midnight. Spent the night in prayers and meditation all the time calling on the supreme ruler of all things to come to our help at Heathrow Airport on our arrival;
19 April….Great apprehension as we waited for over one and half hours for our luggage to be released. Officials all over the place. Called Chi (Mrs Solomons)…….both of us united in prayers to the father of all mercies, who had led us over the years, and who knows the great number of enemies who are waiting to clap their hands in glee over us in the event of a mishap…….In the end our prayers were not in vain for my luggage finally emerged on the conveyer belt – first two came and then later the last appeared. The God of miracle had indeed heard our prayers;
19 April (later at home); rested for a while before commencing to prepare goods for distribution and sale. Was late in the night before I completed the process.
20 April; left…..for Manchester to deliver some goods and collect funds from our outlet there.”
In April 2002 a new procedure was introduced at Lagos Airport involving extra checks on foodstuffs such as dried fish being imported into the United Kingdom. This involved passengers’ baggage being taken to a search table and examined by staff in the presence of passengers. Bribes to officials could, however, avoid this procedure. The appellant’s evidence was that this entry recorded his concern about taking foodstuffs and fish abroad and that the way he had packaged such goods had now been banned.
16.	A second search of the appellant’s house took place on 12 September – a week after his arrest.  Fish heads were found in the freezers wrapped in newspaper which had originated from Nigeria – similar to those found in his luggage on arrest. There was no forensic evidence with regard to the fish heads or the wrappings found on this occasion. 
17.	Between 1 January 2002 and the date of the appellant’s arrest over £430,000 had been deposited into his bank account and £81,300 into that of his wife. The previous year just under, £12,000 had been paid for covert security equipment to be installed at his house. He gave specific instructions to the security company installing it that his domestic staff were not to know of its existence.
18.	Mrs Solomons was shown to have business interests in a taxi firm and a shop but, neither was in Manchester and neither generated substantial income. There was no record of the appellant having any business interests in Manchester.
19.	The appellant’s case was that he was the victim of a conspiracy between Ike and Mustapha to put the drugs in his luggage without any knowledge on his part. When his diary referred to ‘goods’ that was a reference to coral beads. Deposits in his United Kingdom bank accounts came from his business interests in Nigeria and most of the cash found at his home belonged to others. He was a wealthy man of intellectual and religious achievements and would simply not need to engage in a systematic course of conduct of the type alleged. As to his passports, he had changed his name by deed poll following an acrimonious separation from his former wife. He used 4 passports because his application for British citizenship had been refused on the ground that he spent substantial periods of time in Nigeria. He thus wanted to disguise the frequency of his trips there.
20.	In November 2001 he sold a company called Novala for £1.25m. Between £200,000 and £300,000 of the proceeds were brought to the United Kingdom. In December 1999 he sold another company called Alisamou for £2.2m, again part of the proceeds were brought to the United Kingdom. He was in business in Nigeria trading in cars. He ran a transport business which owned expensive vehicles. He owned a boutique; he traded in fabrics; he shipped mobile phones from the United Kingdom to Nigeria and he sold leatherite. By making payments to influential people he obtained contracts for oil exploration, road work projects and mining enterprises which were then sold at a profit which was brought to and banked in the United Kingdom. His audited accounts for the year 2001 showed business profits amounting to £1.8m. He produced audited accounts for the years 2000, 2001, and 2002, (albeit challenged by the Crown) to support his assertion that he had a successful business in Nigeria.
21.	The money in his possession on arrest had been obtained from money changers in Nigeria and some of the money found at Pinto House, which had also come from Nigeria, did not belong to him. £75,000 and £63,000 respectively had been paid to him in advance by purchasers of mobile phones which were yet to be delivered/purchased. £150,000 had been paid to him as an advance deposit for a number of Mercedes motor vehicles. £20,000 to £30,000 belonged to a Nigerian bead customer from Manchester and £15,000 had been given to him to purchase jewellery on behalf of someone else. The Crown disputed the suggestion that the money found at Pinto House had come from Nigeria because if it had, like that in his possession on arrest, it would have been relatively clean of heroin.
22.	He had gone into the business of coral beads when his five year old son visited him in his hotel in Manchester and he got talking to a Nigerian man, John Evioma. In 2001 Evioma asked him if he could source some coral beads for him in Nigeria. In December 2001 he bought a bag of coral. The profit margin was substantial and he then bought coral on almost a monthly basis being paid by Evioma in cash when he delivered the beads to Manchester. Part of the money discovered at Pinto House represented cash he had been paid for the coral. He obtained the coral in Nigeria from Chief Sunny Obah. He would leave cash with the local bureau de change man, Al Haji Abdullah, and after he had checked the coral in the United Kingdom, Chief Obah would be paid.
23.	As for the fish found in his luggage, the fish heads did not belong to the sort of fish he would have bought. His luggage was heavy owing to the presence of coral beads and the tinned food and household necessities he usually took with him for use in Nigeria. He would also bring back food, which included smoked catfish and which accounted for the fish found in Pinto House.
24.	Martin Ike was his driver/personal assistant in Lagos. He assisted him with heavy luggage and with the checking in procedure at the international and local airports. He had been in his personal employment, rather than employed by G & E Solomons (the appellant’s company) for some eighteen months prior to 5 September, and this explained why his name was not on the company payroll. On 4 September the appellant returned to Lagos from Port Harcourt en route to the United Kingdom bringing bags of food items, shoes and other things in his cases. The keys to his luggage were kept in a particular bedroom drawer in Port Harcourt and there was another set in a wallet. Ike was one of three staff who had access to the keys and knew the combination to the locks. Ike picked him up at Lagos and took him to the Sheraton Hotel. Ike said he had a headache and felt dizzy and so he stayed in the hotel room with the luggage. Chief Obah arrived with a bag of coral beads. The appellant asked Ike to split the coral into two packs and pack them in his cases. He left the keys in the room and went out for about three and half hours. On his return the cases were packed and locked and Ike took him to the airport. He said that he would go to the airport alone but Ike said he did not want him lifting the heavy luggage. At the check-in counter he noticed that Ike was unduly protective of the luggage. He was sure that his bags were opened but was unable to see because Ike was standing there. He had no idea there were drugs in his luggage and had never had anything to do with them. At Heathrow Airport he got a porter to retrieve his luggage and was then stopped. The fish products and the cocaine were not his and nobody except Ike had had the opportunity to put the items in his bag.
25.	When cross-examined about his income he agreed that his Nigerian bank accounts did not show deposits relating to the sale of his two companies. He said that was because the payments were in cash, local currency. He produced bundles of receipts. One of the points relied on by the prosecution was that 500 naira was the largest available bank note in Nigeria. It was worth approximately £2.50. A vast number of notes would therefore be required to make up a sum of £1.25m or £2.2m.
26.	As far as the coral was concerned the appellant would make up necklaces and then pack them into small plastic bags, placing them in a container and taking them to Evioma in Manchester, either at La Maison Hotel, or his shop in the Arndale Centre. The appellant sometimes paid Chief Sunny Obah but on the occasion in September he did not do so and that was because Evioma had said that the beads were not of the quality he wanted. There was a total of five consignments of coral. On 4 September he paid Chief Obah £10,000. The maximum Evioma had paid him was in the region of £80,000 to £100,000, not all at once but in instalments. He had not made that business part of G & E Solomons although he hoped to do so later. The bulk of the money that he brought from Nigeria and put into United Kingdom bank accounts was from the sale of his companies. In his diary he had not mentioned the high profits he got from dealing in beads in case others jumped on the bandwagon and brought the prices down. Overall the profit margins were 80/85 times the cost and the total sales were about £1/2m. Asked about the words “outlet” “factor” and “agent” in his diary, they were all terms used in connection with the coral beads. It was his dealing with the coral beads which explained his trips to Manchester. He had known since arrest that coral beads and money for them in Manchester were important in response to the prosecution case of what he was doing and agreed that there was no mention of them in his defence statement which he had signed. He said this was because he did not know he was supposed to mention it in his statement and was guided by his original legal team. He did not accept the coral beads were a new invention. Any diary entries as to the urgency of preparing goods and delivering them to Manchester were not references to drugs but to coral beads and the sooner he delivered them the sooner he got paid by Evioma.
27.	The Luigi bag recovered from his house did not belong either to him or his wife but had been left at this home in April 2002 following a visit by his wife’s cousin and his girlfriend. He looked in the bag and touched the scales which he had mistaken for a calculator. That accounted for his fingerprints. He was unaware of the withdrawal of money from his assets in Nigeria by Mr Nwosu at a time when he was no longer trading and denied the suggestion that it was paid to Ike to secure a confession. He did not know where the drugs were destined to go. Ike was not on the list of his employees because he was not one of the employees at Port Harcourt but was paid personally by him. He had been told that Ike had confessed to placing the drugs in his bags but he did not know what he had said.
28.	The Crown called the appellant’s chauffer, Mr Arnold. He started working for the family in April 2002. On 8 May 2002 he took the appellant to Heathrow Airport. He had two large and extremely heavy suitcases, a briefcase and a holdall. He had the same luggage on his return. One of the bags was very heavy and felt cold. When they got home the cold bag was taken into the kitchen. He again took the appellant to Heathrow on 11 July. He had the same very heavy bags and he saw tinned food. On his return he had the same luggage, but one of the suitcase smelled strongly of rotting fish. He saw maggots in the boot of the car. The last occasion he took the appellant to the airport he again had extremely heavy luggage and there were lots of tins. He was expecting to pick him up on 5 September. He had previously seen a dead fish partially wrapped in newspaper at the house. It was of medium size with a large hole in the middle and the appellant’s brother in law was eating from it and some of it was being boiled. He smelt the same distinct smell that he noticed from the suitcase.
29.	The appellant called a number of defence witnesses. Mr Nwosu was an employee. He gave evidence of the sale of the two companies, saying he received the money in naira in instalments which he took to the bureau de change and changed into pounds sterling. He said that two debtors Lillian Okareki and Damian Ekumai Fo had paid money in advance for mobile phones and cars. He had been threatened that he and his family would be killed and so on 20 November he paid them from cheques previously signed by the appellant. He denied that the money had been withdrawn to pay for the appellant’s defence. He confirmed that he was aware of the appellant’s business dealing in coral beads with Chief Sunny Obah.
30.	Mr Karinjo was a senior economist with the Nigerian Data Bank. He gave evidence on the question of cash transactions in Nigeria, there being both a formal and informal exchange market. Informal markets were permitted to transact business up to $5,000 but what was catered for by regulation did not necessarily happen.
31.	Mr Egetoru provided a statement that was read. He produced audited accounts for the appellant’s company G & E Solomons Ltd for two accounting periods ending 20 August 2001 and 20 August 2002. He inspected the financial records, interviewed members of staff and ascertained that the company traded in the importation of vehicles, textiles, materials, imitation leather and mobile phones.
32.	The company imported and exported coral beads and was involved in the business of contract financing and exportation. Mr Nwosu was able to assist with any information to enable him to carry out the audit. He produced a draft audit followed by a final version for the directors to sign in early September 2002. All financial records used during the audit were returned to the company. The Crown pointed out that Egetoru had described himself to the entry clearance officer in Nigeria, when interviewed with a view to coming to this country, as an “accounting clerk”.
33.	Evioma, who was a non practising lawyer, said he had met the appellant in August 2001 and asked if he could source coral beads for him. In December they met in La Maison Hotel and the appellant brought 15-20 pieces consisting of necklaces and bracelets. They were sold at a market stall in the Arndale Centre in Manchester by Damian Ajola for £34,000. He collected the money from Ajola. The same procedure was followed each month until August 2002. There were no receipts as such but when a consignment was fully paid he gave the appellant an ‘entry of transaction’. He made a profit of £1,000 on each transaction. The evidence of the marketing manager of the Arndale Centre was that no one called Damian Ajola had a stall at the Arndale Centre either in 2002 or at all and to his knowledge there was no stall selling coral beads.
34.	Chief Sunny Obah’s evidence was that he introduced the appellant to trading in coral beads in December 2001. He supplied him with large quantities of coral. On the first occasion the appellant paid him £20,000. In August 2002 he went to the Sheraton Hotel, Lagos and handed bags of coral to Ike who transferred it to the appellant’s bags. He never gave the appellant any receipts for money.
35.	The customs, who examined all the property seized at Pinto House, saw nothing that related to the importation of any goods from Nigeria into the Untied Kingdom.  The customs officer who travelled to Nigeria and examined financial and business documents found nothing relating to the exportation of coral beads.
36.	At the trial the defence relied strongly on the evidence of Ike. This was in the form of a deposition taken before the Federal High Court of Nigeria on 23 October 2003. There was also before the court his confession statement made to the National Drug Law Enforcement Agency (“NDLEA”) on 28 November 2002. This was a 6 page handwritten statement which was said to have been produced in just 35 minutes. But for the evidence of Ike the appellant would have had no explanation for how over £3m worth of cocaine was hidden inside 15 dried fish in his luggage. How did Ike come on the scene? NDLEA officers making enquires into the appellant’s assets in Nigeria learned about Ike from Nwosu. Soon afterwards Ike was seen and made the statement of 28 November. He was charged with 2 offences and released on bail. On 10 June 2004 he pleaded guilty to (1) conspiring with Mustapha to export hard drugs to the United Kingdom and (2) aiding Mustapha to export hard drugs to the United Kingdom. He was sentenced to 5 years imprisonment. Ike’s evidence could not of course, as it was read, be tested by the Crown in cross-examination.
37.	Ike’s evidence was that he was approached by Mustapha in August 2002 with a business proposal that could make him big money. He wanted Ike to put fish in his boss’s luggage. The fish were to go to a friend of Mustapha’s in London. The fish packages would be removed by Mustapha’s friend without the appellant’s knowledge from his luggage when he arrived at London airport. He would be paid £5,000. On 27 August he gathered the materials which included newspapers wrapping foil, cellotape and cling film and took them to Mustapha. On 4 September, as soon as the appellant left the Sheraton to go and change some money, he met Mustapha in the car park where Mustapha gave him the 15 fish that he carried back to the appellant’s hotel room. He packed the fish in the appellant’s luggage removing some heavy items to make room. He was given £2,000 with the balance to be paid on the arrival of the fish in the United Kingdom.
38.	The Crown’s case was that Ike’s evidence had been ‘bought’ by the appellant. The appellant’s bank account showed a withdrawal of 9,700 naira (the equivalent to £43,000) by Nwosu on the same day as 6,800 naira (the equivalent of £34,000) was drawn from G & E Solomons account. This was the day on which Nwosu went to Lagos and made the statement about the coral beads and told the NDLEA about Ike who made his confession about a week later. The appellant’s evidence was that he was unaware of the withdrawals. Ike denied being paid to give false evidence.
39.	It will be apparent from the summary of the evidence that we have given that there was a very strong case against the appellant that he was well aware of the contents of his luggage when he was arrested at Heathrow airport on 5 September 2002. The jury in convicting him must have rejected the evidence of Ike. The appellant submits, however, that crucial evidence was missing at the trial namely the evidence of Mustapha. Had the jury heard from him it would have leant strong support to Ike’s account and the verdict might have been different.
Fresh evidence.
40.	Mustapha gave evidence to us in summary as follows. He was born on 16 February 1954 in Lagos. Between 1990 and 2002 he lived for most of the time in Abidjan where a cousin took him to start a textile business. Then he started dealing in drugs, having been introduced to them by a man he met in Ghana whom he referred to as RSK. RSK gave him money which he used to buy drugs from Colombia and Brazil. He dealt with RSK for five years and began exporting cocaine to the United Kingdom in 2001. RSK gave him the contacts. When RSK died Mustapha took over the business. RSK gave him or left him with millions of naira to send to Brazil. Mustapha said he had made four successful transportations of cocaine to the United Kingdom before the unsuccessful one involving the appellant, but he was unable to remember the quantity on each occasion. In each instance it would be put in the carrier’s luggage without his knowledge.
41.	His main contact in England was Scott MacMillan, an ex police officer. The appellant had his telephone number. He also had two contacts in the customs, Chris Harrison and a man called Bashir.
42.	After the carrier had cleared customs, his bags would be snatched at gunpoint, Scott MacMillan having been given a description of the person carrying the drugs. His ‘boys’ in London, Sunboy and Aki would then distribute the cocaine. Bashir received 10% of the profit and the rest would be exchanged at a bureau de change in Bayswater.
43.	Mustapha first saw the appellant in earlier 2002 at the Sheraton Hotel in Lagos where the appellant was in the habit of staying. Mustapha regarded him as a promising person to use as an unsuspecting courier because he was old and therefore unlikely to resist at gunpoint. Also, he could monitor his movements.
44.	Mustapha had an office at 121 Borno Way, Lagos. This was, he said, a modern two storey building and he had a three bedroom flat on the ground floor. He did not live there but used to meet business associates there.
45.	He saw Ike first in the car park and met him three or four times before he used the appellant. Ike at first refused to assist but eventually agreed to on being offered £5,000, £2,000 initially and £3,000 on the successful arrival of the drugs in the United Kingdom and on being assured that his employment by the appellant would not be affected. He did not divulge to Ike how the drugs would be removed from the appellant once the consignment arrived at Heathrow.
46.	Mustapha had not previously used fish to conceal the cocaine and was unaware of the difficulties that this might cause at the airport. He knew what the appellant usually took to London.
47.	Mustapha bought the cocaine with money withdrawn from the Union Bank. The cocaine came from Colombia. He wrapped the cocaine with two of his ‘boys’. He did so in a room at the Sheraton which he had booked for a week. The drugs were in 100gm packages wrapped in cling film and secured with cellotape. They were placed in the fish and newspaper was also used in the wrapping process.
48.	Obioma Okonkwo, whom Mustapha used as a dept collector in England, monitored the appellant for Mustapha for a period of about three months.
49.	Mustapha gave the packaged fish to Ike the day before the appellant was due to travel to the United Kingdom. At his request, Ike brought him a spare key for opening the luggage.
50.	When he did not hear from Scott MacMillan he knew something must have gone wrong. Mustapha travelled to Abidjan so that Ike would not locate him. Between September 2002 and November 2003 he travelled back to Nigeria to generate funds by selling properties.
51.	In November 2003 he returned to Lagos from Pakistan with nearly 1kg of heroin in his intestines, and 20kg of cocaine in his luggage. He was travelling under the name of Olanrewaju with a passport in that name. He was arrested on arrival; the authorities found the cocaine immediately and he passed the heroin over a period of days. Mustapha’s evidence was that thereafter he remained in custody and it was not until some months later that he was identified as Mustapha. NDLEA officers then searched 121 Borno Way where they found cling film, passports, some white nylon, a fish and his diary all of which he claimed had been there since the unsuccessful importation in September 2002. Photographs were then said to have been taken at the NDLEA building showing, inter alia, Mustapha and the seized items.
52.	Mustapha produced six sheets of statement of account for his personal account with the Union Bank of Nigeria. He referred to three credit entries each of 5m naira on 5, 15 and 23 August, and a withdrawal by a cheque for cash dated 28August 2002 of 70m naira, which he said was the money used to buy the drugs put in the appellant’s suitcases. 
53.	He also produced a charge sheet setting out seven charges to which he had pleaded guilty in the Federal High Court of Nigeria and for which he had received a sentence of 10 years imprisonment. The first, second, fourth and seventh charges relate to the importation with which the appellant is concerned; the third to the importation of cocaine into Nigeria on 30 November 2003; the fifth and sixth to two of the earlier importations into England said to have been in 1998 and 2001. Interestingly, no charge related to the importation of heroin on 30 November 2003 in the name, of Olanrewaju.
54.	Finally, he said he had been seen by someone who came to the prison in the first week of December 2005 but refused to give his name, albeit saying he was a United Kingdom customs officer.
55.	The appellant called two other witnesses, Dikko Salisu and Lawan Dahiru. They were both NDLEA officers. Dikko told us that Mustapha was stopped at Lagos airport on 30 November 2003 in the name of Olanrewaju, albeit he, Dikko, was at the NDLEA headquarters at the time and did not become involved until Mustapha was transferred there. At some point, an informer told them that the man purporting to be Olanrewaju was in fact Mustapha. Ike then picked him out on an identification parade. Mustapha was at the time on the NDLEA wanted list. The witness was uncertain of the date of the identification but thought that it was between December 2003 and February 2004.
56.	Thereafter, there was a search of 121 Borno Way; Mustapha went with them. Mustapha’s evidence had been that he did not go with them. The items were taken to the NDLEA headquarters and photographed. Mustapha was interviewed about what had been found and made the statement dated 10 June 2004. On 29 November 2004 Dikko completed a report which was produced to the court. In cross-examination he said that 121 Borno Way was a bungalow with rooms facing each other; Mustapha had said it was a modern two storey building.
57.	One of the items said to have been recovered from 121 Borno Way was a passport in the name of Mustapha. An incomplete copy was produced by the appellant and a more complete, but still not fully complete, copy by the respondent. The appellant’s explanation was that at the time it was copied its only perceived relevance was to identity rather than movement. The respondent’s explanation was that the probability was that blank pages were not copied. In any event, the court does not have the original document, which is, so we understand, with the authorities in Nigeria. The copy produced by the respondent is of interest because there are three stamps showing entry to the United Kingdom. These are dated 16 February 2002, 8 May 2002 and 29 September 2002. There is also a visa which, although difficult to read, appears to be valid from 30 December 2001 until 30 December 2002. In answer to a question during his evidence Mustapha said that no one could have used this passport other than himself. He came to the United Kingdom on one occasion only in 2002. And that was in February.
58.	The second NDLEA witness, Lawan Dahiru’s involvement began with the search of 121 Borno Way. In his statement he made no mention of the date of the search but in evidence he said it was July 2004. He too said Mustapha went with them. 
59.	The respondent produced a considerable number of witness statements and documents with a view calling rebutting evidence. In the end no such evidence was called but several admissions were made by the appellant. It was admitted that various photocopy documents produced came from the files in Nigeria relating to the cases of Mustapha, Ike and Olanrewaju. It was further admitted that 121 Borno Way is a one level building in multi occupancy.
60.	Unsurprisingly the respondent made enquires about the men named by Mustapha as his contacts in London. There was no evidence that anyone by the name of Scott Macmillan had ever been a police officer or that such a person exists. There are a number of Christopher or Christian Harrisons, but none of them has ever been in any position to assist Mustapha with importation from Nigeria. The same is true of Bashir who was suspended from duly on 14 June 2001 and died in April 2002. His suspension had nothing to do with the importation of drugs from Nigeria and concerned events far removed in time and circumstances from the present case.
Analysis.
61.	As Mr Michael Mansfied Q.C., who had appeared on this appeal for the appellant rightly pointed out, in order for his client’s appeal to succeed there are two critical barriers to be overcome. These concern the credibility of the fresh evidence and its impact. The questions for the court are whether the fresh material is capable of belief (see s.23(2)(b) Criminal Appeal Act 1968) and if so whether it might have made a difference to the jury’s verdict. We are assuming for present purposes that the other criteria for the admission of fresh evidence are met. This is a case where it was necessary for the court to hear the fresh evidence before making a decision on credibility.
62.	Had we been of the view that Mustapha’ evidence was capable of belief we should have had to go on to consider whether the jury’s decision might have been different keeping in mind the cautionary words of Lord Bingham of Cornhill in R v Pendleton [2002] 1 Cr AppR 441 that the court should be careful not itself to take on the jury’s role. In the event, however, we have come to the conclusion that Mustapha’s evidence is not credible. Each member of the court has independently come to the conclusion that nothing he said in evidence can be relied upon. In reaching this conclusion we have made allowance for the fact that his evidence was given by video link from Nigeria.
63.	There are many respects in which his account of events seems to us to be inherently unlikely. His evidence raises many unanswered questions and most significantly there are number of instances in which his evidence was demonstrably untrue. In short we are unable to accept anything he says unless corroborated by some other reliable source.
64.	The starting point is that the appellant was found at Heathrow with cocaine in his luggage having a street value of over £3m. Those who deal with drugs to this value are unlikely to let them out of their possession into the hands of an innocent third party. Two questions immediately arise. How were they going to be retrieved and how were they paid for in the first place? Mustapha’s evidence was that the appellant’s bags would be snatched at gunpoint after he had cleared customs. It is one thing to suggest that the appellant being old would be unlikely to resist, quite another to see how such an operation had a realistic prospect of success without the police being alerted and any final getaway foiled. For one thing the total weight of the luggage was very considerable, about 100kgs. Further, in order to be successful the robbers had accurately to identify the appellant whose description was said to have been given to Scott MacMillan. We are not persuaded Scott MacMillan exists and minimal information was given by Mustapha about what he said were four previous successful operations each with different unsuspecting carriers. One might have thought there would have been complaints to the police by victims or witness. In short, with such a valuable cargo as £3m worth of cocaine one would have expected a much more careful and sophisticated plan to ensure the appellant could be relieved of it without the apprehension of the robbers.
65.	As to the second question, an enterprise on this scale required a considerable outlay. Mustapha said he drew 70m naira from the Union Bank in Lagos to pay for the drugs. He cashed a cheque in the bank; he was in the bank about an hour doing so. He produced a set of six statements purporting to be from the Union Bank.
66.	Five of the Union Bank statements were said to cover the period 20 November 1998 to 30 August 2002; the sixth was said to cover the period 20 November 1998 to 30 August 2003. They were prima facie in chronological order, although no statement referred to the specific year or years to which it related. The first entry on the first statement was 20 November and the last 29 October of, apparently the following year. The second statement ran from 18 November until 31 October the following year. The third statement ran from the end of October until the following June; the fourth from June until the following February; the fifth from March until October and the sixth, which covered less than half a page was for October and November. If the statements ran as they purported to chronologically, that would be November 2002.
67.	On each of the six statements the available balance is said to be 58,98,689.18 naira regardless of the figure in the balance column which is sometimes more and sometimes less.
68.	Entries are recorded against non-existent dates e.g. 31 September, 31 November. A computerised statement would not make an error of this kind. We are unable to place any reliance on the bank statements. The respondent produced a letter from the Union Bank dated 20 January 2006 stating (i) that the account number and names do not exist in the bank’s books and (ii) that the statement of account is a forgery. This document was not proved in evidence and we have disregarded it in reaching our conclusion that the six pages are indeed forgeries.
69.	The production of the forged bank statements to support his contention that he withdrew 70 million naira from the bank at the time when he says he acquired the drugs is in itself sufficient to make us doubt the truth of anything Mustapha told us. But there are other difficulties about his evidence.
70.	Mustapha gave a careful account of his weighing and packaging of the cocaine into the fish which ended up with a total weight of cocaine that equated closely to the weight found by the customs converted to 100% purity rather than the actual weight of the drug 46.9kg. It is true, as Mr Mansfield pointed out, that Mustapha had also said you could get just over 3kgs into each fish, which did equate closely with the actual weight, but we were left with the clear impression that he was trying to persuade us to believe he had packed the cocaine because he knew the total weight that he had packed.
71.	Further, the evidence about the packing of the fish was not consistent. Ike said in his deposition that on 27 August he took the materials which included newspapers, wrapping foil, cellotape etc to Mustapha having been told not to touch any of them without gloves on. Mustapha had given him some gloves. None of that appeared in his earlier statement where he simply said he collected the fish packages from Mustapha and they were wrapped in newspaper and “something like water proof” and then cellotaped.
72.	The evidence as to discovery at Heathrow was that two at any rate of the fish were wrapped in Sheraton Hotel plastic laundry bags. The outer wrappings of the fifteen fish packages were newspaper. The newspaper was all Nigerian bar one page from the South London Press dated 29 May 2001 which was inside a Nigerian paper dated 7 September 2002. The newspapers on the fish found in Pinto House all originated in Nigeria and two of them were distinctly stamped “Sheraton Hotel, Lagos”.  
73.	The judge described the packaging this way in his summing up:
“Each outer layer was covered with sheets of newspaper. Inside those sheets of newspaper was silver foil of a flexible type, the sort that is used in sweet wrappings. That is what enclosed the contents. Inside the foil was a layer made up of parcel adhesive tape wound round and round and round to the items secured by the tape. These items were a number of individual polythene bags of powder pushed together so as to form the shape of a fish body. They were on either side of the flat, dried fish itself, which formed a rigid spine against which the cocaine bags were held with the tape. The small bags enabled a realistic fish shape to be achieved with the dry fish head protruding at one end and the dry fish tail protruding at the other. Constructed from three layers of clear plastic bags, one inside the other.”
74.	All the smaller inner packages were constructed from three layers of plastic bags, one inside the other and each held a quantity of off-white powder.  
75.	Mustapha’s evidence about how the drugs were packed differed markedly from the description of what was found in London. He made no mention of the foil. Further, despite explaining in some detail how the cocaine was packed he did not ever mention three bags or layers of plastic each inside the other. He said he put the packages inside the fish, which is what he had previously said in his statement and in his affidavit. The drugs were found packed not inside but around the fish. Nor did Mustapha make any mention of the separately identifiable packages of ‘crack’ cocaine. If Mustapha packed the cocaine it is difficult to see why the newspaper packaging included a page from a South London newspaper.
76.	Mustapha was inconsistent in his description of how he handed the fish over to Ike. In his statement and affidavit he said the handover was in the Sheraton Hotel car park. In his evidence he said he took the fish into the interior of the hotel and up to Ike’s room with all 15 fish in a big leather bag. Bearing in mind the drugs alone weighed almost 50 kilos the combined weight of the drugs, the fish, the packaging and the bag would have been well over a hundredweight and bordering on impossible for one man to carry. In his statement Ike simply said he collected the fish packages from Mustapha. In his deposition he said Mustapha gave him the 15 fish packages in the car park and he carried them into Dr Solomons’ room.
77.	When Pinto House was searched remnants of fish were found wrapped in Nigerian newspapers and two of them were stamped with Sheraton Hotel, Logos.
78.	To complete the evidence of wrapping we refer to the appellant’s housekeeper in Port Harcourt, Lilian Lena, who was called by the defence at the trial. In September 2002 she packed one catfish that came from the market. She wrapped it in newspaper and cellotaped it. She saw Ike on 26 August. He was moving newspapers. She also saw him collecting cling film. He looked shocked and afraid and begged her not to tell anybody. The Crown suggested this evidence was not reliable and was simply called to bolster Ike’s evidence. The witness said the newspapers were English and had come from the United Kingdom wrapped around fresh fruit which had been brought from England. The judge in summing up made the point that if the appellant’s routine was to have the fish bought and wrapped in Port Harcourt it was difficult to see why some of the newspapers found at Pinto House and around the fish seized by customs at Heathrow had Sheraton Hotel stamped on them.
79.	What is the explanation for the packaging materials and other items said to have been found at 121 Borno Way? Their discovery is evidenced by the witnesses Dikko and Lawan. There is no identification of the date of the discovery save that it was after Ike identified Olanrewaju as Mustapha and before Mustapha’s confession of June 2004. The question is whether the items had been at 121 Borno Way since around September 2002 when the drugs were packaged or whether they had been deliberately put there for NDLEA officers to find. If Mustapha’s evidence to us was false the latter could be an integral part of that falsity.
80.	Ms Ginn, who has appeared for the respondent as she did at the trial, submits there is no proof that the man purporting to be Mustapha is that person, if he exists at all. Apart from Ike, whose evidence generally must have been disbelieved by the jury, the only evidence of Mustapha’s involvement in the appellant’s September 2002 importation comes from Mustapha himself. She submits that there is no credible evidence of his involvement in the September 2002 importation. On the face of the documents, she submits, Mustapha did not say he was Mustapha until 10 June 2004, the same day that Ike pleaded guilty in Lagos.
81.	On the evidence we have heard and the documents we have seen we are unable to piece together a coherent account in which we have any confidence as to what happened between 30 November 2003 (Olanrewaju’s arrest) and 10 June 2004 (Mustapha’s statement). Nor in our view is it necessary to do so for the purpose of determining this appeal.
82.	If Mustapha’s account of events is true he was apprehended in the name of Olanrewaju’s when entering Nigeria from Pakistan on 30 November 2003 in possession of heroin and cocaine. He had ingested the heroin and hidden the cocaine in his luggage. It does seem to us inherently unlikely that someone would take the very considerable risk of ingesting heroin whilst at the same time hiding cocaine in his luggage. There is no document to support his contention that he was arrested having swallowed heroin. The statement of Olanrewaju of 30 November 2003 refers only to cocaine. It is also unclear why, having been arrested in November 2003 and admitted importing heroin and cocaine, he was not taken to court and dealt with. Confession of the Solomons importation was not until June 2004. Further. The Investigation Report of Dikko and Lawan made in November 2004 makes no mention of the heroin for possession of which Mustapha was arrested in November 2003. A yet further puzzle is why the caution on the handwritten statement of 30 November 2003 bears the date 30 November 2005.
83.	One of the items recovered from 121 Borno Way was a 1993 dairy. Copies have been provided for the court in the appellant’s bundle. Ms Ginn makes the point that Mustapha claims one of his main contacts is Bashir. The diary contains a large number of telephone numbers, but not one for him. Not only did Bashir’s misdeeds, if there were any, predate the events of this case, Mustapha’s evidence suggested he was based in London and received 10% of the proceeds of the four successful importations whereas in his statement of 24 June 2004 he had said he was based in Middlesbrough.
84.	Another example of Mustapha’s inconsistency is that in both his statement of 10 June 2004 and his affidavit of 28 October 2004 he clearly stated he did not know the name of the woman who telephoned from London and suggested he might use the appellant. He repeated this in his evidence to us and yet in his statement of 24 June 2004 he said her name was Mrs Amadi or Amani.
85.	Mr Mansfield submits it is impossible to dismiss the evidence of Mustapha, a self confirmed drug dealer, as incapable of belief. He says Mustapha did not know about the problems of importing fish and was therefore prepared to take the risk. The appellant did know and it is in inconceivable that he would have risked importing such a vast quantity of cocaine in this manner.
Conclusion.
86.	We have borne in mind this submission and the other submissions made by Mr Mansfield. We agree that if the evidence of Mustapha is sufficiently credible to throw doubt on the safety of the count 6 conviction (the September 2002 importation) then the convictions on the other counts must also be set aside. In the end, however, we are quite unable to accept Mustapha as a credible witness. Further, there was a very strong case at the trial; based on a great deal of circumstantial evidence, that the appellant was regularly importing large quantities of cocaine into the United Kingdom. The jury disbelieved the evidence of Ike at the trial and concluded that the appellant was well aware of the contents of his luggage on 5 September 2002. The evidence of Mustapha is demonstrably untrue and therefore incapable of believe. There is nothing to be added to the story the jury heard at the trial. We do not admit the evidence. We have heard nothing that threatens the safety of the conviction. The appeal is dismissed.