Mari Adrianus Van Gerwen [2019] EWCA Crim 1377

Mari Adrianus Van Gerwen [2019] EWCA Crim 1377 concerned a renewed application for an extension of time to appeal against conviction and for leave to adduce fresh evidence, both of which the Court of Appeal (Criminal Division) refused.

Mr Van Gerwen had been convicted on 24 January 2018 at Canterbury Crown Court of fraudulent evasion of the prohibition on the importation of a controlled class A drug, namely cocaine, contrary to section 170(2) of the Customs and Excise Management Act 1979. His Honour Judge Rupert Lowe sentenced him to 17 years’ imprisonment. He sought an extension of time of 155 days and leave to adduce fresh evidence, having been refused by the single judge.

On 13 July 2017 a Dutch horsebox driven by Mr Van Gerwen as sole occupant was intercepted by UK Border Forces at Dover. Inside a concealed interior partition officers found 50 kilograms of high purity cocaine worth just under £4 million. Mr Van Gerwen’s defence was that he was an innocent dupe who did not know of the presence of the cocaine. The prosecution adduced bad character evidence relating to a similar incident in 2015 in which he had been stopped in Berkshire driving a horsebox also with a hidden compartment driven from Holland containing 10 kilograms of cocaine. At a trial in 2016 he had accepted that he knew of the presence of cocaine but claimed duress from threats of death or serious violence, resulting in his acquittal.

Mr Van Gerwen applied to adduce fresh evidence from two new witnesses who he said could give evidence in support of his case that someone hid the drugs in the partition of his horsebox whilst it had been rented.

The single judge refused leave, stating that no good reasons were given for an extension of time, nor for the length of time sought, particularly in circumstances where similar enquiries could have been made before trial and there had also been a delay in making the application after contact with the new witnesses was first made. The single judge further held that upon examination of the new evidence the requirements of section 23(a) to (d) of the Criminal Appeal Act 1968 were not met and the conviction was not arguably unsafe. The inconsistencies between the fresh evidence and the evidence called at trial, the circumstances in which the evidence was allegedly obtained, and the questionable character of the witnesses (affecting their credibility) meant that the evidence did not appear capable of belief. Given the apparent ease with which the evidence was said to have been obtained, and the fact that one witness could presumably have identified another to the defence in advance of trial, there was no reasonable explanation for the failure to adduce the evidence at trial. In any event, the evidence did not afford any ground for allowing the appeal under section 23(2)(b) and the conviction was not arguably unsafe.

The single judge identified several reasons why the fresh evidence did not impact the case. The central issue for the jury had been whether Mr Van Gerwen knew of the presence of 50 kilograms of cocaine in his horsebox in a specially designed compartment. It was clear the jury must have concluded that he did know. Nothing in the new evidence went to that central question of knowledge. The prosecution case was not that Mr Van Gerwen placed the cocaine in the horsebox but rather that he was fully aware his horsebox had been adapted for the purpose of transporting cocaine and that he was fully involved in the enterprise of importing the drug. On such a case it mattered not who loaded the drugs or when. The case against him was a strong one and was not impacted by the fresh evidence sought to be introduced.

Lady Justice Nicola Davies, sitting with Mr Justice Phillips and Mr Justice Choudhury, stated that the court entirely agreed with the single judge’s analysis. The court considered that there was no ground for an extension of time and in any event the application to adduce fresh evidence was refused. Mr Van Gerwen’s conviction was not arguably unsafe and his applications were refused. In short, the Court of Appeal rejected the renewed applications for an extension of time and to adduce fresh evidence on the ground that the proposed evidence did not go to the central issue of the applicant’s knowledge and the conviction was not arguably unsafe.