Asif Rehman+adel Ishaq V. Her Majesty's Advocate
| Jurisdiction | Scotland |
| Judge | Lord Drummond Young,Lord Kingarth,Lord Justice Clerk |
| Neutral Citation | [2013] HCJAC 172 |
| Year | 2013 |
| Docket Number | XC722/12 |
| Published date | 20 December 2013 |
| Court | High Court of Justiciary |
| Date | 20 December 2013 |
| APPEAL COURT, HIGH COURT OF JUSTICIARY | |
| Lord Justice Clerk Lord Drummond Young Lord Kingarth | [2013] HCJAC 172 XC722/12 and XC668/12 OPINION OF THE COURT delivered by LORD CARLOWAY, the LORD JUSTICE CLERK in the appeals against conviction by ASIF REHMAN and ADEL ISHAQ Appellants; against HER MAJESTY'S ADVOCATE Respondent: _____________ |
Appellant (Rehman): S McCall, Jones; John Pryde & Co (for MSM, Glasgow)
Appellant (Ishaq): CM Mitchell, Mullan; Capital Defence (for Aamer Anwar
& Co, Glasgow)
Respondent: Niven-Smith AD; the Crown Agent
20 December 2013
General
[1] On 15 October 2012, after a trial at the High Court at Kilmarnock, the appellants were found guilty of a charge which libelled that:
"on 15 January 2012 at Melville Street, Glasgow you ... did assault William McKeeney, residing at ... Melville Street, Pollockshields, Glasgow, cause him to fall to the ground and repeatedly punch, kick, stamp on his head and body whereby he was so severely injured that he later died ... and you did murder him".
Asif Rehman was found guilty by unanimous verdict; Adel Ishaq was found guilty by majority. On 9 November 2012 both appellants were sentenced to life imprisonment with punishment parts of 16 years and three months in respect of Rehman (three months being attributable to a bail aggravation) and 16 years in respect of Ishaq.
Evidence
Crown Case
[2] William McKeeney was aged 57 when he met his death. He worked in the building trade and lived with his partner, Anne-Marie Newlands at an address in Melville Street, Pollockshields.
MISS NEWLANDS
[3] The main evidence against the appellants came from Miss Newlands. As narrated by the trial judge, Miss Newlands said that, on the evening of Saturday, 14 January 2012, the deceased had gone out for a drink to two nearby pubs. Shortly before 12.30am, Miss Newlands had phoned him on his mobile. He had told her that he was just crossing Darnley Street, which runs at right angles to, and at the eastern end of, Melville Street. Miss Newlands described the deceased as being drunk and assumed that he had had a few more pints than he had perhaps intended.
[4] After the phone call, Miss Newlands went to her livingroom window so that she could see the deceased when he came round the corner from Darnley Street. She did not see him and briefly left the room. On returning, she looked out again and saw two young men of Asian ethnic origin (the appellants) across the street near the corner. She thought that the appellants were breaking up a piece of furniture, but could not be sure as her view was partly blocked by the deceased's lorry. The appellants were kicking or stamping on something on the pavement. As Miss Newlands did not like the look of what was happening, she decided to phone the deceased to tell him to be on his guard.
[5] Miss Newlands went to find her mobile. When she again returned the livingroom, she looked out once more and saw Ishaq across the road standing on the pavement, near the railings of the houses. Rehman was at the road edge of the pavement, continuing to stamp on something. He walked away towards the Darnley Street corner. Ishaq then said something to him and he (Rehman) came back and did some more stamping. Miss Newlands saw Rehman stamp six to eight times. Both appellants then walked round the corner into Darnley Street.
[6] Miss Newlands stood on a trunk under her window and realised that the appellants had been stamping on a person. She ran outside and saw that it was the deceased. He was in a very serious state. She phoned the emergency services at 12.41am. He was taken to the Victoria Infirmary, where he was pronounced dead at 3.40am.
[7] After a brief cross-examination on behalf of Rehman, counsel for Ishaq took Miss Newlands to the detail of a statement taken from her by the police on Monday, 16 January, at her father's home. The statement contains a description of one of the appellants (Rehman) being closer to her on the pavement and the other (Ishaq) back against the railings. Both were standing and then she saw Rehman stamping three or four times. There was no mention in the statement of any active participation by Ishaq. Miss Newlands explained that this was because what she had been talking about to the police, when being interviewed, was the end of the incident. Despite lengthy, multiple and leading questions on behalf of Ishaq, Miss Newlands did not depart from this explanation.
[8] In re-examination, it was established that, in her 999 call, Miss Newlands had described the deceased being "beat up by two boys". At 1.20am in the hospital, she had described to the police "two boys, Asian boys ... stamping their feet on something". That is what she said had happened in her evidence, although she could not recall having said it to the police at that time.
IMRAN KHAN
[9] In addition to Miss Newlands, there was evidence that Ishaq's mobile phone had unintentionally called the number of one of his friends, namely Imran Khan, who also lived in Melville Street and knew the deceased, at 12.41am. Mr Khan had answered, said "hello" several times but had received no reply. He could hear the appellants speaking to each other, but could not make out what they were saying. From the noise on the phone, he could tell that they were running. They sounded drunk and "hyped". There was then an Irish voice, which he thought was that of the deceased, saying: "Is there a problem, lads? What's the problem?" He had hung up and tried ringing back, but Ishaq's phone rang out and went to voicemail.
[10] About five minutes later, Ishaq had phoned Mr Khan back. Rehman took Ishaq's phone and, in the course of the conversation, said to Mr Khan: "By the way, don't walk out [of] your house: we've just splattered a c---t outside your house". When Mr Khan asked why, Rehman had replied: "Because the white c---t was getting wide".
[11] Most of this evidence had been extracted from Mr Khan in the course of an elaborate examination consisting of putting the contents of a recorded interview of him by the police in an ostensible attempt to "jog" his memory. It is clear from the transcription of his evidence that Mr Khan's memory was not nearly as deficient as he was attempting to make it out to be. He repeatedly stated that he could not remember exactly, or word for word, what he had been told on the phone by the appellants. He was prevaricating. He had said initially that Rehman had told him only that he had "hit someone in [Mr Khan's] street".
[12] Mr Khan accepted that, in this interview, he had been telling the police the truth. In relation to the accidental call, Mr Khan accepted that there had been a call to him from Ishaq. He was almost bound to do so given that there were telephone records to that effect. The following exchange took place with the advocate depute:
"The statement goes on 'I answered my phone and I said, "Hello," but there was no reply, so I kept saying, "Hello, hello, hello."' Do you remember that call? - No.
'I could hear their voices ... They were talking to each other in English ... They were... "running"... It was like that noise on a mobile phone shaking with the noise although it wasn't a windy night'... Is that what it says? - Yeah.
Do you remember telling police about that? - No.
Were you telling the police the truth? - Yes.
...
Do you remember a call like that that? - No.
It goes on, 'They sounded drunk... ... I heard a voice. It was an Irish voice.' Do you see that? - Yeah.
Do you remember a phone call and hearing an Irish voice? - No.
...
'... My first thought was, "That's Willie's (the deceased's) voice"'. Do you see that in the statement? - Yes.
Did you tell the police that? - Must have.
And was that the truth? - I can't remember. Can't remember this happening.
...
'I heard the Irish voice say "Is there a problem here, lads? What's the problem?"' - That's what it says.
Did you tell the police that? - I'm guessing I told the police all of this.
And is that because that was your memory of what you'd heard and what happened that night? - I think so, yeah.
Were you telling the police the truth? - Yeah."
[13] Moving on to the later conversation, the following parts of the statement were put and the examination continued:
"'Fetchy [Rehman] said, "Right, brand new, but by the way don't walk out your house, we've just splattered a c..t outside your house"'. ... Is that what it says? - Yes.
And is that what you told the police? - I think so yeah.
And was that true? - I think so.
TRIAL JUDGE: You think so? - I'm not sure. I can't remember exactly what I told the police.
TRIAL JUDGE: ...you are being asked now not about what you told the police, but whether it was true that Asif Rehman said those words to you? - Yes.
TRIAL JUDGE: It is true? - Yes
...
Do you recall Asif Rehman telling you about 'the white c..t getting wide'? - Honestly I don't, mate.
Would you agree it appears you told the police that? - Yes.
And were you, at the time, telling the police the truth? - Yes."
SAJID IQBAL, UMAR BHATTI and CHARLENE MILLOY
[14] After the appellants had walked round the corner into Darnley Street, Rehman had gone up to his family's flat in Darnley Street and changed his clothes. The appellants had then walked back round to the locus and stood at the police crime scene barrier tape. There they met another friend, namely Sajid Iqbal, who also lived in Melville Street. According to Mr Iqbal, both appellants had said to him: "Don't tell no one, we did it". Ishaq said: "We punched his c---t in". Rehman said: "We booted his head in". The last two pieces of evidence had again been obtained as a result of the advocate depute putting the content of a statement to the witness and the witness agreeing that he had told the police these things, having earlier said that he had been telling the police the truth (although he was not asked to repeat that in relation to the specific passages).
[15] On the afternoon of Sunday, 15 January 2012,...
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