R v Burge ; R v Pegg

JurisdictionEngland & Wales
JudgeLORD JUSTICE KENNEDY
Judgment Date14 March 1995
Judgment citation (vLex)[1995] EWCA Crim J0314-6
Docket NumberNo. 93/2300/Y4
CourtCourt of Appeal (Criminal Division)
Date14 March 1995
Regina
and
Sean Burge
David Pegg

[1995] EWCA Crim J0314-6

Before: Lord Justice Kennedy Mr Justice Curtis and Mr Justice Buxton

No. 93/2300/Y4

94/2483/Y4

IN THE COURT OF APPEAL CRIMINAL DIVISION

MR P O'CONNOR QC appeared on behalf of the Appellant BURGE

MR HUBBARD appeared on behalf of the Appellant PEGG

MR TITHERIDGE & MR DAVIS appeared on behalf of the Crown

1

Tuesday 14th March 1995

LORD JUSTICE KENNEDY
2

1. Introduction

3

On 24th March 1993 in the Crown Court at Winchester the two appellants pleaded guilty to robbery. A co-accused, Hurst, pleaded guilty to burglary. On 8th April 1993 the appellants were convicted of Murder. Hurst was acquitted of murder, but convicted of robbery. The appellants have appealed against conviction by leave of the Single Judge. At the conclusion of the hearing before us we dismissed the appeal. We now give our reasons for that decision. Although Pegg originally sought to renew his application for leave to appeal against sentence in relation to the offence of robbery, that application has not been renewed and we say no more about it.

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2. Outline of facts

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In May 1992 the two appellants were living at different addresses in Weymouth. On Saturday evening 2nd May 1992 they gathered at the home of their co-defendant Hurst, 5 Perth Street, where Hurst lived with his girlfriend Lisa Cuthbert. At that house there were also Peter Brown and his girlfriend Sian Kent. There was then discussion about the possibility of committing an offence to obtain money, an earlier burglary by Hurst having proved unrewarding. The appellants and Hurst agreed to visit 37 St Thomas Street where there was residential accommodation above a kebab house owned by Fazim Hakimi. The entrance to the residential accommodation was by a door in a porch to one side of the shop. The door had two bolts, but with a little ingenuity a small man could get at them to release them because there was damage to the fanlight and to one side of the porch. Hurst was a small man, and when he and the two appellants left Perth Street, his first task was to be to open the door at 37 St Thomas Street. At that address a room on the first floor was occupied by Yaghoub Hakimi, a 74 year old retired Iranian colonel, who was the father of Fazim. On the second floor was a room occupied by Anthony Harvey, a friend of Peter Brown. Both Harvey and Brown were drug users, burglars and thieves. Harvey knew that there was supposed to be money in Yaghoub Hakimi's room. He had mentioned that to a couple called Lem who had previously lived at 37 St Thomas Street, suggesting that there was as much as £10,000, but he claimed to have no recollection of telling Peter Brown about it.

6

When the appellants and Hurst left Perth Street, it was the case for Hurst that he did not understand that an offence was going to be committed at 37 St Thomas Street. He believed that he was just going to let the other two into those premises to discuss with Harvey where they might find "an earner". The appellants, however, concede that they had it in mind to burgle the room occupied by Yaghoub Hakimi. Their case at trial was that they believed that he would not be there because he, at least on occasions, spent Saturday night with his son, a fact known to Sian Kent, but they did not tell Hurst of their intention because they knew that Hurst would not approve.

7

Perhaps surprisingly the appellants accept that they were equipped with masks (a stocking mask and snood) sticky tape and twine, the latter being provided by Brown. The appellant Burge also had in his pocket a piece of the black tights used to make the stocking mask. Their plan, they said, was to tie up Harvey with his consent, so that it did not look as though he was involved, and then burgle Yaghoub Hakimi's room.

8

At 37 St Thomas Street, after Hurst had let them into the building, they or one of them went up to Harvey's room. Harvey later told the police that he expected a visitor that night. Harvey refused to be tied up as proposed, and the appellants then put on their masks and went to Yaghoub Hakimi's room. Pegg forced the door and Burge rushed in. Burge says he was surprised to find himself attacked by Yaghoub Hakimi. There was a struggle. At one point, according to Burge, Yaghoub Hakimi had hold of Burge's testicles and Burge believed that in freeing them he may have broken a finger of Yaghoub Hakimi's left hand. In fact it was a finger of Yaghoub Hakimi's right hand that was broken in two places.

9

According to the appellants, they believed that they had been tricked by Peter Brown and Harvey into believing that the room was empty, but well-equipped as they were with tape, twine and a gag, they were able not only to overpower Yaghoub Hakimi but also to truss him up. They then took a watch and chain and departed, telling Harvey as they left to release Yaghoub Hakimi in twenty minutes or so. Outside the building they met up with Hurst, and all three went home.

10

Harvey undoubtedly became aware of what had happened to Yaghoub Hakimi, and after 5.00am he left the building, went to a taxi rank and to the Crown Hotel, asking for change for a pound coin, and eventually, at 5.24am, dialled 999, saying that there had been a burglary and that he could get no sense out of Yaghoub Hakimi. The ambulance service attended at 5.29am, and the police soon afterwards.

11

Yaghoub Hakimi was dead. The pathologist put the time of death at between 11.30pm and 5.00am, and the defence suggestion was that Harvey was probably the killer because the appellants asserted that Yaghoub Hakimi had been alive when they left. The defence also relied on certain matters to which we will refer later on.

12

The cause of death was asphyxia. There were two broken bones in the neck. There was also heavy bruising of the lower right cheek and lighter bruising of the left jaw and the inside of the mouth. As we have already said, the right little finger was broken in two places.

13

In the early stages of the police enquiries, the two appellants, together with Hurst, Brown and Harvey, were all arrested. All told lies, but at this stage little turns on that.

14

3. Unsafe or unsatisfactory?

15

At trial all three defendants gave evidence and there is no criticism of the summing-up, save that Mr O'Connor, for Burge, contends that the Judge should have extended his warning in relation to lies to cover lies told in the witness box. The main submission made by both Mr O'Connor and Mr Hubbard, on behalf of Pegg, is, however, that Harvey and Brown were unsatisfactory witnesses, their evidence left certain matters unresolved and, therefore, the convictions should be regarded as unsafe and unsatisfactory.

16

4. On behalf of Pegg.

17

Mr Hubbard submitted to us that all five originally arrested should have been in the dock so that the jury could decide who was culpable. Brown and Harvey, who were not charged, were, as we have indicated, drug addicts and burglars who committed crimes to fund their addiction. When arrested they, like these two appellants and Hurst, lied to the police. Brown, as Mr Hubbard pointed out, was himself involved with equipping the appellants to offend at 37 St Thomas Street. He provided the tape, the twine, and his girlfriend provided the stocking mask. Mr Hubbard submitted that despite Brown's denials, he must have known what his friend Harvey knew, namely that Yaghoub Hakimi was supposed to have £10,000 in his room, and Brown may well have suggested Yaghoub Hakimi as a target that night. If Hurst's girlfriend, Lisa Cuthbert, and her friend, Patricia Shotton, are to be believed, Brown later offered to change his evidence for £100 but, as Mr Hubbard conceded, the jury may well not have found that evidence of those two women persuasive.

18

Turning to Harvey, Mr Hubbard pointed out that he lied about whether Hurst had stayed with him on the Friday night, the night before the killing. As to the Saturday night, he told the police, and ultimately agreed in the witness box, that he was expecting a visitor so, submits Mr Hubbard, Brown and Harvey had everything planned. Harvey knew Yaghoub Hakimi's habits and must have known that Yaghoub Hakimi, on that night, was actually in his room and not staying with his son. Harvey offered no satisfactory explanation for the period of about 40 minutes or so before he dialled 999 (a point to which we will return later in this judgment) and when the deceased's room was examined, connections with Harvey could be made. His fingerprints were on the tape around the mouth of the deceased. A mark on the wall could have been made by a glove he owned, and although on the night of the killing the door had been forced by bodily pressure exerted by Pegg, screwdriver marks found on the door frame could have been made by a screwdriver which Harvey owned. The jury, Mr Hubbard submitted, should have had to contemplate five not three defendants, and because the picture presented to them by the prosecution was incomplete, there must be doubt about their conclusion.

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5. On behalf of Burge.

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Before dealing with Mr Hubbard's submissions, it is convenient to refer to submissions made by Mr O'Connor other than his submissions as to the direction required in relation to lies told in the witness box. Mr O'Connor reminded us of the jurisdiction granted to this Court by section 2(1)(a) of the Criminal Appeal Act 1968, and suggested that we should not pay too much respect to the decision of a jury which, despite the judge's warnings, may have had an emotional reaction to what was, on any view, a dreadful crime. That point has limited force because the jury did discriminate between these...

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