R v Cairns; R v Zaidi; R v Chaudhary
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE |
| Judgment Date | 22 November 2002 |
| Neutral Citation | [2002] EWCA Crim 2838 |
| Docket Number | No: 200005048/200005049/200005051 |
| Court | Court of Appeal (Criminal Division) |
| Date | 22 November 2002 |
[2002] EWCA Crim 2838
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
Strand
London, WC2
Lord Justice Keene
Mr Justice Forbes
His Honour Judge Rant Cb QC
No: 200005048/200005049/200005051
MISS S ELLIOTT appeared on behalf of ALISON CAIRNS
MR D SINCLAIR appeared on behalf of SAMINA ZAIDI
MR R SUTTON QC appeared on behalf of ABDUL CHAUDHARY
MR N PASCOE QC appeared on behalf of the Crown
Friday, 22nd October 2002
On 27th July 2000, at Portsmouth Crown Court before HHJ Chubb, after a trial lasting some 2 months, the appellants were each convicted of conspiracy to supply a class A drug, namely heroin.
On 29th September 2000, in the same court and before the same judge, they were sentenced as follows: the appellant, Alison Cairns, to 7 years' imprisonment; the appellant, Samina Zaidi, to 8 years' imprisonment; and the appellant Abdul Chaudhary to 11 years' imprisonment. They now appeal against conviction by leave of the single judge.
The applications by Cairns and Zaidi for leave to appeal against sentence have been referred to this court by the single judge and we have allowed an application to be made on behalf of Chaudhary for leave to appeal against sentence out of time to be made.
Two other defendants on the same indictment were acquitted, Memet Hussain by the jury and Alison Linfield under Section 17 of the Criminal Justice Act 1967 because the Crown offered no evidence against her.
Two others had already pleaded guilty to conspiracy to supply heroin, one of those being a man called Barry Cairns, the husband of the appellant, Alison Cairns.
The Crown's case in essence was that the conspiracy involved the supplying of very large quantities of heroin over a period of months in the second half of 1998 from London to the Portsmouth area. The suppliers at the London end were said to be the appellant Chaudhary, assisted by the appellant, Zaidi.
Chaudhary had visited Pakistan a number of times in the relevant period. He and Zaidi, according to the Crown, would transfer the heroin to Barry Cairns, who would travel to London for this purpose several times a week. He would then pass the heroin on to a network of suppliers to distribute.
The appellant Alison Cairns was alleged to have played an active role in the enterprise, driving her husband to delivery points for drugs, collecting money from sub-dealers and often acting as a doorkeeper at their home when purchasers of drugs called.
Memet Hussain, who was acquitted, was alleged to have been Barry Cairns' lieutenant in the latter part of the period of the conspiracy.
The Crown relied upon a certain amount of indirect evidence of the conspiracy. There was observation evidence of the Cairns' home showing a pattern of very many short visits with some 700 callers over a 2 month period. There was evidence of telephone calls over many months between those alleged to have been involved in the conspiracy. The schedule of telephone calls showed a telephone call being made from the appellant Zaidi's home, for example, within a few minutes of the observation officers seeing a person, who Barry Cairns said was Zaidi, transfer drugs to him on 14th December 1998.
A car which Cairns was driving was then stopped on that same day on the Bow flyover in East London and in the car were found bags containing some 9 ounces of heroin. The defendant, Memet Hussain, was in the car on this occasion.
There was also evidence of Zaidi and Chaudhary being found at the Cairns' home in Portsmouth on 24th December with Alison Cairns. According to Alison Cairns' evidence at trial she had told Zaidi of her husband's arrest and Zaidi had then offered to supply her with heroin. Alison Cairns also gave evidence of witnessing a deal between her husband and Zaidi in October 1998 at a motel.
But undoubtedly the principal direct evidence against Chaudhary and Zaidi came from Barry Cairns who gave evidence for the Crown. He referred to having arranged in mid-1998 to meet a man calling himself Hussain, who would supply heroin to him. He said that this man in fact was the appellant Chaudhary. Supplies were duly made with the amounts increasing until the heroin was coming in 9 ounce bars. He, Barry Cairns, would travel to London to pick it up, sometimes with his wife driving, and then bring it back to Portsmouth.
He described the arrangements for picking it up from Chaudhary and for making payment. About half way through this period dealing with Chaudhary, it was said by Barry Cairns, Chaudhary told him he was going away and he introduced Cairns to Zaidi. Cairns thereafter had the same dealings with Zaidi as he had with Chaudhary. According to Cairns' evidence he would meet Zaidi next to a Stratford public house. He said he dealt with her on some five or six occasions.
He too described getting heroin from Zaidi in October 1998 at a motel. At one point he also said that Zaidi was a runner for Chaudhary.
In short Barry Cairns' evidence deeply implicated the appellants Chaudhary and Zaidi in the conspiracy. However, his evidence about his wife and about the defendant Memet Hussain was not to that effect. He testified that Alison Cairns knew that he was dealing but he said that she had not been involved in any drug dealing or handling of drugs. She had not known that he was going to get some heroin on the occasion in October 1998 when he met Zaidi at a motel. As for Memet Hussain, he, according to Barry Cairns, was only in the car on 14th December when it was stopped by the police because he was a friend whom Barry Cairns had asked to come along to keep him company. According to Cairns, Memet Hussain did not know anything about the drugs. Barry Cairns, it should be said, was a drug addict himself with a number of previous convictions and he was also a registered police informant. At trial the defence advanced by Alison Cairns differed remarkably from that advanced by Chaudhary and Zaidi. Alison Cairns' position was that any acts of hers relied on by the Crown against her were done under coercion by her husband.
She gave evidence that she had been unaware that he had been supplying drugs to others until she witnessed the deal between him and Zaidi in the bathroom of a motel in October 1998. She said she was unable to do anything about her husband's supplying or to resist his demands. He had been violent, she said, to her for years. She denied acting as his lieutenant. She was the mother of his three children and she had to survive within the marriage, as escape was impossible. Her evidence implicated Zaidi and to a degree also Chaudhary.
Chaudhary's and Zaidi's case was that they had been supplying Barry Cairns not with drugs of any kind but with illegally imported alcohol. Neither had mentioned such importations when interviewed, but both said that this was wholly or in part because they knew it was illegal. Both denied any involvement with drugs. Chaudhary's case, in essence, was that Barry Cairns was framing him so as to improve his position with the authorities.
The grounds of appeal against conviction raised by the three appellants vary. It is convenient to begin with the one issue raised on behalf of the appellant Chaudhary because that is also raised on behalf of the appellant Zaidi, although she has a further ground, to which we shall come.
This first ground derives from the fact that the prosecution was clearly not seeking to rely upon the evidence being given by Barry Cairns insofar as it related to his wife and to the defendant, Memet Hussain. It is submitted on behalf of Chaudhary and indeed Zaidi that in those circumstances he could not have been regarded by the prosecution as a witness worthy of belief and therefore he should not have been called by the prosecution.
At trial an application was made on behalf of Chaudhary to exclude the evidence of Barry Cairns on the basis that the prosecution had not properly exercised its discretion or alternatively that the judge should exercise his discretion under Section 78 of the Police and Criminal Evidence Act 1984, so as to exclude it. We observe in passing that that application was made solely on behalf of Chaudhary. Counsel for Zaidi expressly observed at the time that he was not supporting the application.
It was opposed not only by the prosecution but also by counsel for Hussain. Since the point is being raised in any event on this appeal on Chaudhary's behalf we have not sought to prevent Mr Sinclair from addressing us on it on behalf of the appellant Zaidi.
The trial judge in his ruling on this point reviewed a number of the relevant authorities and concluded that the prosecutor had not adopted an incorrect approach to the exercise of his undoubted discretion. In so doing he accepted the submissions put forward on behalf of the Crown that Barry Cairns had evidence to give about Chaudhary and Zaidi, which seemed to be the testimony of a witness worthy of belief, and that his reluctance to incriminate his wife and a friend could be understood by the jury and would not necessarily prevent him from being seen by them as a truthful and reliable witness in respect of Chaudhary and Zaidi.
The judge also concluded that balancing the interests of both prosecution and defence, including the defendant Hussain, he was of the view that calling Barry Cairns would not have such an adverse effect upon the fairness of the trial that his evidence should be excluded under Section 78.
Those rulings are now challenged. On behalf of the appellant Chaudhary, Mr Sutton, QC,...
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...[2003] SCC 30 ...................274R v Bunting [2002] SASC 412 .......... 200R v CB [2003] OJ No. 11............. 201, 202R v Cairns [2002] EWCA Crim 2838................................................. 113, 116R v Carass [2001] EWCA Crim 2845,[2002] 1 WLR 1714 ..............58, 59, 60R v......
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