R v Joshil Thakrar
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE KEENE,MR JUSTICE MACKAY,SIR BRIAN SMEDLEY |
| Judgment Date | 09 May 2001 |
| Neutral Citation | [2001] EWCA Crim 1096 |
| Docket Number | 2000/3238/X3 |
| Court | Court of Appeal (Criminal Division) |
| Date | 09 May 2001 |
[2001] EWCA Crim 1096
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Keene
Mr Justice Mackay and
Sir Brian Smedley
2000/3238/X3
Mr Ruffell (appeared on behalf of the Appellant)
Mr Zeitlin (appeared on behalf of the Crown)
On 31 March 2000 at Isleworth Crown Court before Mr Recorder Fisher Q.C., the appellant and his co-accused, Mr Mohammed Ali Mir were convicted of one offence of robbery. On 2 May 2000 they were each sentenced to 12 months detention in a Young Offender Institution. The appellant now appeals against conviction and sentence by leave of the single judge who also granted him bail. We announced at the end of the oral argument that the appeal against conviction was dismissed but that the appeal against sentence was allowed. We now give our reasons for our decisions.
Leave to appeal against conviction was granted on only one ground, namely that the appellant did not have a fair trial, because his solicitors did not properly prepare his case prior to trial. However, he also renews his application for leave to appeal on one other ground, namely that his trial was prejudiced as he was cross-examined by his co-defendant to his detriment and without warning. On 12 June 2000 another constitution of this Court allowed the appeal against sentence by the co-defendant Mr Mir and substituted a Detention and Training Order for 6 months.
There was no issue that a robbery took place on 19 August 1999. At about 12.40pm on that day a 17 year old student, Mr Nandra, was robbed of his mobile phone by a group of young men as he walked along a street close to Ealing town centre. It was the prosecution case that the appellant and his co-defendant Mr Mir were jointly responsible for the robbery with three others. The police were called and a few minutes after the robbery Mr Nandra identified the appellant and his co-defendant in a street identification as participants in the robbery. Mr Nandra's mobile phone was found in the appellant's possession. It was the defence case that these were mistaken identifications. The appellant admitted his presence at the scene but denied participating in the robbery. It was his account that he had been given the mobile phone by one of the men who had carried out the attack. It was his co-defendant's case that he himself was seventy five feet away when the robbery occurred and did not see it happen. Thus the issue for the jury was whether each defendant was a participant in the robbery.
The appellant was a person of good character with no previous convictions. The complainant in his evidence described passing a group of four young men in a passageway in Ealing called Barnes Pikle. He described two of the men in terms which fitted the age, ethnic appearance and height of the appellant and his co-defendant. He said that after he had walked past the group he heard shouts about the mobile phone which he was holding. He did not look back and turned left into a road called Mattock Lane. He then heard footsteps approaching from behind and felt a hand on his shoulder. He turned to see man 1, alleged to be the appellant, who said "All right, mate" and shook him by the hand. This man kept his other hand on the complainant's shoulder and so prevented him from walking away. The rest of the group then surrounded him and a fifth man appeared. The complainant said that he was held by all these men. Man 3, alleged to be Ali Mir, grabbed his left arm and demanded the phone, threatening to shoot him. Man 1 forced the phone out of his hand and the group then left, with man 1 and man 3 heading of towards the Ealing Broadway shopping centre. Mr Nandra asked a passer by to call the police. When the police arrived a few minutes later, Mr Nandra drove around with them to try to find his attackers.
The appellant and Ali Mir were stopped by the police and according to the complainant's evidence he immediately recognised them as man 1 and man 3 respectively. However, the descriptions previously given to the two police officers at the scene, as recorded in their notebooks, did not match the actual heights of the appellant and his co-defendant. According to the police evidence, Mr Nandra described man 1 as being 5' 4" in height, whereas the appellant was said to be 5'7" in height; and man 3 was described to the police as 5' 6" tall, whereas Ali Mir was 6' in height. The complainant did not accept when cross-examined that he had given the heights as recorded by the police, although he had signed the notebook. When he was cross-examined by counsel for the appellant, the complainant did not accept that man 1 had merely tapped him lightly on the shoulder, shaken his hand briefly and then dropped it. He maintained that man 1 had held on to his shoulder and his hand and that he had struggled. He denied that man 1 had then detached himself from the group and had been outside the circle.
Two other police officers gave evidence about stopping the appellant and Mir shortly after the robbery. When the officers searched the appellant they found the complainant's mobile telephone, although without its SIM card. They also found his own mobile phone. The appellant told the officers that the phone, which proved to be the complainant's mobile phone, belonged to his cousin. After arrest and caution the appellant said that he had been stopped by two black men who said "If you don't walk in a shopping centre, if you don't agree with what is said, we'll shoot you in the forehead".
The appellant was in due course interviewed. The account he gave then differed from his evidence in court in that he maintained during his interview that his co-defendant Ali Mir was present throughout the robbery. In other respects his account was broadly similar to that given in evidence. He admitted in interview that he had made up the story given on arrest, saying that he had done that because he was scared. Ali Mir initially denied in interview that he was present when the robbery took place. He subsequently admitted that he was in the vicinity and saw the group, but said that he did not witness the robbery taking place.
The appellant's evidence at trial was that he had gone into college that day in order to collect his examination results. Afterwards he left with his co-defendant Ali Mir to catch a bus. He saw three men who were drinking. He did not know them. They discussed the exam results together and then the three men walked off. According to the appellant, he started walking and overtook them. Then he noticed Mr Nandra walk past holding a mobile telephone. The appellant said that he could hear the men talking about a phone. Mr Nandra kept looking behind him and appeared unsettled so he went up to Mr Nandra, tapped him on the shoulder and said "Are you all right?" He replied "Fine". The three men came and surrounded Mr Nandra and the appellant realised that all was not well and moved back. One of the men who was tall and bulky demanded Mr Nandra's telephone and the other two helped. Mr Nandra gave up the struggle and handed his phone to the bulky man. Afterwards the bulky man forced the appellant to take the phone by shoving it into his hand and saying "Go". The appellant said that he was frightened because he had witnessed the robbery. He realised that this was his chance to get away, so he took the mobile phone. He then telephoned his friend Mir. They met and were both arrested shortly afterwards. He said that he had lied in interview when he said that Ali Mir was there at the time of the robbery and he had done so through panic. He was shocked because he was in a police station for the first time and did not know what he was saying.
Ali Mir's evidence at trial was that he had met the appellant before the robbery but was not with him when it took place. He saw the group of men around the complainant and saw a tall man with a beard take something from Mr Nandra. The appellant did not play any role. Mr Mir said that five or ten minutes later he met the appellant. Then the police arrived.
A female friend of Ali Mir's was called on his behalf. Faiza Iqbal said that she was at the scene of the robbery at the relevant time and Ali Mir was some distance away. She saw the appellant touch Mr Nandra's shoulder and a brief conversation followed. When the trio came up and stood around Mr Nandra the appellant moved away. The bulky boy then turned and shoved something into the appellant's hand.
That then was the evidence at trial. It is said now on behalf of the appellant that there was a lack of proper preparation and advice by his then solicitors, Gratian and Company, which resulted in his defence not being properly presented at trial. As a consequence he did not have a fair trial and his conviction is unsafe.
In considering this argument we have taken account of fresh evidence put before us about the preparation of the appellant's case before trial and indeed about the trial itself. We heard evidence from the appellant himself, from Mr Sandara Kumar of the solicitors Gratian and Company, and from Mr Anim-Addo, the appellant's trial counsel. We have also had the benefit of seeing the file kept by Gratian and Company on the appellant's case. Privilege was waived by the appellant.
To put all these matters into context a brief chronology would be helpful. The robbery and the arrest of the appellant and Ali Mir took place on 19 August 1999. There was an initial hearing at the Magistrates Court on 21 September 1999. On 26 October 1999, the two defendants were committed by the Magistrates for trial at the Crown Court....
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