R v Kalia
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE ROSKILL |
| Judgment Date | 25 November 1974 |
| Judgment citation (vLex) | [1974] EWCA Crim J1125-1 |
| Docket Number | No. 4481/C/73 No. 4483/C/73 No. 4484/C/73 No. 4485/C/73 No. 4645/C/73 No. 4646/C/73 |
| Court | Court of Appeal (Criminal Division) |
| Date | 25 November 1974 |
[1974] EWCA Crim J1125-1
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
Lord Justice Roskill
Lord Justice James
and
Mr. Justice May
No. 4481/C/73
No. 4482/C/73
No. 4483/C/73
No. 4484/C/73
No. 4485/C/73
No. 4645/C/73
No. 4646/C/73
MR. B. RODWELL appeared on behalf of Appellants Daya Kalia and Jagan Nath Kalia.
MISS A.M. TURKAN appeared on behalf of Applicants Bhuller and Sahi.
MR. J. YAHUDA appeared on behalf of Applicants Sidhu, Ramlok Sharma and Balbir Sharma.
MR. M. SAYERS and MR. C. MITCHELL appeared on behalf of the Crown.
Thursday, 21st November, 1974.
In view of the size of the documentation of these appeals and applications and of the facts that there are a large number of appellants and applicants and that the trial – this is a matter to which the Court will have to advert later – lasted 69 days, the Court proposes, exceptionally, to deal with these appeals and applications, so far as it conveniently can, point by point rather than by appellant or applicant after appellant or applicant. Moreover, a number of the points are common to the different cases. We do not therefore propose in this judgment to go in any detail into the background of the trial.
The first point that has been argued this morning on behalf of the two appellants, Daya Kalia and Jagan Nath Kalia (who are not – I repeat, not – husband and wife but brother and sister-in-law, Daya being the wife of a man named Kedar Nath Kalia, whose name played a prominent part in this long trial), is that the learned trial Judge, Judge Abdela, was wrong in refusing the application for an order that the two appellants be tried separately from the rest of those charged in this indictment.
It is necessary to say that the indictment, so far as presently concerns the two appellants (they obtained leave to appeal against their convictions from Mr. Justice Forbes), contained two counts of conspiracy. The first count alleged conspiracy to contravene section 4(3)(a) of the Commonwealth Immigration Act 1962, and the second alleged conspiracy to contravene section 4(1)(d) of the same Act.
The purpose of these two alleged conspiracies can be summarised in this way. Count 1 was an alleged conspiracy to get a number of intending illegal immigrants into this country through Manchester Airport, disguised as musicians carrying musical instruments which, it seems, none of them was able to play, by making false representations as to the true facts as to their status, including that they were musicians coming into this country to fulfil professional engagements which had already been arranged for them here. As I say, it was a conspiracy to get them through the immigration controls and into this country by false representations. It allegedly involved people who were in this country at what one might call the receiving or reception end, and people outside this country at what one might call the Indian end.
The second count can he conveniently summarised by saying it was an alleged conspiracy to enable those people who, once they got in here illegally in furtherance of the conspiracy in count 1, thereafter to remain in this country in breach of the conditions attaching to the entry which they had secured by the fraudulent means as alleged in count 1. In other words count 1 was to get them in and count 2 was to keep them in when they got here.
It follows from what I have already said that the prisoners really fell into twogroups, those seeking entry and those who it was alleged had arranged the illegal entry. The two Kalias were among those who, it was alleged, arranged the illegal entry and wore involved in the United Kingdom getting the immigrant through the controls. Mrs. Kalia and her husband Kedar Nath Kalia had been living together in Coventry. At the time of the trial Kedar Nath Kalia (I want to say as little as possible about him, as he was not charged and may still have to face charges if he comes back to this country) had gone back to India. Of course it is trite law that there cannot be a conspiracy between a wife (Daya Kalia) and a husband (Kedar Nath Kalia), although there could be a conspiracy between any of the other accused and the appellant Jagan Nath Kalia.
It has been argued (as it was argued by Mr. Rodwell in the court below) that there should have been a separate trial for the Kalias because the alleged illegal immigrants had all made statements, which were vigorously challenged at the trial, implicating them. I say no more about them for the moment. But everybody knew that they were going to be challenged as having been improperly obtained.
The original application to sever the trial of the Kalias from the others was made by Mr. Rodwell at the beginning of the trial and before the Judge had ruled at the end of a trial within a trial held to determine the admissibility of some of these statements by the alleged illegal immigrants. Those statements (which were confessions) contained a massive amount of evidence, if they were properly obtained and were true, that Kedar Nath Kalia was a conspirator. These confessions were, at the beginning of the trial, no evidence whatsoever against the Kalias, though it is right to say (although Mr. Rodwell sought to argue the opposite), there was some other evidence against these two appellants.
What was said was that, once the jury heard, as they ultimately did hear, all this evidence from these illegal immigrants (challenged though it was), there was a serious risk of what is sometimes called in conspiracies a "brushing off" of that which was not evidence against these two appellants on to them, which no summing-up, however fair and however clear, could prevent. Mr. Rodwell argued, as he submitted to the trial Judge, that the only way of avoiding that risk was for separate trials to be ordered. He conceded that the question of ordering separate trials was a matter for the trial Judge's discretion, and accepted that this Court will rarely interfere with an exercise of that discretion.
But it is said here that the learned Judge exercised his discretion upon a wrong principle, because he did not properly take into account, at the time when this submission was made and before of course he could know whether or not these confessions would be admitted in evidence at the trial, their prejudicial effect (if admitted) against the two Kalias.
Of course this problem frequently arises in conspiracy cases. It is a problem of which any judge of experience, like the trial Judge in the present case, is well aware. In the view of this Court, at the time at which he gave his ruling, he was well justified in exercising his discretion in the way in which he did, and for this reason. It was of the essence of the prosecution case that there were two separate conspiracies in which all the accused and others were involved. It really was impossible in those circumstances to separate the trial of these two appellants on these two conspiracy counts from the trial of the other accused. The learned Judge in his summing-up did his best to make absolutely plain what evidence was and what was not admissible against certain of the accused. At the time he gave his ruling we think he was quite justified in ruling as he did.
It was said further that he ought to have reviewed this ruling some seven days later after the trial within a trial and after his decision to admit this evidence. It is only fair to the trial Judge to say, as Mr. Rodwell admitted, that the application to sever was not then renewed. The learned Judge cannot be blamed for not reviewing his decision if the application was not renewed, and it is a little harsh to blame him for not reviewing his earlier ruling when he was not invited so to do.
In the result Mr. Rodwell's first ground of appeal regarding the Kalias must fail.
We have also heard argument from Mr. Yahuda on behalf of Sidhu and the two Sharmas, that both counts of the indictment and particularly count 1, were bad in law. The main ground upon which this argument was advanced at the trial before the learned Judge, over a regrettably long period of time, was that the counts infringed the principles laid down by the Court of Criminal Appeal in Barnett 35 Criminal Appeal Reports 37. That was a case where the Crown had charged a number of persons with conspiracy to contravene section 1 of the Auction (Bidding Agreements) Act 1927. It is to be observed that that statute made a summary offence an agreement to organise a ring of bidders. It was therefore the making of such an agreement which was the summary offence created by that statute. The Crown in that case, notwithstanding the provisions of the statute which made that offence as a summary offence, charged conspiracy to infringe the Act. That conspiracy charge was held to be bad. That decision has been distinguished in a number of later cases to which it is not necessary to refer.
Although this submission was put forward in the grounds of appeal, Mr. Yahuda did not pursue it before us. On the contrary he expressly abandoned it. This Court feels bound to observe with regret that it only received the amended grounds of appeal at 3.20 yesterday afternoon, and that document does not expressly abandon this ground. At .the most It only impliedly does so. If Mr. Yahuda was going to abandon the point, the Court ought to have been informed of his intention in advance, as the point had been taken at the trial and renewed in the original grounds.
However, Mr. Yahuda in this Court substituted an alternative argument. It must be...
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