R v Mhs
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens |
| Judgment Date | 29 November 2012 |
| Neutral Citation | [2012] EWCA Crim 2564 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | Case No: 2011 04741 B4 |
| Date | 29 November 2012 |
[2012] EWCA Crim 2564
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM BRADFORD CROWN COURT
HHJ STEWART QC
T20107516
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aikens
Mr Justice andrew Smith
and
His Honour Judge Rook QC
Case No: 2011 04741 B4
Mr Stephen Wood (instructed by CPS Special Crime Division) for the Respondent
Mr Rodney Jameson QC (instructed by Shaikh Ayub) for the Appellant
Hearing date : 16/10/2012
I. Synopsis
The principle issue on this appeal against conviction, which we heard on 16 October 2012, concerns the admission of hearsay evidence when a witness asserts that he will not give oral evidence at the trial "through fear". It therefore involves both Chapter 2 of Part 11 of the Criminal Justice Act 2003 ("the CJA") and Article 6 of the European Convention of Human Rights (" ECHR"). The relationship between the CJA and a defendant's Article 6 rights have been extensively examined by this court and the Supreme Court in R v Horncastle1 and were again considered by this court in R v Ibrahim2 and, even more recently, in R v Riat, Doran, Wilson, Clare and Bennett.3 At the conclusion of oral argument on 16 October we announced that the appeal against conviction on counts 1, 2 and 3 would be allowed, for reasons that we would hand down later. These are our reasons to which all members of the court have contributed.
The appeal arises from the conviction on 3 August 2011 of Mohammed Hanees Shabir, now 28, of four offences, following a trial before HHJ Stewart QC and a jury in the Crown Court at Bradford. That trial took place after one before HHJ Goss QC in February 2011 had been abandoned. On 3 August 2011 the appellant was convicted of attempted murder (count 3), possessing a firearm with intent to cause fear of violence (count 1), having a firearm with intent to commit an indictable offence (count 2) and assault occasioning actual bodily harm (count 5). For those offences he was sentenced to a total of 20 years imprisonment. 4 Counts 1,2 and 3 arise out of a shooting incident in Bradford on 24 September 2010. Count 5 arises out of an incident the following day.
The appellant was acquitted of two other charges, one of possessing a firearm and one of attempted kidnap. Those allegations arose out of the second incident.
There were two co-accused, Mohammed Aqib and Mohammed Asim Khan. They were both convicted of assault occasioning actual bodily harm and acquitted of attempted kidnap. Those offences also concerned the second incient. Aqib was sentenced to 2 years imprisonment less time spent on remand. Khan was sentenced to 2 1/2 years imprisonment less time spent on remand.
II. The facts giving rise to the charges.
The sequence of events began on 24 September 2010. The appellant and two friends were at some car-hire premises in Nelson Street, Bradford. Quasir Rafique ("Rafique"), then aged 24, who was later to be the victim of the attempted murder, arrived with a friend at the same premises. There was a confrontation between the appellant and Rafique. The incident, which was not particularly serious, was recorded on CCTV. Witnesses present were unanimous in blaming the appellant for
starting the altercation. They said that the appellant threatened Rafique and that the appellant said that he knew where Rafique lived and that he was going to come and "get" him.
Later that evening Rafique drove to Summerville Road in Bradford, which is a meeting place for young Asian men. There he met a number of friends. At about 9.25 pm, a gunman appeared and chased Rafique, saying he was going to kill him. Rafique ran to a Lexus car, where the witness Wasim Riaz was in the driver's seat. Rafique jumped into the car. As the Lexus set off the gunman fired a shot which penetrated the nearside front door of the car, but struck a brace in the door and lodged there. The forensic evidence established that it was a 9 mm calibre bullet. As already noted, these events gave rise to counts 1,2 and 3. Counsel for the appellant accepted at the trial that there was ample evidence from which a jury could conclude that the gunman intended to kill.
In the early hours of the following morning Rafique gave a statement to the police concerning the events of the previous day. He said that he had recognised the gunman immediately as being the appellant. Rafique also said that he had known the appellant for years, that the appellant had forced him to steal from the Tesco's store where Rafique had worked at the time and that the appellant had also made Rafique engage in drug dealing. Rafique said that the appellant had began to threaten to shoot him and his family because he refused to continue to do the appellant's bidding in relation to drugs. This culminated in the incident in Summerville Road.
After Rafique made this statement, he went home. Later that morning, ie on 25 September 2010, Rafique was asked by his father to take his car to be washed at a car-wash called Dr Sponge, which is in Whetley Lane, Bradford. There Rafique was assaulted and received a bloody nose. He said the assault was carried out by the appellant and the two co-accused, who had all arrived in a Golf car, driven by Mohammed Asim Khan. Rafique said that the appellant hit him with the butt of a pistol held in the appellant's hand. Rafique went home and immediately complained of an assault by the appellant and the two co-accused. These events gave rise to count 5 (and the two counts of which the appellant was acquitted). Rafique made a second statement shortly after this incident. He described the events as summarised above and he referred to the appellant as "Hanees Shabir, the same guy who shot at me last night".
The appellant was arrested soon afterwards, whilst driving the Golf car. An unfired 9 mm short calibre cartridge, capable of being fired was recovered from the Golf. However, the forensic scientists could not say whether the cartridge fired into the Lexus and that recovered from the Golf had been loaded into the same magazine or chambered in the same firearm. There was no DNA or fingerprint evidence on the cartridge recovered from the Golf. The appellant's clothing was examined and some blood was found on it. Samples were tested and each matched the DNA profile of Rafique.
The appellant gave a "no comment" interview.
Subsequently there was a VIPER identification procedure on 27 October 2010 and the appellant's image was one of those displayed. At that Rafique identified the appellant as the man who attacked him with a gun and fired a shot at the Lexus in Summerville Road on 24 September 2010. Rafique said that he recognised "Number 6 as Hanees Shabir". It appears from the written submissions of Mr Jameson QC in opposition to the application to adduce Rafique's statements under section 116 of the CJA that the two men knew each other. However, that was not an agreed fact at the second trial.
There were four other eyewitnesses to the shooting in Summerville Road. They were the driver of the Lexus, Wasim Riaz; Sohail Mohammed, who had been in the Lexus but was left behind at the scene because the Lexus drove off before he could get back into it; Tauseef Mahmood, who was a passenger in the Lexus as it drove off and, lastly, a man who was known only as "Witness E". Wasim Riaz and Witness E said in their statements that they did not recognise the gunman. Sohail Mohammed and Tauseef Mahmood made statements in which they said that they had seen the gunmen before, that he was a well-known local drug dealer and that his name was "Hanney" or "Hanny".
At the VIPER identification procedure in which the appellant participated, none of these four eye witnesses identified him. In evidence at the trial both Sohail Mohammed and Tauseef Mahmood gave evidence that a man they called "Hanny", who they said was the gunman, was not on the ID parade. The witness E did not give evidence. As he was not identified, his statement could not be admitted under the "hearsay" provisions of Chapter 2 of Part 11 of the CJA 2003.5
III. The History of the proceedings up to the second trial: (A) Rafique's statements
As already noted, Rafique gave statements very shortly after each of the two incidents. In the first, which was given in the early hours of 25 September 2010 immediately after the Sommerville Road incident, he identified the appellant as the gunman. He described the appellant as an Asian male, very thin, aged 26 years, about 5feet 10 inches tall, having short black hair with short back and sides and being unshaven with a rash on his neck and by his ears. Rafique said also that the appellant was wearing black training shoes, black plain tracksuit bottoms, a plain black hooded top with a hood and black leather gloves. Rafique ended his first statement as follows: "I am willing to go to court and give evidence about this incident. I am frightened about what he might to do to me and rang ( sic) family but now enough is enough".
The second statement was given on 25 September 2010, after the car-wash incident. In that statement Rafique said (on page 2):
"I said in my last statement how I know Hanees and I know him as Hanny".
In fact Rafique had not said in his first statement that he knew the appellant as "Hanny". In the first statement Rafique always referred to the appellant as "Hanees" or "Hanees Shabir". Rafique said in his second statement that "Hanny" had two gloves on, which were the same as the previous night, being "black leather, light fitting, like a golfer's glove".
(B) The...
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