R v Moghal
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SCARMAN |
| Judgment Date | 25 January 1977 |
| Judgment citation (vLex) | [1977] EWCA Crim J0125-14 |
| Docket Number | No. 2733/C/76 |
| Court | Court of Appeal (Criminal Division) |
| Date | 25 January 1977 |
[1977] EWCA Crim J0125-14
Lord Justice Scarman
Lord Justice Shaw
and
Mr. Justice Thompson
No. 2733/C/76
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. D. DRAYCOTT, Q.C. and MR. R. WYAND appeared for the Appellant.
MR. A. CRIPPS, Q.C. and MR. P. WARRICK appeared for the Crown.
The Appellant appeals against his conviction of murder at the Birmingham Crown Court on the 20th May, 1976, alter a trial presided over by Mr. Justice May. The ultimate and disturbing question raised by the appeal is whether, in a case in which two people are Jointly charged as participating in one criminal offence (in this case, murder) and the defence of each Is that the other alone did it (the so-called "cut throat" defence), Justice can properly be done, if separate trials are ordered. The case concerns a woman and two men. One of the men was murdered at a time and place at which only the three of them were present. Either the woman or the man, this Appellant, or both the woman and the Appellant committed murder. There is only one impossibility – that neither did.
The woman, Sadiga Saliem Moghal and the man Mohammed Ilias Moghal were jointly charged with the murder. The Judge, upon the application of counsel for the woman, ordered separate trials. The woman was tried first: She gave evidence that she was a frightened, unwilling spectator of murder and was acquitted. The man was then tried before another jury: He gave evidence that he was the frightened, unwilling spectator of murder and was convicted. He now appeals. The woman's jury never saw or neard the man: the man's jury never saw or heard the woman. Can either jury nave really reacned a reliable understanding of what happened, or of the relative involvement between the two? Must there not be a "lurking doubt" as to the safeness of the man's conviction?
These are anxious questions, and Mr. Draycott Q.C., for the Appellant, has not shrunk from the ultimate submission that, in such a case, It is not possible to do justice to botn defendants if there be separate trials. But this is not his only point. He has made a number of other submissions, any one of which, if upheld, would mean the quashing of his client's conviction. if that should be the result of the appeal, a lay observer might well conclude that the process of justice had miscarried. A man is murdered; only two persons – one or other or both of them – could have done it; both, on separate occasions, are brought to trial; both are acquitted. What, he would ask, went wrong?
A possible answer, as every lawyer Knows, is – nothing. The "golden thread" of our law is that nobody is to be convicted of a criminal offence save upon evidence which puts his own individual guilt beyond reasonable doubt. This precious thread of our law is protected by the Criminal Appeal Act 1968, section 2 of which provides that the Court of Appeal shall allow an appeal against conviction if they think "that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory". If, as is possible and as the Appellant powerfully contends, a miscarriage of justice occurred when Sadiga was acquitted, the error lay in her trial and cannot be corrected in his. If, however, the jury's verdict in her case be treated as it should be, i.e. as a finding that the prosecution had failed to prove their case, there would be no miscarriage of Justice; but equally it would afford no ground for convicting the man. He is not to be prejudiced, even ir at the end of the day a murderer has evaded justice.
These are trite observations to a lawyer. We make them at the outset of our judgment only so that those who are not lawyers, to whose attention this case may come, may appreciate that the true miscarriage of justice would be if the Appellant, being tried second, should be prejudiced in his defence either by the result of Sadiga's trial or by some consequence of the order for separate trials.
Mr. Draycott's submissions for the Appellant, as developed in this Court, may be summarised as follows:
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(1) that the Judge was wrong to order separate trials; further, that even if the order cannot now be challenged, it produced a situation in which it proved impossible for his client to have a fair trial,
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(2)that the Judge wrongly excluded certain evidence; In particular the tape recording of a family conference at which Sadiga proclaimed her intention to Kill the man who was murdered,
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(3) that in all the circumstances the verdict of guilty against his client was unsafe and unsatisfactory.
On the 1st November, 1975, the police found the dead body of a young man, Rashid Ahmed Sadal, in a flat at 19 Old Warwick Road, Olton near Birmingham. Death had been caused by two stab wounds in the left side of his chest. The pathologist, who examined the body, was of the opinion that Rashid, when stabbed, had been lying on the floor unconscious after being partially strangled by a scarf tied tightly round his neck. A further injury was noted: his tongue had been slit – an injury which, in the pathologist's opinion, was inflicted while Rashid was still alive, though unconscious. There were no signs of a struggle.
The inferences from these findings were plain and, at the Appellant's trial, not in dispute. Rashid, taken unawares, had been partially strangled by someone standing behind his left shoulder. He fell to the floor unconscious. It was then that he was stabbed, and his tongue slit. A savage, horrifying murder, done by some person or persons determined to do him to death.
Police investigations soon revealed that the murder must have been done either by the woman, Sadiga, or by the Appellant, or by both of them, when on Thursday the 30th October the two of them paid a visit to Rashid at the flat.
They were jointly indicted. Before arraignment, however, counsel for Sadiga applied for separate trials. His application was opposed by the Crown: but not by the Appellant. Mr. Draycott, who has appeared for him throughout his trial and the appeal, explained to the Judge: "I have no grounds for making an application for a separate trial, but I am not averse to a separate trial, so that I would not oppose his application, but there is no basis upon which I could put forward a ground for separate trials".
The grounds for the application were as follows. By an administrative error a psychiatric report made upon Sadiga, while she was at the remand centre, had been sent to the Appellant's advisers. Mr. Draycott made it clear that, though the prosecution had declared its intention not to use the report to cross-examine Sadiga, if she gave evidence, (it being the Director of Public Prosecution's practice to refrain from cross-examining a defendant as to admissions made to a doctor in such circumstances), he would cross-examine her upon it, unless stopped by the Judge. Counsel for Sadiga submitted that such a cross-examination, which could occur only in a joint trial, would put his client at an unfair disadvantage. The Judge, taking the view that in a joint trial he could not stop the co-defendant from pursuing this line of cross-examination, exercised his discretion in favour of separate trials. In the event, this proved to be an unfortunate decision: it is the source of all the difficulties that have beset an otherwise simple, though horrifying case of murder.
Separate trials having been ordered, Sadiga was tried first, and acquitted. The Crown case against her was that it was her hand that did the Killing. Her defence was that Mognal alone had murdered Rashid; that, though she was present, she was in no way a party to the Killing. At first sight, her acquittal was a surprising verdict: but, if it be borne in mind that it was the result of a separate trial, it is understandable. Only two living souls Know what happened to Rashid on the 30th October – Sadiga and Moghal. At her trial there was no evidence from Moghal: Sadiga had the field to herself. She gave in evidence a detailed account of how Moghal Killed Rashid in front of her horrified eyes. Rashid had been her lover in the past: Moghal was her lover at the time of the murder. It is understandable that without the opportunity of hearing and seeing Moghal the jury, after hearing and seeing Sadiga, were not prepared to say that they were sure that she was a party to the murder.
Elaborate, and so far as we Know successful, steps were taken upon the instructions of the Judge to prevent publicity being given to Sadiga's trial and acquittal. There is no reason to believe that the jury which tried Moghal learnt until after they had convicted him that Sadiga had been acquitted. One suspects, however, that they may well nave put two and two together and concluded that this was so. They were however, given a clear and emphatic direction to put all such considerations out of their minds, and one may safely assume that they did so.
When Mognal's trial began, Mr. Draycott, who, it will be recalled, had earlier expressed himself as "not averse to a separate trial", was now very much alive to his client's difficulties. The unexpected, and to him the inconceivable, had occurred: Sadiga had been acquitted. The Crown declared that they would not be calling Sadiga at Moghal's trial; nor were they prepared to tender her for cross-examination, taking, as they did, the very understandable view that she had secured her acquittal by telling lies in the witness-box. Mr. Draycott was, therefore, deprived of the opportunity, which a joint trial would almost certainly have offered him, of cross-examining Sadiga so as to reveal to the jury what...
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