R v Saqib Jabber

JurisdictionEngland & Wales
JudgeLORD JUSTICE MOSES
Judgment Date28 September 2006
Neutral Citation[2006] EWCA Crim 2694
CourtCourt of Appeal (Criminal Division)
Docket NumberNo: 200601317/B1
Date28 September 2006
Regina
and
Saqib Jabber

[2006] EWCA Crim 2694

Before:

Lord Justice Moses

Mr Justice Gibbs

Mr Justice Cooke

No: 200601317/B1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Royal Courts of Justice

Strand

London, WC2

MR M BISHOP QC AND MR O DANESHYAR appeared on behalf of the APPELLANT

MR A BARKER QC appeared on behalf of the CROWN

LORD JUSTICE MOSES
1

This is an appeal against a conviction by a majority verdict of manslaughter on one count and perverting the course of justice on a second count against this young man at Birmingham. The issue, particularly in relation to the first count, relates to a ruling that the Recorder of Birmingham gave, that there was sufficient evidence to leave before the jury at the close of the prosecution case.

2

The circumstances which led to the conviction of this appellant arose out of a retaliatory attack upon a man called Tariq Rashid in August 2004. He had gone to the premises occupied by this appellant's father and other members of the family in Alum Rock Road. The family owned a number of cars as part of their property and the victim Tariq Rashid had been trying to break into a number of cars. There were certainly two cars before he sought to break in, and indeed appears to have succeeded in breaking into, a BMW motor car. At the close of the prosecution case it is not clear quite what the state of the evidence was as to who owned the car and who drove it, although we were told at the Bar it was the appellant's mother.

3

The time that Tariq Rashid was trying to break into the family's cars was a moment of great tragedy and poignancy. The appellant's mother, Abdul Jabber's wife, had suddenly just died. The family were in mourning. Many friends and relatives had come to pay their respects to the house. One can well appreciate the reaction of that family when that man disturbed that solemn occasion in the evening by trying to break into their cars. It is plain, however, that that did come to the attention of the family. He was beaten up. However, it is clear that that attack did not lead to his immediate death.

4

About an hour before midnight Jennifer Arundell was walking in the street alongside the house by a car park. She observed nothing untoward, but having quarrelled with her boyfriend she returned to that scene at about midnight. At that time she saw a car just inside the car park. It had obviously not been there long because its interior light was on and its door was open. It was just within the gates of the car park. It is obvious that it was the BMW. The victim, Tariq Rashid, had already tried to break into it and had broken a side window.

5

By the time she saw the scene what she saw is of significance in the factual matrix of this case. She saw two young men. She described them: one was smaller and stockier and a bit older than the other. She described one wearing a white tracksuit and trainers and the other wearing a black jumper and brown cords, but she was never able to identify both men. She watched the scene for a few minutes and saw that they were leaning over a man lying on the ground. They were talking loudly, but not arguing and not talking aggressively. Alongside them, crouching and crying loudly, was a young girl of about 17 or 18, about five foot 4, long hair tied back with a long black coat and an Asian scarf. This was a description that did not match a woman undoubtedly in the car park at the time, an adopted sister of the family, Saiqa Ajaib.

6

The next set of facts relevant to this case took place at about the time of that observation by Jennifer Arundell. A mobile telephone, one of two used by this appellant, was used by Saiqa Ajaib to telephone the emergency services. The time was 11.55. On the recording of that call could be heard two male voices, and a phone call, it is significant to observe, took place in a mixture of Mir Puri and English. Part of the conversation had to be translated and during that conversation a man said:

"Bring the towel. Are you doing it? Have you phoned?"

The response was:

"Yes, I'm doing it. They are contacting it."

And then this:

"We'll say someone has beaten him and left him in our garage."

7

The operator then managed to connect the call to the emergency services and Saiqa Ajaib then said:

"We've got a garage at the back and we've just seen someone. Well, he was trying to break into our car and somebody's hit him and we've found a lad lying down, lying on the floor, and he's bleeding."

8

The police arrived shortly after midnight, about nine minutes past midnight. The appellant was not there, nor was another member of the family, Osman, who was also convicted.

9

The motor car was not at that time located. But there were a number of phone calls subsequently traced which showed that whilst Saiqa Ajaib was still calling the emergency services this appellant had called up his other mobile phone, which was being used at the time by Saiqa Ajaib, but because it was being use to call the emergency services it was not possible for this appellant to intervene.

10

The next piece of evidence relates to the officers coming to speak to this appellant and inviting him to make a statement. That was a few days later, on 11th August; in other words, some six days later. He replied, albeit not under caution:

"No I don't want to get involved. I have got too much going through my head. I wasn't there. I don't know anything about this. I was at home at the time."

11

The police were able to locate the BMW and to examine it. There were tool marks on the exterior front nearside window frame and on one of the rear quarter lights, and they found glass within the BMW which matched glass found on the deceased's clothing. There were also fibres on the driver's seat of the BMW found on the back of the deceased's clothing. The quarter light had been replaced, but it was plain that the fragments of the glass of the previous window in the BMW, revealed that it was indeed one of the cars that the deceased had tried to break into and steal.

12

Although the appellant made no comment in his interviews, he did give evidence. He persisted in the story that both he and Osman gave, backed up by the family, that he was not at that house at the time the deceased was injured and attacked. He had left, he said, at about 10.00 p.m. in the evening, together with Osman in the BMW and had gone elsewhere. He was, he said, nowhere near Alum Rock Road when Rashid received his injuries.

13

The evidence of the phone call and the evidence in relation to the BMW certainly provided evidence that the appellant had been at the scene shortly after the deceased was injured.

14

At the close of the prosecution case the submission was advanced, in which Mr Bishop QC persists in this appeal, that that evidence, taken separate separately and together, was not sufficient evidence upon which a jury properly directed could convict this appellant of manslaughter. In order to conclude that he was guilty of manslaughter the jury would have to be satisfied, so that it was sure, that this appellant actually participated in the attack. It is trite to observe that mere presence would not have been enough. The circumstances in which he left the scene, once the jury were satisfied that he was there, and escaped were merely consistent with him helping his brother Osman to flee the consequences of an attack committed by Osman. The injuries, which he was found to have suffered were consistent with him being beaten up; but major injuries above the left ear and cerebral swelling with subdural haemorrhage, were consistent his falling to the ground. He was found with his trousers around his groin. One man could have done that, submits Mr Bishop, and, as far as the evidence went, it was no more than to show that the appellant had assisted his brother. Certainly one could not say which of the two men, both of whom had pleaded not guilty, was responsible for causing the injuries from which Rashid died. The prosecution, in short, could not exclude as a realistic possibility that the appellant was merely assisting his brother.

15

Before reaching a conclusion as to this submission we must consider the legal proposition upon which Mr Bishop QC relied. One might at first blush be surprised that he relied upon any legal propositions since the principles to be applied at the close of the prosecution case are, one would have thought by now, so well known. But his helpful and clear submissions did throw into sharp perspective comments made by Lord Diplock in a Privy Council case as to the approach to be adopted when drawing factual inferences from circumstantial evidence. The dicta upon which Mr Bishop relied is contained in Kwan Ping Bong and another v The Queen [1979] AC 609. This was a case which concerned a statute in a Hong Kong ordinance which provided, in relation to drugs offences, a presumption, on possession of certain documents of title, of knowledge of the contents of the goods to which those documents of title related. The difficulty in that case was that the prosecution, in order to create that statutory presumption, had relied upon documents for which no provision was made within the relevant ordinance. In those circumstances, there was no statutory presumption of knowledge under the Hong Kong ordinance; the criminal law of Hong Kong,...

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