R v Uddin
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BELDAM |
| Judgment Date | 19 March 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0319-8 |
| Court | Court of Appeal (Criminal Division) |
| Docket Number | No. 9605482 Y5 |
| Date | 19 March 1998 |
[1998] EWCA Crim J0319-8
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
Lord Justice Beldam
Mr Justice Johnson
and
Mr Justice Wright
No. 9605482 Y5
MR R AMLOT QC & MR M LEVY ( 9.2.98) appeared on behalf of the Appellant
MR M PERT QC ( 9.2.98), MISS I DELAMERE (9.2.98) & MR BOTARSKI appeared on behalf of the Crown
Thursday 19th March 1998
The appellant appeals against his conviction for the murder of Mark Sharp.
At about 5.50 p.m. on the afternoon of Sunday, 27th August 1995, as Mr Mark Sharp was driving his motor car in Haverlock Road, Luton, he was forced to brake sharply when a black Nova motor car driven by Mr Abdul Shahid stopped suddenly in front of him. Displeased by the actions of the driver of the Nova car, Mark Sharp overtook, making a rude gesture as he did so. Shortly afterwards he parked his car in High Town Road near a laundrette. The Nova car pulled up beside him and the four Asian occupants, Shahid the driver, Mr Jomir Miah, Mr Forid Miah and Mr Abdul Tahid, got out and confronted Sharp. An argument ensued and one of the four who had been travelling in the Nova car returned to the car to make a call on a mobile telephone. Shortly afterwards, two other Asians, Mr Rejan Uddin and Mr Abdul Abbadin, and possibly two others, joined the four occupants of the Nova car. They were obviously friends. The two new arrivals appeared to Mr Hughes, a witness, to be older and bigger than the original four. Sharp and the six Asians were all on the pavement and close to a wall. Mr Hughes turned to go back to his car and had hardly taken a step or two when hearing a noise he turned and saw that the six Asians were attacking Sharp. Three of them appeared to be using weapons made out of the bottom half of a snooker cue. He saw Sharp being hit around the head and generally all over the body. The three who did not have weapons were punching and kicking Sharp. As he was being hit around the head, Sharp fell to his knees but the attackers carried on until he fell down completely and was lying still. The six attackers then ran off to their car. The attack had lasted, he thought, 30 seconds. He saw no attempt by Sharp to strike at the attackers or deliver any blows. His impression was that all six attackers were taking part in the violence but he could not say which of them used weapons or which of them kicked or punched. Mr Tatham who owned the laundrette also witnessed the attack. He had come from a shop about two doors away and noticed an argument with five or six young Asian males standing around a white man who was swearing. The Asians then seemed calm and standing around. From just inside the laundrette he saw them on the opposite side of the road and, out of the corner of his eye, he noticed a man to his left strike a blow at Sharp who went down. As he went down all the others converged on him and as they did so he heard someone shout: "Stab him!" He added:
"When Mr Sharp was in a crouching position they all converged. They were fighting to get one in. There was kicking and everything, hitting and kicking. When Sharp was lying down the group was hitting and kicking."
He heard the words "Stab him" as Sharp went down after the first hit had reduced him to a crouching position and before he was on the ground. All the young Asians were involved together but when they ran off some ran to the right and some to the left. He made a 999 call at 17.52 hrs. in which he said that a man had been stabbed.
Another witness, Mr Harper, described how four or five Asians were arguing with Sharp:
"They were pulling things out of their sleeves and started to hit him. They looked like poles and bars. I think they all had a weapon like a crome bar, looked like, and one looked like a wooden bar about two feet long. … They started hitting the man, pushing him to the floor and beating him. I could see all the blood. I thought about five were involved in the attack."
He also said:
"All of them started pushing him about, knocked him to the floor and kicked and beat him".
He added that he did not see Sharp use any violence:
"He had no chance really. He tried to defend himself, but did not get much chance."
There were several other witnesses to the attack, including a ten year old boy, Ian Smith, watching from the window of a flat overlooking the scene. One of the newcomers, he thought, took a big stick from his sleeve which looked like part of a snooker cue and he started hitting the white man (who was Sharp):
"He didn't make him go down and the white man turned and looked around. Then another Asian kicked him. He banged off the railings of the church and fell down. Then all of them just started hitting him, stamping on him and kicking him.
All the men who came down the road had sticks as well. These sticks were all the same as the first stick that I just described.
When the white man fell to the ground, the Asians with sticks hit him with their sticks. Others were stamping on him and kicking him. All of them were attacking him. No-one was trying to stop what was happening."
He thought he saw about five sticks.
After the attackers had departed, Mark Sharp was found to be seriously injured. He died three days later. Five of those who were said to have taken part in the attack were arrested and charged with the murder of Mark Sharp. They were: the appellant Rejan Uddin, Abdul Shahid, Forid Miah, Jomir Miah and Abdul Tahid. Abdul Abbadin could not be found. The five who were charged were tried in the Crown Court at Luton before Mr Justice Dyson and a jury. On 11th July 1996 the appellant Rejan Uddin and Abdul Tahid were convicted of murder and sentenced to custody for life. Jomir Miah, Abdul Shahid and Forid Miah were acquitted of murder but convicted of manslaughter. Forid Miah and Abdul Shahid were sentenced to four years imprisonment. Jomir Miah to four years detention in a Young Offenders Institution.
Mark Sharp died from injuries to his head. The most serious, and the cause of his death, was a stab wound delivered with moderate force near the base of the skull and which penetrated the brain but there were two other injuries to the head caused by a blow with a blunt instrument struck with mild to moderate force which might have been sufficient to cause unconsciousness and could not be ruled out as contributory causes of death but neither of the two doctors who gave evidence could state that they had actually done so.
The blow with the knife was delivered by Abdul Tahid who apparently produced a flick knife from his pocket as he joined in the attack. Apart from the shout of "Stab him" heard by the witness Mr Tatham, there was no evidence that the other defendants knew that Abdul Tahid had a knife and all denied doing so. The three defendants convicted of manslaughter all gave evidence; the appellant did not. The defendants convicted of manslaughter were of good character and apparently the appellant was not.
One of the grounds of appeal advanced by Mr Amlot Q.C. for Uddin was that the judge in giving the jury the appropriate direction on the significance of the evidence of the good character of the defendants who testified, did so in a manner which unnecessarily drew attention to the fact that he gave no such direction in the case of the appellant. It was said that the manner of his direction would have been likely to signal to the jury that the appellant was not of good character. In our view the criticism of the learned judge's summing-up in this respect is unjustified and we find it unnecessary to say more of this ground of appeal.
Whilst the jury were deliberating on their verdicts, they reported to the judge that four of them had received telephone calls from a caller or callers who, when the telephone was answered, said nothing. It was submitted to the judge that he should discharge the jury. The judge's handling of the situation was faultless and he declined to do so. Again we find it unnecessary to deal in detail with the submission to us that the appellant's conviction was unsafe because the judge ought to have discharged the jury. It is sufficient to say that he gave the jury appropriate warnings and guidance and that no basis was shown on which we could review the exercise of his discretion. Accordingly we reject this ground of appeal.
We now come to the main grounds of appeal which were:
(a) That the verdict in the appellant's case was inconsistent with the verdicts of manslaughter in the cases of the three co-defendants (Abdul Shahid, Jomir Miah, Forid Miah) who were acquitted of murder. The appellant was in no different position from those co-defendants. In each case there was no evidence that the defendant knew that a fourth defendant (Abdul Tahid) had a knife or would use it. A single stab wound to the head was the cause of death.
(b) In dealing with joint enterprise the learned judge failed to direct the jury that as a secondary party to the killing, they had to be sure that the appellant foresaw the use of a knife as a possibility if he was to be found guilty of murder. Reg. v Powell; Reg. v English [1997] 3 WLR 959.
It will be appreciated that the decision of the House of Lords in that case was given more than twelve months after the judge summed-up this case to the jury. As the law then stood Mr Justice Dyson's directions to the jury could not be faulted. He had prepared for the jury a synopsis of his directions on murder, manslaughter and common enterprise so that the jury could follow them as they were given. Before we come to his directions, we should state shortly the evidence of the three...
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