Chinganga, R. v [2008] EWCA Crim 1455

Case No 200703961/B4[2008] EWCA Crim 1455
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Wednesday, 4th June 2008
Strand
London, WC2A 2LL
B e f o r e:
LORD JUSTICE THOMAS
MR JUSTICE TEARE
MR JUSTICE KING
Between
R E G I N ACrownv
Between
HERBERT MEDZISO CHINGANGA
Computer Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr D Bunting appeared for Applicant
J U D G M E N T

LORD JUSTICE THOMAS:

[1]Nearly these years ago, on 9th June 2005 at the Crown Court at Liverpool before His Honour Judge Lewis and a jury, the appellant was convicted of entering the United Kingdom without an immigration document contrary to section 2(1) of the Asylym and Immigration (Treatment of Claimants) Act 2004. He was sentenced to a term of imprisonment of six months less time on remand. His application for leave to appeal and an extension of time was refused by the single judge. He did so in these terms:
"I considered the papers in your case and your grounds of appeal. I do not consider that the point raised is such as to cast doubt on the safety of your conviction and your application is well over a year late. I refuse you an extension of time."
[2]The applicant renews his application for leave to appeal through counsel. We shall say at the outset that we regard the view of the learned single judge as entirely correct. This is an unmeritorious renewed application. Had the appellant been in custody we would have considered exercising our powers to direct that time should not count.[3]The facts are very simple. On 20th April 2005 the applicant attended the asylum screening unit in Liverpool and applied for asylum. He was not in possession of a valid passport and said he would not be able to produce one in three days. He told the officer that he had arrived in the United Kingdom via Gatwick Airport four days beforehand. He was arrested and taken to St Anne Street police station. In interview later that evening he said he had fled Zimbabwe and had entered the United Kingdom with the assistance of an agent called Oscar. He had used a forged passport which he had handed back to Oscar following his arrival. Oscar had completed all the relevant paperwork and once they were in the United Kingdom asked him to give him back the passport. He did so and they went their separate ways. He had never owned a valid passport. The prosecution case was a simple one - he had failed to produce a valid immigration document. The defence case was that the applicant was dependent on the agent who brought him to the United Kingdom and to whom he gave back the passport on arrival. He had a reasonable excuse under section 2 of the Act for failing to produce an appropriate immigration document within three days.[4]In a little more detail, it was the defence case, according to the evidence given by the applicant, that shortly before his arrival in the United Kingdom he had been kidnapped in Zimbabwe by men from the Central Intelligence Organisation. They questioned him about his brother, who worked for the British Army, beat him up and kept him over night. When they released him the next day they threatened to come back for him. He informed his brother what had happened and he warned him that if he did not leave Zimbabwe his life would be at risk. He was put in touch with an agent who arranged his passport and travel documentation. He left the country on a false passport. He had then given back the passport to that agent as we have described.[5]The present immigration status of the applicant is that his asylum application has been refused. His appeal has been refused. His request for reconsideration has been refused. He is now appealing to the Civil Division of this court against the decision of the AIT in that respect.[6]As we have already observed, this is a renewed application at least one year out of time. It is made on the basis that

the judge misdirected the jury in relation to section 2(4) of the Act which provides:

"It is a defence for a person charged with an offence under subsection (1) -- ... (c) to prove that he has a reasonable excuse for not being in possession of a document of the kind specified in subsection (1), (d) to produce a false immigration document and to prove that he used that document as an immigration document for all purposes in connection with his journey to the United Kingdom, or (e) to prove that he travelled to the United Kingdom without, at any stage since he set out on the journey, having possession of an immigration document."
[7]The meaning of that section was considered by this court, a constitution presided over by the President of the Queen's Bench Division, in R v Mohammed and R v Osman [2007] EWCA Crim 2332. The judgment of the President contains a very careful review of the subsection and makes clear the way in which the sections operate together at paragraph 24 and 26 and as applied to the facts of the case in paragraphs 36 and 38. The appeals in that case were allowed on basis that the jury were not directed to consider whether each appellant's excuse for failing to produce the false document used to gain entry to the United Kingdom may have been reasonable. The court came to the view, reading the sections together, that if someone came to this country without a valid immigration document, but which they could not produce, they would have a defence if they proved that they had a reasonable excuse for not being in possession of the document.[8]That is the way in which the learned judge directed the jury. It has been submitted to us that the judge made some sort of mistake. We simply do not understand the submission and can only conclude that counsel has unfortunately misread the decision in Mohammed and Osman. The judge directed the jury exactly in accordance with the defence case, namely that his excuse for not producing the forged document was that it was reasonable for him to have handed it back to Oscar. No doubt Oscar had required it back because the document might have disclosed how it had been obtained, or he may have wanted to use it on another occasion.[9]The judge fairly and squarely put that issue to the jury. He fairly, squarely and correctly directed them in accordance with what the Court of Appeal has since said; the application is wholly without merit.[10]Even if there had been anything in the point, we would have considered the question whether there had been a substantial injustice in this case in accordance with the test as set out again in another decision of the President - Cottrell [2007] EWCA Crim 2016. Having regard to the factors set out in this case, it is clear that the applicant had a very fair trial. It is clear that the jury disbelieved what was said and he has served his sentence. The judge put the issue fairly and squarely before them and told them that if they accepted his explanation of what had happened they should acquit. In our view, as we have already said, this renewed application is without merit and it is refused.