Harirbafan, R. v [2008] EWCA Crim 1967

[2008] EWCA Crim 1967

Case No 200705974/B1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday, 5th August 2008

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE TOULSON

MR JUSTICE ANDREW SMITH

HIS HONOUR JUDGE ROGERS QC

(Sitting as a Judge of the CACD)

Between

R E G I N ACrown

Between

ARASH HARIRBAFAN

Computer Aided Transcript of the Stenograph Notes of

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Mr P Guest appeared for Appellant

Mr T Little appeared for Crown

J U D G M E N T

LORD JUSTICE TOULSON:

[1]On 23rd March 2007 at Isleworth Crown Court before Mr Recorder Radcliffe, the appellant was convicted of attempting to remove criminal property from the jurisdiction, knowing or suspecting that it represented in whole or in part the proceeds of criminal conduct or (in every day language) money laundering. He was subsequently sentenced to 3 years' imprisonment. He appeals against conviction by leave of the single judge, limited to a single ground relating to the Recorder's interventions during the trial. In giving leave the single

judge observed:

"I am ... unhappy about the consistent extent and content of intervention by the Recorder. It is arguable that a reasonable observer would conclude he was, if not partisan, certainly confused as to his role, and arguable that you are entitled to question his impartiality."

[2]The principles in this area are clear from a number of authorities, particularly R v Matthews

(1984) 78 Cr App R(S) 23

and R v Sharp

[1998] 94 Cr App R 144

. They need no repetition.

[3]Interruptions by a judge which are excessive or which demonstrate a lack or apparent lack of impartiality, by taking on the role of a prosecutor, may prejudice a fair trial and jeopardise the safety of a conviction in two particular ways, which may be cumulative. First, they may disrupt the process by which the defence advocate seeks to adduce evidence, whether by examination in-chief or cross- examination, in such a way that the defendant is prejudiced by the jury being deprived of the opportunity of hearing that evidence given and challenged in an orderly and coherent way. Secondly, such interruptions, if they are excessive and take on the substance of cross-examination, may have the potential to poison the minds of the jury against the defendant, by causing the jury to perceive that the judge, who is supposedly an independent figure and likely to carry respect in the eyes of the jury, clearly thinks that the defendant is trying to fool the jury.

[4]The appellant was represented at trial by Miss Wong, who is unavoidably unable to be present on the hearing of the appeal. He has been represented on this appeal by Mr Guest. The prosecution has been represented in this court, as at the trial, by Mr Little. We should emphasise at the outset that no criticism attaches in any way to the conduct of Mr Little throughout the trial.

[5]The prosecution's case was straightforward. On 1st January 2006 at Heathrow Airport Terminal 4, the appellant was stopped while carrying two holdalls at the departure gate of a British Airways flight bound for Tehran. He was carrying with him a sum of £260,000 in cash. The cash consisted mainly of genuine Bank of England bank notes but included 13 counterfeit £20 notes. In support of its case that the appellant was knowingly money involved in laundering the prosecution relied on the large amount of money found on him and the manner in which it was hidden; on lies which he allegedly told at the time; on departures in his evidence from things which he said during interview and on certain inconsistencies or alleged inconsistencies in the evidence put forward on his behalf. Importantly also, forensic examination showed that the notes were contaminated with heroin to a markedly unusual degree. The judge in summing-up identified for the jury the two key factual questions which they had to ask themselves. The first was whether they were sure that the appellant was attempting to remove from the jurisdiction this large sum of money, being money that had in fact been obtained by heroin dealing and was therefore criminal property. The second question was whether the appellant knew, or suspected, that the money or part of it represented the proceeds of the sale of heroin.

[6]In addressing those questions the essential matter which the jury had to ask themselves was what they made of the credibility of the appellant's explanation for having the money on him. His account was simple in outline, but the details involved some degree of complexity. In outline his case was that the £260,000 came from four different sources: £120,000 had been loaned by a Mr Kianpisheh; £30,000 was a gift from his mother who had realised it by the sale of property; £10,500 was from the sale of a Mercedes motorcar and £100,000 had previously been brought over from Tehran to the United Kingdom and was being taken back to his family. The alleged purpose for which the money was going back was to enable the family to carry out the purchase of some land for which a contract had been made.

[7]The trial began on 5th March 2007. The prosecution closed its case on the morning of 12th March 2007. Miss Wong immediately called the appellant, who was in the witness-box for the next 2 days. Up to that point the course of the trial was uneventful. The appellant finished his evidence on 14th March and Miss Wong then went on to call a number of witnesses on his behalf, most of whom had come over from Iran for the purpose.

[8]Mr Guest makes some criticisms of the judge's questions of the appellant at the end of the appellant's evidence, but the majority of his criticisms relate to the Recorder's interventions during the evidence given by a number of the supporting witnesses. To understand the context, it is necessary to go back to the appellant's case as to the sources of the money which he was carrying.

[9]As to the £120,000 allegedly lent by Mr Kianpisheh, there was evidence in the form of banking documents to support some transaction with Mr Kianpisheh, who was accepted by the prosecution to be a man of good character. The prosecution did not accept that any part of the money carried by the appellant in fact represented a loan from Mr Kianpisheh, or came from that transaction with Mr Kianpisheh, but the appellant was at least able to demonstrate that there was a transaction, with a person of good character, capable of generating funds of that amount. As to the £30,000 provided by his mother, there was documentary evidence that this amount had previously been transferred by her from Iran to England by CHAPS transfer. There was also no dispute that the appellant had sold a Mercedes for £10,000 or thereabouts. The balance of £100,000 remained to be explained and the Iranian evidence was principally directed to filling that hole. The appellant's case was that £100,000 had previously been brought into the country by his father, his mother and himself on 1st December 2005 to enable the appellant to establish a restaurant business, but the proprietors of the restaurant had subsequently obtained either some additional form of planning permission or some additional form of licence which put up the value of the property and so that potential deal fell through. In the circumstances it was decided that £100,000, along with the rest of the money, ought to be taken back to Iran in order to facilitate the purchase of land as already mentioned. The reason for taking it in the way that it was being carried was to avoid the finance charges which would have been incurred if the transfer had gone through the ordinary banking system. There was a further point of detail in the appellant's account, which the prosecution suggested was a late elaboration, designed to meet a particular problem. The additional piece of evidence was that previously £40,000 of the £100,000 had been taken back by the appellant to Iran and then again brought back to the United Kingdom by himself. The money was said to have been kept in shoe boxes under the bed in the flat where the appellant lived with his wife and had to have been counted out before it was taken out on the day that the appellant was arrested.

[10]The purpose of the Iranian evidence was to show by oral and, wherever possible, documentary evidence a trail for the movement of £100,000.

[11]All the witnesses from Iran gave evidence through an interpreter and that did not make things easier for anybody. The defence served on the prosecution copies of the statements of evidence of the Iranian witnesses and copies of the documents which they were intended to produce about two weeks before the trial, in the hope that some of their evidence might be agreed. It was not. But the prosecution did have from those disclosures the opportunity to consider in advance whether any objection would be taken to the admissibility of the documents Mr Little has commented that some of the witness statements were brief, but he fairly indicated that it was perfectly possible for the prosecution to appreciate from them what was the potential significance of this documentary evidence, and that they could follow the thread of the case which the defendant was intending to advance. The prosecution properly decided not to dispute the admissibility of any of these documents, which did not, of course, mean that they accepted the truthfulness of the account which the appellant was advancing.

[12]In due course the judge was to give considerable prominence in his summing-up to the question of the genuineness of the documents produced and he was to comment on a number of occasions about the fact that in most instances the documents that were produced were copies rather than originals. It is not necessary to recite all the passages in the summing-up to that effect, but at an early stage, at page 8, when he had given the jury a standard direction about circumstantial evidence and he then came to relate that direction to the way in which the case for the prosecution was presented, he said this:

"Next, although members of the jury Mr Little was not clearly indicating this as far as I could see in his final speech, nevertheless you are entitled to look at the circumstances in which the documents have been produced in this case. And when I say documents, I mean any document in the case whether produced by the prosecution or the defence. I take, for example, contract for the sale of land, or a foreign exchange declaration exemplified in Exhibit 22. You are entitled to ask yourself how these documents came to come in to existence, whether they are real or whether they are bogus."

Later, at page 47, he said this:

"Now, members of the jury, before I go any further in relation to these documents, in 2003 an Act was passed by Parliament which made it very much more easy for juries to see and hear evidence. Included amongst the new powers of the jury to look at evidence was a power to look at what was described previously as hearsay evidence. That was subject to rules of evidence, and they had to be complied with before the 2003 Act was passed. And if a document was a hearsay document, unless it came within what are called the exceptions to the hearsay rule it could not be put in front of the jury. Nowadays, however, it is possible for juries to see these documents. They become, therefore, admissible. What weight, however, you attach to the documents is a matter for you, but you must appreciate that when I have been referring during the discussions with Counsel to the best evidence rule or the secondary evidence rule, that is the rule that says in order to prove a copy you have got to explain where the original has gone to. And it will be for you to say in this case whether the explanations put forward for the failure to produce the original are truthful or not. It may affect the weight which you attach to the document itself."

Later, referring to one particular document, he observed at page 87:

"Asked where the original was, this is yet another document, members of the jury, where there is no original. That is unfortunately a pattern that clearly emerges you may think from this case."

[13]The first of the Iranian witnesses to be called in support of the appellant's case was his sister. It is common ground that she was plainly in a nervous and rather emotional state. She had not seen her brother for some time and he was now on trial for a serious offence. The purpose of her evidence, apart from giving some general information about the ailing state of health of her father and the importance within an Iranian family in such circumstances of trying to further the business interests of the eldest son, she was intended to speak more specifically of the disposal of family assets in order to enable money to be brought over to the United Kingdom for the appellant to use in acquiring the restaurant. This would involve evidence about the sale of assets in Iran, the changing of the Iranian currency into sterling in the bazaar and its transmission to this country. She was also to describe the steps that she took, after his (the appellant's) arrest, to try to obtain retrospective documentary verifications of the money changing transactions in the bazaar and the exporting of currency. One of the documents which she was to produce, exhibit number 32, was a document which when properly completed would have Iranian customs' certification or stamps, verifying the importation and exportation of money. The way in which such a document, as we understand it, would be obtained was that somebody who was wanting to transfer money in the bazaar and then take it out of the country would be to get from the money changer one of these documents, which had on it authentication of the relevant amount being brought by somebody into Iran; the would-be exporter would then get the necessary funds from the money dealer, together with that document, and would present the document together with information as to the money being carried when departing from Tehran, at which point the customs would add the necessary certification in relation to the export of the money. It was not an entirely straightforward matter to explain, particularly through an interpreter. But the prosecution knew in advance the thrust of the evidence and had received a copy of the document.

[14]When the appellant's sister was asked at an early stage in her evidence to produce this document, called "a foreign exchange declaration", the Recorder intervened to try to discover exactly what the document was and what its provenance was. He asked a number of questions about it and about the stamps on it. Perhaps unsurprisingly, since the Recorder did not know what it was about and the witness was nervous and was giving evidence through an interpreter, it did not prove to be a very successful intervention. Counsel for the appellant, Miss Wong, who did understand what the document was about and was hoping to ask questions which would enable the witness to explain this to the Recorder and the jury. She asked to be allowed to take over the questioning. The Recorder did not take kindly to Miss Wong's intervention. The following exchange took place:

"Q. Your Honour, can I? THE RECORDER: Well, no, no, I'm investigating whether this is admissible or not. Q. Well, your Honour, I was going to do that as well. THE RECORDER: It is not an improper course to take. No, it is not improper, sit down please."

Pausing there, when counsel was only trying to do her job, it was not merely unfortunate but wrong that she should be told to sit down. Apart from anything else, it would carry the clear implication to the jury that she was not behaving properly. This would be an unfair impression for the jury to form. Counsel quite properly stuck to her guns. She continued:

"I'm not saying it's improper. I was only trying to establish it myself with the witness, because I know what the answer is. And then if your Honour is not satisfied... THE RECORDER: Very well. Q ...then, then it won't... THE RECORDER: You take your own course. Q. ... be admissible. THE RECORDER: You go ahead and take your own course then, and I'll ask any questions later. Right."

That was a sensible position for the Recorder to adopt. In circumstances where he knew that these documents had been disclosed to the prosecution (as Mr Little has confirmed to us that he did) and where the prosecution were taking no objection to their admissibility, the Recorder ought to have allowed counsel to get the witness to explain what the document was and tell her own story in her own words.

[15]Unfortunately this did not happen. Although the Recorder had indicated that he would let Miss Wong take her own course and reserve his questions until later, he did not take that course. After four more questions by Miss Wong, he interrupted again, and from then on for the rest of that day Miss Wong was not able to ask more than four consecutive questions without further interruption. Most of the time she was not able to ask more than one or two and the overwhelming bulk of the questioning came from the Recorder. She had resumed or attempted to resume her questioning by going back to the point which had been reached in the evidence of the witness before the judge had interrupted. So she asked a question which she had previously asked. At that point the Recorder intervened:

"Well, she's told us."

Counsel said:

"Well, I'm just picking up the thread your Honour to establish what"

The Recorder intervened:

"I hope you're not seeking to go outside that evidence, Miss Wong, because that's the evidence she's given."

It is difficult to understand what the Recorder meant by that intervention. Miss Wong's was seeking to pick up the thread and allow the witness to take the story on. If that was to "go outside" the evidence that she had already given, counsel was perfectly entitled to do so. It is not necessary to set out verbatim the unprofitable exchange that followed between the Recorder, the witness and the interpreter. No doubt the Recorder was trying to get to the bottom of what this document was about, but he was the worst placed person to do so. The questioning and answers were leading nowhere and, after three pages of transcript in which Miss Wong made one unsuccessful attempt to reintroduce herself into the questioning of the witness, she tactfully suggested a break, by suggesting that perhaps the interpreter was getting tired. Whether the Recorder heard her or not, he took no notice and carried on. After another two pages of transcript counsel felt compelled to say in plain terms to the Recorder:

"Your Honour, would Your Honour allow me please to ask a question? Please, without interrupting?"

We record that counsel was fully entitled to do as she did at that point. We can see no ground for criticism of the way in which she had been behaving. At that stage the Recorder sent the jury out and counsel was then asked to justify the line of questioning she was taking and explain whether this was not inadmissible hearsay. All this, we stress, against the background that the prosecution, who knew at least a broad idea of where things were going, had at no point sought to object. It is clear that by this stage the atmosphere in the court had risen considerably and Miss Wong, who was experienced counsel, was understandably feeling under a good deal of distress. In the absence of the jury she indicated that she felt that the Recorder was belittling her. Regrettably that seems to us to have been a fair comment.

[16]After an interval the jury was brought back. There were then one or two further questions, but after some more interruptions by the Recorder, which were not in themselves particularly objectionable but came upon a background in which Miss Wong had not been able to string more than a tiny number of questions together at one time, she indicated that she did not feel able to continue. There matters came to an end that day.

[17]The document, exhibit 32, that she had been trying to produce was a document which the judge was later in his summing-up, at page 8, to identify as one of the documents that the jury might want to ask themselves whether it was bogus. The witness's attempt to explain how it came into existence had been frustrated by the Recorder's own interventions.

[18]The next Iranian witness was Mr Ben Yamimi. He was a money dealer in the bazaar. The purpose of his evidence was to explain how such transactions are carried out and to give evidence that he had indeed changed a large sum of money for members of the appellant's family.

[19]At the end of his cross-examination the Recorder had a number of questions to ask. Some of these related to some photographs which had been produced of the bazaar. The prosecution had refrained from asking questions about the exact circumstances in which the photographs had been taken, because they did not judge it necessary to do so and they were aware that the answers would have introduced material which was potentially prejudicial. So this was ground from which Mr Little had properly and deliberately kept away. The Recorder, of course, was not to know that when he started to ask his own questions on the subject. Counsel, Miss Wong, tried to head off the judge's questioning. She was again, on this occasion, told to sit down because the Recorder said the questions that he was asking were perfectly reasonable. Counsel was forced so say:

"I am not saying it is unreasonable but there are matters which your Honour may wish to hear about before pursuing that question in front of the jury."

[20]The jury retired. When the position had been explained to the Recorder, he properly did not pursue the matter further. But it was, again, wrong least that counsel had been told in front of the jury to sit down when she was only doing her proper professional duty. After that the judge asked a number of other questions of Mr Ben Yamimi, such as why he had stopped selling carpets and about the profit which he would make by way of commission on the purchase and sale of currency. Mr Little properly accepts that the reasons why Mr Ben Yamimi had stopped selling carpets had no relevance to any issue in the case. Conceivably the witness's noted commission might been said to have some tangential relevance, but it was remote. One is left to wonder what would have been the impact on the jury of these questions being put to the defendant's witness. Granted that they had no relevance to the issues in the case, the only possible reason that can be thought of was that they may have been thought relevant to the credibility of the witness, perhaps suggesting that he was not a man with any regular or consistent business. Whatever their purpose, they were not questions that ought to have come from the Bench.

[21]The next relevant witness for present purposes was Mr Sayed Amini. He was called to give evidence about the agreement which had been made between the appellant's family and himself for the sale by Mr Amini of a plot of land, which fell through as a result of the seizure of the money being carried by the appellant. A deposit had, according to the defence evidence, been paid but it was forfeited because the transaction was not able to be completed because the family had lost the funds which they were going to use to complete it. Mr Amini was asked a considerable number of questions by the Recorder in the course of his evidence in-chief about the documentation which he was producing. In truth, this part of the story was not that complicated. It was the appellant's case that a contract and sale of this kind would generate two documents in identical form. One would be kept by the vendor and one by the purchaser, each with their signatures on it. In due course, if all had gone well, the transaction would have been completed and at that stage a notary would have been involved. It is difficult to understand why a large number of questions were being asked about where was the original document. There was, in one sense, only one original because both documents would have come from a common source but in the other sense there were two originals because each of the contracting parties had a document. The matter was really as straightforward as that, but the effect of the Recorder's interventions was to complicate it.

[22]After Mr Amini's cross-examination there were further questions by the Recorder about why no notary had been involved. The suggestion implicit behind the questioning would appear to have been that the lack of involvement of a notary would suggest that there was not a genuine deal, whereas the witness had explained that the notary would only become involved on the completion of the transfer.

[23]This contract (for the sale of land) was the other document mentioned by the judge as an example when, in the passage at page 8 already cited, he told the jury they would want to consider carefully how these documents had come into existence and whether they were real or bogus.

[24]The last witness in relation to whom Mr Guest makes complaint about interventions in her evidence was the appellant's wife. She did not require an interpreter. Her evidence really covered three areas: she was able to talk of a large sum of money coming to house; of it being kept under the bed and of her seeing it being counted before the appellant took it off on the journey which led to his arrest. At the end of her evidence and cross-examination, she was questioned by the Recorder on a number of topics. He asked her whether the shoe boxes which were produced in evidence were the same as the ones which had been under the bed or similar. She said that she did not remember. She was then told:

"Just have another good look at them" and asked further questions about the boxes. These were not questions by way of clarification of her evidence. Her evidence had been perfectly clear that there had been shoe boxes which looked like the ones in evidence but she could not say whether they were the same ones or not. She was then asked about the time of day when she had seen the appellant counting the money. She said that she could not be sure that it was in the afternoon or evening. She was then again asked a series of questions about that, such as whether it was before or after 4.00 o' clock. She was asked about her knowledge of the number of times that the appellant had been to Iran in the 20 months prior to December 2005. She said that she was not sure how many times he had travelled but she knew that he travelled a lot. The Recorder then asked her: "

When I tell you it was 40 times, and this is agreed, that is a surprise to you, is it?" It is difficult to see what possible relevance it had to any issue before the jury whether the appellant's wife was or was not surprised that the number of visits that he had made to Iran totalled 40.

[25]She was then asked about the reason that the appellant had bought a Mercedes. She said that he needed a car to continue his chauffeuring work and that it was for his own use. The Recorder appeared to have seen an inconsistency between those two statements which he then explored in a number of questions, suggesting that it must be either for private use or for commercial use and that there was an inconsistency in her answers.

[26]Mr Little, in perhaps an understandable understatement, conceded that these questions approached the verge of being cross-examination. There was no question of them approaching "a verge" - they were cross-examination.

[27]We return to the evidence of the appellant himself. At the end of his evidence he was asked a number of questions about what would have happened with the money he was carrying if he had got through to Tehran and how it would have been transferred in the money market. This was a legitimate matter for the Recorder to explore, but the manner and tone in which he did so was not appropriate. It was infused with an implication of disbelief, for example, when the Recorder said to the appellant:

"So you are expecting the money dealer just to write out a cheque for the equivalent of £260,000, were you?"

From that he moved to the subject of a "Google" search which the appellant had done on money laundering. The evidence that he had done so was obviously a difficulty from the appellant's point of view. His explanation had been that, when he had spoken to his bank, they had told him that if he was going to deposit or be involved in money dealing involving a deposit more than £9,000 of cash, they would have to carry out various enquiries about him, and they mentioned the money laundering rules. This, he said, caused him to go and look up the subject on the Internet.

[28]Unsurprisingly he was cross-examined about that explanation. The Recorder came back to it in his questions of the appellant, which included:

"And so as a result of what you were told you made a search on Google. Was that to find out what the penalties were for money laundering?"

That was not a question by way of clarification. Nor was it an attempt to give the appellant a fair opportunity of dealing with some piece of evidence against him which he had not had the opportunity of addressing. It was a straightforward suggestion that he was getting himself involved in money laundering and that he wanted to know what the potential risks were. He was then asked a series of questions, which again mounted in substance to cross-examination, about his knowledge of what the bank might have to do.

[29]We have to assess the consequences of all this. Mr Little has submitted that although these interventions may have been regrettable, essentially the case stood or fell on the credibility of the appellant and that his other witnesses were not of critical importance for that purpose. It is not possible to deal with the matter simply on that basis. One only has to read the way in which the judge approached the matter in the summing-up. We have already made reference to the significance which the judge attached to the documents. Moreover, in relation to the two documents that he had particularly identified, that is, the document produced by the appellant's sister and the document produced by Mr Yamimi, when he went on to give further directions about these, possibly through confusion on the Recorder's own part, he made matters worse. When dealing with the appellant's sister's evidence, and exhibit 22, he talked about the blue stamp on the document, which was of itself of no particular significance. He went on to say about the document:

"...she said, 'I found it at home. But in order to get confirmation that it was genuine I took it to the head of Customs at Maribad Airport, Dr Jerome. I explained that I had a copy, I wanted to get confirmation from him that it was a genuine document.' Now, what she is asking Dr Jerome to do in fact is to in effect say a copy is a copy of the original. How could Dr Jerome do that, you may want to ask, if he has not actually seen the original? Because she did not have the original. In other words, she was giving an assurance, presumably to be taken on trust by Dr Jerome, that the copy she had was a replica of the original. And she said, 'I explained that I had a copy and wanted to get confirmation that it was a genuine document.' Asked 'Why did you do that?' she said, 'To prove we had brought the money out in to the country, into Iran.' And she was then asked questions about the sale of her father's land. She said yes, she was present, 'I was with my father when he obtained the sterling in,' and she gave the name ... [of] a bureau de change in Fedossi Street. And then she referred to the receipts ... which you have seen, they are receipts to show that there the sterling was purchased. And she was asked when these documents had been obtained and she said, 'I obtained a much more detailed receipt to show the date of each transaction. The original receipt covered all these money transactions.' So there was one receipt, in other words."

[30]All this carried the implication that her evidence on the subject was worthless. In the context of having been asked to consider whether these were genuine documents or not, there was, as we understand it, no reason in itself to doubt the truthness of her evidence, that she had taken this particular document, ie the document which she produced in her evidence, to a gentleman at Maribad Airport, who had put a certificate on it. Its value was one thing, its authenticity another. But in this passage in the summing-up there was no clear distinction between the two.

[31]When we come to the evidence of Mr Amini,

the judge said:

"Then finally, members of the jury, we heard from Sayed - not quite finally, almost finally - from Sayed Mahmoud Amini, who swore on the Koran. And he dealt with the contract for sale of the house to him, by himself to Mr Harirbanfan. And you remember that the document that he referred to was not the original, so I asked him where the original was, and he said the said the original, well, he did not say where the original was."

He continued:

"And he said that, 'This document has been taken to court and the court has certified the copy. The original must be in Iran.' he said, 'the original remains in the hand of the purchaser. The signatures on this document are original. The original sale document had our signatures on it and this document shows a photocopy of the signatures certified by the court.' Members of the jury, you may wonder what standard of proof is required in an Iranian court before a copy of a document is certified. Apparently, the rules are not nearly as strict as they are here. No British court would issue a certificate saying that the copy was a replica of the original without having asked to see the original, or at least hearing parole evidence from somebody as to what was on the original document. And so I ask the question what proof is required, and it appears that the only proof that is required is evidence of identification. And you will have to ask yourselves whether that really amounts to adequate proof at all. Because the copy produced is a replica of the original."

At lowest this direction involved confusion and would not have assisted the jury, especially in the context that they had been asked to consider whether the witness had produced a bogus document. As already indicated, the effect of the witness's evidence was altogether simpler.

[32]So it is not possible for us to conclude that the evidence of the appellant's supporting witnesses was immaterial. Their credibility, in relation to their documents which they produced, was given considerable significance.

[33]We are driven to the view that the interventions of the Recorder, in the course of the evidence given for the defence, had both the ill-effects previously mentioned as potential vices of inappropriate judicial interventions. They prevented particularly the appellant's witnesses, particularly his sister, from being able to give a coherent explanation to the jury of the source of documents. Further, the nature and tone of the interventions crossed by far the line between clarification and cross-examination. Cross-examination by a judge is unacceptable. Mr Little has submitted that this was a strong case. That is a fair submission. But, however strong the case may be, a defendant must have a fair opportunity to deal with it. We are driven to the conclusion, when we look at the matter overall, that the appellant did not receive a fair trial and we are unable to regard the conviction as safe. Mr Little indicated that if we took that view the prosecution would seek a retrial. We do not consider that this would be an appropriate case for a retrial. For one thing the appellant has already completed the sentence that was passed on him and is now at liberty. It would also bound to take some time to arrange a new trial, particularly since witnesses would have to come over again from Iran, and there would be all the expense and inconvenience of arranging for those witnesses to come on another occasion. We do not believe that it would be either just to the appellant or in the public interest for this to happen. Accordingly the conviction is quashed.