Mohammad, R. v [2009] EWCA Crim 1871

[2009] EWCA Crim 1871

Case No 0805161 B1

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Friday, 12 June 2009

Strand

London, WC2A 2LL

B e f o r e:

LORD JUSTICE SCOTT BAKER

MR JUSTICE KING

HIS HONOUR JUDGE MOSS QC

(Sitting as a Judge of the Court of Appeal, Criminal Division)

Between

R E G I N ACrown

Between

FAISAL KHAN MOHAMMAD

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Mr J Stone appeared for Appellant

Miss A Felix appeared for Crown

J U D G M E N T

LORD JUSTICE SCOTT BAKER:

[1]HHJ Moss will give the judgment of the court.

[2]HIS HONOUR JUDGE MOSS: On 16 September 2008 at the Crown Court at Isleworth, the appellant was convicted of wounding with intent to cause grievous bodily harm and was sentenced by Mr Recorder Mulholland to five years' imprisonment. He now appeals against conviction by leave of the single judge.

[3]On 25 March 2008 at about 7.30pm, Mr Gafur, the complainant, approached the appellant on the forecourt of a Tesco petrol station in Syon Lane, Osterley, to remonstrate with him about his driving. During the incident that followed, the complainant received injuries to his face, shoulder and hand, which were caused by the appellant's Stanley knife. The prosecution case was that when the complainant had approached the appellant to speak to him about his driving, the appellant, who already had a knife in his hand, reacted aggressively and slashed the complainant's face. The complainant responded by punching the appellant, and a struggle ensued. Mr Jehlwal, the appellant's companion, then pulled the complainant off the appellant and punched him twice in the face.

[4]The defence case was self-defence. It was the complainant not the appellant who was the aggressor. He had come up to the appellant with his fist clenched and then punched the appellant in the face. The appellant slapped him back, and in the struggle that followed, the complainant had grabbed the appellant's beard, pulled his face down and placed him in a dangerous choke hold. The appellant had been forced to take out his Stanley knife and slash the complainant with it in order to break the hold. The issue for the jury was whether the appellant was the aggressor or had acted in self-defence.

[5]The complainant gave evidence that on the evening of the incident he was driving along Boston Manor Road towards the A4 in his Ford Fiesta with his friend, Miss Aggarwal, when he noticed a blue van in the left lane. The van overtook him on the inside and then swerved into his lane causing the complainant to brake sharply. Both vehicles turned into Syon Lane, at which point the van was again behind him. The lanes merged into one, and the van driver, who was driving fast and erratically, swerved into the right lane causing the complainant to brake yet again. As they drove towards a mini roundabout the complainant sounded his horn, and the van driver responded by braking sharply several times. On the roundabout the van driver made a gesture and shouted at him. As a result he missed the turning to the Tesco petrol station where he was going.

[6]When he arrived at the petrol station he saw the blue van and went up to the appellant to make him aware of his driving. He asked, "What's up with your driving? You're going to hurt someone". The appellant, who had a knife in his hand, replied, "Do you want to fight me?" and took a few steps towards him. The appellant then slashed him across the left side of his face. Initially he thought he had been punched, and he responded by punching the appellant just behind the left ear. He then noticed the blood, pushed the appellant to the ground and they began to struggle. He was on top and held the appellant's left hand in which the knife was held in an attempt to disarm him. He held his other hand over the appellant's body. Miss Aggarwal got out of the car and said, "Please let go, he's a police officer". He was not in fact a police officer, but was nearly halfway through training.

[7]The appellant told him to get off and threatened to kill him if he did not do so on the count of three. As a result the complainant used his right hand to take hold of the appellant's hair. The appellant said that his friend was on the way and made further threats. Jehlwal then arrived, put one hand in the facial wound and pulled him off the appellant. Jehlwal punched him in the face twice, and then made his way to the van with the appellant. The appellant had tried to loosen his grip with the knife which caused the injuries to his wrist, but he was not sure when the injuries to his armpit occurred.

[8]In cross-examination he confirmed that he knew about approved restraints, dangerous locks and the difference between them from his training at Hendon. He denied going into Tesco to confront the appellant, or that he was still pressing his horn as he drove onto the forecourt. He also denied confronting the appellant aggressively or punching him. He did not, he said, grab the appellant's beard, pull his head down to crutch level and execute the hold that was shown in an exhibit placed before the court. He did not know anything about the hold. He also denied that the appellant was shouting that he should get off.

[9]Miss Aggarwal gave evidence. She confirmed that she was in the car with the complainant, and that the blue van, which was driving erratically, had cut in front of them on two occasions. On the second occasion the complainant hooted at the van, which then accelerated and stopped several times. This had confused the complainant, who missed the turning into the Tesco petrol station. They saw the blue van as they approached the petrol station. The complainant got out, went up to the appellant and said, "What's up with your driving?" She heard the appellant shout a response. The complainant, she said, was calm. As she looked out of the car to see what was going on, she saw arms flying around. She then saw the complainant fall to the ground, but could not get a proper view, and so she got out of the car and ran towards them. She saw the complainant and the appellant scuffling on the floor. The complainant was on top of the appellant, who was holding a Stanley knife in his right hand restraining him. She shouted continually, "He's a police officer, leave him alone". The appellant replied, "Tell him to get off me then". She was screaming, she said. People were watching but no one intervened. The appellant was swearing in an aggressive tone. She saw blood spurting out of his face, and then saw an Asian man running towards them. She thought he was going to help, but he grabbed the complainant from the back. The man and the appellant then punched the complainant. She continued screaming that the complainant was a police officer, and then said that the police were there. Both attackers then ran towards the van and drove off.

[10]In a statement read to the court, a doctor said that the cut to the complainant's mouth required over 30 stitches, and the cut to the left hand severed a tendon.

[11]The officer in the case gave evidence that the appellant gave a no comment interview, and thereafter produced a pre-prepared statement. One Anita Verma said that she worked as a civilian for the Metropolitan Police, and on 28 April 2008 she spoke to the appellant's wife, who reported that a van had been stolen from the junction of Victoria Road and St Leonard's Road in Ealing. According to Mrs Mohammad, the van was last seen on 25 March 2008.

[12]The appellant gave evidence that he was in the building trade and ran his own business. He had a clean licence, which he needed for his job as he drove frequently. He said that he is five feet, five inches tall, nine and a half stone and suffers from asthma. On 25 March he left home in the evening to pick up Jehlwal at Tesco's, and then go to the property he was working on in Morden. He did not notice the red Fiesta on Boston Manor Road, and he turned right onto the A4 and then drove up to the traffic lights with Syon Lane. He was in the left lane, a Mondeo was in the right, and the Ford behind it. In Syon Lane the road merged into one lane and he indicated, stuck his head out to stay thank you, and moved in front of the Fiesta. The Fiesta hooted, and when he looked into his rear mirror he saw the complainant gesticulating. The Fiesta, he said, then followed him through a mini roundabout, hooting and tailgating him. He was concerned, so at the second roundabout he went around entirely. The complainant followed him part of the way and then drove off. He then headed towards the Tesco garage. As he was standing at the pump, he saw the Fiesta driving back.

[13]The complainant, he said, got out and walked towards him with his fist clenched saying, "You fucking cunt, shall I teach you how to drive?" He, the appellant, was taken aback and replied, "I don't want no trouble, leave it out". The complainant ignored him, so he repeated himself, and was about to say it again when the complainant struck him in the face. He stepped back and then slapped the complainant to the left side of the face. The complainant, who was very angry, reached for his hair, pulled his face down and put him in a particular hold. He grabbed the complainant's legs and they both dropped. He fell forward on all fours. The complainant was sitting on the pedestal facing him. The grip was hard and he could not breath. He tried unsuccessfully to move the complainant's hand and begged him to stop. He then reached for the Stanley blade in his belt thinking that the complainant would let him go, but the grip tightened, so he waved the knife around three times in a circular movement before blacking out. He thought he was going to die, and the complainant would not let go. It was very painful and he could not breath. He only used three blows, and the next think he remembered was sitting back and taking a deep breath. He got up and ran to the van, drove a short distance and stopped. Jehlwal got in and they drove off. Jehlwal then jumped out after 20 metres and got into his own car.

[14]He, the appellant, suffered a bloody nose, cuts and scratches and a sprained neck. He decided not to go to work, and went to his mother-in-law's house to change his clothes and unload his van. He threw the knife in a public bin as there was no reason for him to be carrying one. He then went to his parents before going to stay at a mosque in Dewsbury.

[15]On 8 April, he contacted solicitors in Manchester and agreed to surrender to the police. He cut his hair beforehand as he was scared the police would catch and hurt him. He heard that the next day police had terrorised his family. He surrendered and was taken to Hounslow Police Station, where on the advice of his solicitor he gave a no comment interview. At the end of the interview he gave in his prepared statement. He denied that he had removed the tax disc and registration plates from the van. He left it near his mother-in-law's on 25 March, which was the last day that he had seen it.

[16]Cross-examined, he denied arming himself when he saw the Fiesta coming towards the petrol station. He accepted that he may have inflicted the injuries on the complainant, but denied doing so intentionally. He said that when the complainant was choking him, the complainant had said, "I'm going to kill you, I'm going to kill you". He did not remember this when making his statement. He confirmed that the complainant first approached him at the petrol station with the words, "You fucking cunt, I'm going to teach you how to drive". He did not give this specific detail in his prepared statement, but the gist of it was there. He accepted that he was cautioned prior to interview, but said the solicitor did not explain the meaning to him. He hid after the incident, and did not go to hospital to have his injuries seen to because he was scared. He did not trust the police, and feared that he would be harmed. He had not mentioned Jehlwal's name in interview because he said no one asked him about it. He was not listening to the questions and did not look at the transcript of the interview, with which he was provided later. He conceded later that he might be wrong about not being asked to name the person he was with.

[17]Jatinder Jehlwal said that he had known the appellant for eight years. They had agreed to meet at the Tesco garage, and he arrived shortly after 7 o'clock. On the forecourt he saw the appellant and the complainant fighting. The complainant had the appellant in a headlock between the pump and the van, and the appellant could not breath properly. He grabbed the complainant from one side and pulled him about two feet away. The appellant got up looking a bit dazed and got into the van. He said to the complainant, "Look at the state of you, go away", and then he got into the van. He denied punching the complainant and putting his fingers in the cut on his face. Cross-examined, he denied collaborating with the appellant or discussing the case with the appellant's family. He accepted that, after he pulled the complainant off the appellant, the appellant did not appear to black out.

[18]Eight character witnesses gave evidence of the appellant's good character, describing him as a trustworthy, reliable and hardworking individual who goes beyond the call of duty in his charity work and is not easily moved to anger. By his grounds of appeal, the appellant contends that his conviction is unsafe in that the Recorder erred in directing the jury that they were entitled to draw an adverse inference under section 34 of the Criminal Justice and Public Order Act 1994, where the appellant had exercised his right to silence in interview, but had given the police a full account of the incident in a pre-prepared statement from which it is said that he did not depart in evidence.

[19]Miss Felix, who appears for the respondent before this court and who appeared for the prosecution in the Crown Court, persuaded the Recorder that a direction pursuant to section 34 was appropriate by reason of three matters, all of which had been raised in cross-examination with the appellant at trial: first, that the complainant's first words to the appellant on the garage forecourt were, "You fucking cunt, I'm going to teach you how to drive"; second, that while choking the appellant, the complainant had said, "I'm going to kill you, I'm going to kill you"; and third, that the appellant had not named in interview his companion, Mr Jehlwal.

[20]As to the first matter, the appellant had said in his prepared statement, "The Asian man jumped out of the car. He walked around the pump towards me. He was swearing and talking about my driving". As to the second, the appellant had said in his prepared statement, "I thought he was going to kill me". As to the third, while the appellant had not named his companion in his prepared statement and had failed to name him when asked in interview, he volunteered his name in his defence case statement served upon the prosecution before trial. In his defence case statement, the appellant said that he stood by his account given in his prepared statement.

[21]Mr Stone, who appears for the appellant and who appeared for him at trial, submits that the prepared statement could not have been fuller. It dealt with all material particulars. It contained no significant omissions. It was not inconsistent with the positive defence advanced at trial. There was no legitimate room for an adverse inference to be drawn against the appellant under section 34. He submitted in those terms to the Recorder. He submits to us that the Recorder adopted an overtechnical and unfair approach on the facts of this case. He should have directed the jury that no adverse inference was open to them by reason of the appellant's silence in interview.

[22]Mr Stone submits that the Recorder erred in giving the direction on the section 34, because the objective sought to be achieved by that section is early disclosure of a suspect's account, and not separately and distinctly subjection to police cross-examination. There is no place for any adverse inference where the defendant gave to the police his full account in a pre-prepared statement from which he did not depart in evidence, and this is so notwithstanding that it was not given in response to questioning, and it that he said no comment to all subsequent police questions. He relies for that proposition on the case of R v Knight

[2004] 1 Cr App R 9

, a decision of this court. Of course, as Mr Stone rightly concedes in his grounds of appeal, in that case Laws LJ made it "crystal clear" that of itself the making of a prepared statement gives no automatic immunity against adverse inference under section 34.

[23]That proposition was emphasised by this court in R v Turner (Dwaine)

[2004] 1 Cr App R 24

in which my Lord, Scott Baker LJ, said:

"Of itself the making of a pre-prepared statement gives no automatic immunity against adverse inferences under s.34 ... It may be incomplete in comparison with the defendant's later account at trial or it may be inconsistent with that account. This court notes a growing practice, no doubt on advice, to submit a pre-prepared statement and decline to answer any questions. This, in our view, may prove to be a dangerous course for an innocent person who subsequently discovers at the trial that something significant has been omitted. No such problems would arise following an interview where the suspect gives appropriate answers to the questions."

[24]In this case, we have some sympathy with the contention that, so far as the first two matters are concerned, the appellant was doing no more than putting flesh on the bones of the facts which he had already clearly set out, namely the words said to have been spoken by the complainant when he swore, and the threats to kill which fortified the appellant in his belief that he was going to be killed by the complainant. As to the failure to name the companion, it cannot be said that the prosecution suffered any prejudice, or that the appellant gained any advantage by the refusal to name him in interview. He was, after all, correctly identified in the defence case statement such that it was possible to bring him to trial jointly with the appellant, although the prosecution did not proceed against him in the Crown Court on the charges faced by this appellant.

[25]It is clear from the summing-up that all these aspects of the case were pursued in cross-examination of the appellant at trial by Miss Felix. The jury were reminded of it. No doubt, Miss Felix was also able to comment to the jury along the lines advanced to this court, namely that the appellant was simply attempting falsely to vilify the complainant in order to bolster a dishonest defence of self-defence. Nevertheless, we are not prepared to say that the Recorder was wrong in law to give the jury the direction under section 34. It was a finely balanced decision, and the Recorder was entitled to come to the decision that he did.

[26]Nor are we impressed by the complaint made by Mr Stone that the Recorder failed adequately to remind the jury of the contents of the pre-prepared statement. He referred to the document and its contents more than once when dealing with the section 34 direction, and the jury will have been provided with a copy of it. The statement was referred to by the Recorder in the course of his review of the appellant's evidence.

[27]This was a trial in which the fundamental issue was one of self-defence. It is clear that the jury listened to detailed and compelling evidence, which was fully tested, of the complainant and other witnesses of fact called by the Crown, and to the evidence of the appellant himself, supported by Mr Jehlwal, together with the evidence of a number of character witnesses. The section 34 direction was carefully and fairly given.

[28]We are satisfied that, even were it given in error, which we doubt, it did not play any central part in the trial such that the jury were invited or likely to concentrate upon it to the prejudice of the appellant. The jury's attention was firmly directed by the summing-up to the factual issues in the case as raised by the evidence. In all the circumstances of this case, we are satisfied that the conviction of the appellant cannot be said to be unsafe, and this appeal is accordingly dismissed.