Sabi, R. v [2010] EWCA Crim 180

Case No 2009/01588/C4

[2010] EWCA Crim 180

IN THE COURT OF APPEAL

CRIMINAL DIVISION

Venue Royal Courts of Justice

Date Tuesday 19 January 2010

The Strand

London

WC2A 2LL

B e f o r e:

LORD JUSTICE DYSON

MRS JUSTICE SWIFT DBE

and

MR JUSTICE SWEENEY

Between

R E G I N ACrown

- v -

Between

SARABJEET SABI

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Mr C Campbell appeared for Appellant

Miss S Dodd appeared for Crown

J U D G M E N T

[1]On 23 February 2009, at Inner London Crown Court, the appellant was convicted of violent disorder. There were co-accused, two of whom, Sukhwinder Singh and Sukhdev Singh, on re-arraignment on 12 February pleaded guilty to violent disorder. The appellant appeals against conviction by leave of the single judge.

[2]On 16 February 2008, shortly before 11pm, a sword fight took place on Western Road in Southall. About twenty men, some of whom were armed with swords, were seen to be running along Western Road. A fight took place on the forecourt of the Q8 petrol station.

[3]At about the same time a group of about fifteen young Asian men were seen running east on Western Road. Some of this group were seen to be carrying large swords. They were chasing another Asian man, Sukhdev Singh Gill. They eventually caught up with him and started to attack him. They then ran off along St John's Road.

[4]The emergency services and the police attended. Sukhdev Singh Gill had multiple lacerations to his head and hands. He was taken to Ealing Hospital and his clothing was seized. He said that he had been to a party in Hayes that evening and then went to Southall. He was waiting at a bus stop when he saw about 25 to 30 men and a fight broke out. The group started to run towards him and three of them attacked him. He ran off towards an alley way and was caught by about five or six of them who started to hit him with kirpans (a ceremonial sword or dagger). One of the men, whom he later identified as Sukhwinder Singh, started to "pistol whip" him. He heard a gun being fired. The discharge from the gun hit one of the co-accused, Sukhdev Singh, in the arm. Gill fell to the ground and the men continued to hit him with the swords. He had wounds to his head, shoulder and hands. His shoulder was fractured and he had multiple fragments and fractures to his hands.

[5]The appellant and Surinder Singh Rana also attended hospital that night with injuries. Their clothes were seized. They were questioned by the police on the same day and released on bail.

[6]The police seized a large number of swords and other weapons from Western Road and from a white Transit van parked in St John's Road. A DNA profile matching Gill was found in blood on the blades of six of the swords. The appellant's DNA was found in blood on the blade of one of the swords recovered from the van and in three places on one of the swords found in Western Road: the left side of the blade near the middle, on the handle near the blade, and on the handle under the grip base. Surinder Singh Rana's DNA was found in blood on the blade of three swords and in blood on the front right shoulder of the outside of the appellant's jacket. The appellant's DNA was found in blood on his trousers and near the bottom of the back of the right of Surinder Singh Rana's jeans.

[7]The appellant was bailed to return to the police station on 16 April 2008. He failed to attend, but surrendered to the police on 27 August 2008 when he was interviewed again.

[8]The prosecution case was that the appellant had taken part in the sword fight. It was not their case that he was involved in the assault on Gill.

[9]The prosecution relied on forensic evidence, namely the appellant's DNA found in the blood on the swords and the DNA in the blood of Surinder Singh Rana found on the appellant's jacket. They also relied on lies told by the appellant to an officer at the hospital following the incident, as well as the fact that he failed to surrender to police bail.

[10]Detective Constable Shah gave evidence that he spoke to the appellant at the hospital. The appellant said that he had been attacked at about 11.50pm. He described his attackers as being white and black men, not a group of Sikhs. He said that there was a knife, not a sword. The attack had occurred at or near the junction of South Road and Beaconsfield Road, not St John's Road, at a distance of about 500 metres from the scene of the sword fight. He said that he had fallen unconscious.

[11]In his first interview on 17 February 2008, to which we will have to return, the appellant said that he did not wish to take any action against his attackers and that he had not upset anyone to cause the attack. Thereafter, he chose not to answer any questions.

[12]In his second interview on 27 August 2008 he said that he had been walking down Western Road with a friend called Soni. They saw a gang of ten to fifteen people. The other four defendants were part of this group. They said that they had killed Gill. The appellant was a friend of Gill and for this reason the group set on him. He was hit repeatedly with a kirpan. He denied using a sword himself. His blood was on the handle because he had bled so much. He could not explain how Rana's blood had got onto his jacket.

[13]Expert forensic evidence was called at the trial. Louise Constance, a forensic scientist, gave evidence that in respect of the sword on which the appellant's DNA in blood was found in three places, one of the bloodstains was airborne and one was a contact stain. There was no blood in the crevices of the swords, which would be expected if the sword had been held by a blood-covered hand. Of the appellant's blood found on the leg of Rana's trousers, Miss Constance said that a spot on the bottom right-hand corner could only have arisen from airborne blood. She agreed that the transfer could have occurred if the appellant were attacked with the sword. She went on to say that multiple blows may cause blood to fly. Rana's DNA found in blood on the right shoulder of the appellant's jacket was of considerable quantity. It was an area of "heavy bloodstaining", possibly contact staining; it was not airborne staining.

[14]Dr Robert McHardy gave evidence that there were moderate levels of firearms residue on the outside and in the front left pocket of the appellant's jacket. This provided support for the contention that he was either present at the shooting or had subsequent contact with someone who was present.

[15]The defence case at trial was that the appellant denied being in possession of any sword or firearm, or participating in any fighting. On the day in question he was assaulted by a group of Asian males, who included his co-defendants. He was assaulted because he was known to be a friend or associate of Gill.

[16]The issue for the jury was whether they could be sure that the appellant participated in the sword fight.

[17]The first ground of appeal is that the judge was wrong not to withdraw the case from the jury at the close of the prosecution case. The judge held that the evidence of the firearms expert was either favourable to the appellant or neutral, since it showed only his association with some of Gill's attackers. He then went on to address the evidence as to blood and DNA. In his ruling he said:

"The defence say we have contact traces of [Rana] on the defendant's clothing (it is contact, not airborne) and therefore the defendant, absent when [Rana] was injured, obviously somehow in contact with him after that man had been. And as for the airborne blood of the defendant on [Rana], it is consistent, they say, with [Rana] either attacking the defendant or at least moving around close enough when the defendant was attacked for the airborne transfer to take place. The prosecution say on any view these two persons were in close bodily contact together at one point at least, and again, not necessarily in the circumstances that the defendant contends for. Once again, much store is set by the evidence of the expert, and it is pointed out that Miss Constance accepted the suggested viable option to explain the defendant's blood borne on the air to [Rana]'s trousers. The line of argument developed by Mr Campbell is really that we are stuck with that evidence, or are stopped from going behind it or attempting to take the matter any further. It might have been presentationally advantageous if prosecuting counsel had enlisted in re-examination a (inaudible) that there existed other viable options unfavourable to the defendant. But the prosecution's 'failure' or decision not to does not inhibit consideration of other viable options. Miss Constance is not an expert on the dynamics of fighting, let alone sword fighting, and nor is Dr McHardy. If blood is to fly through the air (or taking the other part of the Blani(?) defendant evidence) if one garment is to come into close contact with another bloodied person or garment, it is simply a matter of common understanding how it came to happen. In the end the blood/garment evidence can point in a number of different directions, one of which could certainly have found a reasonable conclusion against the defendant. Exactly the same applies for the blood/sword evidence. I do not use the word 'equivocal' because that really means two possibilities equally likely. There may well be a prima facie case of violent disorder on the blood evidence alone. There certainly is one when one considers the defendant's later behaviour. I refer to the combination of detailed lies when first spoken to, a largely stonewalling first interview and a failure to appear thereafter with proceeding with the final account in his second interview. I do not find the prosecution case particularly strong but I am certain that there is a case."

[18]Mr Campbell submits that the judge was wrong to reach that conclusion. He submits that the evidence of the blood and DNA was indeed equivocal; it could no more point to the appellant having been an attacker than that he was the victim of an attack. He submits that there is nothing in the expert evidence which could lead a jury, properly directed, reasonably to find that the appellant had participated in the violent disorder, and that the judge should have withdrawn the case at the close of the prosecution evidence. He submits that the contact stain on the shoulder of the appellant's clothing was no evidence that he had attacked Rana; it was only evidence that Rana was in close contact with him. That in itself is entirely equivocal.

[19]We cannot accept Mr Campbell's submissions. It seems to us that the evidence of the blood and the DNA, in particular the evidence of the contact staining which showed that the appellant had been in close physical contact with Rana raised a case from which a jury, properly directed, could reasonably infer that the appellant was not the victim of an attack but participated in the violence. In addition to that evidence, it seems to us that the fact that the appellant told flagrant lies very shortly after the incident was potentially a significant additional factor which the jury could take into account in reaching its conclusion. Although there were features of the prosecution case which were truly in the province of the experts -- for example, the source of the blood, the DNA and so on -- essentially it was a question of fact for the jury to decide on the basis of the whole of the evidence whether they were satisfied so that they were sure that the appellant was not, as he contended, a victim of the violence but was a participant in it. It seems to us that the judge was well justified in reaching the conclusion that he did. We reject the first ground of appeal.

[20]The second ground of appeal has undergone various shifts and turns in the course of its short history. In its final form it is presented by Mr Campbell in this way. He submits that the judge should not have given a direction to the jury under section 34 of the Criminal Justice and Public Order Act 1994. In any event, even if he was entitled to give such a direction, the direction that he gave was materially defective. In his summing-up the judge said this:

"The prosecution say [of the 17th February 2008 interview] he has been picking and choosing to his discredit which question he should answer and ask why did his account not emerge at least in broad outline the first time round in February, the afternoon afterwards, and why should the police, so to speak, have to wait until he is obliged to surrender and further interviewed in August? Well, again, the law makes this blunt and obvious point. His mere failure in the February interview cannot go to prove the case against him, but the law does allow you to come to some finding critical of him and, if you do, to use that as some extra support for the prosecution case. Just like the hospital lies, no way could any finding from his first interview be the main or sole basis to convict him. You do not have to go down this line of thought; you may do so if you think it right. You will approach the matter only, of course, in a commonsense and fair-minded way, only also if you are satisfied that in the case otherwise, apart from these 'no comments', the case is so strong that it calls for an answer. You would have to conclude before you criticised him on this ground that it was reasonable in all the circumstances as you see them now to have expected the broad lines of the August interview to have emerged in February. I have told you again all the defendant's reasons for his silence in large part in the first interview. If you think there is anything in those reasons, as before dump it, put that part of the case on one side, decide the case on the rest of the evidence. Turn the coin over. If, however, you are sure and the Crown make you sure the only reason is that in February he had no answer to give or none that would hold water and that he has, months afterwards, cobbled together the August account, then that is something you can take into account generally in the case against him."

[21]The interview, the transcript of which occupies seven pages of record, comprised a significant number of questions, to most of which the appellant gave "no comment" answers. However, he gave firm negative answers to the following questions:

"Q. .... Last night at about 11pm, as I explained earlier, there was a big fight at Western Road, Southall. Were you part of it? Were you in the fight? A. No. .... Q. Were you aware that a man had been shot in the arm last night? A. No. .... Q. Did you upset anybody to cause this attack on you? A. No."

Those were the three questions to which the appellant answered "No". To all the other questions, of which there was a substantial number directed to eliciting details of the appellant's account of what he had done on the occasion in question, he gave "no comment" answers.

[22]Mr Campbell submits that a section 34 direction was not justified because in substance the appellant indicated the nature of his case in the very first interview: that he had not been involved in any of the violence and that he had not upset anybody so as to justify his being attacked. Mr Campbell submits that it is implicit in the last question and answer that the appellant was asserting that he was the victim of an attack and not a participant in the violence.

[23]In our judgment the judge was entitled to give a section 34 direction. We fully accept the submission of Mr Campbell that because the appellant did not have the benefit of the forensic evidence which subsequently emerged, he was not in a position to give answers which took into account and reflected the gist of the forensic evidence. Nevertheless, there were substantial answers which he could reasonably have given on 17 February which did not touch upon the expert evidence. Indeed in the August interview the appellant was significantly more forthcoming than he had been on 17 February. Accordingly, the judge was entitled to give a section 34 direction.

[24]Mr Campbell's next point is that in his direction the judge should have identified for the jury the particular facts relied upon by the appellant in his defence at the trial and whether he ought reasonably to have explained them to the officer in the course of the interview. The judge did not condescend to particulars. He merely referred to an account which did not emerge "at least in broad outline the first time around in February".

[25]Miss Dodd, on behalf of the Crown, has taken us through the summing-up where the judge set out the account that the appellant gave at the trial. It is unnecessary for us to refer to it in detail. It is sufficient to say that the appellant gave a full account of his activities on the night in question, why he was present, his relationship to Gill and matters of that kind, as well as considerable detail about the nature of the attack of which he said he was the victim.

[26]In our judgment the judge should have identified for the jury at any rate the salient facts relied upon by the appellant at trial which he had not mentioned in the interview of 17 February. We have to ask ourselves whether his failure to do so renders this conviction unsafe. We are entirely satisfied that it does not. When the judge referred to the account which did not emerge "at least in broad outline the first time around", the jury must have understood that he was referring to the salient features of the account given by the appellant at the trial. The judge had identified those features in the course of his summing-up. It was open to Mr Campbell, if he thought it necessary, to ask the judge to amplify his section 34 ruling for the jury. He did not do so. Indeed, it is significant that the complaint about the section 34 direction which featured in the notice of appeal did not include the complaint which Mr Campbell has now put at the forefront of his argument.

[27]We are quite satisfied that, defective though this direction was, it did not render the conviction unsafe. Accordingly, we dismiss the appeal. ___________________________________