Adamjee v R. [2012] EWCA Crim 793

[2012] EWCA Crim 793Case No 201100926 b1
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
Date 3 August 2009
ON APPEAL FROM
before HHJ Milmo QC at Nottingham Crown Court
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate Date: 26/04/2012
Before
LORD JUSTICE PITCHFORDMRS JUSTICE COX DBETHE COMMON SERJEANT, HIS HONOUR JUDGE BARKER QC
Between
MOHAMMED SUAIB ADAMJEEAppellantREGINARespondent
Stephen Field (instructed by Wells Burcombe) for ApplicantAbigail Joyce (instructed by CPS) for RespondentHearing Hearing date: 16 March 2012
Judgment
[1]Between 13 July and 3 August 2009 the applicant, together with his co-accused, Dr Mohammed Amin Aziz, was tried upon an indictment containing four counts before HHJ Milmo QC at Nottingham Crown Court. The indictment charged Dr Aziz in counts 1 – 3 with possession of criminal property contrary to section 329(1)(c) Proceeds of Crime Act 2002. The applicant was charged in count 4 that between 26 September 2006 and 20 June 2008 he entered into an arrangement knowing or suspecting that the arrangement would facilitate the acquisition, retention, use or control of criminal property by or on behalf of another contrary to section 382(1) and section 334 Proceeds of Crime Act 2002. On 3 August 2009 both accused were convicted. On 7 September 2009 the applicant was sentenced to 7 years imprisonment and on the same day he was made the subject of a serious crime prevention order for 5 years pursuant to section 19 Serious Crime Act 2007.[2]On 16 March 2012 we considered the applicant’s application for leave to appeal out of time and for directions. Having heard the application presented by Mr Field on the applicant’s behalf we refused leave and these are our reasons.[3]Before we turn to the grounds of the application we shall outline the case against the applicant and Dr Aziz. A drugs operation centred upon Nottinghamshire was under the surveillance of the Serious and Organised Crime Agency. The investigation was called Operation Halbert. The investigation revealed that the conspirators were engaged in the extremely lucrative importation of heroin and amphetamine for sale on the streets of the United Kingdom. In the UK the enterprise was run by Gavin Dawes who lived in Kirkby-in-Ashfield, Nottinghamshire. On Dawes’s arrest the officers recovered from his motor car a typewritten ledger in which the receipt and movements of profits from the criminal enterprise between May and October 2007 were recorded. The ledger revealed profits per month of about £1 million. Dawes and his first lieutenant, Brian Peck, pleaded guilty to a charge of conspiracy to supply Class A drugs. They were subsequently sentenced to terms of imprisonment of 15 years and 12 years respectively.[4]Investigations revealed that the profits of the enterprise were laundered through a network of contacts resulting in the removal of the money from the UK to the Indian sub-continent. That part of the business which concerned the applicant and Dr Aziz involved the transfer of large quantities of cash in instalments of £150,000 or so into accounts held by the applicant under the names of Taka Exchange Co (UK) Ltd or UK Money Express Ltd or MS Adamjee for onward transmission out of the UK. On two occasions very large quantities of cash were delivered to “an Asian man” in the street close to the applicant’s home address at 19 Holt Road, Wembley in London, where the applicant lived with his wife and family. Also living at the address at the relevant time was the applicant’s nephew Abid Mohammed, an over-stayer, whom the applicant had sponsored on his visit to the UK in 2005. It was not suggested that the applicant himself received the cash in the street outside his home, but it was the prosecution case that the cash was received on his behalf, probably by his nephew Abid. On other occasions cash was deposited directly into the applicant’s accounts by Dr Aziz.[5]The prosecution was able to establish a recurring pattern of behaviour during the period June to September 2007 when, according to the ledger, sums of £150,000 in cash were regularly dispatched as an outgoing to persons called in the ledger “Kim” and “Spac”. It was the prosecution case that this was code for the applicant and Dr Aziz.[6]The contact in Bangladesh was a man called Chatni, a relation of Dr Aziz, who also spent much of his time in the UK. The pattern revealed that coincidentally with an entry for outgoing cash in the conspirators’ ledger money would be moved, although it was not always possible to make a close correlation and the trial judge cautioned the jury against trying to find one. The cash would be delivered by courier to Dr Aziz. The ledger would identify the courier by reference to a nickname or code. For example, one of the couriers, David Wombwell, was known as “Biker” or, in the ledger, “bi”. Arrangements for delivery and collection would be made between Dr Aziz and Wombwell by telephone traffic between them. The exchange always occurred in a public place and not at Dr Aziz’s home. At this time Aziz would make contact with a mobile telephone number ‘547’ registered to the applicant, the purpose being to confirm that the cash was on its way. In order to maintain security Aziz was required to send to Chatni the serial number of a bank note which he would produce to the courier from whom he was receiving the cash. That number was first provided to Chatni who in turn passed it to the courier. Aziz would present the bank note to the courier at their rendezvous. Aziz’s task was to take the money home, to count it and to deposit it. He would confirm to Chatni whether the cash was complete or short. He would divide the cash into separate denominations. Scottish notes would be replaced. Having confirmed to Chatni the money to be deposited, Aziz would notify the mobile telephone 547 that the money was on its way to an account in a specified number of bags separately identified. By this means, it was the prosecution case, something over £1.5 million was laundered through the applicant’s accounts.[7]At trial Dr Aziz accepted and gave evidence that he both received the money and deposited it into one of the applicant’s accounts. His defence was that he did not know or suspect that he was handling the proceeds of drug trafficking. The applicant’s defence was that he was engaged in an honest money transfer and money exchange business. He had no idea that his business was being used to launder drugs money. He personally had no dealings with Aziz and was unaware of the transactions taking place. He blamed the events which had emerged in the investigation on his nephew, Abid Mohammed, who, he said, must have been involved in the enterprise without his knowledge. The applicant had sponsored his nephew, Abid, during his visit to the United Kingdom commencing in January 2005. He had permitted Abid to work and take a managerial role in his money exchange business to such an extent that the applicant himself withdrew to a consultancy role. The applicant maintained that the time came when he suspected that Abid was removing money from the business. Dr Aziz was arrested on 5 September 2007. Coincidentally, on 7 September the applicant and his wife left the United Kingdom for Bangladesh where the applicant’s brother was in hospital having suffered a heart attack. While there the applicant discovered, he said, that Abid’s mother and family were living in a luxury apartment while formerly they had lived in a flat owned by a charitable trust. Explanations were given for this upturn in the family’s fortunes but the applicant did not believe them. When he returned to the UK on 3 December he confronted Abid. Eventually Abid admitted that there were no records for the business. What was left was stored on a USB memory stick which, for an unexplained reason, he was unable to access. The applicant said he then discovered that Abid had purchased for himself an apartment in Bangladesh. He challenged him as to how he could have achieved that wealth and, again, did not receive a satisfactory answer. Abid told him only that he had “done some business on the side”. Abid left the UK shortly before the applicant’s own arrest on 19 June 2008. The applicant said that he had not seen Abid since February 2008.[8]The applicant declined to answer questions in interview and none of his business records were available. He claimed to have closed down his businesses following his discovery of Abid’s misconduct.[9]The applicant was advised following conviction that there were no grounds for appeal. On 29 March 2010 the applicant’s wife Mrs Afia Adamjee, visited the offices of Wells Burcombe, the applicant’s present solicitors, and spoke to Mr David Wells a partner in the firm. During that meeting Mr Wells raised the issue “whether or not the witness Abid Mohammed would assist and provide fresh evidence supporting the account advanced at trial by the applicant” (second affidavit, David Wells, 3 November 2011, paragraph 5). Mrs Adamjee did not know what the prospects were. She said she had not spoken to Abid since her husband’s conviction. We note the pregnant omission as to whether there had been any oral or written communication between the applicant, his wife and Abid Mohammed at any time after February 2008.[10]Following a visit by Mr Wells to the applicant on 22 April 2010, Mrs Adamjee was requested to obtain contact details for Abid. On 13 May 2010 Mrs Adamjee informed Mr Wells that Abid “was willing to make a statement” (second affidavit, David Wells, paragraphs 6-8). We have no information as to what passed between Mrs Adamjee and any member of Abid’s family in consequence of which she was able to communicate this willingness.[11]On 26 May 2010 Mr Wells received an e-mail from Mrs Adamjee providing Mr Wells with a contact telephone number for Abid. On 22 June 2010 Mr Wells made contact with ‘Abid’ by telephone. The line was bad and Abid’s English was far from fluent. However, Mr Wells’ correspondent said he felt “guilty” and had done everything behind his uncle’s back (second affidavit, David Wells, paragraph 10). On 23 June 2010 Mr Wells received a short e-mail from a person purporting to be Abid. Its purpose was to notify Mr Wells of his e-mail address.[12]On the same day, Mr Wells despatched an e-mail to that address itemising 59 questions designed to elicit any evidence which might support the applicant’s case at trial. In a one page reply dated 6 July 2010 Mr Wells’ correspondent gave relevant but very little information in extremely poor English. Mr Wells next spoke to Abid by telephone. A further e-mail reply was generated on 21 July 2010 in which all 59 of Mr Wells’ questions were answered in some detail in near-perfect English. Abid, if it was he, made a full confession of his involvement in the money laundering arrangements with Chatni and Aziz. His replies fully supported the applicant’s denial of knowledge of Abid’s unlawful activities. On 24 November 2010 a representative of Mr Wells’ firm met with Abid Mohammed in Bangladesh and took from him a witness statement in which he was again supportive of the applicant.[13]An application was made in February 2011, 18 months out of time, for leave to appeal against conviction on the grounds of Abid’s “fresh evidence”. The application was considered on the papers by Christopher Clarke J on 1 August 2011. We must record our gratitude to the judge for the care which he has taken to give directions bringing some order to the documents. The judge referred the application to the full court for consideration. He concluded:
“I am only referring the matter to the full court because it appears to me that the full court might if it gave permission to apply out of time, take the view that the evidence of Abid Mohammed was capable of belief; and that, if it was, your conviction was unsafe.”
[14]Since the judge made his order the court has received the written submissions of the respondent whose purpose was to illuminate the relevant issues at trial and we now have from Mr Field, who was not trial counsel, an application for further directions. Those proposed directions seek information from the applicant’s trial solicitors as to the steps, if any, taken at the time of trial to secure Abid’s attendance at trial or, alternatively, to arrange for him to give evidence by some other means such as ‘live link’. In the meantime, on 13 March 2012 Mr Al-Yanusi, counsel for the applicant at his trial, replied to the applicant’s waiver of privilege document as follows:
“I was counsel instructed to represent Mr Adamjee at his trial at Nottingham Crown Court … [F]rom having refreshed my memory about the facts of the case I am able to state that the issue of Mr Adamjee’s nephew “Abid” was discussed on several occasions prior to Mr Adamjee’s trial in connection with the possibility of taking a potential witness statement from him. Mr Adamjee’s instructions were that he had no idea about the whereabouts of “Abid” and that he had in all likelihood left the jurisdiction. In the circumstances this line of enquiry was not pursued.”
On the same day, by e-mail, Seema Parikh of MPR Solicitors LLP replied to the court’s enquiry to the same effect.[15]The applicant now seeks leave to appeal and directions either to secure Abid Mohammed’s attendance in person at the hearing of the appeal or at the adjourned application for leave to appeal; alternatively, a direction under section 32 Criminal Justice Act 1988 permitting the receipt of Abid’s evidence by live link with Bangladesh. We refused the applications for two reasons which can be summarised as follows:(1) The application was unsupported by witness evidence material to the issues: (i) why the first contact with Abid Mohammed was made only in May 2010, 9 months after the applicant’s conviction, (ii) how and in what terms the witness was approached by the applicant’s family, and (iii) the explanation for the existence of what appears to be two different authors of the e-mails of 23 June and 6 July 2010.(2) The fresh evidence is not capable of belief on the issues relevant to the appeal and does not afford the applicant grounds for allowing the appeal within the meaning of section 23(2)(a) and (b) Criminal Appeal Act 1968.[16]There is no doubt that Abid was himself involved in the unlawful conduct of which the applicant was convicted. This was the position of both the prosecution and the defence at trial. Abid fled the jurisdiction before the applicant’s arrest and no attempt was made either to secure his attendance at trial or to arrange the receipt of his evidence by live link. We learn from Mr Al-Yanusi’s letter of 13 March 2012 that the applicant instructed counsel at his trial that he had no idea of Abid’s whereabouts. We regard it as highly improbable that the applicant was unaware of the witness’s whereabouts or, at the least, of the means of discovering Abid’s whereabouts by making the relevant enquiries with his family, had he wanted to do so. While it may be that contact with the witness would have been met with a negative response, no satisfactory explanation has been given for the failure to make the attempt.[17]Even if, for the purpose of the present applications, we were to assume that the applicant would establish that the evidence was not reasonably available at trial, the failure even to make the attempt, and Abid Mohammed’s refusal to attend the hearing of the appeal or the application for leave to appeal, create an enhanced duty upon the applicant to provide satisfactory evidence as to the delay in making contact with the witness and as to the provenance of his present willingness to give evidence in support of the appeal. We have received no evidence from either the applicant or his wife explaining the delay between August 2009 and April 2010, nor have we received any evidence as to what passed between the applicant and/or his wife and members of the witness’s family which led to the witness’s current availability. There is, furthermore, no explanation for the apparently different authorship of the two e-mails of 6 July and 21 July 2010, purportedly both from Abid Mohammed, a lacuna in the evidence which we regard as glaring.[18]It is well known that this court will not receive “fresh” evidence without satisfactory testamentary proof from all those involved in obtaining the evidence which it is claimed was not available at trial (see Archbold 2012, paragraph 7.209, R v Gogana, The Times, July 12 1999 (CA), R v James [2000] Crim LR 571 (CA)). The necessity for such evidence is drawn to the attention of applicants on the reverse of Form W on which any application for the receipt of fresh evidence must be made. In James the Court refused to admit evidence whose availability was not adequately explained and which did not, on analysis, bear on the safety of the applicant’s conviction.[19]Mr Field was unable to provide the court with the information which is required. At the hearing neither he, nor the court was in possession of Mr Wells’ second affidavit of whose existence we were only made aware because in recent days we had received a copy of Mr Wells’ “third” affidavit. Mr Field sought from the court an opportunity to investigate these matters and to gather further evidence. Since the hearing the court has been provided by Mr Field with the second affidavit of Mr Wells, dated 3 November 2011, for which we are grateful. We have already made extensive reference to it. We accept Mr Well’s evidence as far as it goes but it does not perform the function of establishing the reliability of the fresh evidence. The applicant has had since 24 November 2010, the date of Abid’s statement, to put his case in order. In paragraph 7 of his directions of 1 August 2011, the single

judge wrote:

“The applicant’s solicitors may wish to consider whether they should supplement the evidence so as to deal with the matters referred to in paragraph 1 of my reasons.”
Paragraph 1 of the judge’s reasons says:
“You have delayed nearly 1.5 years in seeking permission to appeal. One of the reasons why I am referring your application to the full court is that the question whether it is appropriate to give permission to appeal out of time may depend on how and when it came about that Abid Mohammed, your nephew, became prepared to reveal his alleged guilt; whether any attempt was made to contact him before or at the time of the original trial and when he was when first contacted thereafter and with what result.”
In our view, a clearer indication of what the court would expect in support of the application could hardly have been given.[20]In our judgment, it would have been appropriate on this ground alone to refuse leave to appeal out of time. Nevertheless, had Abid’s witness statement provided a realistic basis on which to doubt the safety of the applicant’s conviction we may have been prepared to permit the applicant further time to make enquiries, or to consider hearing Abid Mohammed’s evidence before reaching a conclusion as to its relevance and reliability. However, assuming the evidence was given in the form in which it is presented to us, we are wholly unpersuaded that it would be capable of belief.[21]As we have said, the issue at the applicant’s trial was not whether Abid was, or may have been, involved in the money laundering operation but whether he was, or may have been, so involved to the exclusion of and without the knowledge of the applicant. The applicant faced the formidable obstacle of overcoming the effect of the evidence of the text mail traffic passing between Dr Aziz and the mobile telephone number 547 registered in the applicant’s name. The applicant’s full name is Mohammed Suaib Adamjee. Phonetically, the applicant’s middle name is pronounced “Shoib”. The 547 mobile telephone received several incriminating texts from Aziz, on dates and at times coincidental with deposits into Adamjee’s accounts, addressed to “Shoib”, “Shoaib”, and “Shoib London”. In addition, on 24 July 2007, Aziz reported to Chatni that “I talked to Shoib. He accept he did a mistake on txt to u [sic]. Anyway count is OK”. Despite Aziz’s insistence in evidence that the applicant was ‘Shoib’, the applicant’s response at trial was that he never used and was not known by his middle name. His case was that Dr Aziz must have been communicating with someone else, perhaps his nephew, Abid. Dr Aziz said he knew perfectly well that Shoib and Abid were two different people and that someone called Abid was assisting Shoib. Furthermore, Aziz also addressed texts sent to the mobile telephone 547 to “Shoib bhai/Abid” demonstrating the truth of his assertion. The addition of the form of address “bhai” denoted respect for the recipient. This was a term which, on the evidence, would have been appropriate had the correspondent been addressing the applicant but not if he had been addressing Abid. Lastly, when the applicant left the United Kingdom for Tunisia on holiday on 13 August 2007, Aziz addressed his text message to a different mobile telephone number, ‘739’, and to “Abid” rather than to “Shoib”. The contemporaneous and admitted records provided powerful support for Aziz’s oral evidence that he knew Shoib and Abid to be two different people to both of whom he had spoken on the telephone in order to make arrangements for deposits.[22]Abid Mohammed now says in his witness statement that it was his “friend” Chatni, who introduced him to Dr Aziz as Shoib’s “partner”. That, says Abid, was a lie but he went along with it thinking that Chatni believed Aziz was more likely to trust the partner of a respected businessman than someone unknown to him. This account is not, in our view, capable of belief and is not capable of providing the applicant with a ground of appeal. First, Abid undermines the applicant’s defence at trial by asserting that, contrary to his denial, the applicant was known as “Shoib” or “Shoib bhai”. Second, Chatni was more senior in the hierarchy of conspirators than was Dr Aziz. Aziz would have no business questioning Chatni’s introduction of Abid as a person with whom he should deal. Third, as Mr Field acknowledged, if there was the slightest truth in Abid’s assertion that it was necessary to gain Aziz’s confidence, the most obvious way in which Abid’s loyalty could have been demonstrated was by introducing Abid’s true status which was as the applicant’s nephew. Abid’s present account that he was introduced as the applicant’s partner tends, in our view, to undermine rather than support the applicant’s case.[23]Abid Mohammed says that he conducted all his business with Aziz without the knowledge of his uncle, the applicant. It was not, he says, the applicant who received the text messages on telephone 547, but Abid. His purpose was to conceal the unlawful transactions from the applicant because he knew that if the applicant discovered them he would strongly disapprove. This too is an assertion which is not capable of belief. The phone belonged to and was registered in the name of the applicant. It was a contact number for the applicant given in one of the applicant’s service contracts. Abid concedes in his statement that it was a business phone and that at any time his uncle might require to use it. It would appear, if Abid is to be believed, that at any moment his uncle could stumble across the incriminating messages received by Abid. However, Abid chose, despite the risk of discovery, to continue to use the 547 number rather than acquire a new number which would be unknown to his uncle. We cannot accept that this evidence may be true. Abid Mohammed claims that in his dealings with Aziz he would pretend to be the applicant. In his statement he says “I used my uncle’s name for extra credibility”. This evidence is utterly inconsistent with Aziz’s address of his text messages to both “Shoib bhai” and “Abid” in the same text messages and to “Abid” alone when the applicant was unavailable while on holiday in Tunisia. It seems to us that the falsehood of Abid Mohammed’s claims in his witness statement is transparent. He proffers no explanation in his witness statement for the incompatibility between his present assertions and the admitted text traffic.[24]As we have said, the defence put forward by the applicant at trial was that, unknown to him, his nephew must have been responsible for the unlawful laundering of some £1.5 million in cash between June and September 2007. The jury was required to consider the very argument which is now advanced by way of application for leave. The jury had the benefit at trial of the contemporaneous text traffic and the evidence both of Dr Aziz and the applicant. In considering the section 23 question, we have asked ourselves whether, if the jury had been required also to consider Abid Mohammed’s present account, there is a reasonable possibility that the jury might have reached a different conclusion. We had no hesitation in rejecting Abid’s account as patently false. We declined to admit the evidence. It was not capable of providing the applicant with grounds for doubting the safety of the verdict. The application for an extension of time within which to apply for leave to appeal against conviction was, therefore, refused.