Tesfazgi, R v [2018] EWCA Crim 881

Case No 201704415/C2[2018] EWCA Crim 881
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Venue Royal Courts of JusticeDate Tuesday, 17 April 2018
Strand
London, WC2A 2LL
B e f o r e:
THE PRESIDENT OF THE QUEEN'S BENCH DIVISION
SIR BRIAN LEVESON
MR JUSTICE TURNER
MRS JUSTICE MAY DBE
Between
R E G I N ACrownv
Between
SAMMI TESFAZGI
Computer Aided Transcript of the Stenograph Notes of Epiq Europe Ltd 165 Street London EC4A 2DY, Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)
Non-Counsel Application
J U D G M E N TThis transcript is Crown Copyright. It may not be reproduced in whole or in part other than in accordance with relevant licence or with the express consent of the Authority. All rights are reserved.If this transcript is to be reported or published, there is a requirement to ensure that no reporting restriction will be breached. This is particularly important in relation to any case involving a sexual offence, where the victim is guaranteed lifetime anonymity (Sexual Offences (Amendment) Act 1992), or where an order has been made in relation to a young person.
[1]MR JUSTICE TURNER: On 28th June 2017 in the Crown Court at St Albans the applicant, then age 21, was convicted of offences of aggravated vehicle taking, possession of a prohibited firearm and possession of an article with a blade or point. For these offences, together with a further offence of possessing an article with a blade or point, to which he had earlier pleaded guilty, he was sentenced to a total of 6 years' imprisonment.[2]His application for leave to appeal against conviction was refused by the single judge and was listed to be determined by way of renewal before this court.[3]This morning this court has received an email sent on behalf of the applicant by his supervising officer, which reads as follows:
"I am emailing on behalf of the above prisoner, currently residing in HMP Belmarsh. He has requested that his court appearance be rescheduled due to the fact he has no representation. Due to the fact he is a multi unlock prisoner, he has not been able to access the phone to speak to his legal team."
[4]The information before us indicates that this is the first occasion on which any attempt has been made by or on behalf of the applicant to seek representation. The time of this court is valuable. In the circumstances, and bearing in mind our substantive analysis of the merits of this application, which we will be determining in sufficient detail hereafter, we have no hesitation in rejecting that application for an adjournment in the circumstances in which it has been made.[5]The prosecution case was that the applicant was one of two passengers in a stolen BMW X5 vehicle being driven by a co-defendant, one Riland Tahiri. The owner of the vehicle had installed a tracker device which enabled the police to locate and intercept it. The driver of the BMW tried strenuously, but unsuccessfully, to avoid interception and drove into repeated collision with police vehicles in an attempt to get away. When eventually the vehicle was forced to stop, the occupants refused to get out, and the police officers resorted to smashing the windows and using pepper spray.[6]Inside the car was found a small cache of weaponry, comprising a sawn-off shotgun with ammunition, a large hunting knife and a combat knife. The gun was found to be in a purple bag in the front seat passenger foot well. The applicant had been sitting in the front passenger seat. In the boot was found a canister of petrol. The car ran on diesel, suggesting that the purposes of the petrol was likely to have been to have set fire to the BMW at some later stage to destroy any forensic evidence of the identity of the defendants.[7]The police later discovered evidence of telephone contact between the applicant and the co-accused, which coincided with the time at which the BMW had been originally stolen.[8]The applicant made 'no comment' to questions put to him during his interview with the police but proffered a written statement denying all knowledge of the BMW stolen and contending that he was not aware that the weapons were being carried in it.[9]At trial the applicant persisted in his denials, save to the extent that, on the first day of the trial, he had pleaded guilty to possession of the hunting knife.[10]The issues before the jury were whether the applicant was a party to the stealing of the BMW, whether he knew the vehicle had been stolen when it was being driven dangerously, and whether he was in possession of the shotgun and combat knife.[11]After the jury had retried, prosecution counsel informed the court that on the previous day, at about 12.40 pm, a man giving the name Abdel Rahim Mejabor, had presented himself at Holborn Police Station, stating he wanted to make a confession. Two officers attended the front desk to talk to him. Mejabor proceeded to provide a short and self-incriminatory account, which was written down in a note. He then promptly run away, taking the note with him. The officers ran after him and detained him but not before he had managed to dispose of the note, which has not been recovered. The officers' recollection of what had been recorded in the note was to this effect:
"On the 17th of January I had a navy blue or black X5. Inside, on the front passenger seat, I had a shotgun. It was wrapped in a black hoodie and left on the front passenger seat. I gave the keys to someone named Gerald. Later that day the car was gone and I was told two or three people got arrested. I came to confess it was mine."
[12]The officers checked the National Computer for linked matters but did not find anything. Mejabor refused to cooperate further. He was then interviewed and made 'no comment' in response to the questions asked of him. His home address was then searched and telephones recovered, which were later examined. The Metropolitan Police did not identify anyone believed to be Gerald, but they did discover a connection between one of the applicant's co-accused and Mejabor's older brother, who were linked by forensic evidence to a stolen vehicle. The telephone number they had for Mejabor did not, however, provide a link to any of the telephone numbers which had featured in the trial.[13]In response to this development, the defence applied for the jury to be discharged, so that Mejabor's ephemeral confession could be investigated. The judge refused to discharge the jury, concluding that there was a high risk that this was a deliberate attempt to derail the trial, and that, bearing in mind the delays which had already beset the proceedings, it was not appropriate to bring the trial to a halt. The grounds of appeal assert that the judge was wrong to refuse to discharge the jury and that the applicant's convictions were thereby rendered under.[14]In refusing leave to appeal, the single

judge observed:

"The issue as to firearm is possession. Whether or not Mejabor may have had possession of a firearm earlier, the issue for trial was whether the jury could be sure that you did, together with Tahiri, at the time your car was stopped. The evidence that you did was overwhelming. First, the car had only been stolen on the day before. Second, Tahiri accepted that a knife in the door pocket by the driver's seat was his, and the hunting knife in a black rucksack in the front passenger seat well had your DNA on it. Possession of the gun in this case depends centrally upon whether you knew the gun was there. It was in a cloth bag. The bag was not hidden. It was found in the front passenger footwell alongside the rucksack containing the knife with your DNA on it. It is inconceivable that you would not have looked inside this bag. Moreover, Mejabor said he had left it on the seat. If so, you or Tahiri must have moved it to the footwell, leaving no realistic possibility that one of you would not have looked within it. Finally, as the judge said, the evidence of the knives and a can of petrol in the boot of what was a diesel car, was material which suggested you were jointly on a mission which involved going out equipped for violence. The presence of a shotgun was consistent with this. You were charged jointly with Hardy, who had a previous conviction for possession of a firearm."
[15]We agree with this assessment. There was no justification for discharging the jury and the judge was right to decline to do so. His refusal did not render the convictions unsafe. We further note that no application has been made to adduce fresh evidence relating to the confession under section 23 of the Criminal Appeal Act 1968, despite the fact that this option was expressly referred to in counsel's advice on appeal. Accordingly, this application is refused. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. 165 Fleet Street, London EC4A 2DY Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk

Cited in 1 later judgment