R v Aafan Ber Mirza [2025] EWCA Crim 483

[2025] EWCA Crim 483Venue Royal Courts of JusticeStrandLondonWC2A 2LLDate Thursday 27 March 2025
Before
LORD JUSTICE STUART-SMITHMR JUSTICE BRYANHIS HONOUR JUDGE ANDREW LEES(Sitting as a Judge of the CACD)
Between
REXCrownV
Between
ASFAN BER MIRZA_________NON-COUNSEL APPLICATION_________APPROVED JUDGMENT
[1]On 7 August 2020, in the Crown Court at Leicester (His Honour Judge Head), the applicant was convicted of threatening another with an article with a blade or point, contrary to section 139AA of the Criminal Justice Act 1988.[2]On 11 August 2020, before the same Court, the applicant was sentenced to 33 months’ imprisonment, and the Court also made a Restraining Order for 4 years and 6 months. The applicant was represented under a Representation Order by Solicitors (M & M Solicitors) and Counsel (Mr Philip Gibbs).[3]The applicant renews his applications for an extension of time (1284 days in respect of conviction), for leave to appeal against conviction following refusal by the single judge. The applicant also seeks leave pursuant to Section 23 of the Criminal Appeal Act 1968 to introduce fresh evidence from a witness (Iqbal Mirza).[4]Turning to the facts in relation to the alleged offending. On 13 June 2019, shortly before 5.00 pm, police received a call in relation to a fight on Melbourne Road, Leicester. Upon arrival at the location, the police conducted inquiries and found Mr Imran Ghanchi (“the complainant”) in his home. The complainant informed the police that he had been threatened by a male with a machete at the MS Discounts shop (“the shop”). The prosecution case was that the applicant was the male who had threatened the complainant with a machete.[5]To prove the case, the prosecution relied on the evidence of the complainant. His evidence was that he was walking home on Melbourne Road. Upon passing the MS Discounts shop, he saw a male standing at the top of the ramp to the shop. The male was wearing jogging bottoms and a black hoodie over his head. He saw the male’s face and recognised him as “Asfan”, who worked in the shop. As they passed, he asked the male “Are you alright?” and he responded with “F… off. F…ing get back into your house”. The male then turned slightly and lunged at him with a machete, just missing his neck by 6 inches. The complainant moved back in shock. Passers-by and the male’s father then intervened. The male went away. The complainant gave evidence that he then spoke to the male’s father. A short time later, the male came out and lunged at him once more. Others again intervened and the male did not make any contact. The complainant said that he had previously seen the machete in the same shop. It had a blade of about 25-inches long and a black handle.[6]The prosecution also relied upon the evidence of the complainant’s wife, Fajilabibi Ghanchi. Her evidence was that the complainant had come home and told her about the incident and also identified his attacker to her. The complainant had said to her “I nearly got killed” … “said hello to Asfan” … “he took a machete to me” ... “the other man’s dad came out and took it off him.”[7]Read evidence was also given from two police officers (Constable Forrester and Constable Thomas) in relation to the complaint, the inquiries conducted and the applicant’s arrest. They also spoke to the applicant. He was wearing a black hooded top, with the hood up and had grey tracksuit bottoms on.[8]There was also photographic evidence to show the location and to demonstrate the relevant distances involved.[9]The defence case was one of denial and that this was a case of mistaken identity. The applicant was spoken to by the police at the time and he stated that he had been inside the shop at the relevant time. In police interview, he provided a prepared statement, denying the allegation and denying knowing the complainant. He did not give evidence at trial.[10]The issue for the jury to determine was if the applicant was the person responsible for threatening the complainant with a machete.[11]The applicant’s grounds of appeal, which were drafted by the applicant himself, are as follows:-(1) “John from Oliver D’Sa in Leicester occupies a statement of the 13 5 2019 from when the defendant was attacked with a hammer and scissor.”(2) “Judge refused a phone caller of an emergency phone call to Police to be a witness.”(3) “Judge did not hold the investigating officer for contempt of court following a changed transcript of emergency phone call to police of defendant being attacked.”(4) “Judge did not hold Farjilabibi for contempt of court following a false statement to police as she would not be eligible for court.”(5) “Judge did not ask Ayesha Ghanchi to be attended for a witness testimony.”(6) “Judge changed the charged after verdict on defendant previous conviction from affray to threaten with a blade/sharply article in a public place with no jury knowledge.”(7) “Judge gave a unnecessary restraining order with a 1 door away neighbour who challenged the defendant.”[12]Like the single judge before us, and having considered the applicant’s grounds and the documentation before us, we are satisfied that there are no arguable grounds for an appeal against conviction, and we too consider that the grounds are wholly without merit. We gratefully adopt the reasons given by the single judge, the Right Honourable Sir Gary Hickinbottom, with which we respectfully agree:- “I have considered the papers in your case and your grounds of appeal. On 13 June 2019, someone unlawfully threatened a man called Imran Ghanchi with a machete outside MS Discounts shop, Melbourne Street, Leicester. The only issue at trial, in which you were charged under section 139AA of the Criminal Justice Act 1988, was whether the perpetrator was you. Mr Ghanchi said that you were neighbours, he had known you for 1 years, and he recognised you as the perpetrator. You said that you did not know Mr Ghanchi, and denied that you threatened him in the way alleged. You did not suggest that Mr Ghanchi’s accusation was malicious, but rather mistaken. You did not give evidence nor did you respond to any questions in interview, although you did sign a prepared statement denying that your knew the complainant or threatened him, denying you had or had access to a machete, and saying that, at the relevant time, you were at home. You were duly convicted. You seek to appeal on seven grounds. You have drafted these grounds. I should say at the outset that, whilst I am sensitive to the challenges facing those who represent themselves in this court, some of your grounds are difficult to understand and lack coherence. I deal with them below, in turn. Ground 1:
‘John from Oliver D’
Sa in Leicester occupies a statement of the 13-5-2019 from when the defendant was attacked with a hammer and scissor.’ Oliver D’s are solicitors in Leicester; but not the solicitors who represented you at trial (which were M&M Solicitors). No statement of 13 May 2019 was referred to at trial, the only statement being that of you raising an alibi and denying involvement. No ground of appeal is apparent here. Ground 2:
‘Judge refused a phone caller of an emergency phone call to Police to be a witness.’
However, there is no record of the Judge making such a ruling. There is no record of any 999 call in evidence or being in issue; and no application was made to adduce any such call. Ground 3:
‘Judge did not hold the investigating officer for contempt of court following a changed transcript of emergency phone call to police of defendant being attacked.’
The Crown say in response that nothing happened during the trial that could have given rise to contempt proceedings. I accept that: there is nothing in the papers to suggest otherwise. Furthermore, there is no record of any 999 call being in issue at the trial. Ground 4:
‘Judge did not hold Farjilabibi for contempt of court following a false statement to police as she would not be eligible for court.’
Farjilabibi Ghanchi (the complainant’s wife) was a prosecution witness, whom your Counsel cross-examined. It was not suggested at trial that she was deceitful. The Judge did not arguably err in not holding her liable for contempt of court, for which there was and is no possible evidential basis. Ground 5:
‘Judge did not ask Ayesha Ghanchi to be attended for a witness testimony.’
Ayesha Ghanchi was not a prosecution witness, and you made no application to call her as a witness. You now seek to call her as a witness; but you do not say (and it is certainly not clear from anything else) as to what, if anything, she could possibly say that would be relevant to the issue of who the perpetrator was. Ground 6:
‘Judge changed the charged after verdict on defendant previous conviction from affray to threaten with a blade/sharply article in a public place with no jury knowledge.’
However, no change was ever made to the indictment, which charged an offence under section 139AA. Ground 7:
‘Judge gave a unnecessary restraining order with a 1 door away neighbour who challenged the defendant.’
This ground, if anything, goes to sentence not conviction; but there is no force in it in any event. Following conviction, the Judge made an order restraining you from contacting Mr Ghanchi or his wife for 4½ years for their protection from conduct by you that amounted to harassment or would cause fear of violence. Given the nature and circumstances of the offence, and the fact that Mr & Mr Ghanchi were your near neighbours, such an order was clearly appropriate and neither disproportionate nor otherwise wrong in principle or manifestly excessive. In addition to these grounds: (i) You make various assertions about your legal team. However, nothing suggests that their representation of you was anything less than adequate. Given that the complainant was a near neighbour of some years, your defence that you did not know him (and therefore his recognition of you was mistaken) coupled with the fact that you did not give evidence (and, save for those denials, did not respond to questions in interview), made your defence extremely challenging. The evidence against you was very strong. (ii) You appear to wish to call Iqbal Merza to give evidence on your behalf; but you did not seek to call him at your trial and do not suggest any evidence he might give, let alone evidence that might assist your appeal. (iii) I have considered all the papers in your case, including the summing up - which was patently full and fair. The papers do not suggest that you have any ground of appeal with any more merit than those you have put forward, set out above. Those grounds are not only unarguable, they are wholly without merit. Your application for leave to appeal is substantially (over 3½ years’) late. However, given my views on the merits of your grounds of appeal, it is unnecessary for me to consider reasons for the delay because I would refuse your application for an extension on the basis of lack of substantive merits in any event. I simply refuse all your applications.” Ground 5:
‘Judge did not ask Ayesha Ghanchi to be attended for a witness testimony.’

In addition to these grounds:

[13]We accordingly dismiss the application for an extension of time and application to seek leave to appeal against the stalking conviction.[14]As the Vice-President of the Court of Appeal (Criminal Division) observed in R v Gray & Ors [2014] EWCA Crim 2372:
“… the only means the court has of discouraging unmeritorious applications which waste precious time and resources is by using the powers given to us by Parliament in the Criminal Appeal Act 1968 and the Prosecution of Offences Act 1985.”
We consider this is just such a case.[15]The applicant has already served his sentence in relation to this matter, and we consider that it is just, reasonable and appropriate to make, and do make, an order under section 18(6) of the Prosecution of Offences Act 1985 for the applicant to pay the reasonable cost of the transcript in this case in a sum of £111.32, which such sum is to be paid within 28 days.