R v Rayis Nibeel & Anor [2025] EWCA Crim 934

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[2025] EWCA Crim 934

IN THE COURT OF APPEAL

CRIMINAL DIVISION

WC2A 2LL

ON APPEAL FROM THE CROWN COURT AT ST ALBANS

(FOSTER J) [40AD1576823]

Case No 2024/01518/B3 & 2024/01585/B3 Friday 6 June 2025

B e f o r e:

LORD JUSTICE COULSON

MRS JUSTICE CUTTS DBE

HIS HONOUR JUDGE LICKLEY KC

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

____________________

R EX

- v -

RAYIS NIBEEL

UMER CHOUDHURY

____________________

Computer Aided Transcription of Epiq Europe Ltd,

Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE

Tel No: 020 7404 1400; Email: rcj@epiqglobal.co.uk (Official Shorthand Writers to the Court)

_____________________

Mr J Stone KC and Mr P Webb appeared on behalf of the Appellant Rayis Nibeel

Mr M Borrelli KC and Mr K Molloy appeared on behalf of the Appellant Umer Choudhury

Mr P Dennis appeared on behalf of the Crown

____________________

J U D G M E N T

Between

Rayis Nibeel & AnorDefendant

RCrown

Date 2025-06-06

[1]On 28 March 2024, in the Crown Court at Guildford, before Mrs Justice Alison Foster ("the judge"), Rayis Nibeel was convicted of the murder of Omar Khan and the section 18 wounding of Cheyanne Barnes. He had previously pleaded guilty to having an article with a blade or point and being concerned in the supply of class A drugs.

[2]Also on 28 March 2024, Umer Choudhury was convicted before the same judge of the murder of Omar Khan, the section 18 wounding of Cheyanne Barnes, and possession of a bladed article. He had previously pleaded guilty to being concerned in the supply of Class A drugs and Class B drugs.

[3]On 17 May 2024, Nibeel was ordered to be detained during His Majesty's pleasure for a minimum term of 19 years and 127 days. On the same date, Choudhury was also ordered to be detained during His Majesty's pleasure, for a minimum period of 17 years and 133 days.

[4]Nibeel appeals against conviction on one ground, arising out of the judge's admission of certain bad character evidence involving his purchase of 63 knives (variously described as machetes, knives, swords and hunting blades), via a false account, from a company called DNA Leisure. Although Choudhury sought to appeal against his conviction on a number of different grounds, he was granted leave by the single judge to appeal on one ground only, arising out of the judge's rejection of Choudhury's submission of no case to answer at the close of the prosecution case.

[5]We set out the background facts in Section 2 of this judgment. We outline the course of the trial in Section 3. Then in Section 4 we consider Nibeel's appeal against conviction and, in Section 5, Choudhury's appeal against conviction. We are very grateful for the submissions this morning of Mr Stone KC on behalf of Nibeel, Mr Borrelli KC on behalf on Choudhury, and Mr Dennis on behalf of the Crown. 2 The Murder of Omer Khan

[6]The victims, Omar Khan (hereinafter "the deceased") and Cheyanne Barnes (hereinafter "Barnes") were partners. They were long term users of heroin and crack cocaine and in the early hours of 16 September 2023, they had consumed drugs and were looking to obtain more. Both the deceased and Barnes had criminal records, and it was accepted that their joint purpose that night was to acquire drugs without paying for them.

[7]The deceased and Barnes arranged for a friend, Darren Hector to collect them from their home address. They contacted a drugs line known as the "RJ line" from Hector's phone and made arrangements to pick up drugs in a stairwell located behind the Tesco store in Sundon, in Luton. They were driven to the meeting by Hector. Both the deceased and Barnes were armed with knives.

[8]The appellants Nibeel (then aged 16) and Choudhury (then aged 17) were working for the RJ line as drug runners. They met the deceased and Barnes at the arranged collection point. Nibeel attended the meeting with a large bayonet style knife in a sheath concealed on his person and it was the Crown's case that, given the size of the weapon and the nature of their association, Choudhury was aware that Nabeel was armed.

[9]CCTV footage from the area captured Hector's vehicle, which arrived at the location at 1.42 in the morning. The deceased, Barnes, and Hector exited the vehicle and walked towards the arranged meeting point. The deceased and Barnes walked up some stairs, where Nibeel and Choudhury were waiting. Hector remained at the bottom of the stairs. There was no CCTV footage from the stairwell. The Crown relied on the eyewitness accounts of Barnes and Hector as to what happened next.

[10]It was accepted that the deceased attempted to rob Nibeel and Choudhry. It was alleged that, when the deceased drew his knife, Choudhry said to Nibeel:

"Let him have it, it's not worth it"

. Nibeel threw a package of drugs on the ground, which Barnes picked up. Nibeel then got out his machete, and stabbed the deceased in the abdomen, in retribution for the attempt to rob him. He then turned to Barnes and stabbed her in the arm, before turning back to the deceased and stabbing him again. Nibeel finally turned back to Barnes again and stabbed her in the arm for a second time.

[11]Immediately after that second stab, Choudhury was alleged to have told Nibeel to "lay her down as well". The deceased and Barnes fled, but the deceased collapsed in a car park close to the scene. Hector phoned the emergency services at 1.48 am. The emergency services attended, but the deceased died at the scene. Barnes sustained a serious injury to her arm and was transported to hospital.

[12]CCTV footage captured Choudhury running away from the scene and Nibeel following eight seconds later. Choudhury called the RJ line at 1.50 am and spoke to the holder for three minutes and 25 seconds. There was a call from the RJ line to Choudhury at 2.01 am lasting one minute and eleven seconds. The Crown alleged that this was evidence of Choudhury informing the operator about what had taken place and what should be done. In the aftermath, both appellants and the RJ line dropped their phone numbers.

[13]The knives used by the deceased and Barnes were recovered from the scene along with a sheath which had housed the weapon used by Nibeel. That weapon was not recovered. The blade section of the sheath measured 28 centimetres in length.

[14]It became apparent that, by various purchase orders from 3 January 2023 onwards made falsely in his mother's name, Nibeel had ordered a total of 65 knives of an assorted variety from DNA Leisure. The last two knives were ordered on 12 September 2023 and were delivered on 15 September 2023. Their inventory suggested that those were two models of a large knife which came with that type of sheath (models SXS1 and SXS2). It became apparent that it was one of those two knives that was the likely knife that had bee used to murder the deceased.

[15]Nibeel was arrested on 20 September 2023 and Choudhury was arrested on 22 September 2023. They were interviewed under caution by the police and answered "no comment" to questions put to them. 3 The Trial

[16]The Crown's case was that Nibeel stabbed and killed the deceased and wounded Barnes with intent. It was submitted that Nibeel was a young, aggressive, seasoned drug dealer who was affronted with having to throw down drugs for free, and that he stabbed the deceased and Barnes in revenge. As for Choudhury, the Crown's case was that he encouraged and assisted Nibeel in the killing of the deceased and the wounding of Barnes. They alleged that he was in joint possession of the bayonet style knife that Nibeel was carrying.

[17]There was a good deal of evidence against both Nibeel and Choudhury. In particular there was the evidence of Barnes, who gave a detailed account of Nibeel stabbing the deceased first, then stabbing her, then stabbing the deceased again, and then stabbing her a second time. She described Choudhury throughout as telling Nibeel what to do and, amongst other things, she said that, after Nibeel had stabbed her a second time, she heard Choudhury say, "lay her down, lay her out". She took that to be an instruction to "finish her off".

[18]There was also the eyewitness account of Hector, who at the start of the events heard Choudhury say "just give it. It's not worth it. Just give it to him, whatever he wants". Thereafter, Hector saw Nibeel get out his machete and Hector said that that was no match for the bread knives with which the deceased and Barnes had armed themselves.

[19]There was expert evidence in relation to the cell-site material, which showed the constant contact, before and after the incident, between Nibeel and Choudhury. There was evidence about drug dealing and terminology. That was relevant to a message found on Choudhury's phone from a month earlier, saying to Nibeel that "you forgot your Rambo, mate". The evidence was that this was a reference to a hunting knife.

[20]There was evidence of bad character in relation to Nibeel, including evidence of drug dealing and his guilty pleas to possession of a bladed article and being concerned with the supply of Class A drugs. In addition, there was a previous conviction for burglary in 2022. No issue is now taken in relation to any of that bad character evidence. The final element of Nibeel's bad character is, however, controversial. That was the evidence which the judge admitted concerning Nibeel's purchase of the other 63 knives from DNA Leisure (in other words, all but the two knives delivered shortly before the murder).

[21]There was also bad character evidence in relation to Choudhury, including his guilty pleas to the drug offences. There were his previous convictions, which included a conviction in May 2023, for possession of a machete, a short distance from the location of the stabbing. He had also been found in possession of 48 wraps of cocaine and 15 wraps of heroin. In addition, there was the message on his phone referring to the "Rambo", and other text messages with an unknown individual, which included an image of a large knife and a reference to cannabis.

[22]Nibeel's defence was that he had at all times acted in lawful self-defence. He relied on the deceased's previous convictions for robbery, possession of a bladed article and threats to stab, to show that the deceased had a propensity to violence. Nibeel also relied on the evidence that the deceased was withdrawing from drugs and therefore desperate, which it was submitted supported his case that the deceased was the aggressor. Nibeel relied too on the previous convictions of Barnes for assaulting a police officer, theft, criminal damage, robbery, burglary and possession of a bladed article. It was his case that these convictions supported his case that Barnes was aggressive and undermined her credibility as a witness.

[23]Nibeel gave evidence. As to the other 63 knives bought from DNA Leisure, he said that he used his mother's name because he was not old enough to make the purchases. He said that he brought them to arm himself because, in drug dealing, "you can make enemies". He accepted that he was familiar with knives but denied being fascinated by them. He claimed that a "Rambo" was a reference to heroin.

[24]In his description of the incident, Nibeel said that he dropped the pack out of his trousers onto the ground but said that the deceased continued to shout and threaten him with a knife, eventually cutting his eyelid which drew blood into his eye. He said that the deceased rushed towards him, so he jabbed the knife forward towards the deceased. In addition, he said that Barnes had her knife out and he thought that both were going to kill him, so he jabbed his knife towards them. He said that he did not think he had any choice. He said that he did not surrender to the police because he was scared. He denied that Choudhury had told him what to do.

[25]Choudhury did not give evidence at the trial. It was submitted on his behalf that he did not know that Nibeel was carrying a knife and that he himself was not carrying a knife. He denied encouraging or assisting Nibeel.

[26]We will deal in greater detail in a moment with the two applications which are at the heart of this appeal, namely the Crown's application to rely on the bad character evidence of Nibeel's purchase of 63 knives from DNA Leisure, and the judge's refusal of Choudhury's application at the end of the prosecution case that there was no case for him to answer. We note that these were only two in a series of applications and other issues between the Crown and the defence, many of which were dealt with by the judge in a detailed written ruling, running to 40 pages and dated 15 March 2024.

[27]By their verdicts, the jury concluded that Nibeel was not acting in lawful self-defence and that Choudhury had intentionally encouraged or assisted Nibeel in stabbing both the deceased and Barnes.

(a) The Judge's Ruling

[28]The Crown sought to adduce evidence of the 63 knives purchased from DNA Leisure pursuant to section 101(1)(d) of the Criminal Justice Act 2003, namely that the evidence was "relevant to an important matter in issue between the defendant and the prosecution". Section 103(1) provides that for the purposes of section 101(1)(d), the matters in issue between the defendant and the prosecution include:

"(a) The question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence."

[29]Amongst other things, Nibeel relied on section 101(3), that the court must not admit evidence under section 101(1)(d) if "it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it".

[30]The relevant parts of the judge's ruling dated 15 March 2024 are at paragraphs [38] to [47] inclusive. At [40] the judge noted that the knife seen in Mr Nibeel's hand had never been found and that neither Nibeel nor Choudhury had ever explained where it was. A black sheath that fitted a bayonet style hunting knife was recovered from the scene and forensically examined, in consequence of which the knife used by Nibeel could be narrowed down to one of two knives that he ordered a few days before the murder.

[31]At [43] the judge agreed that the fact that the deliveries took place very close to the time of the murder was a relevant feature. She went on to say that she also agreed that “… the evidence of Mr Nibeel's purchase of a quantity of knives, for which there could be no lawful purpose, is indeed relevant to his state of mind and the purpose of his possession of a bayonet style hunting knife on the day in question, and whether he was, as he says, acting in self-defence when using it."

[32]At [44],

the judge said this:

"The simple admission by Mr Nibeel that he was in possession of drugs and knife on the day in question does not paint the full picture of the relevant context in which the alleged offences took place. I agree this context includes the available deduction that he was involved in drug dealing to a very significant extent, was well familiar with a variety of large knives, would habitually carry knives, intending to use them if the need arose … the quantity of these knives ordered by Mr Nibeel thus sheds light on his assertion that he was acting only defensively when he stabbed Mr Khan and Ms Barnes."

[33]Accordingly the judge concluded at [45] of her ruling that the evidence went to an important matter in issue between the parties. She said:

"The character of Nibeel’s knowledge of, and familiarity with serious, large, bladed weapons … the ordering of such a quantity of knives by Mr Nibeel illustrates the depth and sophistication of his operation and his knowledge and familiarity with weapons in connection with drugs. It is thus relevant that he acquired a number of weapons in what the Crown describe as a deliberate and planned armament operation. The weapons are offensive in character and not defensive; they dispel what would otherwise be the inaccurate picture to the jury of most of the sophisticated knowledge and association with weapons in the context of drugs residing with the deceased and, to a lesser extent, Ms Barnes."

[34]At [46] the judge went on to consider whether the admission of this evidence would have such an adverse effect on the fairness of proceedings that the court ought not to admit it. She concluded that it did not. She said:

"The admitted context is drugs and carrying a weapon, there is an opportunity for the defendant to explain his involvement if the impression it gives is untrue."

[35]Accordingly, she distinguished R v Hanson (citation below) where the evidence was merely prejudicial, describing the evidence in this case as "part of the necessary context in respect of all the players". At [47] she reiterated that the quantity of knives showed Nibeel's "extraordinary knowledge or interest in weapons without a lawful purpose, and as the same type as the weapon used, and also in the context of drugs… The character of the knives is relevant in that they have no legitimate purpose in the current context".

(b) The Submissions on Appeal

[36]On behalf of Nibeel, Mr Stone KC's submissions were clear and succinct. He said that the fact of the purchase of the 63 knives was not relevant to an important issue between Nibeel and the Crown. Nibeel had already pleaded guilty to possession of a knife and accepted that he was armed on the day of the murder. He had also pleaded guilty to the drugs counts. Accordingly, Mr Stone said that the evidence of the additional 63 knives added nothing and was instead pure prejudice. Indeed, in his grounds of appeal Mr Stone said that "it is difficult to conceive of a more prejudicial piece of evidence".

[37]On behalf of the prosecution, Mr Dennis submitted that the ordering of the 63 knives was relevant to the issue of why Nibeel was carrying the knife at the time of the stabbing: it was relevant to his state of mind and intention, and therefore whether or not he was acting in self-defence. He submitted that the jury were entitled to see the whole picture when determining the issue of self-defence; that they had after all heard all of the bad character evidence in relation to the victims so, as part of the full picture, they also needed to know that Nibeel habitually ordered and carried knives. It would have been misleading and artificial, he said, if they were not told of those facts.

(c) The Law

[38]The principles to be applied when considering bad character evidence of this type were summarised by Holroyde LJ (the Vice President of the Court of Appeal Criminal Division) in R v Watson

[2023] EWCA Crim 1016

at [65] as follows:

"65. Evidence of a defendant's bad character is admissible pursuant to section 101(1)(d) of CJA 2003 if it is relevant to an important matter in issue between the defendant and the prosecution; but by section 101(3), the court must not admit such evidence if, on an application by the defendant to exclude it, it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it. By section 103(1) of CJA 2003, the matters in issue between the defendant and the prosecution for this purpose include, but are not limited to, the question whether the defendant has a propensity to commit offences of the kind with which he is charged."

[39]The well-known case of R v Hanson

[2005] EWCA Crim 824

;

[2005] 2 Cr App R 21

, contains this statement of principle at [18]:

"Evidence of bad character cannot be used simply to bolster a weak case, or to prejudice the minds of a jury against a defendant."

[40]Most of the subsequent authorities concerned with bad character are primarily concerned with propensity and prejudice, and largely turn on their own facts.

(d) Discussion and Conclusions

[41]We consider that the evidence about the 63 knives was rightly admitted. In respect of Nibeel, the only issue was that of self-defence. In support of that defence, Nibeel had sought to put in all the potential bad character in relation to the deceased and Barnes that might possibly be said to go to that issue. He wanted to portray them as habitual knife-carriers. It was, of course, open to him to do so, but he cannot now complain that the same approach was adopted to the evidence of his own bad character. Indeed, Mr Stone fairly accepted that the evidence may well have been admissible under section 101(1)(g) – that is to say, where a defendant has made an attack on another party's character. That was all subject to Mr Stone's overarching point about the substantial prejudice of this particular evidence.

[42]In our view, the fact that Nibeel ordered such a vast quantity of swords, machetes, hunting knives and the like demonstrated his clear knowledge of, and interest in, large, dangerous, bladed weapons. That knowledge and interest were plainly relevant to the issue of self-defence. On one view, Nibeel's knowledge of and interest in such weapons made it less likely that he was acting in self-defence, and more likely that he was using what the judge rightly described as an offensive weapon in an offensive, and not a defensive, manner.

[43]We do not consider Mr Stone's characterisation of this evidence as so prejudicial that it rendered the trial unfair as a fair summary. As we have demonstrated, that was something that the judge carefully considered in her ruling. Although the evidence was clearly prejudicial (as all bad character evidence is), it could not disguise the fact that, in the end, the central issue still came down to whether or not the jury were sure that Nibeel had not acted in self-defence and that, in turn, centred on whether they accepted the evidence of Barnes and Hector. That was because their eyewitness accounts were wholly inconsistent with any suggestion of self-defence. In those circumstances, therefore, we consider that the judge was right to conclude that the evidence about the 63 knives was not as critical to the outcome of the case as Mr Stone has portrayed it.

[44]There was a suggestion that, in some way, the way in which this evidence was presented to the jury was also potentially unfair. We do not accept that submission. It was dealt with by way of agreed facts. The judge ruled that there would be no photographs. Moreover, when he was asked about the 63 knives, Nibeel said that he carried a knife because he was a drug dealer and as such he was likely to make enemies. That was a frank answer, because it put his knife-carrying onto context. In our view, it underlined why the evidence about the 63 knives was relevant and admissible. That said, the jury was properly directed by the judge that they must not convict Nibeel solely on the basis of that evidence.

[45]Finally, we have considered the alternative position, namely whether, if the evidence of bad character had been wrongly admitted, it made Nibeel's conviction unsafe. In our view, it did not. As we have previously indicated, there was a good deal of evidence against Nibeel, in particular the eyewitness accounts of Barnes and Hector. Those accounts made plain that, once Nibeel had thrown the drugs onto the ground, he drew his large knife because he was not prepared to be bested in a drugs deal and, from that moment on, he was the aggressor and was not acting in self-defence.

[46]In our view, therefore, even if the judge had been wrong to admit the evidence of the 63 knives, we do not consider that Nibeel's conviction was remotely unsafe as a result. In this context, we note that, when he gave leave, the single judge thought that that conclusion was a possible outcome of this appeal to this court. The single judge said that he had only given leave after very significant hesitation:

"… given the witness evidence, the way the judge managed the presentation of the evidence (agreed facts with no photographs), the fact that in her summing up she reminded the jury that your argument [about] reliance on purchase of the knives was misplaced, overblown and a misleading distraction, and also her warning that they must not convict wholly or mainly because of it (nor allow evidence of bad character to prejudice them against you)."

[47]We respectfully agree with that conclusion and its approbation of the judge's handling of the trial. Accordingly, if (which we do not accept) the judge was wrong to admit the evidence of the 63 knives, we are in no doubt that it does not affect the safety of Nibeel's conviction. For those reasons, therefore, his appeal against his conviction for murder is dismissed.

(a) The Judge's Ruling

[48]The judge's ruling on Choudhury's application of no case to answer was given in writing. That ruling followed the judge's earlier ruling of 15 March on the other applications to which we have already referred. One of the issues she addressed there was an application to adduce as bad character Choudhury's plea of guilty to having a machete in a public place in April 2023. When allowing in that evidence, the judge touched on the relationship between Choudhury and Nibeel and the Crown's case. She said:

"There are a number of factors already in evidence that they say go to illustrate this. They point to the physical proximity of the two defendants demonstrated by their cell site evidence and telephone contact with each other both before and after the incident. They point to their joint presence at the scene and their joint departure, in light of their pattern of operation. They point to the significant evidence of their related drug dealing activity from telephone downloads, and they point to the material on the ABE transcripts of Ms Barnes' unchallenged evidence in chief in which she describes the interaction of Mr Choudhury and Mr Nibeel. She describes the former as behaving as if he were telling the latter what to do. All of this, in my judgment, (at whatever time Mr Choudhury was heard to give words of direction, and in respect of whichever or both of the victims it was – see below), supports the case that Mr Choudhury was intimately involved in a heavily armed drugs' encounter and closely interacting together with Mr Nibeel in circumstances where weapons were habitually carried in the drug dealing."

[49]This passage and the earlier ruling generally are relevant for the later submission of no case to answer for two reasons. First, it points the way to the judge's subsequent explanation as to why she refused the application of no case to answer. Secondly, she referred in the ruling to the fact that Barnes' evidence about Choudhury telling Nibeel what to do had been unchallenged, as had her evidence about Choudhury saying "lay her down as well". She permitted Barnes to be recalled so that Mr Borrelli could cross-examine her further, albeit that that was limited to the topic of the words that had been said and precisely when they had been said.

[50]In her subsequent written ruling on the application of no case to answer, having set out the law, at [21] the judge summarised the twelve relevant strands of the evidence relied on by the prosecution in support of the case against Choudhury. They were:

"a. His presence at the scene at all times during the incident. b. His propensity to possess knives, most pertinently in the context of drug dealing and jointly with the co-defendant. c. The fact that he was drug dealing with the co-defendant that day and indeed telling the co-defendant what to do. d. The fact that he attended the scene with the co-defendant. e. His proximity to the co-defendant when he stabbed Omar Khan. f. The fact that during the incident and immediately after the co-defendant had stabbed Khan and Barnes twice each, D2 said to the co-defendant 'lay her down as well' which meant finish her off. g. The fact that D2 ran off with D1. h. The fact that D2 rang the RJ line two minutes after the stabbings. i. The fact that D2 dropped his phone after the stabbings. j. The fact that D2 sent a message to an associate telling him to not 'talk loose' in the context of discussing OK's death. k. The fact that D2 answered 'no comment'. (Admissible at this juncture under Section 34(2)(c) Criminal Justice and Public Order Act 1994). l. The ABE transcripts of CB's evidence in chief in which she describes the interaction of D2 an D1 describing the former as behaving as if he were telling the latter what to do."

[51]The judge agreed with that summary, and said that, in consequence, a reasonable jury properly directed could draw the inferences invited by the prosecution and conclude to the criminal standard that Choudhury was guilty. She went on to add the following observations:"25. The thrust of the Crown's case in respect of D2 is built upon what they argue was the true nature of the defendants' relationship with each other which by its closeness and interconnected dealings involving drugs and knives, demonstrates the role played by D2 in encouraging and assisting D1 both generally in their drug dealing together, and together for the RJ line, and on the night of the incident. They point to the physical proximity of the two defendants demonstrated by their cell site evidence and telephone contact with each other both before and after the incident. Their joint presence at the scene and their joint departure, especially in light of their pattern of operation read in light of the significant evidence of their related drug dealing activity from telephone downloads is particularly relevant in my judgement.

26. …

27. The prosecution highlight their submission that D2 was well aware that D1 was in possession of the knife used. The evidence shows the defendants drug dealing together, that they were in joint possession of knives in the context of their drug dealing and that D2 possessed large knives in the context of his drug dealing, and they emphasise the knife was obvious. Further, given how many knives Nibeel possessed, the prosecution submit it is fanciful to suggest that Choudhury was unaware he had a knife.

28. The evidence emphasised by the Crown could in my judgment be accepted by a reasonable jury as making the case that D2 was guilty of joint enterprise so that they were sure. D2 was intimately involved in a heavily armed drugs' encounter and closely interacting together with D1 in circumstances where weapons were habitually carried in the drug dealing. The reference in messages to the 'Rambo' may well in light of the expert evidence be accepted as a reference to a large knife – and D2 was found in possession of a large knife a few months earlier. These strands of evidence, most particularly in light of the cell site materials showing very close association and the evidence of CB as [to] the relationship, could make a reasonable jury sure of D2's involvement and of his intention. Circumstantial evidence, by its very nature, works cumulatively.

(b) The Submissions on Appeal

[52]As we have said, Choudhury originally sought to appeal against his conviction on three grounds, but leave was granted on only one ground, and there is no application to renew. The remaining ground is that there was no case for Choudhury to answer, and the judge had been wrong to refuse that application. We note that the submissions now made on appeal are rather different to those that were made to the judge, but we have concluded that they are open to Mr Borrelli KC to pursue on appeal.

[53]Mr Borrelli's principal submission was that the sequence of events was critical. He relied heavily on Hector’s evidence that Choudhury had said at the outset, when the deceased had pulled his knife on Nibeel, that "it's not worth it… Give them what they want". In consequence, Nibeel threw the bag of drugs onto the ground. Mr Borrelli said that afterwards the stabbing by Nibeel of both the deceased and Barnes was a matter of revenge and could not be connected to Choudhury. He also noted that it was only after those blows (which included the fatal blow to the deceased) that Choudhury had said: "Lay her down as well".

[54]It was part of the written submissions, as Mr Borrelli put it, that Barnes was "a flawed individual", and that as such any weight to be attached to her evidence was "far removed from the weight one could attach to the evidence of a sober, independent witness". He said that the judge should have given much more weight to the comment made by Choudhury before the stabbing occurred, and should not have attached weight to the comment made after the fatal stabbing.

[55]On behalf of the prosecution, Mr Dennis submitted that there was sufficient evidence to support the conclusion that Choudhury was in joint possession of the knife. That included the evidence that, throughout the incident, Choudhury was telling Nibeel what to do; the phone contact between them; the size of the knife Nibeel was carrying; and the fact that Choudhury himself had been stopped at the same location less than five months before with a large machete whilst drug dealing. He said that the attack on Barnes' credibility was misplaced; it was a matter for the jury to decide whether her evidence was reliable and accurate.

[56]As to the comments made by Choudhury, Mr Dennis said that the first comment – "it's not worth it, give them what they want" – occurred at a time when the deceased had his knife out and was robbing the appellants, so at that point it was the deceased who had the advantage. That all changed once Nibeel threw the drugs down and took out his own much larger knife. At no point thereafter did Choudhury tell Nibeel to stop. As to the comment "lay her down as well", it was clear (and clearly understood by Barnes to mean) that Choudhury was encouraging Nibeel to "finish her off".

(c) The Law

[57]In essence, the test in R v Galbraith

(1981) 1 WLR 1039

is whether, taking the prosecution evidence at its highest, there is evidence on which a reasonable jury could convict the defendant. That test has been the subject of subsequent helpful elaboration.

[58]First, in R v Goddard

[2012] EWCA Crim 1756

, Aikens LJ said at [36]:

"36. We think that the legal position can be summarised as follows: (1) in all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the 'classic' or 'traditional' test set out by Lord Lane CJ in Galbraith. (2) Where a key issue in the submission of no case is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence. (3) However, most importantly, the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not it must be withdrawn from the jury."

[59]In R v Masih

[2015] EWCA Crim 477

, at [3] Pitchford LJ identified the appropriate approach in cases based on circumstantial evidence as follows:

"3. The prosecution case was based upon circumstantial evidence. There is no dispute between the appellant and the respondent as to the correct approach in law to a submission of no case to answer when all the critical evidence is indirect and inferential. The ultimate question for the trial judge is: Could a reasonable jury, properly directed, conclude so that it is sure that the defendant is guilty? It is agreed that in a circumstantial case it is a necessary step in the analysis of the evidence and its effect to ask: Could a reasonable jury, properly directed, exclude all realistic possibilities consistent with the defendant's innocence? Matters of assessment and weight of the evidence are for the jury and not for the judge. Since the judge is concerned with the sufficiency of evidence and not with the ultimate decision the question is not whether all juries or any particular jury or the judge would draw the inference of guilt from the evidence adduced but whether a reasonable jury could draw the inference of guilt. These propositions are derived without contention from the decisions of this court in Galbraith [1981] 1 WLR 1039, Jabber [2006] EWCA Crim 2694 (approved by the Privy Council in Goring [2008] UKPC 56 at paragraph 22), Hedgcock, Dyer and Mayers [2007] EWCA Crim 3486, Darnley [2012] EWCA Crim 1148 and G and F [2012] EWCA Crim 1756."

[60]It is important to note that, in consequence of these observations, the issue is whether a reasonable jury could convict on the evidence relied upon, so that the fact that another view, consistent with innocence, could also be reached, does not mean that the case should be withdrawn from the jury.

(d) Discussion and Conclusions

[61]In our view, the judge was right to conclude that there was a case for Choudhury to answer. There are a number of reasons for that.

[62]First, there are the twelve strands of evidence which supported the case against Choudhury on which the prosecution relied before the judge, and which she identified at [21] of her written ruling. We have set those out already. Those were elaborated upon in the passages of her ruling in which she rejected the submission of no case to answer, which we have also set out in this judgment. In our view, those matters were enough to justify the conclusion that there was a case for Choudhury to answer.

[63]Secondly, there was the repeated evidence of Barnes that, throughout, Choudhury appeared to be telling Nibeel what to do. We note that that evidence was not originally challenged, and it was only after the judge's ruling on the bad character application against Choudhury that the judge permitted Barnes to be recalled in order to answer further questions from Mr Borrelli about the words said and the precise sequence.

[64]In our view, Barnes' evidence as to Choudhry's control of what Nibeel was doing was telling. That impression was supported by the evidence of what Nabeel actually did. Nabeel responded to the "let him have it, it's not worth it" comment from Choudhury by doing just that, namely throwing the bag of drugs onto the ground. In other words, Nabeel was doing precisely what Choudhury had told him to do.

[65]Of course, the principal problem for Choudhury's submission of no case to answer, which relies so heavily on that comment, was that the incident did not stop there. Nibeel then pulled out his large knife. Choudhry did not act with surprise at that turn of events, and at no time did he intervene or say anything to discourage Nibeel from stabbing both the deceased and Barnes. On the contrary, after he had stabbed both twice, Choudhury said to Nibeel to "lay her down as well". That was, in our view, clear and obvious active encouragement.

[66]Thirdly, in the circumstances of this particular case, we reject the suggestion that, because the fatal stab wound had already been administered by the time of that second comment, Choudhury could not be guilty of murder. That ignores the context of this particular murder. Choudhury had gone to the scene to do a drug deal, knowing that Nabeel had a large knife, and therefore contemplating the possibility – perhaps even the probability – of violence. In that context, therefore, the second comment should be seen for what it was, a continuation of the active encouragement – even instruction – that Choudhury had given Nabeel throughout the incident.

[67]Fourthly, we reject the submission which lies at the heart of Mr Borrelli's submissions that in some way the first comment (the "let him have it" comment) somehow trumps everything else and should inevitably have led this case to be withdrawn from the jury. In our view, that is an unrealistic submission which fails to reflect the reality of this confused, messy fight between armed drug dealers and armed drug users. The jury was entitled to consider all of the evidence. That was simply part of it. At the very least, those words still meant that the jury had to consider all the evidence in the round. It was a matter for the jury to consider; it was emphatically not a matter for the judge.

[68]It is unnecessary in an already over-long judgment to identify still further the other elements of the evidence which, in our view, provided that strong case against Choudhury. We have already referred to the "Rambo" reference; and the idea that this was a reference to anything other than a knife, when one pictures the photograph of a knife-wielding Sylvester Stallone in the movie posters, is nothing short of fanciful. Choudhury was himself a knife carrier; he already had a conviction for being in possession of a machete. And given the likely size of Nabeel's knife, the jury was quite entitled to conclude that Choudhury knew that he had a large machete on him at the time of the drug deal.

[69]Finally, we note that it is conceded that there was a case for Choudry to answer in respect of the assault on Barnes. We consider that the evidence in respect of the murder of the deceased was so inextricably linked to the evidence of the assault on Barnes that it would be artificial to conclude that there was anything other than a case for Choudhury to answer in respect of the murder as well.

[70]For all these reasons, therefore, we conclude that the judge was right to dismiss the application of no case to answer at the end of the prosecution case. Accordingly, Choudhury's appeal against conviction is also dismissed. __________________________________ Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground Floor, 46 Chancery Lane, London WC2A 1JE Tel No: 020 7404 1400 Email: rcj@epiqglobal.co.uk ______________________________