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England and Wales Court of Appeal (Criminal Division) Decisions


You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Gholami, R. v [2025] EWCA Crim 290 (06 March 2025)
URL: http://www.bailii.org/ew/cases/EWCA/Crim/2025/290.html
Cite as: [2025] EWCA Crim 290

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WARNING: reporting restrictions may apply to the contents transcribed in this document, particularly if the case concerned a sexual offence or involved a child. Reporting restrictions prohibit the publication of the applicable information to the public or any section of the public, in writing, in a broadcast or by means of the internet, including social media. Anyone who receives a copy of this transcript is responsible in law for making sure that applicable restrictions are not breached. A person who breaches a reporting restriction is liable to a fine and/or imprisonment. For guidance on whether reporting restrictions apply, and to what information, ask at the court office or take legal advice. This 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.
Neutral Citation Number: [2025] EWCA Crim 290
Case No 2024/00448/B3

IN THE COURT OF APPEAL
CRIMINAL DIVISION
ON APPEAL FROM THE CROWN COURT AT MAIDSTONE
(MR JUSTICE WALL) [T20237034]

Royal Courts of Justice
London
WC2A 2LL
6 March 2025

B e f o r e :


LORD JUSTICE LEWIS
MR JUSTICE GOOSE
HIS HONOUR JUDGE DREW KC
(Sitting as a Judge of the Court of Appeal Criminal Division)

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R EX

- v -

JAN ALI GHOLAMI

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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)

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Mr C Paxton KC appeared on behalf of the Applicant
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HTML VERSION OF JUDGMENT
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Crown Copyright ©

    Thursday 6 March 2025

    LORD JUSTICE LEWIS:

  1. On 9 January 2024, following a trial in the Crown Court at Maidstone before Wall J and a jury, the applicant, Jan Ali Gholami (now aged 34), was convicted of murder. He now renews his application for leave to appeal against conviction following refusal by the single judge.
  2. The facts may be stated briefly. The applicant and his wife lived with their two young sons and an adopted daughter, Zahra. The applicant's wife had been hospitalised on 23 May 2020, before giving birth to the youngest son on 24 May. She was discharged from hospital and returned home on 25 May 2020.
  3. On 27 May 2020, Zahra suffered the catastrophic injuries that sadly led to her death. The sequence of events was that at 9.08 am, the applicant videoed recorded the children eating fruit. At 9.46 am the applicant took a photograph of his son as he and his son left the house to go to Tesco. There was CCTV footage showing them entering Tesco at 10.07 am and being at the checkout before leaving at 10.27 am.
  4. What is undisputed is that the applicant telephoned a friend from his home at 10.50 am to say that his daughter was dying and asking him to summons assistance, because his English was not good enough to call an ambulance. There is a photograph of Zahra, lying on the floor, apparently unconscious, timed at 10.56 am. She was taken to hospital, where she died. Zahra was found to have to have suffered a fracture to the right side of the back of her head. In addition, earlier injuries were found to the head, and a fracture of the right humerus.
  5. Two questions arose: first, were the injuries the result of an accident? Secondly, if not, was it the applicant or his wife who had caused them, as they were the only two people who could have done so? The wife said that the child had fallen down the stairs and injured herself. The applicant said that he came home and found his daughter already injured.
  6. The prosecution case was that the applicant had caused the injuries and that they were not accidental. They relied on the fact that the daughter had received other injuries in the past. They also relied on the timing of the earlier skull fracture, as it coincided with the time that the wife was either heavily pregnant or when she was in hospital giving birth and the other children were in the sole care of the applicant.
  7. It is right to note, as Mr Paxton KC stressed, that the professionals who gave evidence could not rule out the possibility of accidental injury.
  8. Two parts of the evidence are in dispute on this renewed application. First, the prosecution had contended that the applicant had injured his daughter and had then sought to create an alibi for himself by going to Tesco, taking a photograph of when he left the house, and keeping the receipt from Tesco to show that he had been there and therefore had not been present when his daughter suffered the injuries.
  9. The prosecution case was that at the hospital the applicant had told the doctors that he had been at Tesco's and had received a telephone call from his wife to say that the daughter had fallen downstairs and had injured herself, and he had therefore returned to the house. There was, in fact, no record of a telephone call from his wife to his mobile phone. The prosecution said that this was a lie, and that the applicant's account that he had been at Tesco when the accident happened was also a lie. The applicant denied that he had told the doctors at the hospital that his wife had telephoned him while he was in Tesco's.
  10. One question, therefore, was whether the applicant had told the doctors that his wife had telephoned him when he was in Tesco's. The jury would need to be sure that that was a lie when they were considering this matter. The applicant speaks only broken English. He is a British national, but he came to the United Kingdom as an asylum seeker, and he subsequently brought his wife, his older son and adopted daughter to the United Kingdom. Initially, the trial judge ruled that the evidence about what the applicant was supposed to have said to the doctor was unreliable, and he refused to admit it.
  11. Subsequently, further evidence came to light and the judge reviewed his ruling. Mr Paxton takes no issue with the fact that he reviewed his ruling. It is the outcome to which he objects.
  12. The judge admitted the evidence about what it was said the applicant had said at the hospital to the doctors.

  13. As his first proposed ground of appeal, Mr Paxton submitted that the judge was wrong to admit the evidence. He submitted that Dr Bokhari's evidence did not in fact establish that he had been told by the applicant that the wife had telephoned him. Another doctor had taken a note of what a third doctor, Dr Raouf (who interpreted for the applicant), said the applicant had said. Mr Paxton submitted that the note was an error of interpretation and was insufficient to be supportive of an application to admit the evidence. Furthermore, Dr Raouf had never given evidence that the applicant had said that he was in Tesco's when his wife had telephone him.
  14. In order to assess if that proposed ground of appeal is arguable, it is necessary to consider the judge's ruling. The new evidence was, first, that the applicant had told Dr Bokhari, in broken English, that his wife had telephoned him when he was at Tesco's. It was not, therefore, simply a case of what had been said to a third doctor who had then translated it from what the applicant had said in his own language – a language with which, it was said, the doctor was not familiar.
  15. Secondly, there was evidence from a Dr Ambulkar who said that he was present and heard the applicant speak to the third doctor who then interpreted his words into English. Dr Ambulkar made an almost contemporaneous note of the words that Dr Raouf said had been uttered by the applicant in his native language. That note recorded that the applicant had told the doctor that his wife had telephoned him when he was in Tesco and had told him what had happened to the daughter. The judge considered that the jury should hear the evidence and that it could be tested in cross-examination.
  16. In the light of his careful and considered ruling, there is, in our judgment, no arguable ground that the trial judge erred in allowing this evidence to be adduced before the jury so that they could determine whether they were sure that these things were said and, if so, the extent to which it assisted them in dealing with the allegations in question.
  17. The second proposed ground of appeal concerned three sets of evidence which were said to demonstrate that the applicant had a propensity to use violence in a domestic context. It was said by the prosecution that, if the jury accepted that evidence, and they were sure that the applicant did have a propensity to use violence in a domestic context, that would be relevant to two matters. First, it would be relevant to whether Zahra's injuries had been inflicted accidentally or deliberately. Secondly, it was relevant to whether it was the applicant and not his wife who had inflicted them.
  18. Mr Paxton submitted that the judge was wrong to conclude that this evidence was admissible, or, alternatively, if it was admissible, it was so prejudicial and unfair that it ought to have been excluded under section 78 of the Police and Criminal Act 1978, or section 103 of the Criminal Justice Act 2003. He took us through the three categories of evidence: first, allegations that the applicant had injured his wife; secondly, allegations that a neighbour had seen the applicant slap his wife (although it was said that there had been a dispute and that the neighbour had made up the allegations); and thirdly, a conviction for assault, which Mr Paxton said amounted to a push outside the home two years after the death of Zahra. The evidence was largely hearsay and the judge erred when he concluded that it was admissible under section 114 of the Criminal Justice Act 2003. Mr Paxton developed those submissions orally.
  19. In a careful, considered and comprehensive ruling on this issue, the judge dealt in detail with the admissibility of the hearsay statements. He dealt with this at paragraph 19, where he considered all of the factors listed in section 114(2) of the 2003 Act, which need to be considered when deciding whether the interests of justice require the evidence to be admitted. In addition, he considered other factors such as prejudice to the applicant and whether it would give rise to satellite litigation. Having considered all of the relevant material, the trial judge ruled that the hearsay evidence was admissible in the interests of justice. The relative importance of this evidence to the central issues on the case, in his judgment, coupled with the fact that there was some support for the truthfulness of the hearsay evidence, outweighed the potential prejudice the admission of the evidence might have. At paragraph 22 of his ruling, the judge expressly said that he had gone on to consider whether he should exclude it under section 78 of PACE, or indeed under other provisions of the Act, but he concluded that the potential prejudice was not such that he ought to exclude the hearsay material.
  20. There is, in our judgment, no arguable basis for concluding that the judge erred in allowing this evidence to be adduced. It was a careful and considered application of the relevant statutory provisions to determine that the evidence was admissible and that it did not require to be excluded in the interests of fairness. That proposed ground of appeal also fails.
  21. Finally, it is said that the judge erred in his summing up in that he said that the jury could not rely "wholly" on the bad character evidence. It is submitted that the judge erred because he did not say that the jury could not rely on it "wholly or mainly". The words "or mainly" did not appear in the summing up.
  22. The summing up and the directions were, if we may say so, a model of clarity. It is correct that the judge did not use the words "or mainly", but reading the summing up as a whole, and bearing in mind the nature of the evidence in the case, there is no possibility of the jury having been misled by the omission of those two words. The judge outlined the bad character evidence. He gave clear directions as to how it could be used. He noted the prosecution case that it was relevant in two ways: first, as to whether the injuries to Zahra were deliberate or accidental; and secondly, as to who caused the injuries if they were deliberate. The judge told the jury that the applicant's case was that the evidence was not reliable and did not establish a propensity to violence; and even if it did, that did not make it more likely that the injuries were deliberate or inflicted by the applicant.
  23. The judge directed the jury, first, to decide whether the evidence made them sure that the applicant had a propensity to use domestic violence. If not, they should disregard it. Secondly, the judge directed them that if they did consider that the evidence established propensity to domestic violence, they should decide if that propensity had any relevance to the issue of whether the injuries were deliberate or accidental; and if the jury found that they were deliberate, whether it was the applicant who had inflicted them. The judge said that if they considered the evidence was not relevant, they should disregard it. The judge then said that if they decided that the evidence was relevant, they could take it into account, but they should bear in mind that it was only part of the evidence in the case and must be weighed up with all the other evidence and they should not decide the case on the applicant's previous character alone. He said that they should not use the applicant's propensity to violence as a shortcut to decide any issue against him.
  24. It is clear from that direction that the jury were told clearly and precisely the potential relevance of the evidence and how they should approach it. There is no possibility, in our judgment, that the jury were misled on this issue.
  25. None of the proposed grounds of appeal establishes any arguable basis for concluding that the conviction might be unsafe. Accordingly, we refuse the renewed application for leave to appeal.
  26. __________________________________

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