B e f o r e :
LORD JUSTICE HENRY
MR JUSTICE DOUGLAS BROWN
and
MR JUSTICE ASTILL
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| | MOHAMMED ALI ZEDI
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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
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Miss L Dickinson (instructed for the Appellant)
J Taylor Esq (instructed for the Respondent)
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HTML VERSION OF JUDGMENT
AS APPROVED BY THE COURT
Crown Copyright ©
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LORD JUSTICE HENRY:
This is the judgment of the Court. On 22nd August 2000 in the Crown Court at Manchester before His Honour Judge John Burke QC the appellant was convicted and on 25th September he was sentenced as follows:
Count 1: Arson being reckless as to whether life is endangered - six years’ imprisonment;
Count 2: Attempting to obtain property by deception - two years imprisonment consecutive;
Total sentence: eight years’ imprisonment.
He now appeals against conviction by the leave of the Single Judge, and renews his application for leave to appeal against sentence following refusal.
The grounds of appeal are as follows. First:
“The learned judge did not adequately or at all direct the jury on circumstantial evidence and the drawing of inferences. He also did not, adequately or at all, warn the jury about speculation. The prosecution case was based entirely on circumstantial evidence throughout.”
Second:
“Further, the judge wrongly added to his direction on the good character of the appellant a comment that some people choose to throw their good character away, thus detracting from the intended tenor of the standard direction on good character.”
The basic facts are these. On 31st October 1999 between about 10.30pm and 11.00pm, fires were started deliberately at terraced premises in Station Road, Hadfield comprising an off-licence and grocery, with accommodation above, which belonged to the appellant. Nine seats of fire were identified and the accelerant used appeared to be petrol.
The appellant escaped via a first-floor window, and police officers and fire-fighters entered the shop in the belief that there were people inside the premises. Nearby residents in the terrace were evacuated from their homes.
The appellant subsequently made a claim for £97,000 from his insurance company.
Crucially, a recording from a CCTV camera mounted in Station Road was shown to the jury, which, apart from one 15 second gap, gave continuous coverage of the shop front between 10.26pm and 11.09pm. It showed the appellant pulling down the shutters at approximately 10.30pm and entering his shop, but failed to reveal anyone entering the shop after the appellant.
The prosecution case was that the appellant, who was in financial difficulties, lit the fires himself and attempted to obtain money from his insurance company by representing that the fires had been started by intruders. The property was in a terrace and there was obvious risk to the safety of those occupying adjoining premises, demonstrated by the evacuation of four households by the police.
It was part of the Crown’s case that a bed was found partly blocking the doorway between the kitchen and landing on the landing side. It was unlikely that any intruders would, as claimed by the appellant, choose to negotiate the bed to exit via the kitchen, rather than leave at the same point as they entered. The prosecution alleged that the position of the bed therefore undermined the appellant’s version of events.
The defence maintained that the appellant was not in “... a financial mess ...” and could, had he wished, have sold the business legitimately. The fires he contended were started by three masked intruders and the insurance claim was made in good faith.
The issue thus was stark. This was not an accidental fire. It was either started by the appellant himself, or it was started by the three masked intruders that the appellant gave evidence as to. The principal difficulty in the appellant’s account was that over the relevant period, the three masked intruders would have had to have made their entrance in the fifteen second gap in the CCTV recording, otherwise the CCTV camera would have shown them breaking into the premises.
The first eye-witness on the scene was Lorraine Jaundell, who lived across the road from the shop. At about 11.00pm as she walked along the street she noticed the appellant’s vehicle outside his shop. The shutters of the shop were down and there was no light showing from inside the shop. When she was directly opposite the shop, she heard a boom and rattling but the shop remained in darkness and she could see nothing. She then saw the appellant open a door into the upper front room where there were flames, and run to the window shouting for help. He was panicking, but eventually followed her instructions to sit on the window ledge from where he got onto the shutters and jumped to the ground. She asked him if there was anyone inside, and he said: “Three people”. Smoke was pouring from the building and the appellant was in shock. She sat him in her doorway and he repeated about six times that “They” were going to kill his son. He said that three people had entered through the front of the shop with masks and a gun and had left through the back. He was frightened and shaking and in no state to tell her what had happened. In cross-examination she said that he was speaking in broken English and not making himself very clear; she was shaken by the incident and could not remember the exact words of their conversation.
John Hoyton lived five or six doors from the shop, heard a bang between 10.30pm and 10.45pm and saw smoke coming from the first floor of the shop and a man climbing out of the first-floor window. He did not see or hear anything suspicious in the road before 10.30pm. He said that the appellant seemed very upset and in shock, going in and out of consciousness. The appellant said “... time and again ...” that as he was closing the shop three men wearing balaclavas, one carrying a gun burst into, took him upstairs, locked him in the front room and threatened to kill him, his wife and children and that he was smoke under the door and climbed out of the window.
Lesley Davies lived diagonally opposite the shop, noticed nothing unusual when he left home about 10.45pm. At around 11.00pm he saw smoke coming from the shop and the appellant hanging by his fingertips from a window ledge. He went to the appellant who was in a state of shock and heard the appellant say: “Three men” Then he said “Ten men” and then he said: “My son, my son”.
Unchallenged evidence was given by fire officers that various fires had been set in the shop and stock room on the ground floor with a further seat of fire on the 3rd Floor, and the development of those fires was increased by the use of flammable liquids; two petrol cans being found there.
Evidence was given by police officers that on their arrival at 11.15pm the appellant was lying in a door way “very agitated and hysterical”. He appeared quite distressed and told PC Dennis that three masked men had entered the front of the shop as he was closing and a firearm had been discharged. He said that he had gain the impression that there were people still in the shop, and tried the front door to find it locked. There were no lights switched on in the front of the shop. In cross-examination PC Denis denied that the appellant was hysterical or that he had misunderstood what the appellant was saying.
WPC Clare Laughton saw the appellant lying in the door way distressed and crying at the scene. At about 1.00am she spoke to him at the hospital and found £655, some change and a lighter in his pocket. He was upset and crying but spoke in English and she was able to understand him. He told her that he closed the shop at about 10.30pm, pulled down the window shutters and pulled the door shutter down half-way. As he was tidying up three men entered by the front door wearing dark clothing and balaclavas. One pointed a long gun at him, threatened him, threatened the lives of his son and wife, and then fired a shot into the floor. The gunman demanded cash and cigarettes and the sum of £2,000 was mentioned. The appellant said that he was sent upstairs and then the men started the fire. In cross-examination the witness said that the appellant’s English was not good.
Dr Parvaiz at Accident & Emergency in Tameside General Hospital said it was difficult to examine the appellant because he was shaking, he was terrified, crying and very anxious, and his eyebrows and eyelashes had been singed by the fire.
The appellant, who was of good character, gave evidence. He said that it was only since the fire that he had experienced financial difficulties. He said that he had employed a woman called Yvonne about two months after he bought the shop, but had dismissed her. Following this her son called him a “black bastard”, and threatened to kill him and burn his shop. He reported this incident to the police and was advised to put up shutters. He described the incident involving the three masked intruders: he was bending under the counter when they first appeared, and so did not see where they came from. One of them was carrying two black bags with something heavy in them. The gunman called him a “black bastard”, and asked him for money; he was terrified and gave the intruder cash. The gunman asked where the cigarettes were and he pointed to the cupboard under the stairs. The gunman took some change from the till, then told the appellant to take him to the cigarettes, which he did. The gunman asked about exits from the shop and the appellant showed him the store-room exit. Then he was taken upstairs and into the kitchen by the gunman, and was afraid he would be killed. The door leading from the landing to the kitchen was open and the bed was pulled away from the door at an angle. He was told to open the door in the kitchen leading to the stairs, as he tried to do so he was hit on the shoulder but eventually got the door open.
There was a bang downstairs and the gunman said:
“You’re finished here. After you, you black bastard. We’ll kill your wife and children.”
He heard a bang upstairs and there was fire all around him. He went to the window in the larger sitting room and tried to open it, but had little memory of how he got out of the window and across the road. He said that he was still terrified when the police arrived and did not recall telling them that the gun had been fired. He said that he told them there was fire in the shop, but not that the gun was fired. He denied that he had financial problems at the time of the fire. He agreed that the room from which he exited the premises was one of the few areas in which there was no fire. The £655 in his back pocket was for outings for the family and guests staying with them that weekend. He called evidence that the shop “... seemed a very successful business.”
It will be seen from that summary that this was a single issue case: the Crown had to prove that the appellant started the fire for the insurance money, and that the three threatening masked intruders never existed. Early on in his summing-up the judge said:
“The prosecution case, of course, here is that Mr Zedi had overstretched himself financially, that he also wanted to extricate himself from the business in Hadfield, he lit the fires himself and then he lent authenticity to his story by making a dramatic escape from the first floor, possibly, he was also taken aback by the speed with which the fire took hold. The defence case is that he was not in a financial mess, that he could have sold the business legitimately if he had chosen to do so, that the fires were started by masked intruders who appeared on the scene with mixed motives, apparently; firstly to rob him, to threaten and intimidate him by using language with racial overtones. On his account he was only struck, I think, once on the shoulder upstairs, they did not beat him up , they did not try to ensure that he perished in the flames, for example by tying him up, but they made him go and stand in an area upstairs which, in the event, offered an escape route through a window and a short drop to the street below.”
After that setting of the scene, the judge then favoured the “notebook” form of summing-up, taking matters witness by witness in chronological order, but in their respective groups (ie neighbours, firemen, police etc) rather than issue by issue. But on the stark facts of this case we do not criticise that choice here. The material lent itself well to that treatment.
The next fact to record is that the summing-up was a full summary of the evidence, and has not been criticised for factual omissions. It contained no comment whatsoever - the jury were reminded of the evidence, but the judge did not trespass on their domain.
But criticism is made that he said nothing at all as to how the jury should treat circumstantial evidence. In particular complaint is made that they were not warned of the difference between inference (arriving at a conclusion based on reliable circumstantial evidence) and “mere speculation”.
The Judicial Studies Board has a specimen direction on circumstantial evidence. It is not suggested either by the appellant’s advocate or by the Judicial Studies Board that some form of such direction must be given in every case. But it is suggested that there were four categories of circumstantial evidence here requiring special treatment:
“(a) The sequence of events shown on a CCTV video;
(b) Apparent forensic evidence at the scene;
(c) Inconsistency in the defendant still having £650 in his pocket despite an alleged robbery;
(d) Alleged financial difficulties.”
In our judgment, those topics go directly to the central issue, and would require no special direction from the judge. The headnote to the specimen direction reads:
“The following direction is intended to cater for the type of case in which there is no direct evidence, but the prosecution’s case is a complicated one made up of a number of pieces of evidence. In some straightforward and simple cases, no direction at all is necessary. In others, the entire direction need not be given. However, in cases of difficulty or where eg much has been made in argument of the fact that the case is ‘only circumstantial’ it may be sensible to give the full direction.”
This is not in our view a case where there is no direct evidence, nor one where the prosecution’s case is complicated, but is a simple and straightforward case where all the evidence goes directly to the identified issue, and requires no further direction.
We turn to the second ground of appeal, as set out in paragraph 4 above, that the judge, in introducing a good character direction which itself is not criticised, said this:
“We all start life with a good character but some of us choose to throw it away ....”
It is submitted that
“... by adding the reference to throwing away good character, ... the judge significantly negated the intended fairness of the direction.”
But that submission ignores the fact that the passage emphasises that the appellant is not one who has thrown away his good character. The judge continued:
“... but he [emphasis added] can say this to you, ‘I am a man of good repute. I am less likely to behave in the way alleged than a criminal type’ He can also say, ‘When you hear me give my evidence on oath in the witness box, you will be listening to the evidence of a man of good repute and you can set more store by my words than if you knew that I was a ne’er do well’.”
Accordingly, we see nothing here that endangers the safety of this conviction.
We turn now to the renewal of the application for leave to appeal against the sentence of eight years as detailed above. This was a bad case of arson with the fires lit for the purpose of an insurance fraud in circumstances where the appellant was reckless as to whether life was endangered. The point is made that the arson was not aimed at people, but as the premises fired were part of a terrace, the dangers to the public was real.
Reliance is placed on the case of Shah [1985] 7 Cr App R (S) at 456. There there was a plea of guilty of setting fire to a building with intent to defraud, a lesser offence. That combined with the plea puts that case in the same bracket as the sentence passed by the trial judge in this case. Giving full credit for the mitigation urged on us by Miss Dickinson on behalf of this appellant, we are not persuaded by the submission that this sentence was manifestly excessive. In those circumstances, the application for leave to appeal sentence is refused.
LORD JUSTICE HENRY: Are there any applications of the Bar {PRIVATE}
MR PEARSON: My Lord, yes, there is an application in relation to legal aid. During the course of the hearing and previous to it various items of video evidence were disclosed to the defence. Legal aid was extended to cover those matters. In addition, it was necessary to have a conference with Mr Zedi to discuss the new material and for correspondence to pass between the prosecution and the defence. As you are aware, my Lord, the defendant is assisted by an interpreter and it was also necessary on the occasion of the conference for a solicitor speaking Punjabi to attend, and I simply ask that legal aid be extended to cover those matters.
LORD JUSTICE HENRY: Yes, certainly. We are grateful to counsel for their assistance in this matter.
