England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT SOUTHWARK
Judge Hardy
T20047109

		Royal Courts of Justice Strand, London, WC2A 2LL
		28/07/2006

Lord Justice Scott Baker:

1. Ajad Javid was convicted in the Crown Court at Southwark before Judge Hardy and a jury on 22 July 2004 of conspiracy to supply cocaine. On 23 July 2004 he was sentenced to 25 years imprisonment. On 10 July 2006 we dismissed his appeal against conviction and refused his renewed application for leave to appeal against sentence. We now give our reasons.
2. There were two co-defendant's Haysun and Khan. They both pleaded guilty to the same offence and were sentenced to 15 years imprisonment. In the cases of Haysun and the appellant an order was made under section 52(1) of the Firearms Act 1968 for forfeiture and disposal of a firearm.

Facts

3. The police recovered 196 kilograms of cocaine at an average purity of 79% giving a converted weight of 153 kilograms at 100% purity. It had a street value of £11-12 million. On 22 December 2003 Haysun and Khan were arrested having been observed delivering the cocaine to 56 Valence Circus, Dagenham. The appellant knew both men and was a close friend of Haysun. The Crown's case was that the appellant was a principal player and was directing operations. He was arrested nearby.
4. Evidence showed that the appellant was in the company of Haysun and Khan not only on 22 December 2004 but also 6 days before on 16 December when he and Haysun had visited 56 Valence Circus. On the previous day Haysun had gone there alone to meet a property agent, Siddiq Dadabhai. He told the agent that he needed to ask a friend before he committed himself to renting it. He had "a friend coming from up north who wanted to occupy suitable premises over the Christmas period". The following day Haysun said that he wanted to pick up the key to show his friend around. Haysun called the agent and said he liked the property "as did the person with him".
5. On 22 December 2003 at about 11:30 the appellant, driving his black golf, met Haysun and Khan (who were in a white rover) in Leytonstone. The two vehicles were driven with the appellant in the lead to the Blackwall Tunnel and to a petrol station near the Sun in the Sands roundabout. At the petrol station there was a blue Saab. Khan got out of the rover and into the Saab; the rover and the Saab were driven away. The appellant waited at the petrol station for about three minutes. The golf's position was moved to another petrol station. The appellant was not seen again until later. Haysun and Khan travelled to Woolwich. Haysun was driving the rover while Khan was driving a white van which had been purchased 11 days earlier using false details. The rover and the van were driven back by a circuitous route to 56 Valence Circus arriving at 13:30. The cocaine, in cardboard boxes, was then unloaded. Four minutes earlier the appellant had been seen driving the black golf past 56 Valence Circus and between 13:30 and 13:39 was seen driving the same vehicle nearby. At 13:52 he was arrested when walking in the vicinity of Green Lane.
6. Telephone traffic demonstrated repeated contact between the appellant and Haysun during the activities of 22 December.
7. Flat 1, 27 The Avenue was a property in Haysun's name. The appellant had in his possession a key to that property. Searches and examination of items following the arrests revealed that the appellant's fingerprints were on the outside of a cardboard box which contained a money counting machine and a set of electronic scales bearing traces of cocaine.
8. A driving licence and a bank statement in the appellant's name were found at an address occupied by Khan namely 22 Cheshire Close, Walthamstow.
9. When interviewed, the appellant declined to answer questions which resulted in an adverse inference direction being given by the judge in his summing up.
10. Taken together those facts, as the defence accepts, presented a powerful case that the appellant was one of the conspirators and indeed played a prominent role in the events of 22 December.
11. At the trial the defence was run on the following lines.

(1) Subject to one unrelated matter the appellant was a man of previous good character. The judge gave a modified good character direction in his summing up.

(2) Cocaine was not found in the appellant's possession nor was he in possession of substantial sums of cash or any of the equipment or items commonly associated with drug dealing and supply.

(3) Observations by customs officers did not demonstrate that the appellant was involved in activities with the white combi van on 22 December.

12. The appellant's evidence was as follows. He had been with Haysun to 56 Valence Circus on 16 December but had no part in agreeing to or taking the tenancy. The "friend" was not him. On 16 December he had been at work and received a text message from Haysun asking him to go to the gym with him. He arrived at Haysun's house at 13:30. Haysun did not have a car. The appellant took Haysun to 56 Valence Circus at Haysun's request in order that Haysun could check the property. He went in with Haysun rather than stay outside. After that the two men went to 27 The Avenue where Haysun then telephoned a Mr Baksh, the intended tenant and the "friend". It was while in that property that the appellant moved the cardboard box which the investigation later revealed had his fingerprint on the outside. The purpose of touching the box was only to move it from a "weights" bench in order to do gymnastic exercises.
13. His involvement with Haysun and Khan on 22 December was to be explained by reference to a property transaction which the appellant was engaged in with Haysun. Khan was involved in mortgage broking and had arranged with the Abbey National a mortgage for the purchase of 12 Parklands. The appellant was under pressure to complete. He had borrowed £4,000 from Haysun. He required clarification of certain parts of the transaction and took 22 December off work in order to meet Haysun. The appellant stood to lose £12,000 if the transaction did not proceed.
14. On 22 December the appellant met Haysun who was with Khan. They told the appellant that they first had to pick up a quantity of mobile phones for Mr Baksh and had to be at the location for this purpose by 12:00. Haysun and Khan were uncertain about the route to the location where they had agreed to meet Mr Baksh and since the appellant had been a mini cab driver they asked for his help. He agreed to take them there. It was not disputed that he took them to the petrol station near the Blackwall Tunnel. Telephone traffic between them was only light hearted banter.
15. When Khan got into the Saab the appellant was telephoned by Haysun asking him to wait around because they would enjoy the security of his presence given the large consignment of mobile telephones. The appellant still wanted to have his property transaction finalised and arranged to meet Haysun at 13:30 at the Robin Hood public house. The appellant was concerned that Haysun and Khan were going to mess him about and be late. As a result, he went to Valence Circus because he knew they were delivering the mobile telephones there. The appellant then went to Green Lane where he believed the public house was. He thought that he would check out a property there for his friend Jangir Nazir. He parked the car and spoke to Jangir Nazir on the phone and was about to arrive at the property when he was arrested.
16. Apart from the agreed telephone billing evidence, no further evidence was called on behalf of the appellant.
17. The way in which Mr Smith QC for the appellant puts the appeal is this. Because there was such a strong circumstantial case against him it was imperative that any evidence to corroborate his account should be before the jury. The defence team failed in a number of respects to produce this evidence which, with reasonable effort, should have been available. The importance of the defence's failure to produce such evidence is highlighted, so it is submitted, by three questions that were asked by the jury.
18. The court was invited to consider fresh evidence. Some was not disputed by the Crown; we shall return to it later. In accordance with the practice often adopted by this court, we heard oral evidence from two witnesses de bene esse. They were Jangir Nazir and Siddiq Dadabhai.
19. Mr Smith focused on three areas on which, he submitted, the defence case as presented was deficient. We observe that complaints were originally made of a number of other deficiency's or failures that were, in the event not pursued. We take the three points in turn.

The tenancy of 56 Valence Circus

20. Siddiq Dadabhai, whose evidence we heard de bene esse, in fact gave evidence at the trial. Mr Smith submitted that had he been asked in cross-examination he would have confirmed that Haysun told him that the person who wanted the property was Sabir Baksh. Dadabhai's evidence to us was that when he asked Haysun who the friend was who wanted the property Haysun said it was a friend from up north and named him as Baksh. Dadabhai was asked why he did not give Baksh's name to the custom officers when he was interviewed initially. He said the officers were, at that stage, suggesting he was involved and he was anxious to give a true version of events albeit he was obviously concerned about his own position. The officers asked him who the property was for and he mentioned the reference to a friend from up north but as he was never asked the name he never gave it.
21. Mr Anderson, for the Crown, submits that Dadabhai's evidence to us was not true. If he knew the name it is inconceivable he did not mention it to the custom officers. While we can see the force of Mr Anderson's submission, we prefer to proceed on the basis that Dadabhai's evidence is apparently credible.
22. The appellant's evidence at the trial (19 July 2004 p101) was that he knew it was Baksh for whom 56 Valence Circus was required. It would therefore have been a simple matter to have asked his counsel Mr Martin to ask Dadabhai to confirm he had been told the name of the person for whom the property was required. The evidence was therefore readily available at the trial. A prudent advocate, however, might have preferred to leave the appellant's evidence as it was, for once the issue was opened up with Dadabhai, questions were likely to be asked why he had not given the name to Customs and Excise when he was interviewed. Perhaps more importantly corroborative evidence of the name of the person for whom 56 Valence Circus was required seems to us to have been at least of marginal relevance. The question for the jury was whether the reason being given for the acquisition of 56 Valence Circus was true or false. It matters little whether or not the explanation of the property being required for a friend from up north was bolstered by a name.
23. The failure of counsel to cross-examine Dadabhai was not raised as a material matter until a late stage in the present appeal with the result that the trial counsel, Mr Martin, has not been given any opportunity to comment. We are not persuaded that there is any substance in the point.

12 Parklands

24. It was the appellant's case that 12 Parklands was the reason for his contacting and meeting with Haysun on 22 December. This was a property the appellant was looking to buy (originally with Haysun, but latterly on his own) and if he did not complete the deal he stood to lose considerably financially. He had a 95% mortgage from the Abbey National and had paid a £12,500 deposit with the aid of a loan from Haysun on 16 December. Contracts were exchanged on 19 December. He had problems and was going to sort them out with Haysun and Khan which is why he took a day off work on 22 December.
25. A bundle of documents in relation to this property was prepared and ready to put before the jury at the trial. It was, however, never put before the jury. Mr Smith argues that it should have been and that it would have given independent support to the appellant's evidence. We do not know why it was not put before the jury. Neither counsel at the trial, Mr Martin, nor Mr Goldie, the retired detective sergeant who was working for the defence solicitors and assisting with the case, has ever been asked. What Mr Goldie said in his statement of 17 June 2005 that is not disputed was this:

"In respect of the property, 12 Parklands, Chigwell which Mr Javid was negotiating to purchase at the time of his arrest. No statement was taken from either Ruth Harris (letting agent) nor Richard West, (conveyancing solicitors, Richard West, Freem. Crisfi.) again this was not part of the prosecution case. (3) documents showing that correspondence passed between Mr Javid and the conveyancing solicitors, was part of the defence bundle, but counsel decided not to introduce it into evidence. The content of the conveyancing file was never examined."

26. Mr Smith submits that the failure to put this bundle before the jury was an important error, the significance of which illustrated by questions asked by the jury.

The jury's first question was:

"Can we see evidence of Javid's buying of Parklands from Javid's property solicitor?"

27. The obvious answer, with which both sides agreed, was that they could not because it had not been adduced in evidence. Mr Martin pointed out to the judge, as was the case that there had been no challenge to the evidence relating to Parklands. The jury's second question was:

"Which is the phone number of the Parklands property agent as she telephones Javid? Let us have the relevant billing for Javid's phone as proof."

28. As there had been no evidence about this, again the jury was told the court could not help. The jury's third question relates to a different point to which we shall come to in a moment.
29. The appellant submits that the defence should have put before the jury the bundle of documents that had been prepared for this purpose and should have called evidence from his estate agent or solicitor in the property transaction. In our view, however, examination of the bundle of documents shows that there were real dangers for the defence in introducing this material before the jury. The appellant's evidence was that exchange of contracts took place on 19 December but that there was what he described as a slight discrepancy over £5,000 in respect of furnishings which had to be sorted out on the Monday morning. £5,000 was being sought for furniture which he thought was included in the price because it was a shell apartment. He needed to clarify this situation with Haysun and Khan first thing on Monday morning to see if that was the "original agreement". There was also a service charge problem; it was too high. That too needed to be sorted out on Monday 22 December. Also, he had a meeting with the bank manager at 3:30pm and he took the day off work.
30. What the documents show is this. First, there was £5,000 for fixtures and fittings which was additional to the purchase price of £250,000. A letter to the appellant and Mr Haysun of 3 December 2003 makes it expressly clear that there is £5,000 payable for furniture and curtains etc. A file note dated 18 December indicates these figures were expressly agreed by the purchaser with the exchange of contracts to be the following day. A further note on the following day (19 December) records that the appellant called at 5:45pm and that everything went through satisfactorily. Bearing in mind the Parklands evidence given by the appellant was not challenged by the prosecutor, it seems to us that there was a good deal to be lost by putting in the file or calling further evidence which, if explored, was likely to show that the truth was there were no outstanding issues about 12 Parklands on the Monday morning and that there was no genuine reason for meeting Haysun. It was better therefore to leave matters and address the jury on the basis of the appellant's unchallenged evidence.
31. In our judgment the evidence upon which the appellant now seeks to rely on this issue was available at the trial. Although counsel was not expressly asked why it was not put before the jury the answer seems to us to be clear enough from the documents.

Jangir Nazir's evidence

32. The third and final area of complaint relates to Jangir Nazir, it being submitted that he should have given evidence at the trial. The defence did not, it is complained even go so far as to obtain a statement from him. That is made clear by Mr Goldie in his statement. The jury's third question was: where is Jig; why has he not given evidence? Jig was the nickname for Jangir Nazir. The judge answered this question by telling the jury not to speculate. There could be very good reasons.
33. The evidence we heard, as we have said de bene esse, from Jangir Nazir can be summarised as follows. He had known the appellant for over 10 years; they were good friends. He attended the trial on occasions because he wanted to know how the case was going. He said he spoke to the defence team and said he was supposed to be meeting the appellant to view a property on the day he was arrested. He asked if he could help and was told that if he was needed they would be in touch with him. He heard no more.
34. Speaking of 22 December, Jagir Nazir's evidence was that he had found a property in which he was interested and, in accordance with his previous offer, the appellant agreed to come along, look at it and give Nazir the benefit of his opinion. The arrangement was that once he got to Green Lane he would give the appellant a call. In cross-examination Nazir said he could not identify where the house was; he had not previously seen it. He could not remember if the arrangement was made in the morning but there was a definite arrangement to meet the appellant. He might have been a bit late arriving at Green Lane. He telephoned the appellant but got no answer. Nazir was emphatic that he did not own a property. This contradicted his written statement of 1 April 2005 in which he said he had decided to purchase a second property.
35. The appellant's evidence at the trial was that as he was getting near the Robin Hood public house and thinking of getting something to eat he remembered Jangir Nazir had phoned him a couple of times asking about a property he was interested in and he thought he might go and check it out in Green Lane and he "spun the car back round again" he then drove up Wood Lane to Green Lane and parked the car in Broomhill Road and then walked about 100 yards. He phoned Nazir and asked exactly where the property was and was told it was on the Goodmayes junction. There were two properties and there was scaffolding outside both. He was just walking to the house, which was at the junction of Nutfield Gardens, when he was arrested.
36. The major difference between the appellant's account and that of Jangir Nazir was that Nazir spoke of a prearranged meeting at the house which included the agent, whereas, according to the appellant he decided to go there on the spur of the moment and did not suggest he was going to meet anyone there.
37. In cross-examination at the trial the appellant said he got a call during the day from Nazir asking him to look at the property and later he phoned him back to find which of the two properties it was.
38. The appellant's telephone records show calls from him to Nazir's phone on 22 December at 11:27 (47 seconds) and 13:04 (12 seconds) but no others on that day. Bearing in mind the appellant was arrested at 13:52 these calls are not consistent with either of the appellant's evidence at the trial or Jangir Nazir's fresh evidence.
39. It is not clear why Jangir Nazir was not proofed at the trial unless the appellant knew full well that he could not assist. What is clear is that his evidence was so inconsistent with that of the appellant that the defence case would not have been helped at all.

Undisputed evidence

40. The Crown indicated they would not seek to cross-examine Fariquain Shah, James Goldie, Nagina Javid and Mohammed Imran. Shah's evidence relates to a point that was not pursued. Goldie we have touched on; the remainder of his evidence adds nothing. Nagina Javid's evidence relates to Parklands which we have already covered and Mohammed Imran's evidence related to a point that was not pursued.
41. Mr Smith has sought to base his appeal on the three questions asked by the jury elevating the so called failures by the defence to matters of critical importance to the outcome of the trial. In each instance the question was answered appropriately by the judge. As Mr Anderson for the Crown pointed out, the fact that the jury ask a question does not necessarily mean that the matter or issue to which it relates is critical to the outcome of the trial. In our view the evidence after which the jury was enquiring in the present case that related to 12 Parklands and Jangir Nazir would have been most unlikely to have assisted the defence case.

Decision

42. Having listened to the evidence of Dadabhai and Jangir Nazir de bene esse we now turn to section 23 of the Criminal Appeal Act 1968. We are required by section 23(2) to have regard in particular to four matters in deciding whether to receive any fresh evidence. These are:

(1) Whether the evidence appears to the court to be capable of belief;

(2) Whether it appears to the court that the evidence might afford a ground for allowing the appeal;

(3) Whether it would have been admissible at the trial;

(4) Whether there is a reasonable explanation for the failure to adduce the evidence at the trial.

Section 23(1) gives the court an overarching discretion to receive any evidence that was not adduced at the trial. The test is whether the court thinks it necessary or expedient in the interests of justice.

43. As to Dadabhai, we are not prepared to say his evidence is not capable of belief. What the fresh evidence amounts to is the answer to one question that was not asked in cross-examination. The question could have been asked at the trial but the answer would have had no impact on the outcome of the proceeding. The evidence would not afford a ground for allowing the appeal. The second criterion in section 23(2) is not, therefore, met.
44. As to the bundle of documents relating to 12 Parklands that could plainly have been put before the jury. Had it been, it would have been likely to damage the defence case rather than advance it. It too falls foul of the second criterion.
45. As to Jangir Nazir, his evidence did not appear to us to be capable of belief. If, however, it is true, the inconsistencies with the account given by the appellant at the trial are so great that it would have hindered rather than helped the defence. Accordingly it too fails to meet the second criterion.
46. We have asked ourselves whether notwithstanding our conclusions as above, we ought nevertheless to admit the evidence under the overarching interests of justice discretion. However, we have concluded there is no reason to do so.
47. It is unfortunate that steps were not taken to have the original solicitors' file available at court for the hearing of the appeal and that the limited way in which the appeal was finally advanced and the complaints relied upon by Mr Smith were not specifically put to Mr Martin for his comments. At one time we thought it might be necessary to adjourn the appeal. Fortunately we were able, with the encouragement of both sides, to proceed on the material that we had which in the event proved sufficient.
48. There was, as Mr Smith acknowledges, a strong circumstantial case against the appellant. None of the steps that it is now alleged should have been taken at the trial would have made any difference to the outcome. None of the criticisms of trial counsel or the defence team have proved justified. The conviction is safe and accordingly we dismissed the appeal.

Sentence

49. In our judgment the judge was correct to take a starting point of 25 years for a conspiracy to supply a class A drug of this magnitude. The value of the drugs was nearly £12 million. The appellant fought the case and the judge, having presided over the trial and having heard nearly two weeks of evidence, was very well placed to assess the extent of the appellant's culpability. Although the judge said during submissions that it was very difficult to see very much distinction between any of the defendants, he was nevertheless satisfied that the appellant was a principal player, an overseer of what was going on and the most deeply involved of the three. We do not think this sentence of 25 years imprisonment was arguably either wrong in principle or manifestly excessive and accordingly we refused the renewed application for leave to appeal against sentence.