England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MANCHESTER
HH Judge Goldstone QC

		Royal Courts of Justice Strand, London, WC2A 2LL
		24/10/2012

President of the Queen's Bench Division:

1. As long ago as 5 November 2005 the appellant was convicted of the murder of Kalvinder Singh and of wounding with intent at the Crown Court at Manchester before His Honour Judge Goldstone QC and a jury. He appealed by leave of the single judge against conviction on the basis that there was fresh evidence. After hearing the fresh evidence adduced on his behalf de bene esse, we concluded that that evidence had not a shred of credibility and was collusive. We dismissed the appeal for reasons to be given later. These are our reasons.

Background facts

(a) The fight at the Burning Balti

2. On the night of 9/10 April 2004 five friends visited the Burning Balti takeaway at the junction of Cheetham Hill Road and Woodlands Street in Cheetham Hill, Manchester. The five friends were Kalvinder Singh (who was murdered), Jaswant Singh, Andrew Smith, Wayne Sykes and Roy White. They had gone there after visiting various bars. All had consumed a substantial quantity of drink except Kalvinder Singh who was the driver.
3. Present in the takeaway were a group of Albanians. They included a person known as Ardi and another person who gave evidence at the trial under the name of B and to whom we will refer as B for reasons we gave at the hearing of the appeal. They had been to a party at the Polish Club in Cheetham Hill at which they had been entertained by an Albanian singer.
4. An argument developed between Andrew Smith, Wayne Sykes and Ardi. Ardi was pulled out of the takeaway by Andrew Smith and others. Ardi and B were chased away. As Roy White, Jaswant Singh and Wayne Sykes began to go back to the takeaway, a car pulled up. Roy White and Jaswant Singh were confronted by the occupants. They got away and went home. Andrew Smith and Wayne Sykes made their way back to the Burning Balti where Kalvinder Singh had remained.
5. What then happened was a matter of dispute at the trial. The prosecution case was largely based upon the evidence of B. It was as follows. The car to which we had referred had picked up B, the appellant, Artan, Jani and Ardi. Jani had got out of the car and obtained three pieces of wood. Jani gave one of these to Ardi, one to the appellant and retained one. They got out of the car with Jani, Ardi and the appellant going ahead with B and Artan following at a distance.
6. It was B's evidence that Ardi, Jani and the appellant tried to enter the Burning Balti through the door leading on to Woodlands Street. They failed. Jani got in through the Cheetham Hill Street door.
7. Jani then struck Kalvinder Singh's head with a stick and Kalvinder Singh fell to the floor. The other Albanians had gained access through the Woodlands Street door. B saw Ardi standing where Kalvinder Singh lay on the floor and strike Wayne Sykes on the head with a stick as he tried to jump over the counter. Ardi was also seen to stamp on Kalvinder Singh as he lay on the floor. The appellant struck Sykes and then Smith on the leg with a stick. It was B's evidence that he was saying, 'stop' and he eventually pushed Ardi, Jani, the appellant and Artan away.
8. The police were called; Kalvinder Singh was taken to hospital unconscious. He died on 26 April 2004 of his head injuries. He had sustained compressive damage to his skull, consistent with his head being stamped upon. He had other injuries to his face and the right side of his neck, consistent with a heavy blow such as kicking, stamping or the use of a heavy object like a piece of wood.

(b) The disappearance of the appellant and his subsequent arrest

9. B was arrested in July 2004 on suspicion of murder, but was not charged. He was shown a video taken at the party to which we have referred and identified Ardi, the appellant, Artan and Jani. B was not charged but agreed to assist the police and gave evidence at the subsequent trial.
10. The appellant, an illegal immigrant from Albania, had been working in Manchester. He had used the papers of Luan Gjecaj to gain employment and his wages had been paid into Luan Gjecaj's bank account. After the murder, he had left Manchester. He did not go to his place of work on the day after the murder and stopped attending his local gym.
11. Enquiries were made by the police in an attempt to find him, including enquiries of Luan Gjecaj, to which it will be necessary to refer. One year later, after an appeal on Crimewatch on 13 April 2005, the appellant attended at a police station in Manchester on 20 April 2005. He gave a no comment interview.

(c) The appellant's trial

12. At the trial at the Crown Court at Manchester, the prosecution case against the appellant was based on joint enterprise, in that the appellant had joined in an attack with others whom he knew to be in the possession of sticks with the intention of causing really serious bodily injury. B was the principal prosecution witness.
13. The appellant gave evidence at trial. He said he had not gone armed with a stick to the premises; B had the stick. He had only grabbed a stick from B and used it to defend himself against a man using a bar and a stool and another man who had a chopper. He then used it to hit the man on his legs. His case was that B was lying for his own reasons and to avoid the responsibility falling on him.
14. He was convicted and sentenced to life imprisonment with a minimum term of 12 years, less 7 months being the time on which he had been on remand. The judge recommended that he be deported.

The course of the appeal

(a) The instruction of new solicitors: the role of Luan Gjecaj

15. In August 2008, the appellant went to new solicitors, Emery, Halil & Brown where Mr Charles Charalambous acted for him. He gave evidence before us. We wish to pay tribute to the very careful way in which he gave his evidence and all that he did to assist the court.
16. In his evidence to us, Mr Charalambous told us that he first saw Luan Gjecaj in September or October 2008. He understood Luan Gjecaj was a close friend of the appellant and had brought the papers from the previous solicitors. He assumed that they were close friends from growing up together in Kosovo, but he did not know the village from which they came.
17. Luan Gjecaj told Mr Charalambous that he knew the parties in the case and later that year that he knew B. He never told Mr Charalambous that he had any evidence he could give until the autumn of 2011, although he spoke to him on numerous occasions.
18. During 2009-11, Mr Charalambous's contact with Luan Gjecaj was by phone. He acted as the point of contact and would pass messages onto the appellant. In 2009 the phone calls were about once a month, about twice a month in 2010 and more frequently in the course of 2011. The slow pace of the work was due to the fact that most of the trial records had been lost.

(b) The original grounds of appeal

19. On 4 May 2011 Notice of Appeal against conviction out of time was given. The thrust of the appeal was directed at the circumstances in which B had given his evidence anonymously; there was also complaint about the anonymity orders for other witnesses, but information subsequently emerged to show that the defence had consented to these. The appellant was given more time to perfect his grounds; the first extension was until 18 August and final extension was given until 19 November 2011 on terms that if the grounds were not perfected by then the appeal would be struck out. Mr Charalambous said that Luan Gjecaj was aware that the grounds of appeal related to the circumstances in which B had given evidence.
20. It became clear that the grounds of appeal relating to the anonymity of B were unsustainable in the light of further material about the trial. Mr Hislop QC formally advised on 14 November 2011 that those grounds of appeal should not be pursued.

(c) The emergence of the evidence of Luan Gjecaj

21. However on 9 September 2011 in a conference between the appellant and Mr Hislop QC over a video link, the appellant told Mr Hislop QC and Mr Charalambous that B had telephoned Luan Gjecaj and told him that the appellant had nothing to do with the murder and had been caught in the middle.
22. It took Mr Charalambous sometime to get in touch with Luan Gjecaj. He first made contact in the week of 26 September 2011. Mr Charalambous told Luan Gjecaj about the conversation with the appellant and that he needed to see him. Luan Gjecaj told him that he had told the police that B had said that the appellant was not involved in the murder. Mr Charalambous strongly suspected that Luan Gjecaj had been speaking to the appellant about B. As Luan Gjecaj was a potential witness, Mr Charalambous ceased to use him as a go between.
23. Mr Charalambous saw Luan Gjecaj on 7 October 2011 and dictated a draft of his witness statement thereafter. Between 7 and 16 November 2011 Luan Gjecaj's statement was finalised. It was signed on 16 November 2011.
24. Mr Charalambous was told that Luan Gjecaj had visited the appellant when on remand in prison. Luan Gjecaj told Mr Charalambous he had not told the solicitors who acted at the trial (to whom Luan Gjecaj had referred the appellant) of the conversation with B though he knew B would be giving evidence at the trial as those solicitors had assured him that the appellant would "go free". Luan Gjecaj's explanation to us was that he did not know what the law was and had no experience of it
25. On 14 November 2011, in a further advice and grounds of appeal all the original grounds of appeal were abandoned and a new ground advanced under s.23 of the Criminal Appeal Act 1968 on the basis of Luan Gjecaj's fresh evidence. The single judge granted leave to appeal. Perfected grounds were served on 5 January 2012.
26. Although there were some other points associated with disclosure in relation to the position of B, the central issue on the appeal was whether the court should admit the evidence of Luan Gjecaj as set out in witness statements dated 16 November 2011 and 25 June 2012 and in the light of that evidence consider the safety of the conviction. The essence of Luan Gjecaj's evidence was that B had told him both before and after the trial that the appellant had done nothing and was innocent. The case advanced was that as B was the principal witness against the appellant, that his evidence was untruthful in the light of his statements to Luan Gjecaj and therefore the conviction was unsafe. A ground of appeal in relation to the alleged bad character of B was not pursued at the hearing; as it rested on the evidence of Luan Gjecaj as to that bad character, it would have failed

The evidence of Luan Gjecaj

(a) The language of the statement and of his oral testimony to the court.

27. The statement of Luan Gjecaj was in clear English. It was signed by him in the ordinary way. There was nothing to indicate that he did not understand English. It was certainly never suggested by Mr Charalambous that there had been any difficulty in taking the statement in English, finalising it and approving it. Mr Hislop QC told the court, after Luan Gjecaj had been sworn, that he would give his evidence in English as best he could, but an interpreter might be required if there was a difficulty.
28. He was asked by Mr Hislop if he was a friend of the appellant; he said he was. He was then asked if he was related to him at all. When he replied "Yes", the appellant interrupted and said:

"Sorry to interrupt, but I think he needs an interpreter. I'm really sorry."

29. After affording Mr Hislop QC an opportunity to discuss the question of whether the evidence should be given through an interpreter, Mr Hislop QC told us that Mr Charalambous had never needed an interpreter when dealing with Luan Gjecaj. Mr Hislop then proceeded to ask a question of Luan Gjecaj in English. He answered that question. When the next question was asked, Luan Gjecaj said he needed an interpreter and that he had told his solicitor that. His evidence was then given through an interpreter with each question and answer being interpreted.

(b) Luan Gjecaj's account of his relationship with the appellant

30. Luan Gjecaj's evidence, after the provision of an interpreter, was that he had known the appellant since the appellant came to England as they had both lived in a house at 331 Cheetham Hill Road.
31. They clearly were very close friends. Luan Gjecaj lent the appellant his identity. Luan Gjecaj s evidence was that he allowed the appellant to pay his wages into Luan Gjecaj's bank account. The appellant had set up a standing order on the account to pay for a subscription to a gym.

(c) Luan Gjecaj's contact with the appellant after the murder

32. He had been at the party in the Polish club with his British wife on the night of the incident at the Burning Balti on 9/10 April 2004; he saw the appellant and B. Luan Gjecaj told us that he took no interest in the incident at the Burning Balti.
33. In his statement he said that he had heard nothing from the appellant until about a month after the incident at the Burning Balti. The appellant had telephoned him then. He had asked the appellant if he was involved. The appellant had then given him an account which was broadly the same as the appellant gave at trial (as we have set out at paragraph 13). He tried to persuade him to go to the police. At the hearing before us Luan Gjecaj confirmed the accuracy of that part of the statement, but in his evidence told us that when he had heard on the TV that a person had died after the incident, he telephoned the appellant. They then discussed the money that had gone in and out of Luan Gjecaj's account under the arrangement we have described at paragraph 31.
34. However, telephone records showed there was a telephone call between a mobile phone attributed to Luan Gjecaj and a mobile phone attributed to the appellant at 10 pm on 10 April 2004 and further conversations between those phones between 17 April and 29 April 2004. His evidence to us was that these records were untrue. Furthermore in a statement given to the police on 28 September 2004 in circumstances we describe at paragraphs 36 to 40 below, he stated that he had met the appellant on a Tuesday or Wednesday after the incident in Wigan to give him money. He confirmed that he had had this meeting with the appellant in his evidence to us.
35. Luan Gjecaj's evidence was that he was also in contact with Artan and Jani who both told him that the appellant did not have to worry, but Jani had told him it was better for the appellant to leave, as, if he were caught, he might be punished. He was not contacted by Ardi. Luan Gjecaj told us that he realised that the appellant and the others were on the run. They said that if they were caught they would be punished

(d) Luan Gjecaj's interviews and statements to the police in 2004

36. On 15 June 2004 the police visited the address at which Luan Gjecaj lived as they thought Luan Gjecaj was the appellant. The police saw him again on 16 and 23 June, 7 July, and 4, 5 and 9 August 2004. Luan Gjecaj signed the notes of these interviews. He made a witness statement on 28 September 2004 and a further statement on 10 June 2005.
37. According to the police note of the first interview with him, Luan Gjecaj said he knew nothing about the incident at the Burning Balti. He told them he was not aware that anyone was using his details. He told them that he had given his details to a man called Skeder and went to Wigan to give him money. He said nothing about the appellant until the police found his name in the phone's memory. He then said very little, but gave details of the others. Later in the interview he told them that the appellant had used his identity.
38. After the first interview, the police took the phone away. When they came back the following day he told them about the appellant and admitted that he had been with him at the party at the Polish club. It was only on 7 July 2004 that it is recorded that he told the police that he had met the appellant a few days after the incident. In his evidence to us he said that he had told them earlier, but they had not written it down. It was only on 4 August 2004 that he told them about B and was questioned by the police about B on the following day.
39. Luan Gjecaj's evidence was that when he was interviewed, he was not offered an interpreter. He was scared as he had no papers and his life might be in danger. He was told by the police that he would be sent back to Albania, but that they might be able to help him if he told the truth. His evidence to us was that he had told the police that B had told him that the appellant was innocent and that Artan had said the same.
40. He told us that he did not read the statements he made on 28 September 2004 and 10 June 2005; they were read to him by the police. In his statement to the police on 10 June 2005, Luan Gjecaj gave an account of what he had been told by the appellant about the incident at the Burning Balti. He said that the appellant had told him that one of the other group had picked up a chair to fight him; he had then picked up something from the floor to protect himself and that was when he hit someone. His explanation to us was that he had said this as he was scared and as his life was in danger. For the same reason he did not tell the appellant's solicitors before the trial that this was not true.

(e) Conversations with B

41. Luan Gjecaj told us that he spoke with B during this period. B wanted to know what questions the police had asked. Luan Gjecaj told B that he had said nothing. B told him that the appellant did not have to worry as the appellant had done nothing. He was frightened of B because he came from a very dangerous family; he did not tell the police of this.
42. Luan Gjecaj's evidence was that at some time prior to the trial, B had spoken to him again and told him not to worry as he would not say anything against the appellant. In his statement he said that this was in November and that he knew that B was going to be a witness at the trial as the appellant had told him this.

(f) The arrest and trial of the appellant

43. It was Luan Gjecaj's evidence to us that the appellant came to Luan Gjecaj's home the night before the appellant's arrest on 20 April 2005. He did not tell the police. The appellant told him everything. Luan Gjecaj then went and found a solicitor for him. He went to the town centre and saw a solicitor's office. He saw a solicitor there and he told him all he knew. He did not tell the solicitor what B had said about the appellant, as the solicitor had never asked him and had told him not to worry.
44. Luan Gjecaj visited the appellant in prison. Luan Gjecaj's evidence was that the appellant told him that his solicitor had told him not to worry as he would be free. He told us that he did not go to the trial, did not follow it and did not know anything about it
45. When the appellant was found guilty, it was Luan Gjecaj's evidence that the solicitor said there was nothing more that could be done for the appellant. He should take the papers and find another solicitor.

(g) The conversation with B after the trial

46. Luan Gjecaj told us B telephoned him and told him that he had not given evidence against the appellant. Someone else had done. The appellant was not guilty as he had done nothing wrong. In his witness statement he said that this conversation took place two or three days after the trial

Our conclusions in relation to the evidence of Luan Gjecaj

47. We were sure that the evidence of Luan Gjecaj was incapable of belief and could not in any way be relied upon:

i) There was in fact a very close relationship between the appellant and Luan Gjecaj. Luan Gjecaj concealed the relationship from the police and never admitted the closeness of the relationship to the police.

ii) Luan Gjecaj also concealed for sometime the fact that he had met the appellant shortly after the incident. In his statement to this court which he confirmed on oath, there was a clear lie about not meeting the appellant after the incident and having no telephone contact with him.

iii) Although he claimed he told the police of his conversations with B and of B's statement that the appellant was innocent, this was never recorded by the police. The police records were very thorough. This was another lie.

iv) He accepted that he had not told the solicitors retained for the trial about B's statements, although he knew B was to be a witness at the trial. His reasons for not doing so were not credible, nor was his evidence that he took no interest in the trial. He knew of the trial, as he had been warned as a prosecution witness, though he was not called. We have no hesitation in finding that his claim that B had told him prior to the trial that the appellant was innocent was an invention, as was his claim that Jani and Ardi had said the same.

v) His statement made on 10 June 2005 contained an account of what the appellant had told him, but this was not the account that he gave to us.

vi) His explanation for his lies and contradictions was that he was frightened because of threats from Albanians. This was untrue. The real explanation was that he was trying at all times to help the appellant, first by concealing from the police what he knew and then making statements that he believed would help the appellant.

vii) We are also sure that the appellant and Luan Gjecaj colluded together to present dishonest and deceitful evidence to this court. Although Luan Gjecaj on his own evidence had had the conversations with B, nothing was said to Mr Charalambous for nearly three years. He only told Mr Charalambous of his conversations with B when all the other avenues of appeal were seen to be hopeless. The only credible explanation is that the appellant and Luan Gjecaj invented the account of B as a gambit to try and find a new ground of appeal when all else had failed.

viii) Although he had made his statement in English and the evidence of Mr Charalambous was that he had had no difficulty in communicating with him, it was striking that he requested an interpreter after the appellant had intervened from the dock. That intervention was at a point in time when Luan Gjecaj was about to admit that he had a longstanding relationship with the appellant which dated back to their time in Albania.

48. As we are sure that the evidence of Luan Gjecaj was not capable of belief, it was not necessary to consider the other points raised in relation to s.23, as it could not be in the interests of justice to admit evidence that was incapable of belief and collusive. The differences between the evidence of B in the trial of the appellant and the trial of Jani provide no basis for a contention that the conviction was unsafe.

Conclusion

49. It was for those reasons that we declined to admit the fresh evidence and dismissed the appeal.
50. We would like to thank both counsel for the thorough way in which the case was presented to us and the solicitors (in particular Miss Wareham of the CPS) for their diligent preparation and for Miss Wareham's foresight in retaining an excellent interpreter.