England and Wales Court of Appeal (Criminal Division) Decisions

IN THE COURT OF APPEAL
CRIMINAL DIVISION

		Royal Courts of Justice Strand London, WC2A 2LL
		6 June 2018

LORD JUSTICE SIMON:

1. On 8 December 2017, in the Crown Court at Leeds before His Honour Judge Simon Phillips QC and a jury, the appellant was convicted of robbery. A co-defendant, Zahid Mahmood, pleaded guilty to robbery on the day of trial. The appellant appeals against his conviction by leave of the single judge.
2. There was, and is, no issue that at about 9.00 am on 12 June 2017, Jennifer Booth was with her young child when she was robbed of her red Ford Focus motor vehicle at knifepoint by two Asian men who drove the car away. There is no issue that one of the two men was Mahmood. The issue for the judge at the conclusion of the prosecution case, and for this court on appeal, is whether there was sufficient evidence against the appellant for a jury properly directed to conclude that the other man was the appellant, or whether the evidence was so tenuous that the case ought to be stopped. The robbery took place in Haddon Place, which runs between Kirkstall Road and Bankfield Road in Burley, Leeds.
3. About one and a half hours later, the car was seen by police officers parked in Hanover Mount in central Leeds with an Asian male standing close to the vehicle. The bonnet of the vehicle was warm and a smell of rubber was coming from the tyres. The man whom they saw ran off and two police officers gave chase. They eventually managed to arrest Mahmood after a brief struggle. Shortly afterwards, they found and arrested the appellant: he was hiding in a garden between a shrub and some wheelie bins.
4. A police dog search was conducted, backtracking the scent from the positions where Mahmood and the appellant were found to the stolen car. In the course of that search, the car keys and three gloves were found.
5. Between the time of the robbery and the arrest of Mahmood and the appellant, the car had been observed by a witness, Liam Morgan. He gave evidence that between 9.20 am and 9.30 am - in other words between 20 and 30 minutes after the robbery - he saw the stolen car about a mile away in William Street in the Hyde Park area. He had watched as the vehicle drove into what is a cul-de-sac. The driver got out of the vehicle quickly, went into a snicket - an alleyway between two rows of houses - and returned to the car. Moments later another man appeared. The other man was someone who Mr Morgan later identified in an identification parade as being the appellant. The two men got into the vehicle and drove off at speed.
6. The prosecution case was that Mahmood knew where the other man was and he knew that because he had previously got out of the car.
7. In interview, the appellant denied involvement in the robbery and said he had never been in the vehicle. He confirmed that Mahmood was a friend but said he had not seen him on the day of the robbery. He denied wearing gloves and said he had been at a friend's house. He did not know why he had run from the police. He said that his phone would not link him to the robbery but declined to provide his PIN number.
8. Forensic tests were conducted on the stolen vehicle and the appellant was not forensically linked to it. Nor was Ms Booth able to identify the appellant as one of the robbers.
9. The defence submitted at the close of the prosecution case that there was insufficient evidence against the appellant to convict him. The judge rejected that submission. In his ruling, he recited the facts as we have outlined them. This included the facts of the robbery, the circumstances of the later arrest and the identification of the appellant as the man getting into the car in William Street between those two events. The judge recorded that in interview the appellant stated he had never been in the vehicle; however, the identification by Mr Morgan had not been tenuous: he had stated that owing to problems in the area he had made a point of focusing on his identification and he was sure that he had made a correct identification. The identification, as the judge noted, had been made promptly. Mahmood, who was arrested close to the appellant, had pleaded guilty and the appellant had admitted that he knew Mahmood. On one view of the facts, there had been undeniable evidence upon which a jury could properly come to the conclusion that the appellant had been one of the robbers. Potential discrepancies regarding appearance, clothing and descriptions were matters for the jury.
10. Following that ruling, the appellant did not give or call any evidence.
11. It is unnecessary to consider the summing-up since there is no complaint of its contents. The issue is whether at the close of the prosecution case there was a sufficient case to go to the jury.
12. Mr McKone submits that Ms Booth did not identify the appellant. Nor, he has to accept, did she identify Mahmood either. But he relies on her evidence that she thought that the other robber with Mahmood was an older man. In fact, Mahmood was 19 at the time and the appellant was 17. He accepts that Mr Morgan gave evidence that he saw the appellant get into the car in William Street 20 or 30 minutes after the robbery. He challenges that identification evidence but accepts that such a challenge would not found an arguable ground of appeal. However, he submits that even taking that evidence at its highest, it did not prove that the appellant was one of the robbers 20 or 30 minutes earlier, only that he got into the car that had been stolen. He submits that when Mr Morgan first saw the appellant, he was neither in the stolen car nor getting out of it. Mr Morgan's evidence was consistent with the appellant being picked up by Mahmood after the robbery. He draws attention to the fact, as acknowledged by the judge in his ruling, that there was no evidence forensically linking the appellant to the robbery.
13. For the prosecution, Mr Walker has submitted in his respondents notice that the judge's ruling was correct for the reasons he gave. The fact that two young Asian men committed a robbery of a vehicle and two young men of a similar description were found close to the car 90 minutes later with the engine still warm less than 1 mile from the scene of the robbery raised an inference that the two men were the same.
14. In our view, there plainly was a case to answer. The evidence was that the robbery had been committed by two Asian men. Within 90 minutes the appellant and Mahmood - two Asian men - had been arrested close to the car and, in the appellant's case, hiding. The possibility that he just happened to be there hiding was countered by the finding of three gloves, rather than a pair of gloves, cast away in the flight from the car. This in turn was evidence that Mahmood had not been alone in the car when it was discovered by the police. The appellant told the police that he had never been in the car, but there was the further evidence of Mr Morgan that he had seen him getting into the car. The prosecution was also able to rely on evidence that the two men knew each other and that the appellant had refused to reveal the PIN number of his phone.
15. The defence were entitled to make points in relation to the evidence of Mr Morgan about the appellant having been seen getting into the car, but not having been previously seen getting out of the car. What had happened while the car was in William Street was a proper area of inquiry, but it was not inconsistent with the other circumstantial evidence upon which the prosecution relied. No-one had seen anyone getting out of the car prior to the appellant getting into it.
16. In relation to what happened in William Street, the judge made this point in his summing-up:

That car was sighted within some 20 to 30 minutes of the robbery on William Street, and the witness Liam Morgan saw one man get out of a vehicle, go to a snicket and return to the car moments later with another man. That other man has been positively identified by Mr Morgan as this defendant, Mr Mahboob, and the two men then got into the vehicle and drove off at speed.

The prosecution case is that these were the two robbers, and that one was Mr Mahmood, and that the other was Mr Mahboob, this defendant. The prosecution case is that they had driven there from the scene of the robbery, and that you can safely infer that one of the two of them has got out of the vehicle and gone into the snicket whilst the other remains in the vehicle, and they say that you can safely infer this from the fact that the driver of the vehicle knows exactly where to go in order to locate the other man, and within a few seconds he returns with him to the vehicle. In other words, say the prosecution, the driver knew that that was where his accomplice would be, because, they say, he must have seen him go to the snicket from that vehicle moments earlier.

17. This was a point that the judge had already made in his ruling at page 2A.
18. It was not the only possible explanation but the jury did not hear any other explanation since the appellant chose not to give evidence.
19. In our judgment, the judge was right to reject the submission of no case and accordingly the appeal is dismissed.

Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof.

165 Fleet Street, London EC4A 2DY

Tel No: 020 7404 1400

Email: rcj@epiqglobal.co.uk