Neutral Citation Number: [2014] EWCA Crim 1292

Case No: 2012/06846/C5

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
HHJ GEE
T.20107242

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 03/07/2014

Before :

LORD JUSTICE LAWS
MR JUSTICE ANDREW SMITH
and
HIS HONOUR JUDGE COOKE QC
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Between :

	R	Appellant	
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	NADEEM ASLAM	Respondent	

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Mr P Greaney QC (instructed by Kamrans Solicitors) for the Appellant (Mr Greaney did not appear at trial)
Mr R Vardon (instructed by CPS) for the Respondent

Hearing dates : 5 & 6 June 2014
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Judgment
LORD JUSTICE LAWS 
INTRODUCTION
1.	This is a conviction appeal by leave of the learned single judge.  We may introduce the case by citing this opening passage from the judgment of this court, delivered by myself sitting with Globe J and the Recorder of Carlisle, at a directions hearing on 17 January 2014.
“1… [O]n 20 December 2010 at the Manchester Crown Court before His Honour Judge Gee the appellant was convicted on 16 counts of rape and sentenced to concurrent terms of 9 years imprisonment.  On 22 March 2011, the sentence was increased by this court to 13 years imprisonment following a reference by the Attorney General…
2		The complainant in the case was the appellant’s wife.  The Crown case was that he raped her, both vaginally and orally, on many occasions once or twice a week between June 2007 and June 2009.  The defence was that their sexual intercourse was consensual.  Indeed the appellant said that the complainant often asked him for sex and was demanding from the first.  The appellant said that the charge of rape was a vindictive fabrication.
3		The sole ground of appeal is that there exists fresh evidence which undermines the safety of the conviction.”
2.	The complainant married the appellant in Pakistan in 2001.  It was her first marriage, his second.  She came to live with him in the United Kingdom at his mother’s flat at [address].  In light of one of the appeal issues this address possesses some importance, as we shall show.  There were two sons, born in 2002 and 2005.  The complainant was to give evidence (via a recorded interview with the police) that the appellant and his family forced her to go to Dubai on 20 June 2009: he wanted a break and said she must leave the country or he would divorce her.  He made threats relating to their two sons.  At length she returned from Dubai on 18 August 2009, when (at [address]) the appellant was abusive and violent.  His mother was present.  The complainant was taken to a Women’s Refuge and on 25 August 2009 reported to the police at West Didsbury that she had been beaten by the appellant on 18 August.  
3.	In her evidence she described the rough and violent way in which, during the marriage, the appellant had forced himself upon her to have sex at their home at [mother's flat].  In cross-examination via a video link she told the jury that her mother and sister Huma came to the UK in May 2006.  The appellant was to say that they came to live at [address] in Spring 2006, and stayed for about seven months until October 2006.  The complainant denied that the appellant’s mother and sister ever came to live at [address].  Whether they did or not is an issue in this court (we will call it Issue 1).  The appellant says that there is new evidence to support his account that they did.  The point goes, of course, to the respective credit of the parties.  It may also go to the likelihood of the appellant’s having committed repeated rapes in this relatively cramped accommodation (two bedrooms, a sitting room and a loft) without the victim’s mother and sister, living there for a substantial part of the relevant period, knowing the least thing about it.
4.	Other Crown evidence included some witnesses who gave rather inconclusive testimony in relation to the events of 18 August 2009.  In addition a work colleague of the complainant, Adita Edwards, described how over time the complainant had changed: from being outgoing she became withdrawn; she lost weight; her uniform was unwashed and torn.  Ms Edwards saw bruises on her body and one morning a black eye.  She said she heard a woman’s voice screaming at the complainant over the phone: the complainant said it was her mother-in-law.  Other witnesses also spoke of the black eye, other bruises, and changes in the complainant, and shouting at the other end of the telephone.  Nicola Carrs said that in September 2009 the complainant told her that she had been beaten and raped by the appellant for the past seven years.
5.	The appellant gave evidence in his own defence.  He said that the complainant’s mother and sister Huma returned to live with him and the complainant at [address] in 2007.  Her mother – his mother-in-law – went back to Dubai in May 2007.  He said that the complainant was close to her mother and sister.  Huma, the sister, remained at [address] until May 2008.
6.	He said that sexual relations between himself and his wife stopped altogether in January 2009.  He did not assault her on 18 August 2009.  He had never forced her to have sex without her consent.  In cross-examination he said she often asked him for sex, and initiated oral sex.
7.	A number of other witnesses, including two of his sisters, gave evidence on his behalf.  
THE PROPOSED FRESH EVIDENCE; THE COURT’S DIRECTIONS
8.	The fresh evidence sought to be relied on may be classed under three heads, as the court put it on 17 January 2014: (1) whether the complainant’s mother and sister lived at the matrimonial home at the material time ([address]); (2) whether after the trial the complainant made admissions to the effect that she had told a lying story in the witness box; and (3) other points concerning the complainant’s credibility.
9.	Granting leave to appeal the learned single judge said this: 
“… [I]t will be for the full court to determine the extent to which you should be permitted to advance the fresh evidence.  The arguments in favour of some of the admission of some of the evidence are stronger than for others.”
10.	On 17 January 2014 we adjourned the directions hearing to 30 January 2014, requiring the parties to prepare skeleton arguments dealing precisely with the question which, if any, witnesses should be called at the appeal; and any other matters requiring directions.  On 30 January 2014 we directed that some but not all of the witnesses proposed by the appellant should be called.  On Issue 1 – did the complainant’s mother and sister live at [address]? – the witnesses so directed were Saqib Zulfiqar, who went through an Islamic marriage ceremony, a Nikah, with the complainant’s sister Huma in September 2006, though the marriage did not work out; Mohamed Tabish Talat Mahmood, who came to the UK on a number of occasions but in particular in May 2006 and October 2007 and lived at [address] for periods of three months and one month; Mussarat Ishaq, said to have had frequent dealings with the complainant’s mother and sister in 2006 and 2007 and to be able to confirm that they were living at [address] at the time; and Diyare Askander, a barber whose shop was at the ground floor premises below [address].  It was said he would testify that the sister Huma was living at [address] for some time. 
11.	On Issue 2 – the alleged confessions by the complainant that she had told a lying story – we directed that the court should receive evidence from two witnesses.  The first was Mahmood Talat Mahmood, the father of Mohamed who was the subject of one of the court’s directions on Issue 1.  He had given witness statements to the effect that the complainant had said to him on the telephone that the appellant had not abused her.  The other witness on Issue 2 was Zahida Manzoor, who on 7 March 2011 was said to have informed a police officer that on 14 or 15 February 2011 the complainant had told her, at a chance meeting in the street, that she lied when she had accused the appellant of raping her.  
12.	On Issue 3 – miscellaneous points on credibility – we directed that one witness only give evidence, though more were proposed.  Ayesha Malik, it was said, had alleged that before the appellant’s trial the complainant had given some account or impression of how she would “act out” her evidence against the appellant.
13.	We also directed that the complainant herself should attend, but made it clear that it would be for the full court hearing the appeal to decide whether she should testify.  
14.	In addition on 30 January 2014 we made production orders relating to four classes of documents which it was said would or might cast light on Issue 1.  As a result we have (1) a letter from Lloyds Bank of 31 March 2014 showing that the complainant’s sister Huma opened an account with Lloyds on 4 February 2008, giving her address as [address].  The account was operated from 4 February 2008 to 12 March 2008.  (2) There are letters of 23 April 2014 and 7 May 2014 from the DVLA showing that Huma applied for a driving licence in April 2007 giving her address as [address].  (3) Letters from Manchester Royal Infirmary of 20 March 2014 and 15 April 2014 confirm that Huma attended the A&E department on 6 May 2008, again giving her address as [address].  There is also (4) a letter from the Home Office of 7 May 2014 giving details of visas issued to the complainant’s mother and to Huma, but there was apparently nothing in the relevant documentation relating to the [address] address.
15.	There is also before the court (it did not require a direction) a copy of a marriage certificate witnessing the marriage between Zulfiqar and Huma.  It shows Huma’s address as [address].
THE RESPONDENT’S APPLICATION TO CALL THE COMPLAINANT
16.	After we had heard the live evidence of all the witnesses who we directed should testify (Mahmood father and son via a video link from Dubai), Mr Vardon applied for leave to call the complainant, who had attended court in accordance with our direction of 30 January.  We refused leave.  Here are our reasons for doing so.
17.	In connection with Mr Vardon’s application, as in the appeal generally, it is important to have in mind the guidance given by their Lordships’ House as to the function of this court in new evidence appeals in Pendleton [2002] 1 WLR 72.  Lord Bingham said at paragraph 19:
“...  [T]he House in Stafford v Director of Public Prosecutions [1974] AC 878 were right to reject the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their minds and not the effect that that evidence would have had on the mind of the jury. It would, as the House pointed out, be anomalous for the court to say that the evidence raised no doubt whatever in their minds but might have raised a reasonable doubt in the minds of the jury. I am not persuaded that the House laid down any incorrect principle in Stafford, so long as the Court of Appeal bears very clearly in mind that the question for its consideration is whether the conviction is safe and not whether the accused is guilty.” 
18.	Thus while it is our duty to judge the force of the fresh evidence for ourselves, we are not to try the case.  In our judgment Mr Vardon’s application to call the complainant came close to an invitation that we should do so.  We should not merely have been assessing the new evidence.  We would have been drawn towards conclusions as to the appellant’s guilt or otherwise: Mr Vardon would no doubt have invited us to believe the complainant on all three issues raised in the appeal, and to do so, moreover, without having heard the appellant’s evidence on Issue 1 (to which, as we explain below, we attach some importance).  But had we then adjourned to enable him to testify, we would assuredly have been acting as a surrogate jury.
19.	We acknowledge that there are cases in which the court has received evidence adduced by the Crown to rebut fresh evidence called for an appellant.  They include instances where objective scientific material is available which refutes the new testimony, or may do so.  This case is in a different category.  We would have been invited to measure the complainant’s credibility against that of the new witnesses for the appellant.  That is very close to the trial process itself, given the nature of the three issues in the appeal and the fact (see the summing-up transcript for 16 December 2010 at 35B-C and 40D, and 17 December 2010 at 10C-D) that the complainant’s credibility was at the heart of the case.  We should be trespassing onto the proper territory of the jury.
20.	In those circumstances we declined, as we have said, to receive evidence from the complainant.
THE FRESH EVIDENCE: (1) WHAT IT PROVES
Preliminary: Two Points
21.	That brings us to the first of two preliminary points: in reaching the conclusions which follow we have by no means forgotten that we have chosen not to hear evidence from the complainant.  Our task, following Lord Bingham in Pendleton, is to consider the effect on our minds of the new evidence relied on to support the appeal.  Retrying the case, or a particular issue or issues in the case, on all the relevant evidence would be a different exercise.  
22.	The second preliminary point concerns the appellant’s sister, Saba.  As regards much of the fresh material Mr Vardon would have us attach a degree of sinister significance to the part played by this lady in seeking to gather evidence on the appellant’s behalf after the trial.  Indeed one of the matters which prompted the court to adjourn the directions hearing on 17 January 2014 was Mr Vardon’s suggestion that the appeal involved a concerted attempt to manipulate the court process and that Saba was very much involved in it.  We indicated then that the Crown should conduct further investigations as it thought fit and that the fruits of any such investigations “and in any event the Crown’s position as regards this concerted attempt to manipulate the court” should be explained in a substantive skeleton argument.
23.	Nothing has come of that.  There do not seem to have been any such investigations, and there has been no skeleton taking the suggestion of abuse any further.  We make it clear that in our view there is nothing in it.  It is true that Saba spoke to various witnesses (at least to Diyare Askander, Saqib Zulfiqar and Zahida Manzoor).  But there is in our judgment nothing to suggest that she was acting out of anything other than a desire to clear her brother who she believed was innocent.  
Issue 1
24.	We turn to the effect of the new evidence.  On Issue 1, in our judgment the documentary material (to which we have referred at paragraphs 14 and 15: its authenticity is not disputed) of itself proves that the complainant’s sister Huma was living at [address] during at least part of the indictment period.  Mr Vardon submitted that the documents might be capable of other explanations; to the extent that that is so, it is only so in the realms of fancy.  In any case Huma’s residence at [address] (and her mother’s) is confirmed by the testimony of the witnesses Mussarat Ishaq, Diyare Askander, Saqib Zulfiqar and Mohammed Mahmood.
25.	Mussarat Ishaq is a family friend.  She said she used to visit the complainant’s mother and sister Huma living at [address] in 2006 and 2007.  She gave her evidence with the assistance of an interpreter, and with respect to her we are inclined to think she became a little confused when she was cross-examined, having difficulty in following some of Mr Vardon’s questions.  Her credibility however was undamaged, and we see no reason not to accept her testimony.  In addition to her evidence about Huma, she said she saw no injuries on the complainant at [address]; she and the appellant were very happy; she never saw the appellant’s mother ill-treat the complainant.  
26.	Diyare Askander kept his barber’s shop on the ground floor at [address].  He also said the complainant’s mother and sister lived at [address] in the summer of 2006. However he said nothing about 2007.  A striking detail of his evidence was that he remembered seeing them in the rear yard hanging out washing in their pyjamas.  He had not been upstairs to the flat at [address].  We consider him to have been an honest witness, and we see no reason to doubt the accuracy of what he told us. 
27.	Saqib Zulfiqar was an extremely reluctant witness, wanting nothing more than to distance himself from the appeal.  He said that they – meaning the protagonists, as it were, on either side of the case – were as bad as each other.  He resented the efforts that had been made to involve him.  As we have indicated his marriage to Huma had not worked out (the second Islamic ceremony, the Ruskati, never took place).  But he was clear that Huma was living at [address], and said that after she returned from Dubai in 2007 she spent some time at [address] and some time with him.  There is before us a transcript of quite a long telephone conversation between the appellant’s sister Saba and Zulfiqar on 31 October 2011, recorded without the latter’s knowledge.  It contains references to the complainant’s having phoned Zulfiqar before the trial and asked him to give false evidence to the effect that Huma had been living at Stalybridge (with Zulfiqar).  Before us he said he did not remember this conversation with the complainant.  Our impression was, to use a colloquialism, that he was in denial.  But we have no reason to doubt his core evidence that Huma was living at [address] during at least part of the indictment period.
28.	 The last witness to give evidence on Issue 1 (as we have said, via a video link from Dubai) was Mohamed Mahmood.  Again, he struck us as an entirely honest witness.  He has family ties or links with both the appellant and the complainant.  He was in the United Kingdom in 2006 and 2007, and lived at [address] for three months in 2006 and one month in 2007.  He saw that the complainant’s mother and sister Huma were also living there on the first occasion, and Huma on the second.
29.	In our judgment all this evidence provides clear proof that Huma was living at [address] for a substantial part or parts of the indictment period and that the complainant’s mother also lived there, albeit for a shorter length of time.
Issue 2
30.	Mahmood Talat Mahmood, father of the witness Mohamed Mahmood, also gave evidence via video link from Dubai.  He is related to the appellant and the complainant.  Their respective mothers and his mother are cousins.  He told us that the complainant’s brother Saleem telephoned him on the day of the appellant’s conviction, asking if he had heard the good news: the appellant had been sentenced to nine years imprisonment.  Saleem told him that because he (Mahmood) had not got involved in an attempt to reconcile the couple, they “did what they had to do”.  On Mahmood’s evidence this was apparently a reference back to an earlier episode, some time in 2009, when family members came to his house to tell him that there were difficulties between the appellant and complainant, and asked him to go to the UK to seek to reconcile them; he declined.  Then a few days after the appellant’s conviction the complainant herself telephoned him.  She asked if he knew the appellant had been sent to prison.  Mahmood said he was sorry to hear it.  She said it happened because he had not come to reconcile them.  She had no option but to lie to get the appellant into trouble: she wanted to stay with her kids.
31.	As we shall see, this reference to the children, and an apparent connection (if the evidence is true) between the complainant’s telling a lying story and a fear on her part of separation from them, has echoes in the testimony of Ayesha Malik, to which we shall come.  As for Mahmood, Mr Vardon cross-examined him on the express basis that he was lying to the court.  We do not believe that he was.  On any view this case involves layers of family relationships, and on the whole of the evidence we think it by no means incredible that first Saleem and then the complainant herself should have spoken to Mahmood in the terms he described.
32.	The other witness on Issue 2 was Zahida Manzoor.  She said she had known the appellant’s mother for 35 years.  She knew the complainant, whom she met quite often before the appellant was sent to prison.  They met by chance in the street after the appellant was sentenced: she (the witness) was on the way to the hairdresser.  The complainant told her she had made the accusation against him deliberately so that he would be disowned; she had sent him to prison; “in this country people listen to the woman”.
33.	In isolation, Zahida Manzoor’s evidence seems strange, to say the least.  But if, as we have accepted, the complainant spoke to Mahmood Talat Mahmood as he described, it becomes much less so.  She was prepared, in the immediate aftermath of the appellant’s conviction, to tell these witnesses that she had made a false accusation: and that, in our judgment, is what their evidence proves.
Issue 3
34.	Ayesha Malik was, like Saqib Zulfiqar, a reluctant witness; but also in our view an entirely honest one.  She worked (as she still does) at the Women’s Refuge where the complainant went in 2009, and was her project worker.  She became concerned at some of the things the complainant said to her before the appellant’s trial, though we thought she found it difficult to articulate these concerns.  She said the complainant asked about giving evidence over a video link, and whether, if she started crying on the video, “would the jury feel sorry for me?”  Later the witness reported the complainant as saying: “If the jury feel sorry for me, will he get a prison sentence, and be out of the way from me?” and “It was like: if I cry, do I look in the camera when I cry?”
35.	Ayesha Malik said the complainant was very distressed about her lack of contact with her children, who at this stage (before the trial) were living with their father.  She asked her (the witness) whether, if she “won the case”, that would mean he would not get custody – “am I going to get my kids?”  She did not want to talk about the rape case.  Overall, “something about her comments just wasn’t right”.  Although Ayesha Malik disavowed the express suggestion that the complainant was “practising” her evidence, and said in terms that she did not tell her she was not going to tell the truth, the effect of her testimony was that the complainant was strongly motivated by a desire to get the appellant out of the way, so as to ensure that her children would be with her; and was prepared at least to embroider her evidence accordingly.
36.	There are two other aspects to Ayesha Malik’s testimony.  First, she was worried enough to reveal her concerns to the police, though DC Anderton (for whatever reason) did not pursue them.  Mr Greaney QC for the appellant had some further points to make about DC Anderton, but it is unnecessary to go into them.  Secondly, Ayesha Malik told us that when she, the witness, was on maternity leave the complainant took away the notes she had made of their conversations. 
37.	In our judgment Ayesha Malik’s evidence, which we accept, strongly suggests that before the trial the complainant was at least contemplating that she might give a lying account to the jury.  To that extent it supports the evidence of Mahmood Talat Mahmood and Zahida Manzoor on Issue 2, to the effect that she admitted doing exactly that.
THE FRESH EVIDENCE (2):  ITS CONSEQUENCE FOR THE APPEAL
38.	In view of our conclusions as to what the fresh evidence proves, we are bound to find that the appellant’s conviction is unsafe.  The appeal is allowed.