Lord Osborne

Lord Clarke

Lord Mackay of Drumadoon

[2010] HCJAC 101

Appeal No: XC818/06


delivered by LORD OSBORNE










Appellant: Kerrigan, Q.C.; Messrs Flynn & Co, Dundee

Respondent: McSporran; Advocate depute; Crown Agent

8 October 2010

Background Circumstances
[1] On 8 November 2006 at a sitting of the High Court at Edinburgh, the appellant was found guilty, by a unanimous verdict of the jury, on a charge in the following terms:

"(1) On 15 March 2004 at Kenmure Street, Pollokshields, Glasgow, you Imran Shahid, Mohammed Faisal Mushtaq and Zeeshan Shahid did, while acting with Daanish Zahid and Zahid Mohammed ... assault Kriss Donald, now deceased, then aged 15 years and seize him by his clothing, repeatedly punch and kick him on the head and body, partially remove his clothing and abduct him, force him to enter a motor vehicle, namely motor vehicle registered number Y541 VNS, imprison him there against his will, present a screwdriver, a knife and a hammer at him, repeatedly twist said knife against his body, pretend that you were in possession of a firearm, and force him to accompany you in said vehicle to areas of Dundee and thereafter to Clyde Walkway, Glasgow and at said Clyde Walkway remove him from said motor vehicle, restrain him by the arms, repeatedly strike him on the body with a knife or knives or similar instruments, pour an accelerant over him and set fire to him and you did murder him; and it will be proved in terms of section 96 of the Crime and Disorder Act 1988 that the aforesaid offence was racially aggravated."

The appellant's co-accused, Mohammed Faisal Mushtaq and Zeeshan Shahid, were found guilty of the same charge by majority verdicts of the jury.

[2] On 8 November 2006, the appellant and each of his co-accused were sentenced to life imprisonment to run from 6 October 2005. A punishment part of 25 years was selected in the case of the appellant.

[3] The trial in which the appellant was convicted was the second trial arising out of the murder of the deceased. In November 2004, two other accused, namely Zahid Mohammed and Daanish Zahid, had appeared at the High Court at Glasgow charged with the murder of the deceased. Zahid Mohammed pleaded guilty to the assault and abduction of the deceased and to a charge of attempting to pervert the course of justice. His pleas were accepted by the Crown and he was called as a witness against Daanish Zahid. Daanish Zahid was convicted of the murder of the deceased and sentenced to life imprisonment with a punishment part of 17 years.

[4] On 12 November 2007, the appellant lodged a note of appeal against conviction and sentence containing several grounds. For present purposes, it is unnecessary to be concerned with any ground other than ground of appeal 7B. Following a long series of procedural and other hearings, at a procedural hearing on 6 May 2010, the court, on the motion of counsel for the appellant, there being no opposition by the Advocate depute, allowed ground of appeal 7B to be received in its present form and allowed the note of appeal to be amended by the addition of that ground to the note, in terms of rule 15.15(4) of the Act of Adjournal (Criminal Procedure Rules) 1996. It also directed that the provisions of section 107 of the Criminal Procedure (Scotland) Act 1995, "the 1995 Act", should not, in the circumstances of this appeal, apply to the additional ground.

[5] Ground of appeal 7B, as now formulated, is in the following terms:

"7B The appellant seeks to bring his conviction under review, in terms of section 106(3)(a) of the Criminal Procedure (Scotland) Act 1995, by virtue of the existence and significance of evidence which was not heard at the original proceedings, namely evidence from Crown witness Daanish Zahid that the appellant was not one of the perpetrators of the murder but that that the perpetrators of the murder were Shahid Akram, Shafiq Akram, and Laiqit Khan (being the persons whom the appellant had instructed be incriminated as per ground 7A).

The appellant seeks leave to adduce an explanation in terms of sub-section (3A) which, it is submitted, is a reasonable explanation: namely that Crown witness 106 Daanish Zahid was threatened by the said perpetrators of the murder and was terrified to name the perpetrators when he gave evidence at the trial of the appellant and his co-accused.

In terms of sub-section (3C)(a)(i) and (b) the new evidence now sought to be adduced from the Crown witness 106 Daanish Zahid is, or will be, evidence from a person who gave evidence at the original proceedings. The appellant accordingly submits that there is independent evidence supporting the reasonable explanation referred to above in respect that:

(i) while in custody in HMP Shotts, Daanish Zahid was bullied and threatened by a fellow prisoner Zahid Mohammed into giving false evidence against the appellant and his co-accused: which will be spoken to by an independent witness Charles Smith;

(ii) Daanish Zahid was subject to inducement that he himself would receive a lighter sentence;

(iii) his family was threatened; and

(iv) the said Zahid Mohammed had to be moved from Shotts due to his bullying and intimidation of Daanish Zahid. The appellant seeks to adduce in support of this ground:

Affidavit of the said Charles Smith dated 4 August 2008;

Affidavit of the said Daanish Zahid dated 20 March 2009;

Affidavit of Tabish Zahid dated 17 April 2009;

Report of forensic mobile phone examination by Helena and John Butler dated 11 August 2008 regarding Nokia 8310 handset and Orange SIM card; and

Nokia 8310 mobile telephone and Orange SIM card."

At the procedural hearing held on 6 May 2010, having allowed the note of appeal to be amended by the addition of ground of appeal 7B, the court continued the appeal to a hearing on 18 May 2010 for the limited purpose of considering the issue of "reasonable explanation" in relation to that additional ground, in terms of section 106(3A) of the 1995 Act.

Submissions of the Appellant
[6] Senior counsel for the appellant submitted that, in relation to ground of appeal 7B, it would be necessary for evidence to be heard. Furthermore, that evidence would include evidence from an individual, Daanish Zahid, who had given evidence at the appellant's trial. It might be that that evidence would be different from, or additional to the evidence that individual had then given. Accordingly, not only would there require to be a reasonable explanation as to why that evidence was not heard at the original proceedings, but also the provisions of section 106(3C)(b) would operate. That was recognised by the appellant. In the first instance, it was necessary for the appellant to satisfy the court on the material that had been produced in written form that there was a reasonable explanation as to why the particular line of evidence in question had not been led at the trial. Following upon that, there would require to be a hearing in relation to that evidence, if the court were so satisfied and that the requirements of section 106(3C)(b) could be satisfied. It was submitted that it was appropriate for the evidence to be heard by the court before a conclusive decision was reached concerning those matters, as had been done in Lyon v Her Majesty's Advocate 2003 S.C.C.R. 692. Thereafter, as might be appropriate, in a further hearing the court would be asked to consider whether the existence and significance of the evidence which had not been heard at the original proceedings constituted a miscarriage of justice. In connection with these submissions, senior counsel relied upon Campbell & Steele v Her Majesty's Advocate 1998 S.C.C.R. 214. In that case it had been held that it was enough for an appellant to persuade the court to treat the explanation as genuine; he did not require to show by full legal proof that it was true. Reliance was placed on the observations of Lord McCluskey at pages 262-263 and Lord Sutherland at page 270.

[7] Turning to the position of Daanish Zahid, he had given evidence at the original trial in which he was an accused person. In that trial he had lodged a special defence of incrimination of the appellant. However, at the trial of the appellant himself, that individual had given evidence that the appellant had not been a participant in the murder, although he refused to disclose the names of those who had been. At the time of the appellant's trial, his advisers were not possessed of material to show the degree of terror that Daanish Zahid had been in at his own trial and, indeed, at the trial of the appellant. While it was recognised that he did say the appellant had not been involved, he did not go further by indicating who had been. Against that background the court, taking a flexible approach in the interests of justice, should be prepared to hear evidence of the circumstances relied upon. As regards the operation of section 106(3C)(b) there was supporting material in the form of several affidavits from a number of individuals. The criterion to be applied was genuineness, not absolute truth. That also applied to the supporting evidence.

[8] A significant factor was that a mobile telephone had been identified containing cogent material. Within minutes of the commission of the murder, Daanish Zahid had put into the telephone a recording of his fear that he might be murdered by those who had committed the murder itself. There also existed a prison record of the cells occupied by Daanish Zahid and his co-accused. It had been necessary for Daanish Zahid to be moved in order to isolate him from them, on account of the constant pressure put on him and his family to incriminate the present appellant. At the trial of the appellant himself, when Daanish Zahid was a witness, he had been subject to threats, for which there was independent support. While a number of issues would require to be rigorously addressed in connection with the operation of sections 106(3A) and (3C) of the 1995 Act, senior counsel suggested that, there being a plausible basis for the satisfaction of the requirements of these provisions, the court should proceed to hear the evidence and subsequently address the issues involved as had happened in Lyon v Her Majesty's Advocate 2003 S.C.C.R. 692.

[9] Senior counsel next turned to examine the available affidavits of potential witnesses. The first of these was that of Daanish Zahid, sworn on 12 May 2010. He examined this document in considerable detail. He also referred to letters dated 16 September and 20 September 2007 appended to that affidavit. Daanish Zahid was, of course, convicted at his own trial. He had given evidence of the sequence of events leading up to the murder of Kriss Donald and of the appellant's alleged involvement. He had accepted his own presence at the relevant events, but not involvement in the murder. At the appellant's trial he had given evidence that the appellant had not been involved in the murder; otherwise his evidence had been quite similar regarding his own participation. He had said that others were responsible for the murder.

[10] Senior counsel went on to draw attention to the evidence of Ashan Shahid, sworn on 11 May 2010. He described the fear and threats experienced by both him and Daanish Zahid in connection with the matter. That material constituted some support for the position of the latter. There was a substantial volume of further material of relevance, including the affidavit of Tabish Zahid, dated 29 October 2007, number 19 of the appeal process, and that of Charles Smith, dated 4 August 2008, number 12 of that process. There was also the report compiled by Helena Mary Butler relating to the mobile telephone, particularly pages 10-14. Reference was also made to an affidavit of John David Stewart, dated 22 September 2009, number 20(ii) of the appeal process. The affidavit of Paul Shields, dated 23 September 2009, number 20(i) of the appeal process also constituted independent support of the position of Daanish Zahid. In all the circumstances, the court should fix a hearing for the purposes of hearing the evidence of the appellant and the other witnesses to whom reference had been made in the course of the submissions. It might be that other witnesses beyond them might be able to give relevant evidence. It would be appropriate for there to be a procedural hearing before the hearing of evidence, at which a final decision could be made regarding the witnesses who would be heard.

The submissions of the Advocate depute
[11] The Advocate depute began by examining the position in the round. Even if there was a reasonable explanation as to why the evidence concerned was not heard at the original proceedings and even if there was independent support for that explanation, the lack of the evidence at the original proceedings did not constitute a miscarriage of justice. In connection with that submission, he relied upon Fraser v Her Majesty's Advocate 2008 S.C.C.R. 407 at page 437 in the opinion of the Lord Justice Clerk, paragraphs 131-134. However, in response to questions by the court, the Advocate depute quickly departed from that position. He accepted that the existence of threats to a witness might be a reasonable explanation as to why that witness did not give evidence at certain proceedings. As regards the matter of independent support in terms of section 106(3C), the Advocate depute accepted that there appeared to be material in the affidavits supporting the explanation. While that material had to be credible and reliable before the court could rely on it, no decision could be reached regarding that until evidence had been heard by the court. The Crown did not necessarily accept that the material was credible and reliable. The Advocate depute drew attention to the observations in Campbell & Steele v Her Majesty's Advocate at page 247. The issue at the present stage was whether the independent evidence, which had not yet been heard, was such that it could support the reasonable explanation advanced. Likewise it had to be capable of being regarded as credible and reliable.

[12] It is evident from the terms of ground of appeal 7B that the evidence not heard at the original proceedings, being the trial of the appellant, is contemplated as coming from Daanish Zahid, who was, of course, a witness at that trial. During his evidence he stated that the appellant was not one of the perpetrators of the murder. However, he did not elaborate as to who were the perpetrators, although it is acknowledged that he was present at the event concerned. In these circumstances, the provisions of section 106(3A), (3C) and (3D) operate. The explanation proffered as to why the evidence concerned was not heard at the original proceedings amounts to the suggestion that Daanish Zahid was threatened by the perpetrators of the murder and was in fear of them, rendering him unwilling to name them when he gave evidence at the trial of the appellant and his co-accused. That emerges from the affidavit of Daanish Zahid, to which we have been referred. It appears to us, and this was not disputed by the Crown, that that amounts to a potentially reasonable explanation.

[13] The provisions of section 106(3C) require that, in the particular circumstances, the explanation sought to be adduced as to why the evidence was not given in the original proceedings must be supported by independent evidence, which, in terms of sub-section (3D)(c) "is accepted by the court as being credible and reliable", as was pointed out by Lord Justice Clerk Cullen, as he then was, in Campbell & Steele v Her Majesty's Advocate, at pages 246-247:

"At the stage where the 'independent' evidence has not yet been heard the question is whether, on the information provided to the court, that evidence could support the explanation. Likewise at that stage the question is whether it is capable of being regarded as credible and reliable."

During the course of his submissions, senior counsel for the appellant drew attention to several affidavits and other sources of evidence which, he contended, were capable of supporting the explanation as to why Daanish Zahid had not given the relevant evidence at the original proceedings. It appears to us that, while it cannot be affirmed at this stage that such material is credible and reliable, it must be accepted that it is capable of being so regarded.

[14] In Lyon v Her Majesty's Advocate, in paragraph 8 of the opinion of Lord Coulsfield, at page 697, it was recognised that, where an explanation was capable of being regarded as being reasonable it was appropriate to hear evidence of the explanation and any necessary supporting evidence of the explanation, in terms of section 106(3C). It was suggested to us that we should follow that approach in this case. We are persuaded that we should do so. By taking that course, we do not commit ourselves to the view that the explanation proffered is in fact truly reasonable in the circumstances. Furthermore, the issue of the credibility and reliability of the supporting evidence remains for decision following upon the hearing of that evidence; ultimately the Crown did not demur from that view. In all of these circumstances we shall fix a hearing for the purpose of hearing the evidence of (1) the appellant, in so far it bears upon the issues raised in ground of appeal 7B; and (2) the other witnesses whose affidavits were relied upon in the course of the submissions before us, namely Ashan Zahid, Tabish Zahid, Charles Smith, John Stewart and Paul Shields. It may also be appropriate to hear evidence from Helena Mary Butler, the author of the report on the mobile telephone, in the event that her evidence cannot be the subject of agreement. It may be that there are certain other witnesses whose evidence may be capable of supporting the explanation involved. Any such witnesses will require to be identified to the court at the procedural hearing which we consider ought to be held, say, one month before the hearing of evidence. If any of the relevant material is considered to be capable of agreement between the appellant's advisers and the Crown, then, no doubt, that material should be the subject of formal agreement.