Hussain & Ors v R.

A trial judge may permit a defendant to re-open the defence case at any time before the jury retires. The interests of justice, including trial fairness, are paramount. An appellate court must nevertheless decide whether any error in refusing time or permission could realistically have affected the safety of the verdict.

Voice-recognition evidence, particularly where the words are brief, requires firm and tailored warnings. It may still be left to the jury where the court assesses its quality, identifies supporting evidence, and gives appropriate directions about mistake, expectation and contamination. Questions of witness credibility and alleged collusion ordinarily remain for the jury where there is evidence capable of supporting the identification.

The appellants were convicted at Bradford Crown Court, following a jury trial before HHJ Gullick, of conspiracy to cause grievous bodily harm with intent. Shabran and Kamran were also convicted of possessing a firearm with intent to cause grievous bodily harm with intent. Each received 12 years’ imprisonment.

The convictions arose from violence between two family groups in Bradford. The prosecution alleged that Shabran fired shots in Bishop Street, that Kamran drove the getaway car, and that Ashiq co-ordinated events after his car was attacked.

Ashiq contended that he was unfairly denied time to consider calling a co-accused who had been discharged during the summing up. Shabran challenged the admission and sufficiency of voice-recognition evidence. Kamran challenged the reliability of eyewitness identification evidence and the refusal of a submission of no case to answer.

1. All three conviction appeals were dismissed. The court also upheld the single judge’s refusal of leave to appeal against sentence.

2. In Ashiq’s case, the trial judge had power to permit the defence to re-open before the jury retired. Fairness was of first importance when exercising that discretion. The judge was somewhat peremptory in refusing even modest time for counsel to consider whether the discharged co-accused, Nazim Hussain, should be called. That procedural unfairness did not make the conviction unsafe.

   The proposed evidence was not capable of improving Ashiq’s position. Nazim’s earlier alibi was admittedly false. His account was vague and inconsistent with cell-site and eyewitness evidence. Calling him would probably have damaged, rather than assisted, the defence. The court also refused leave to adduce the proposed Orange material. It lacked an explanation for its absence at trial and did not establish the asserted inaccuracy in handset records.

3. In Shabran’s case, the voice-recognition evidence was brief and required particular caution. The judge was nevertheless entitled to leave it to the jury. He gave a modified Turnbull direction, identified the risks of mistake, expectation and post-event contamination, and explained the limitations of lay voice recognition. There was also evidence capable of supporting the identification, including earlier threats, telephone evidence and the possible falsity of the alibi. The conviction was safe.

4. In Kamran’s case, allegations that prosecution witnesses had colluded or lied raised questions of credibility for the jury. The judge correctly identified evidence capable of supporting the identification, including Kamran’s untruthful assertion in interview that he could not drive. The asserted interlocking effect of the other cases did not undermine the safety of the verdict.

5. The sentences were manifestly justified for a conspiracy to cause grievous bodily harm with intent involving a firearm which was discharged and caused injury. No arguable basis existed to distinguish between the appellants or reduce their sentences.

• Court of Appeal (Criminal Division): The court granted Shabran and Kamran extensions of time and leave to appeal, then dismissed all three appeals against conviction. It also declined to entertain sentence appeals beyond the single judge’s refusal of leave.

• Bradford Crown Court: Following a trial before HHJ Gullick and a jury, Ashiq was convicted of conspiracy to cause grievous bodily harm with intent. Shabran and Kamran were convicted of that conspiracy and possession of a firearm with intent to cause grievous bodily harm with intent. Each was sentenced to 12 years’ imprisonment.