Kwaik, R. v

An accident-reconstruction expert may give an opinion on which vehicle initiated a collision where the opinion has a factual foundation, including physical marks and eyewitness evidence. The fact that the underlying evidence cannot itself yield a conclusive answer does not make the expert opinion inadmissible.

Fresh evidence under Criminal Appeal Act 1968 section 23 will not be received merely because there is a reasonable explanation for its absence at trial. It must also be sufficiently robust to afford a ground for allowing the appeal and make reception necessary or expedient in the interests of justice. Deliberately using a vehicle as a weapon in anger, causing death and grave injury, warrants a severe sentence; good character has limited mitigating weight in such a grave offence.

Regina v Abid Abu Kwaik concerned a collision following an episode in which eggs were thrown at customers outside a restaurant owned by the appellant’s brother. The appellant pursued a Ford Fiesta in his Honda sports car. The Fiesta’s driver died and its two passengers suffered very serious injuries.

At Southwark Crown Court, before His Honour Judge Pegden QC, the appellant was convicted of manslaughter and two counts of unlawful wounding. He received a total sentence of 12 years’ imprisonment. The Crown alleged that he deliberately drove into the Fiesta, using his vehicle as a weapon. The appellant maintained that the Fiesta moved into his vehicle.

On appeal, he challenged the admissibility of the Crown collision expert’s opinion and sought to adduce fresh computer-modelling evidence. He also renewed his application for permission to appeal sentence. The central issue was whether the expert evidence and the proposed fresh evidence undermined the safety of the convictions.

1. The conviction appeal was dismissed. The Crown collision expert’s opinion was admissible. His conclusion that the Honda had matched the Fiesta’s speed, steered towards it and applied prolonged lateral force rested on an adequate factual foundation: the tyre mark on the Fiesta and Hall’s eyewitness evidence. The fact that the physical and witness evidence did not, without expert opinion, conclusively identify the vehicle which first moved did not deprive the expert of a proper evidential basis. The disagreement of the defence expert went to weight, not admissibility.
2. The proposed fresh evidence was not received. Under section 23 of the Criminal Appeal Act 1968, the court accepted that there was a reasonable explanation for the failure to deploy the MADYMO technique at trial. That did not resolve the application. The modelling had explored only a small proportion of the relevant variables, no simulation fulfilled all the essential physical criteria, and further work was unlikely to produce a precise reconstruction. It therefore did not provide a sufficiently clear or firm basis to undermine the Crown case or afford a ground for allowing the appeal. Receipt of the evidence was not necessary or expedient in the interests of justice.
3. The renewed sentence application also failed. The deliberate use of a high-powered car as a weapon of revenge, following pursuit and dangerous manoeuvres, created an obvious risk of grave harm. The resulting death, catastrophic injury to one passenger and serious injury to another were substantial aggravating features. The court applied the sentencing approach stated in Attorney General’s References Nos 60, 62 and 63 of 2009, [2010] 2 Cr App R (S) 46, giving particular weight to the consequences of manslaughter. The provocation supplied by egg throwing did not mitigate the offending, since the appellant had repeated opportunities to regain control. Previous good character carried limited weight. A total of 12 years was firm but not manifestly excessive.

• Court of Appeal (Criminal Division) — conviction appeal dismissed and renewed application for permission to appeal sentence refused: [2013] EWCA Crim 2397.
• Southwark Crown Court — before His Honour Judge Pegden QC, the appellant was convicted of manslaughter and two counts of unlawful wounding, and sentenced to a total of 12 years’ imprisonment.