Neutral Citation Number: [2010] EWCA Crim 2020
Case No: 200804715B1
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CENTRAL CRIMINAL COURT
HIS HONOUR JUDGE ROBERTS QC
T20047965
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 21/09/2010
Before :

LORD JUSTICE RIX
MR JUSTICE CRANSTON
and
MR JUSTICE SWEENEY
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Between :

	REGINA	Respondent	
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	HAI	Appellant	

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Mr Lawrence McNulty & Ms Nichola Shannon (instructed by Russell-Cooke Solicitors) for the Appellant
Mr Brendan Finucane QC (instructed by Central Court Trial Unit) for the Respondent

Hearing date: Tuesday 2nd February 2010
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Judgment

Lord Justice Rix : 
1.	On 16 January 2004 at about 1315 a murder was committed in the East End of London in broad daylight in front of a host of onlookers, some of whom were involved to a greater or lesser extent in the circumstances leading to the death, but many of whom were not.

2.	The victim was a teenager, Ashley Hedger, who was 16 years old. He had been chased into the doorway of a grocery shop in Plashet Road, London E7, to which he begged but was denied entry. There in the doorway he was cornered, punched and kicked, and stabbed to death. 

3.	The murder arose out of an incident in which three youths had tried to rob Asian students coming from a local college. One of the students raised help from the nearby mosque. A number of young men in their late teens exited from the mosque, and gave chase to the would-be robbers who were pointed out to them. Two of the youths ran in one direction, as it happened into the arms of the police, and were safe. Another youth, the murder victim, who may have been the least involved in the attempted robberies or perhaps not at all, ran in the other direction and was caught and killed. The men from the mosque were led by a somewhat older man in his 20s or early 30s, with a full beard, who was seen by some to be carrying a knife, and who was variously described by a large number of witnesses. Police suspicion for the identification of that man was to fall on the defendant, Mohamed Hai. However Hai had left for Bangladesh two days after the murder (having booked his ticket the day after the murder) and did not return until after a first trial (in September 2004) at which four other men, including his youngest brother Anas, had been prosecuted as accomplices to the murder, but acquitted. At that trial the Crown’s case was that the fatal knife injuries had been inflicted by Hai, but that the others were guilty as a matter of joint enterprise. On Hai’s return on 22 December 2004 he was arrested at Heathrow, and subsequently tried before HHJ Roberts QC and a jury at the Central Criminal Court and convicted (by a majority of 10 to 1) on 12 December 2005. On 21 December he was sentenced to life imprisonment with a minimum term of 16 years, less 364 days spent in custody.

4.	This judgment deals with the court’s reasons for refusing Hai’s application for leave to appeal against conviction and its accompanying application for an extension of time within which to bring that application. The application for leave to appeal needed an extension of time of some two and a half years. It was brought on two grounds. One ground raised the issue of whether the judge erred in failing to leave alternative counts of manslaughter or section 18 to the jury. Leave to appeal on that ground was rejected on its merits by this court (differently constituted) and the application for an extension of time was also refused. The court gave its reasons extemporaneously: [2009] EWCA Crim 2157.

5.	The other, and principal ground, which involved applications to adduce further evidence, was then adjourned and heard earlier this year. At the hearing of that ground, the further evidence was heard de bene esse, but the applications for leave to appeal and for an extension of time were refused. Our reasons, however, were reserved, and are now contained in this judgment. 

6.	The new evidence concerned an important Crown witness, Mohammed Kibria Choudhury (or Chowdury), or Kibria as he was known and we may be permitted to call him. Two of the Asian students who had received attention from the would-be robbers were Hai’s youngest brother, Mohamed Ali, known as Anas, and Anas’s friend, Kibria. Kibria had dashed for help to the mosque. Kibria was 16 at the time, and Anas 18 or 19. Kibria was not only a friend of Anas but also the brother-in-law of Hai’s eldest brother, Jamil, who was married to Kibria’s eldest sister, Parveen. He referred to Anas and Hai as his cousins. 

7.	Kibria had given a first witness statement to the police on 15 April 2004. He had gone to ground for three months after the murder, by giving up his job, working at a restaurant, and his home over the restaurant. In the end the police had managed to trace him. In his first witness statement (his “first statement”), he described the people involved in the attack as including Anas’s older brother “Shahin”, ie Hai. (Hai was also known by others as “Wolfie”.) However, after Kibria had contacted the police on 5 July and attended the police station on 7 July 2004 about changing his evidence, he was later arrested and interviewed three times under caution by officers not connected with the investigation. He then confirmed in detail his retraction of part of his original evidence. He continued to say that he had seen Hai in the mosque and running out of the mosque, but he now said that he had seen nothing of the assault thereafter and that anything to the contrary in the first statement was not true. His arrest and interviews took place on 20 July 2004 (the “July interview”). 

8.	The consequence of this interview was that Kibria was charged with attempting to pervert the course of justice. He was granted conditional bail (although bail was resisted by the police) but spent eight days in custody on remand before the conditions were fulfilled. At a subsequent hearing on 4 August 2004, after his release from custody, he spoke to the police officer who had interviewed him (DS Sword) and enquired whether he would be assisted by reverting to his first statement. The upshot was that Kibria made a further witness statement on 5 August 2004 to the original investigating officer DS Attewell (the “second statement”) in which he reaffirmed the truth of his first statement (with some minor corrections). He explained his previous change of mind and his interview as a reaction to fear that revenge would be taken on him or his family. He explained his further change of mind and willingness to make his second statement by reference to the experience of prison (“I then realised what prison life means”), his inability to lie in court “with the Koran in my hand”, and his family’s reassurance that he must tell the truth and was not to worry about them. As a result the charge of attempting to pervert the course of justice was dropped. 

9.	At the first trial in September 2004 which took place while Hai was still in Bangladesh Kibria gave evidence in accordance with his first statement. On 24 January 2005, after Hai’s return to England and arrest, Kibria gave a further witness statement (his “third statement”) in which he said that on the day of the incident Hai (“Shahin”) had told him to go home (meaning to Hai’s home at Upton Park Road, where Kibria spent a lot of time with his friend Anas), which he had done. He was later joined there by Hai and Anas. Hai told him that if questioned by the police, he was to say that he had not seen anything.

10.	At Hai’s trial Kibria gave evidence (with the assistance of special measures) in accordance with his statements, but the whole story of his changes of mind and of the interview was revealed and explored.  

11.	The new evidence with which these applications are concerned is a further retraction by Kibria of the evidence he gave at trial. Kibria has made a further statement dated 4 April 2007 (the “new statement”), given to Hai’s solicitor, in which he puts forward a different version of events. The essence of it, however, is that he never entered the mosque and never saw Hai either in the mosque or outside at any time that afternoon. He admits that he committed perjury at trial, and says that he only did so because he thought that the police would bring charges against him if he told the truth. He said that he had only mentioned Hai’s name in the first place because he was confused and frightened and the police were threatening him with a murder charge. When he wanted to tell the truth, he was arrested for attempting to pervert the course of justice. He was later told the charge would be dropped if he reverted to his previous statement, which he did. 

12.	Kibria’s new statement is supported by two further statements from witnesses who gave no evidence for the defence at trial. One is from his elder brother, Muhammed Al-Amin Chowdury (“Muhammed”). Muhammed’s statement is earlier than Kibria’s, being dated 7 August 2006. It speaks to two occasions when Kibria spoke to his brother to say that he had told lies about Hai to save himself, and regretted what he had done

13.	The other statement is from Kibria’s uncle, Somuj Ali Chowdury. His statement is the earliest of the three, being dated 3 August 2006. He states that when Kibria returned from giving his first statement (on 15 April 2004) he told his uncle that Hai and Anas “were not at the scene when the incident took place”. 

14.	On behalf of Hai, Mr Lawrence McNulty had submitted that the new evidence was credible and admissible, and such that it could not have been obtained for trial. On that basis, the evidence should be received, an appeal granted, and the appeal allowed on the ground that Hai’s conviction could no longer be regarded as safe. That was because Kibria’s evidence had been of pivotal importance at trial.

15.	Without determining the status of the new evidence, but in order to assist us to decide whether to receive it and how to consider it for the purposes of section 23 of the Criminal Appeal Act 1968, we heard Kibria, his brother and his uncle, give evidence before us de bene esse, to see what it was worth. 

16.	We will come to that evidence after we have stated in greater detail the nature of Kibria’s evidence at trial, and also the history of his dealings with the police.

Kibria’s evidence at trial

17.	We take this account of Kibria’s evidence at trial in the main from the judge’s careful summing-up, but we have also been provided with a full transcript of that evidence.

18.	In examination in chief Kibria described how, after the attempted robbery, he ran to the mosque where he found Hai and told him that Anas was in trouble. Hai came out of the mosque with some friends, about ten in all. Hai was prone to anger over small things, and was angry then. He, Kibria, pointed out where Anas was. Hai and the others ran to him. The robbers ran off, but Anas was holding on to the clothes of one of them. Hai was saying “Hit him, hit him”. He punched the boy and kicked his legs and the others joined in. A few minutes later the boy was in front of the grocery shop (where he died). Everyone was hitting him there, including Anas. Hai was holding his hair and punching him. Kibria was allowed to refer to his (first) statement to give descriptions, and described Hai as wearing a black leather jacket, a white dhoti, blue Adidas trousers and white trainers. Hai said to the boy, “Why are you touching my brother?” Kibria said he was observing this from the other side of the street. He did not see anyone with a knife. Afterwards, he made his way to Hai’s home in Upton Park Road, which is what Hai told him to do. Later, Anas and Hai joined him there. Hai told him not to say anything about what had happened. Kibria phoned his employer to ask him to pick him up, which he did and took him to the restaurant where he worked.  

19.	Kibria was asked about his first statement where he had said that when he left Plashet Road he went to Green Street and then went home, from where he later phoned Anas and learned that the victim was dead. He said nothing there about Hai telling him to go to Upton Park Road. That was in his third statement. He said that he did not want anyone to know that he went to Upton Park Road – he was afraid of his uncle and big brother who would not have liked to know that after what had happened he had gone to Hai’s home.  

20.	Before the judge related this evidence in his summing-up, he began by setting it in its complex context. He started by giving the jury this direction: that they should ask themselves two questions, first, whether they were sure that Kibria was truthful and genuinely trying to give them an accurate account, because if they were not sure of that, they should disregard his evidence entirely; and secondly, whether he may have made a genuine mistake in implicating Hai. 

21.	Turning to this second question first, the judge reminded the jury of the evidence that Kibria had given about his own and Hai’s families. They were linked by the marriage of Hai’s brother, Jamil, to his sister, Parveen. He had a younger and an older brother. (The younger brother is called Zubair, and the older brother, who has given one of the new statements, is called Muhammed.) Hai was one of five brothers: the youngest Anas, who was Kibria’s own friend, next Hai himself (who was 22 at the time of the murder), then Lal, described as about 24, then Raju, described as 32 or 33, and the oldest (it was thought) was Jamil. Hai lived at Upton Park Road with his mother, as did his brothers Lal and Raju and their wives and children, and Anas. (Jamil and his family lived in Birmingham.) Kibria frequently stayed at Anas’s home when he had a day off work, sometimes sleeping over. Kibria had come to England in July 2002, and said he knew the family well, through Anas. 

22.	Kibria described Hai (whom he knew as Shahin) as in January 2004 having had shaved hair, a Muslim beard and no moustache, the beard being quite long and going all the way round his chin. He was well built, and trained in a gym in his family home. (The judge pointed out, however, that it was common ground that Hai did not have shaved hair at the time, although his brother Lal did.) Kibria said that Hai was unmarried, but had a girlfriend, but was reminded in cross-examination that in his witness statement he had said that Hai was married. He said that Raju had threatened him not to mention anything about Hai having a wife. He said that he had been present at Hai’s wedding, and that his wife had had a child since the time of the incident. He was cross-examined on the basis that he was muddling Hai and Lal up, but he denied it and said that Hai lived at the family home with his wife. The judge commented that it seemed Kibria did get Hai and Lal mixed up in two respects, first ascribing Lal’s shaved head to Hai, and then thinking that Hai’s wife was called Fatima, when that was the name of Lal’s wife. It was suggested on the part of the defence that it might have been Lal who was seen by Kibria at the time of the assault, or even Raju or Jamil. However the judge pointed out that Raju had a complete alibi of which there was prosecution evidence at trial; that a photograph of Lal taken only some two weeks before the murder showed that he did not have the thick beard spoken of by Kibria and other witnesses; and that Jamil lived and worked in Birmingham and did not match the descriptions given by witnesses of the man involved. All that related to the judge’s second question, as to whether Kibria had made a genuine mistake.

23.	As to the judge’s first question, and Kibria’s credibility, the judge remarked: “You may well conclude that Kibria was not telling us the whole truth about anything.” He reminded the jury that while Kibria’s account of events excluded his own involvement in the assault, for he said that he watched events from the other side of the road, other witnesses had said that Kibria was in the group of attackers. The evidence was not clear-cut, but “If Kibria was more involved with what occurred than he himself is prepared to admit, that would certainly help to explain his behaviour afterwards”, ie keeping out of the way for some months. In the end, however, the police traced him with the help of his uncle. The judge told the jury that if they concluded Kibria was lying about his own involvement, that would obviously be an important matter for them to consider: but it did not necessarily mean that he was lying about other people’s involvement, especially when he had implicated members of his own (extended) family, such as Anas and Hai. Would Kibria falsely implicate his friend, Anas, and his friend’s brother, Hai, to both of whom he was related through his sister’s marriage? 

24.	On this question of credibility, the judge also reminded the jury about the history of Kibria’s oath-taking. He had originally affirmed, and when cross-examined on that matter, had pretended that he had simply followed the interpreter in doing so, on the spur of the moment. But it turned out that the interpreter had asked Kibria what he wanted to do, and he said that he did not want to swear on the Koran. That was why she affirmed too. Kibria did swear on the Koran in the end, but only after it had been raised by Mr Peart QC, leading counsel for the defence at trial, and a member of the jury had asked if Kibria was prepared to do so. The judge asked the jury to think about these matters, but also commented that they might agree with Mr Peart’s submission that Kibria knew before he came into court that he was not going to be telling the whole truth (eg about his own involvement) anyway.    

25.	At this point the judge also reminded the jury of the evidence of DS Attewell, the officer who had principally dealt with Kibria. He had kept a running notebook of his dealings with him. DS Attewell said that during the taking of Kibria’s first statement on 15 April 2004 Kibria had told him that Raju had telephoned him and threatened to kill him if he spoke to the police. Kibria did not want that to go into his witness statement, and so it did not. Over the next few weeks both Kibria and his uncle (the uncle who has now given the third new statement before us) contacted DS Attewell to express their concerns for Kibria’s safety as they felt that Hai’s family might harm him. Then in early July Kibria had said that he wanted to change his statement. DS Attewell contacted the Crown Prosecution Service who advised that Kibria should be interviewed by another officer. That was how DS Sword had come to interview Kibria on 20 July, when he was arrested and charged with attempting to pervert the course of justice. Then on 4 August DS Attewell heard that Kibria wanted to revert to his original statement, and on 5 August he was seen and did so (his second statement). 

26.	So all these matters were laid out before the jury, and Kibria himself dealt with them or was cross-examined about them. Kibria’s own evidence about these matters was as follows. After he made his first statement, he was worried about what he had done “because my cousin could go to prison”, and because his own family was asking “Why did you do that?” Everyone was pressurising him. He was frightened for himself and his family. He also spoke about his uncle. He told the jury that after his July retraction (ie on 7 July 2004) he had had a conversation with his uncle in the presence of the police, when the police had dropped him back at his uncle’s home. He said that his uncle knew that his first statement was true, and wanted to know why he was changing it. He told his uncle that he was scared because what he had said was not true. He told the jury that he had lied to his uncle and lied to the police (in making his retraction). He then dealt with his interview and arrest. He said that while in prison, he had spent the time crying, but also realising that he was not doing the right thing and ought to go back to his original statement. So when he next saw DS Attewell, he thought that he could re-write things. He asked if it would help if he went back to his first statement, and was told it might. He went back to his first statement, and the charge against him was dropped. The judge reminded the jury that it was the defence case that the CPS had acted cynically to put pressure on Kibria to say what they wanted him to say.

27.	Kibria was also cross-examined about a further attempt to get him to change his evidence, just the evening before he went into the witness box. This concerned Kibria’s younger brother, who told him that his sister would give him a home in Birmingham if he “saved” his brother and Hai by lying. His brother told him: “If you don’t say that you are going to lose everything”. Kibria said he could not lie and risked prison if he did. He sought to placate his angry brother by giving him his bicycle. He told his brother: “I think this is the last time we speak.” He said: “I had to make a choice between my brother and the truth.” Mr Peart suggested a different explanation, but, as the judge remarked, no evidence was called to contradict that account. 

28.	The judge then turned to an aspect of Kibria’s evidence where he had “obviously not always told the truth”, namely what he did and where he went after the attack. There was evidence from other witnesses to the effect that he went with others to the Green Street mosque. Kibria told at least three different stories, none of which involved him going to the Green Street mosque. His first account (in his first statement) was that he went via Green Street to his own home, ie in a direction opposite to Upton Park Road. His second account (in his second statement) was that he had been picked up from Green Street by his employer and given a lift home. His third account, which emerged at the first trial when he said that there was something he had forgotten to tell the police, was that he had been to Upton Park Road after the attack and had seen Hai and Anas there. The judge commented that the jury may think that was either not true or had been deliberately suppressed rather than forgotten. Kibria’s third statement had repeated that third account, and it was the account Kibria had given again at the second trial, with this difference however: in his third statement Kibria had said that Hai had told him to go to his home at Upton Park Road, whereas in his evidence at trial Kibria did not mention this aspect of the third version until he was reminded of his third statement. The judge asked the jury to consider these changes, commenting on the one hand that Kibria may have wanted to distance himself from Hai and on the other hand that to tell a lie that placed him after the attack with two people whom he identified as implicated in the assault might be an odd thing to do. 

29.	The judge also commented on a further aspect of this part of Kibria’s evidence, which was connected with Hai’s alibi at trial. Hai said that he was staying with a friend, Mohammed Alom, otherwise known as Mobs, and had done so since December 2003, having been thrown out of his home. Alom supported him in that alibi. Hai said he had never returned home after that split. That alibi was of course unknown at the time of the first trial. So, Kibria would not have known that his third account of what he did after the attack would be inconsistent with Hai’s subsequent alibi. If therefore Kibria was lying about that, then he was not only prepared to stick to a false story about implicating Hai, but was prepared to embellish it in ways which created further difficulties for Hai. For if Hai and Anas did indeed join Kibria at Upton Park Road after the attack, then that was a powerful aspect of Kibria’s evidence against him. 

Kibria’s new statement

30.	We will set out Kibria’s new statement verbatim:

“On 16 January 2004 I attended college with my cousin Anas Alem and some friends. When we finished college we walked along Plashet Road in Upton Park, East London to a fish and chip shop. Anas and I went in the shop and our friends went to the mosque.    

One we had bought our food, Anas walked out of the shop and I followed. As we continued along Plashet Road we realised that we were being followed. The people who were following us knew that Anas had money. I did not know any of this group. They confronted me and shouted at Anas to come over. He came over and the group spoke to him about the money. They grabbed him by the collar and I ran to the mosque which is nearby. One of the boys who was white and had a leather jacket pulled out a knife. I shouted to my friends Kabir and Kolim who were standing by the door of the mosque. I told them that Anas was being attacked.

When I was spoken to by the police about the incident, I told them that I had gone into the mosque and shouted out Abdul [Hai]’s name. However this was not true. My friends shouted to others in the mosque to come and help. A group of about ten people came out. As the group from the mosque came out, the group who had grabbed Anas scattered, but Anas managed to grab hold of the boy with the knife. He was attacked by the group from the mosque and was beaten badly. I was standing on the other said of the road when I saw this. I saw that one of the group had a knife but I did not see who stabbed the boy.

After the incident Anas told me to go home. I went back to my home address at 101 Upton Park Road. I was supposed to be working that day at the Indian Cottage restaurant in Kelvedon in Essex. I had to ask my boss to pick me up which he did at about 2.30pm that afternoon. I told my employer what had happened at the mosque and I was dismissed from my job as a result.

On the Monday following the incident I went to work at my uncle’s restaurant…On that date I got a telephone call from Kolim. He said that he had given my address in Essex (ie the restaurant) to the police. The next day the police came to the restaurant in Thornton Heath. Someone in Kelvedon must have given them the address. I was scared. They arrested me and took me to Norbury Police Station. I was interviewed and told the police what had happened. I did not mention Abdul’s name to start with but they kept pressing me, so I told them he was there. I only did this because I was confused and frightened about what would happen to me.    

The police were threatening me with a murder charge. I only arrived in the UK on 13 July 2002 and my grasp of English was not that good at that time. It was all new to me and I did not understand what was happening to me. The police took a fourteen page witness statement from me which I signed. I gave the same account I had given in the tape recorded interview. However, I did not have an interpreter present when the police took that statement so I am not even sure exactly what I said, but I did place Abdul at the scene. My uncle’s son Alam Choudhury works for the Ministry of Defence and speaks very fluent English. I asked them to call him so that he could attend the police station to check what I had said. He did attend but he had just finished work and did not seem to want to get involved. He read the first few lines of the statement and that was it. He did not check through the whole statement. Once the statement was signed, the police let me go.

About a week and a half later I went back to the police and told them that what I said before was untrue and I wanted to say the truth now. By this time I was working in a restaurant in Purley High Street. The police arrived there and arrested me for attempting to pervert the course of justice. I was taken to Belgravia Police Station and interviewed there. I was charged and kept in custody for a week. The police told me that if I reverted back to the story I had given in the first interview, they would drop the charge. When I appeared before the Magistrates’ Court, I said that the original interview I had given was correct. I asked the police for a tape recording of my fourteen page statement but I never received it.

The police did eventually drop the charge against me and I was asked to be a witness in Abdul Hai’s trial. I gave evidence at the Crown Court in accordance with my original interview with the police, indicating that Abdul was present during the incident. This was completely untrue and I did not see Abdul that afternoon. I accept that I committed perjury in court. I only did so because I thought that the police would bring charges against me if I told the truth. I am now in the witness protection scheme. 

I understand that I could be liable to prosecution for what I have done. However I am willing to attend any appeal or re-trial in order to tell the truth about what happened.”

31.	Thus Kibria in this new statement has departed from every piece of evidence that he has previously provided, including his interview in which he retracted (part of) his first statement, in saying that he never went into the mosque and never saw Hai at all that afternoon. His first statement had said that he had gone into the mosque, had called Hai out, had seen him come out and had seen him participate in the assault. His interview said that he had gone into the mosque, had called Hai out, had seen him come out, but had seen nothing of the assault thereafter, having turned away. His second statement went back in essence to his first statement. He gave evidence at both trials implicating Hai. His new statement now confirms all his evidence, other than his interview, in saying that he witnessed the attack, but with the critical difference referred to above. He continues to stand by his third account of what he did after the attack, namely to return to 101 Upton Park Road, but he now describes it as “my home address” which it was not, and says that Anas told him to go there, whereas he had previously said it was Hai who did so. 

32.	Hai’s new solicitor, Mr Jonathan Conder, has made an affidavit describing how this new statement (and the two others) came to be made. The contact was Hai’s brother Raju (Mohammed Hussain). It was following a number of calls from him that Mr Conder said that if Kibria wanted to see him, he should contact him directly, which in the end he did. 

Kibria’s evidence at the application hearing

33.	Kibria was examined in chief by Mr McNulty, Hai’s new counsel, and cross-examined by the Crown’s trial counsel, Mr Brendan Finucane QC. He took his oath on the Koran. His evidence was most unimpressive.

34.	In a number of critical respects, from the point of view of his new stance, he failed to come up to proof. Thus he said in his new statement that his first statement had been taken in circumstances where he was being threatened with a murder charge and that his evidence at trial was because of his fear that the police would bring charges against him if he told the truth. Mr McNulty sought repeatedly to extract that evidence from him on oath, but failed. On the contrary, Kibria said that the only threat was what might happen to him if he lied, if he did not tell the truth. Thus my notes of this passage of evidence are as follows:

	“Q. Anything said about if you did not make a statement?
A.	I don’t remember.
Q. Any threats?
A. That for lying, I could get prison. If I didn’t say what I saw. I don’t know on what charge.
Q. Did they say they would charge anyone for murder?
A. Not anyone…If I didn’t tell truth, I could go to prison for that, for not telling truth.”

35.	Of similar critical significance was his inability to explain why it was that, even in his interview, when he sought to retract his first statement or rather certain parts of it, he still said that he entered the mosque, saw Hai there, and called him out to help Anas. However, he retracted his first statement’s evidence that he had witnessed the assault, and Hai’s part in it. Thus he said at his interview that he had gone away and not seen anything that followed. He was now saying, however, that he never saw Hai at all that afternoon. In examination-in-chief he was not asked to explain or even to allude to this anomaly. Rather, he was merely asked to say why in his first statement he had named Hai as one of the attackers, and he said: “because they told me to sign it…I knew it said [Hai] was one of the attackers. But I was a teenager, and felt relaxed, I thought it was over…It wasn’t true”: and when he uttered those last words he hung his head and sighed deeply (in our judgment, on the basis of his evidence before us as a whole, because he knew that that was the critical lie). 

36.	In cross-examination, however, he was taken to his interview. He had had an interpreter and a solicitor present. It was a lengthy interview, over three separate sessions, and it would be difficult and unnecessary to go into detail about it. However, some critical aspects of it, about which Kibria was asked in cross-examination, were as follows. At an early stage of the interview he was asked whether his first statement was an accurate account of what happened. He said:

“Mostly it is true, but there needs to be some alteration to a small part of that statement.”   

Before us he confirmed that his retractions had been limited only, and also confirmed as true passages in his interview where he said he went into the mosque, and in particular this passage:

“Q. You mention Anas’s brother being there as well, Shahin, who we mentioned earlier.
A.	Yes.
Q. And then you say that Shahin ran out of the Mosque first. Shahin’s two friends followed. Then Amran followed and Kolim and I went behind them.
A.  Yes.
Q. Is that correct?
 A. Sorry (inaudible).
Interpreter. This bit about Anas and Kolim, if you could read again please.
Q. What he says is yeah, ‘Shahin ran out of the Mosque first, and I knew, at this point, there was going to be big trouble.’
Interpreter. Repeats the above in Bengali.
A.	Yes…
Q. ‘I went behind them.’
Interpreter. Repeats the above in Bengali.
A.	No, I didn’t go with them.
Q. Okay. So, what are you saying then? What happened?
A. No. I, they was running that way. I know that be big trouble. That’s why I was standing…we go near there, Green Street.
Q. Okay. Let’s take it very slowly and let’s stop there. So, you left the Mosque?”

37.	Kibria then explained how he left the scene and did not witness the following events. However, even so, the evidence in his interview was deeply significant, in that it put Hai at the scene, as having been called out of the mosque to assist his brother, Anas, in circumstances where Kibria knew that there would be “big trouble”. Kibria confirmed on oath in our court that what he had said in interview was true. When, however, the consequences of that were pointed out to him, for instance that he had spoken to Hai in the mosque and so forth, Kibria said it was not true. “Today I am here to say I did not see him.” When he was reminded that he had just said that the interview was true, he agreed that was so. His evidence came apart at one stage when he was being pressed with the fact that he had himself told the police that Raju, Hai’s brother, had threatened to kill him. He was asked to agree that he was terrified. He said:

“Yes, but I was scared because I had seen a murder – but not that clearly. It’s not that big a point. I heard about it. I didn’t see it.” [Emphasis added.]

Indeed, in his evidence before us, Kibria at one point said that he had followed the attackers, rather than turn in the opposite direction as he had said in the interview. He was asked about this in re-examination. His answer admitted that he had called out people from the mosque, and he continued: “I came out of mosque and turned right [ie away from the direction of the chase and attack]. I saw the boy being attacked, but far away.” Kibria’s twists and turns made his evidence wholly incredible evidence.

38.	Thirdly, Kibria was unable to deal adequately with an explanation of why his first statement had said what it did. His new statement referred wrongly to a tape recorded interview. There was none, and it was at Kibria’s own request that the witness statement had not been taped, as the opening paragraph of it recorded:

“It has been explained to me that this would normally be taped recorded. I do not wish to be tape recorded whilst providing this statement as I feel it would be safer for me.”   

His new statement said he did not have an interpreter present and was not sure what he said. Although his uncle’s son, Alam, had attended at his request to read him his statement in Bengali, he said that Alam had read only the first few lines. However, even so, he knew that he had placed Hai at the scene. However, the last paragraph of his first statement said this:

“Although I can read, write and speak English, I have asked DS ATTEWELL to read the statement to me. My cousin Mr Alam CHOWDHURY has also read the statement and I fully understand the content and agree that it is true to the best of my knowledge.”

It is not credible that his cousin Alam would have attended specifically to translate Kibria’s statement into Bengali and then not have done so. There is also a contemporary note by DS Attewell that his cousin had read over the statement to him. Moreover, at trial, Kibria confirmed to the judge that Alam had read and translated his statement to him, thus:

“Q. Did your cousin help with any interpreting as you were making the statement, as you were telling the police what happened?  
A.	No, he read over the statement for me and I did understand.
Q. Yes, right. Did he read over to you in English or did he translate it into Bengali?
A. He read it in English but he translated to me in Bengali.”

Kibria now denied the truth of those answers at trial, and again hung his head as he did so.

39.	Fourthly, Kibria was unable to deal adequately with the full history of his dealings with the police, which were recorded in DS Attewell’s notebook, and significant parts of which were put to him. For example, at about the time of the first statement, DS Attewell recorded Kibria telling him that Raju had telephoned him shortly after the murder to tell him not to speak to the police and had threatened to kill him if he did. Kibria did not deny a conversation with Raju, but answered lamely that it had been merely to tell him not to speak to the police without an interpreter or solicitor, and that he had not threatened to kill him. Later, when Kibria made his second statement of 5 August 2004 and returned to the evidence in his first statement, DS Attewell’s notes refer to Kibria’s explanation of his retraction as being his fear of Hai’s family, both for himself and his sister. DS Attewell’s notes reflect what Kibria said in the second statement itself which was as follows:

“Today I have told the police that my statement of 15th April is actually true. I shall now go on to explain why on 7th July and 20th July I said my statement of 15th April was untrue. Two or three weeks after I had given this statement I started to feel very frightened. I became very worried. I thought on the strength of this statement of 15th April, Anas, Shahin and Amram will get prison sentence. After coming out of jail they might take revenge on me, my family, my brothers and sister in the future…”

40.	In his evidence before us Kibria agreed that he had said all these things, including the passage in DS Attewell’s notes recoding “He said that he would rather gone to prison than die as a result of being harmed by these people.” However, he now said that these things were said merely to save himself from prison (for perverting the course of justice), and that he had to give a reason for going back to his first witness statement, and that it was not true that he was afraid. However, that evidence was contradicted by what followed.

41.	Thus, at another point in his cross-examination, he was questioned about a witness statement which DC Whistler had made on 17 November 2005, during the trial, when he had gone to pick Kibria up to take him to court to give evidence. The police officer’s statement contained the following record of Kibria’s terror: 

“He asked me if he could change what he said in his statement. I told him it was vital to tell the truth and say exactly what he saw. He told me that he was very frightened and was scared to say what happened. He became distressed and began to say “I can’t say it, I can’t”. I asked him why he was so scared and he was reluctant to tell me, he just kept saying he was scared and would now say he could not recall Shahin doing anything as he was in fear of what would happen to him and that the mosque community was small and they would abandon him. I again explained his responsibilities as a witness and the need to be truthful. I asked him what exactly has been said to make him so fearful. He said “Last year before I gave evidence [ie at the first trial] Raju, the brother, said he would kill me. I know he’s been caught with guns. My family have also been telling me to lie because they are frightened they may be hurt. They will abandon me if I tell the truth. Everyone can find me because of working in restaurants. If I tell the truth I’m dead. I need to be somewhere safe”. I noted these comments immediately at 08.23am and both [Kibria] and I signed them as an accurate record. I said to [Kibria] “Why are you so scared of Raju?” A: “I know he has been in prison because he was caught with guns. My little brother told me last night that if I told the truth Raju is spreading it around that me or my family will be killed. They can always find me because they know I have to live above the places I work and they can easily find me”.   

42.	Kibria accepted some parts of this record, but not others. He said: “the way I said it was different. I told him of my trouble, I know I have to touch the Koran and speak about [Hai]. Raju had phoned me, and was angry about my lies, and talked of punching me up, and so I mentioned it to the officer. But he didn’t threaten to kill me.” He agreed that he was scared, but it was on this occasion that he said “because I had seen a murder”. He also said: “I said so many things, and I was afraid, and nothing was working out…A lot is true and a lot not true…” In re-examination he said: “It felt like Raju was threatening to kill me, but in fact it was only to punch me.”

43.	In our judgment, PC Whistler’s statement gives a realistic insight into Kibria’s predicament, which continues. Kibria has been in a witness protection programme since the trial. One can have sympathy for that predicament, but it does not make the burden of Kibria’s new evidence any the less incredible. Indeed, Kibria’s motivation emerged at times during his evidence before us. He agreed that his contact over his new statement had been Raju. And at the end of his examination-in-chief he said: “I started to miss my family. So I wanted to say the real truth.”

44.	Another example of Kibria’s difficulties with dealing with DS Attewell’s record is that on 7 July 2004, when Kibria was indicating to police how he wished to alter the evidence of his first statement, DS Attewell’s notes record that when it was suggested to him that his previous descriptions of those involved in the assault (which he was now saying he had not witnessed) matched those of other witnesses, he said that these must have been “lucky guesses, as he was lying”. Kibria agreed that he had said that, and thus confirmed at any rate in this respect the accuracy of DS Attewell’s notes. He was here recorded, in the context of his period of wishing to retract parts of his first statement, as giving a most unsatisfactory explanation of his new account. 

45.	In our judgment, Kibria’s new evidence was wholly unsatisfactory and incredible. We were satisfied, on the totality of the material before us, that the essential evidence that he had given at trial, that he had not only called Hai out of the mosque, but seen him lead the other attackers in the assault on the victim, in support of Hai’s own brother Anas, Kibria’s friend, and that he had later gone to Hai’s home at Hai’s suggestion and seen Hai and Anas there, was truthful, and that the rest was caused by fear of his predicament.

Kibria’s brother’s new statement

46.	Kibria’s elder brother, Muhammed, has given a statement dated 6 August 2006, eight months before Kibria’s new statement. Therefore the brother did not have Kibria’s new statement on which to base his own. He had not given evidence at the trial. It will be recalled that Kibria had given evidence at the trial about his younger brother, Zubair, who on the eve of trial had tried to persuade him to change his evidence, and from whom he parted on the basis that they would not meet again. As for his older brother, however, Kibria said at trial that his only support had come from him. 

47.	The kernel of the brother’s new statement is as follows:

“My brother Kibria Chowdury told me, “Brother, the truth is that, when I went in the mosque, I did not see Abdul Hai, but there were a lot of people whom I did not recognise.” Kibria Chowdury enquired, “Brother I am in a big problem, what should I do? If I say the truth that, Abdul Hai was not there at that time then, the police said, I will be imprisoned a long time. And if I give my statement based on what the police told me that, I did call Abdul Hai from the mosque, then the police gave their word that, nothing will happen to me.” I told Kibria Chowdury, “say whatever is the truth, because if you did not see Abdul Hai there, then why should you lie about him?” After I said that, he did not say anything, but went away.

After the trial took place, Kibria Chowdury came to me again. He cried a lot and asked me, “Brother, to save myself and to get out of that problem, I have lied against Abdul Hai and gave my statement in the court. I feel very sorry for what I have done. I then told Kibria Chowdury, “It’s not a right thing, you have destroyed someone else’s life to save yourself, you have not done justice. You should have told what you know to be true?” Then, Kibria Chowdury said, “Brother, I cannot forgive myself. I am going, I do not know where I am going, or what I will do,” then, he went away.

The reason why I, Muhammed Al-Amin Chowdury giving this written statement is because, my brother has lied, I do not know why, or for what pressure. But as a human being, it is my responsibility and my obligation, to expose the truth. For that reason, I am willing to go to court, should it be necessary.”

48.	Thus, on this account, Kibria told his brother both before and after the trial that he had lied in implicating Hai. In particular, Kibria told his brother even before the trial that he had never seen Hai, even in the mosque. That is contrary to everything that Kibria had said up to that time (until his subsequent new statement), since even at the time of his interview and his retraction of his first statement, Kibria acknowledged that he had fetched Hai out of the mosque. Given the inadequacy of Kibria’s new evidence before us, this was a poor start for the brother’s evidence.

49.	In his oral evidence before us, Muhammed maintained his account that Kibria had told him that he had not seen Hai that afternoon. However, he also, and inconsistently, maintained that Kibria and he had not discussed the evidence that Kibria had given at trial. He had not seen his brother, but only heard of him through his sister (and others). When Mr McNulty sought to bring him back to his new statement, Muhammed said that his memory was good and that he did not need to read it. It appeared that Muhammed did not live in close proximity with the rest of his family, for his knowledge of events appears to have come by his keeping in touch by telephone with his sister in Birmingham. His first involvement had been when he was phoned by his uncle to assist in getting Kibria bailed from prison. He had deposited the £1,000 required as a cognisance. In cross-examination, he denied knowing anything about family pressure on Kibria not to give evidence against Hai. It was put to him that if Kibria had told him that he was lying in implicating Hai, then, since he knew that Kibria had given evidence at the first trial and was going to give evidence again at the second trial, he should have gone to the police. His answer was unexpected. He said “I was busy. I was upset with them, they did not think I was important to tell.” That as well suggested a lack of closeness between Muhammed and the rest of his family. He also revealed that Raju had been present when he made his new statement.

50.	Muhammed made a poor witness. It was as if his heart was not in his evidence. 

The uncle’s new statement

51.	The uncle’s new statement is dated 4 August 2007 and is thus also eight months before Kibria’s. The kernel of his evidence is again that Kibria told him that Hai was not at the scene. We again make the comment that this, although it came to be Kibria’s new evidence as well, is inconsistent with even Kibria’s retraction evidence, as found in his interview. A further difficulty with the uncle’s evidence is that he ascribes Kibria’s telling him that Hai was not at the scene to the very day of Kibria’s first statement. That is unlikely, unless Kibria lied to his uncle.

52.	The uncle’s statement reads as follows:

	“1. I am the paternal uncle of Mr Kibria Chowdury.

2. I confirm that I spoke to Kibria when he came back from the police station on the very first day he was questioned by the Police. He was very upset and I asked him to tell me exactly what had happened. He told me the story and I clearly remember him telling me that [Hai] and [Anas] were not at the scene when the incident took place. He said there was a lot of commotion and he got scared and ran away. I am sure that this was the true story but unfortunately Kibria lies a lot and he has made up several versions of what had happened that day.

3. I feel it is important that everyone knows that Kibria is not a very reliable person and I have always told him to tell the truth but he has not done so.”

53.	Thus the uncle extended Kibria’s denial of presence to Anas as well as Hai. In his oral evidence the uncle said that when he spoke to Kibria on his return from the police station, ie on 15 April 2004, he told him that he saw a big fight, was afraid, and ran away, and thus did not see anything. The uncle then said he asked Kibria if Hai had been there, and Kibria said he had not been. He was cross-examined about this most unlikely piece of evidence. Why did the uncle think that Hai might have been there?  Because, he said, they, ie Kibria and Hai, were “always together”, which no one else has ever suggested. It was after all Anas who was Kibria’s friend. Was it perhaps because Kibria had told his uncle that he had told the police that Hai was there? No, the uncle had not asked about that. It is unbelievable in these circumstances that the uncle would have asked specifically about Hai. 

54.	Of course, the probability is that the uncle would have heard about events through his own son Alam, who had gone to the police station to assist Kibria in reading and translating his witness statement for him. But all that the uncle would say about his son was that “he had quite a lot of contact with Kibria.”

55.	The uncle’s last answer was that his memory was not good: “I can’t remember”.

56.	At trial, Kibria had given some evidence about his uncle. It will be recalled (see para 26 above) that after his retraction on 7 July 2005 the police took him to his uncle’s home and there was then a conversation with the uncle in the presence of the police. His uncle wanted to know why he had changed his account from his first statement, and was saying that he should not do that. Kibria said that he answered his uncle by saying both that he was scared and that what he had said in his first statement was not true. Kibria admitted to the judge that in that respect he had lied to his uncle, and his uncle was not pleased to hear that the statement with which his son Alam had helped Kibria was not true. It is possible therefore that the uncle is muddling up a conversation that he had with Kibria on his return from the police station on 7 July 2005, rather than on 15 April 2004. That would also be consistent with the uncle now saying that Kibria told him on that occasion that he had not seen the fight but had turned away (which was his retraction evidence). However, even on 7 July 2005 Kibria was not saying that Hai was not at the scene, only that he, Kibria, had not witnessed the assault.

57.	In these circumstances the uncle’s evidence was inconsequential and of no assistance. No reliance could be placed upon it.

Section 23 of the Criminal Appeal Act 1968

58.	Section 23 of the 1968 Act provides:

“(1) For the purposes of an appeal, or on an application for leave to appeal, under this Part of this Act the Court of Appeal may, if they think it necessary or expedient in the interests of justice –
		…
(c) receive any evidence which was not adduced in the proceedings from which the appeal lies…

(2) The Court of Appeal shall, in considering whether to receive any evidence, have regard in particular to –
(a) whether the evidence appears to the Court to be capable of belief;
(b) whether it appears to the Court that the evidence may afford any ground for allowing the appeal;
(c) whether the evidence would have been admissible in the proceedings from which the appeal lies on an issue which is the subject of the appeal; and
(d) whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings.”

Submissions and discussion

59.	Mr McNulty’s original submission, prior to the hearing, had been that Kibria’s new evidence, and that of his brother and uncle, was capable of belief, should be received by the court, and as evidence capable of belief rendered Hai’s conviction unsafe. The new evidence was also admissible and could not have been obtained until Kibria’s own conscience had worked upon him to produce his new statement.

60.	In support of that submission Mr McNulty had first drawn attention to the importance of Kibria’s evidence, and secondly referred to features of the evidence at trial which, when supported by Kibria’s new evidence, rendered proof of guilt uncertain.

61.	As for the importance of Kibria’s evidence, Mr McNulty cited the judge’s own comment to the jury on the second day of his two-day summing-up to this effect:

“We move on now to the next of the main planks in the prosecution case, Kibria Choudhury…Kibria Choudhury and the next witness we have to deal with, Kolim Khan, you may think are important because, if they were both truthful and accurate in their evidence, they do provide very powerful evidence against Mr Hai. Each of them told us that they knew Mr Hai, Kibria better than Kolim. Each of them had been to Mr Hai’s house in Upton Park Road. Each of them told us that he saw Mr Hai in the Plashet Road mosque before the attack and then in the group that chased and attacked Ashley and ran away afterwards.”

Mr McNulty described the judge’s comment as describing Kibria’s evidence as pivotal, but that we think was an over-statement.

62.	As for the safety of the conviction, Mr McNulty made a number of points arising out of the evidence at the trial, but all of them were premised on the credibility of Kibria’s new evidence, that he had not seen Hai at the scene at all that afternoon. Thus Mr McNulty referred to the other four witnesses who had given evidence of Hai’s presence at the scene and involvement in the attack. 

63.	Shaun Barlow had been one of the youths who had tried to rob the Asian college boys. He saw his attackers exit from the mosque, and later identified Hai at an identification parade as the older man with a long beard (he also said a moustache) who had come out first. However, Kolim said he had run away and did not see the assault on the victim. It was in the context of the judge’s Turnbull direction that he advised the jury that it would be “extremely dangerous to rely upon Mr Barlow’s identification unless, in your view, it is supported and shown to be correct by other corresponding evidence.” That comment, premised on a fleeting glance of a man not previously known to the identifying witness, and required by the spirit of the Turnbull direction, was not a comment otherwise detracting from Barlow’s evidence. Moreover, as will appear below, there was a great deal of evidence to support Barlow’s identification.

64.	Kolim Khan was a friend of Anas who had been in the mosque when Kibria came in. He said that Anas’s brother, whom he thought was Hai, was in the mosque. However, he was unable to identify him at an identification parade. 

65.	Raj Singh was the son of the owner of the grocery shop outside which the victim was killed. He knew both Anas and Hai (whom he called Wolfie). He also described a man with a beard who was older than the other attackers outside the shop. He gave the police four or five names as those at the scene, including Hai’s, but at first said that the last was not doing anything. At a later interview, however, he named Hai as punching the victim. At one identification parade he picked out Anas, and at another other youths, but not Hai. He was to say that he had seen him at the parade but did not pick him out because he had not been present at the scene. At trial he said he did not recognise any of the assailants and was treated as a hostile witness. He said that he was frightened for his family and had been threatened. He said that the police had put him under pressure to name Hai and had offered to look favourably on outstanding investigations against his brother for possession of a stun gun. He had named Wolfie as an assailant at the first trial, but at the second trial said that he did so merely because the person looked like Wolfie but was not him. Thus he was a prevaricating witness, but the importance for Mr McNulty was that he accused the police of improper pressure to name Hai. (The police denied any impropriety.)

66.	Yaseen Patel saw the fight outside the grocery shop from about 50 metres away. In his original statement he had named a cousin, Salim Jabar, as being the main assailant, but this was a lie, to get his own back on him for some previous wrong, as emerged when Jabar turned out to have a good alibi. He also said that he had named his cousin because he did not want to mention Hai as the main attacker, who looked like Hai although he was not 100% sure. In his second witness statement, however, he named Hai (“Wolfie”) as the main attacker and described him. He knew him from street greetings. However, Patel too had to be made a hostile witness at trial. What is important for Mr McNulty’s submissions is that Patel said that when the police had returned to challenge him with his false accusation against Jabar, they threatened to tell his employer about his prison record (for delaying the postal mail) unless he co-operated, and also said that if he did help them, they would overlook his false statement, otherwise he would go to prison again for perverting the course of justice. The officers denied these allegations but could not deny that they had left a message on his mobile phone in connection with his failure to attend an identification parade to the effect of: “You fucking piece of shit, return my calls or I’ll tell your boss you have a criminal record.” Patel too was a prevaricating witness. In answer to the Crown’s cross-examination he said that he was definitely sure 100% that Wolfie was the main attacker and he had not named him in his first statement because he was scared for himself and his family. In answer to the defence’s cross-examination, however, he said that Wolfie was not the main attacker and that he had told the police he was because he had been prepared to say anything the police wanted him to say, and they had told him the consequences if he did not. 

67.	Thus Mr McNulty submitted that even the witnesses who had identified Hai, as either being at the scene or actually involved in the assault or as the main attacker, gave suspect testimony, and that Singh and Patel in particular gave evidence about police tactics which chimed with and supported Kibria’s latest account. Therefore, if Kibria’s new evidence was credible, it opened up the case anew and rendered the conviction unsafe.

68.	However, after Kibria and his brother and uncle had given their evidence to the court, Mr McNulty altered his submission. He now said that Kibria’s evidence as a whole had no credibility. If the jury had been able to consider Kibria’s evidence to date as a whole, they could not accept any of it, unless it was supported by other evidence. Without support he lacked all credibility. On the other hand (and somewhat inconsistently), Kibria’s new evidence was mutually supportive of Singh’s and Patel’s evidence of police misconduct, which had not been the case at trial. In any event, the verdict was unsafe.

69.	Ultimately, that was Mr McNulty’s main submission, that in the light of the evidence at trial and Kibria’s now proven incredibility, but in particular in the light of the evidence at trial, the verdict was unsafe. That, however, was in the end a new submission, not supported by the grounds of appeal, and amounted in essence to an attempt to rerun the trial arguments which had been submitted to the jury for their consideration in a careful summing-up about which there was no criticism whatsoever. 

70.	In our judgment this argument was unsustainable, but before giving our final reasons, we briefly review the strong web of evidence at trial, which makes it impossible to say that the verdict was unsafe.

The safety of the conviction

71.	Although there were undoubtedly differences of description from the many witnesses who spoke of a somewhat older man in his early twenties or thirties with a full beard who led the group from the mosque, led the attack, and was in the assault in its final stages in front of the entrance to the grocery shop, there was a central and strong core of agreement about such a figure, and much of the description fitted Hai well, even down to his gold tooth and muscular appearance. In addition there were five witnesses who, for all their many imperfections, which were laid out in great detail for the jury and were entirely in their province as finders of fact, all identified Hai as that somewhat older man. Those five were Kibria, Barlow, Khan, Singh and Patel. All of them, except for Barlow, knew Hai well, or well enough. Kibria, Singh and Patel, who had prevaricated in their evidence even, in the cases of Singh and Patel, to the extent of having to be made hostile witnesses at trial, all spoke of fear of the consequences of naming Hai. That was a theme running through their evidence.

72.	The evidence against Hai, however, went well beyond such identifications and descriptions. There were two witnesses who gave evidence that that man, the older man with the beard, referred to his brother as being in trouble. Thus a witness Junior Ferdinand who said he saw Anas go into the mosque and the men come out, described the man with the beard as saying “Who is trying it on with my brother?” He said that that man, whom he saw at a distance of about 5 feet, was carrying a pointed shape, which looked like a pair of scissors. Later, after the attack, a witness Raj Bala Kane, who had observed the whole event from outside her off-licence shop, asked the man with the beard “What did he do to you?”, and he replied, “He robbed my little brother.” That evidence led the defence at trial to submit that the older man with the beard was not Hai but one of his brothers, a submission advanced again as a possibility by Mr McNulty, but which was all but eliminated by evidence at trial and highly unlikely in the light of the evidence as a whole.     

73.	Then there was the evidence that tied the older man with the beard to possession and use of a knife. We have already mentioned the evidence of Junior Ferdinand in this respect. Of particular importance was the evidence of Kolim Khan, who was treated as an honest witness but one who had simply made a mistake in purporting to identify Hai as the attacker, or rather as the elder brother in question. After the attack he saw Anas’s brother running away with others. He saw that brother holding the handle of a knife with nothing, ie no blade, attached to it. He saw Anas’s brother give the handle to one of the others and say to him “Chuck it” in Bengali, and the other youth threw it in a bin. The handle was later found in the bin outside the mosque where Kolim Khan had seen it thrown. That handle was the handle of the knife blade which had been left embedded in the victim’s temple. The scabbard of the same knife was found in the same bin. Another witness, Ansar Ali, the owner of the video shop opposite the mosque, also saw the group running back (after the attack) with its leader being a man with a bushy beard and saw that man pass an object to another who put it in a bin. That was evidence directly linking the older man with the beard, and indeed Anas’s brother, thought to be Hai, with the knife which had been used to stab the murder victim, albeit forensic evidence said that the wound to the temple where the blade was found embedded was not the fatal wound.  

74.	Then there was the important circumstantial evidence of Hai’s mobile phone. That was a phone ending in the number 328. It was registered in Hai’s name. He acknowledged it as his phone, but said that he had sold it to a friend Mohammed Miah in 2003. Miah had died in April 2004. However the 328 phone’s calls in the weeks before the murder were all to people whom Hai admitted knowing (albeit he claimed Miah knew them too and he called a witness to say that he had called Miah on that number). Moreover, it was highly significant that the use of that phone could be traced, starting at 1321 on the day of the murder, just a few minutes after the murder, along a route which was consistent with its user travelling east on a number 104 bus down Plashet Road (ie in the direction of Stratford). That was consistent with the evidence of two witnesses, Ansar Ali and Ms Collier, who said that they saw the bearded man board a number 104 bus going in that direction after the fight. Over the hour between 1321 and 1417 the phone made 11 calls and received 11 calls. By 1330 it was at Stratford, consistent with the bus journey there. After 1330 the phone retraced its journey to the area of Hai’s home at Upton Park Road. It was Hai’s alibi that he had been thrown out of his family home and was staying with a friend nearby. He called that friend, Mobs, to support that alibi, albeit Mobs could only say that on the day in question he had left Hai at his home. His address was also in the area of the same cell site as 101 Upton Park Road. Nevertheless, the journey of the phone during that hour between 1321 and 1415 was not consistent with Hai’s alibi, which was that he had not moved from his friend’s home that day. The return of the phone to the area of Upton Park Road was also consistent with Kibria’s evidence that after the fight he had gone there at Hai’s suggestion and was joined there by Hai and Anas. 

75.	The evidence of the phone went still further. Between 1415 and midnight on 16 January 2004 the phone made or received about 100 calls. Then on 17 January there are a further series of calls, which was the last day which Hai spent in England before flying to Bangladesh on the morning of 18 January. After that there are only short incoming calls, and only one outgoing call, on 19 January. The prosecution say that Hai left the phone behind with someone when he went to Bangladesh. 

76.	Then there is the evidence about his departure to Bangladesh itself. Hai booked his flight by telephone on 17 January. He had not told his friend Mobs about his intention to go to Bangladesh. He booked his flight in an assumed name, S Hussain, and picked up his ticket from Heathrow later that evening. The ticket was then changed to his name. Earlier that afternoon there was a call from the 328 phone at Terminal 3 in Heathrow. 

77.	Mr Finucane submits that the case against Hai was a strong case, and the verdict could in no way be described as unsafe, irrespective of the credibility of Kibria’s evidence. Whatever may have been the case if Kibria’s new evidence had been adjudged capable of belief, we have no doubt that in the light of the incredibility of that evidence it is not arguable that the jury’s verdict is unsafe.

Our decision

78.	In the circumstances we equally have no doubt that the applicant’s ground of appeal based on the new evidence of Kibria and his brother and uncle cannot even arguably found an appeal and we therefore refused to grant leave to appeal or to extend time to do so. 

79.	Kibria’s evidence at trial, as the judge carefully analysed it for the jury’s consideration, was not unalloyed. There were strands in that evidence which were by common consent mistaken, and there were other strands where he was clearly not minded to tell the truth. Moreover there was no hiding the chequered course of his dealings with the police, starting with the realistic possibility that he was a participant in the violence, his going to ground for three months, his reluctance to speak to the police, his regret at having said what he had said in his first statement, his partial retraction, the pressure then put on him by means of his arrest, the charge of attempting to pervert the course of justice, and the unpleasantness of his week in custody pending conditional bail. However, all of that was laid bare before the jury and they had the task of determining what they made of it. They were in the best of all positions to do so. We cannot be sure what they concluded about Kibria’s evidence, or how his evidence helped them with other evidence in the case, or vice versa. However, we have no doubt ourselves that the golden thread in all his prevarications was his fear of the ramifications of his evidence, which included threats to him and his family, and the danger of losing his position in his society. We consider that similar considerations prevail to this day, although his regret about being separated from his family may now be playing uppermost in his mind. His brother and uncle no doubt wish to help him find a solution to his predicament.

80.	Not only do we consider that the essential evidence which he gave at trial was worthy of credit, and we assume although we cannot know, that the jury found it so, but we also consider it impossible to argue otherwise than that his new evidence lacks all credibility or possibility of detracting from his evidence at trial. It is particularly striking that this is the first time that he has ever suggested that Hai was never in the mosque or at the scene at all. We have given detailed reasons above for rejecting his evidence as capable of belief. It does not and cannot arguably afford any ground for allowing an appeal. We therefore decided that it was neither necessary nor expedient in the interests of justice to admit his evidence.

81.	It is also remarkable that his new statement came forward some sixteen months after the trial, and eight months after the statements of his uncle and brother; and that these applications were launched more than two and a half years after trial. There is no real explanation for any of this delay. It is accepted that it may take time for a new team of lawyers to get the material for an appeal and to digest that material. It is also accepted that only Kibria could decide what evidence to give and when. However, if the real springboard of these applications were Kibria’s regret for falsely implicating an innocent man, we would have expected a detailed explanation of the intervening time and the delay in coming forward. As it is, Mr Conder’s explanation is essentially unrevealing, other than to indicate that back in May 2006 Hai was already giving instructions about his concerns over Kibria’s evidence; that in November 2006 Hai informed Mr Conder that Kibria’s younger brother Zubair had made a statement at the time of trial stating that Kibria had told him that he had lied to the police, evidence that was not used at trial; that from February 2007 Raju was in contact with Hai’s solicitors; and that contact was established from Kibria in February 2007. As it was, however, these applications were not made until September 2008. As for the brother’s and the uncle’s new evidence, this, like Zubair’s statement for trial, was no doubt always open to the defence. As it was, Kibria’s evidence that Zubair tried to persuade Kibria not to tell the truth about Hai went unchallenged, and Zubair was not called to give evidence in accordance with his defence statement that Kibria had admitted lying to him. Now Raju has taken the lead in orchestrating the older brother and uncle to make similar statements. 

82.	For all these reasons, these applications were refused at the time of hearing.