Neutral Citation Number: [2011] EWCA Crim 2664
Case No. 2010/06484/C2

IN THE COURT OF APPEAL
CRIMINAL  DIVISION

Royal Courts of Justice
The Strand
London
WC2A 2LL

Date: Friday  4  November  2011

B e f o r e:

MR JUSTICE  BUTTERFIELD

and

MR  JUSTICE  HENRIQUES

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R E G I N A

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ANMAR  ABDZAHRA
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Mr P Brooks appeared on behalf of the Applicant

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J U D G M E N T

MR JUSTICE BUTTERFIELD:  Mr Justice Henriques will give the judgment of the court.

MR JUSTICE HENRIQUES:

1.  On 27 October 2010, in the Crown Court at Isleworth, the applicant was convicted by a majority verdict of 10:2 of affray.  He was sentenced to six months' imprisonment suspended for a period of two years.  A residence order was also made for four weeks and a restraining order was made for two years under the Protection from Harassment Act 1997.  He was found not guilty of kidnapping (count 1) and of false imprisonment (count 2).  He renews his application for an extension of time and for leave to appeal against conviction after refusal by the single judge.

2.  The facts can be summarised in this way.  In the early hours of Saturday 22 May 2010 Raouia Saber was at her home address in Chiswick, West London, when she received a telephone call from the applicant, who is an ex-boyfriend, asking if he could visit her.  She agreed to such a visit and he arrived shortly afterwards.  Once inside the premises his mood appeared to change.  He accused Miss Saber of talking about him to her family.  He told her that he had bugged her home.  He unscrewed a plug and showed her a listening device.  She told him that he had gone too far, at which point he fetched a knife from the kitchen and told her to choose between her face and her home.  She begged him not to hurt her or her 6 year old son.  The applicant proceeded to slash the mattress on her bed, damaged a mirror and two televisions, and cut up some of her underwear and handbags.  

3.  The evidence of such events was read to the court pursuant to the provisions of section 116(2)(e) of the Criminal Justice Act 2003, to which we shall return in due course.

4.  During the incident the applicant had locked Miss Saber in one of the bedrooms.  When he realised that she might be using a mobile telephone to contact the police, he kicked open the door and demanded that she hand over the phone.  He then told her that they were leaving.  He packed some of her belongings into a bag.  She did as she was told.  He forced her into his car and sped off.  After driving for a while, Miss Saber managed to persuade him to take her to the home of a mutual friend.

5.  A neighbour gave evidence of a very distressed woman howling and wailing in the street.

6.  The day after that incident the applicant flew to Spain.  He returned voluntarily, surrendered himself to the police and was charged on 5 July 2010.  The prosecution case was that he had lost his temper in the flat at the prospect of the breakdown of the relationship, that he had issued threats, and had attempted to break expensive items that he had purchased for her.

7.  The defence case was simply that the evidence had been fabricated, and that any damage inflicted (apart from that to the bedroom television) was caused by the complainant herself and not by the applicant.  The applicant gave evidence to that effect and he called two witnesses in support.

8.  The issue for the jury was whether the complainant's version, which was read to them, was a truthful account of events which occurred in the flat that night.

9.  The Crown had set out a Notice of Intention to adduce hearsay evidence under section 116(2)(c) of the Criminal Justice Act 2003.  On the morning of the trial this was supplemented by an additional notice setting out their intention to rely also on section 116(2)(e) of the 2003 Act. 

10.  With a view to determining whether such evidence was to be admitted, the judge heard evidence on a voir dire.  He heard evidence on oath from both Sergeant Thompson and Woman Police Constable Kelly to which we shall turn shortly.  He concluded that it was clear that on 1 June the complainant was genuinely afraid of the applicant and was very anxious about potential reprisals if she went ahead and gave evidence.  She had told WPC Kelly that there was a previous history of violence and that she had been told that the applicant had been in contact with her family in Morocco and that he had threatened reprisals.  

11.  Thereafter, such co-operation as there had been between the complainant and the police dissipated.  On 10 June the complainant made a withdrawal statement.  She made a second withdrawal statement on 28 June, and shortly thereafter she went on a five week vacation to Morocco, where her family live.  

12.  The trial was fixed for 13 October 2010.  On 5 October an application was made for a witness summons.  The very next day the complainant again visited Morocco, but was due to return on 12 October, the day preceding the trial.  

13.  The trial was adjourned to 19 October.  On the day of the ruling allowing the adjournment, the complainant's return flight was changed to 21 October 2010.  There was no contact between the prosecution or the witness support services whose task it is to inform witnesses as to the date of trial.  There was no such communication with the complainant in Morocco.  Accordingly, the court drew the inference that there must have been some communication, either direct or indirect, between the applicant and the complainant or her family.  Accordingly, the judge found that the admissibility criteria under section 116(2)(e) of the Criminal Justice Act had been established to the requisite standard.  The judge relied on the evidence of the police officers that the complainant seemed genuinely afraid of the applicant.  The evidence from independent witnesses as to the damage to items in the flat and the coincidences of the change in the complainant's travel dates from Morocco indicated that there must have been communication by the applicant or by somebody on his behalf, such that the complainant would not give evidence through fear.

14.  In renewing this application on the applicant's behalf, Mr Brooks contends that the judge was not entitled to draw the inferences he did; that such inferences were mere speculation and were not founded on fact.  In particular he relies upon the two statements made by the complainant withdrawing her evidence, and upon conversations between herself and the Probation Service.

15.  In affirming the judge's decision we can do no better than endorse the written observations of the single judge in the section 31 proceedings.  He said this:

		"The judge founded his decision to admit the evidence of the complainant under section 116(2)(e) on the following:

		(1)  The evidence of Sergeant Thompson that when he saw the complainant on the day of the incident he found her physically shaking and tearful and that she told him that there had been threats to kill and to damage her face;

		(2)  The evidence of PC Kelly that on 1 June (nine days after the incident) the complainant seemed genuinely scared of [the applicant] and to be anxious about reprisals if she gave evidence;

		(3)  The evidence from the same police officer that on the same day the complainant said that she had been warned off by a female friend;"

(Although we accept Mr Brooks' submission that the relevant day for considering whether or not the complainant was affected by fear is the day upon which she was due to give evidence, the fact that she was plainly terrified on some earlier date is plainly highly relevant when drawing inferences as to her state of mind on the day upon which she was due to give evidence.)

		"(4)  The fact that in the complainant's withdrawal statement she did not retract her claim that [the applicant] had caused damage to items in her flat;

		(5)  The striking coincidence of the dates on which the complainant left for Morocco (on 6 October, the day after a Witness Summons was applied for) and put off her return to the United Kingdom (on 12 October, the date on which the trial had been adjourned).

		The judge was entitled to conclude that those coincidences could only be explained by some communication by [the applicant] or someone acting on [the applicant's] behalf with the complainant or her family in Morocco.

		In consequence, the judge was entitled to be sure, as he was, that the complainant did not give oral evidence through fear.  The complainant's written statements -- to the effect that a frightening incident had occurred in her flat -- were lent significant support by the evidence of Lorraine Harrison, a neighbour, and of Mr Coe, who gave evidence rebutting [the applicant's] claim that items damaged in the flat had been in that condition when the complainant's tenancy began.  

		On the basis of all that evidence, the jury were entitled to conclude that [the applicant was] guilty of affray.  The verdict is not arguably unsafe."

We adopt every word of the single judge's reasoning.  Accordingly, the renewed application is refused.  

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