Case No: 200407073/D2 
Neutral Citation Number: [2006] EWCA Crim 1976
IN THE COURT OF APPEAL 
CRIMINAL DIVISION 
Royal Courts of Justice
Strand
London, WC2 

Date: Tuesday, 4th July 2006
 
B E F O R E:
 
LORD JUSTICE MAURICE KAY 
 
MR JUSTICE CRANE 
 
MRS JUSTICE DOBBS DBE 
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R E G I N A 

-v- 

MAZHAR ALI
 
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MR P WETHERBY appeared on behalf of the APPELLANT
MR P KELSON QC appeared on behalf of the CROWN
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J U D G M E N T 

1.	LORD JUSTICE MAURICE KAY:  On 18th November 2004, in the Crown Court at Sheffield, the appellant was convicted of murder and was sentenced to life imprisonment, with a recommendation that he serve a minimum term of seventeen-and-a-half years.  He has previously failed in an appeal against sentence in relation to that recommendation.  This Court, now differently constituted, has before it his appeal against conviction for which leave was given by the Full Court.
2.	The case is a tragic one concerning the death of a 19-month old child, Tahir Hoque, on 1st July 2004.  On that day Tahir was checked into a hospital in Sheffield by his mother, Zara Ali, when he was in a dire condition.  He soon died of injuries to his head, abdomen and ribs.
3.	It is abundantly clear and has never been in dispute that Tahir was murdered.  It is also equally clear that the candidates for the commission of that murder could only realistically ever have been either this appellant or Zara Ali, who became the main prosecution witness in the case.
4.	Zara Ali had four children from a previous relationship.  At some stage she commenced a relationship with this appellant and, in due course, he moved into her accommodation.  
5.	The family was known to Social Services and the children were the subject of a supervision order.
6.	Her evidence was that the relationship had begun in about November 2003, and that the appellant had moved into the house in about January 2004.  He went to Pakistan for a month, in March 2004.  On return he was, according to her, more stressed and short tempered.  He became more pushy with Tahir, who at that stage was just learning to walk and would also become bad tempered with one or more of the other children, particularly Akash.
7.	Tahir had spent a short time in hospital in early June 2004 as a result of a haematological problem.  Zara said that Tahir was irritable when he came back from hospital, and that had started to annoy the appellant.  On one occasion she heard Tahir in the living room and went to investigate, whereupon the appellant told her that Tahir had taken the appellant's lighter and burned himself with it.  On another occasion, she found Tahir crying and the appellant told her that he had opened the door into Tahir's face, accidentally.  Over the weeks, Zara said that she began noticing more and more bruises on Tahir, but the appellant explained this by reference to medical opinion to the effect that Tahir was more susceptible to bruising because of the haematological problem.
8.	Zara said that while she had her concerns about the appellant, she did not say anything to the authorities because she was worried that if she did so her children would be taken away from her.  She did not believe that the appellant would cause serious harm to the children.  She admitted that she had herself used violence towards the children and had used the cane on both Akash and Priya on a few occasions.
9.	Turning to the events leading up to Tahir's death, she said that quite often the older children would get themselves ready for school, and she would take Tahir down for a drink.  Akash would go to school by himself, and she would take the two girls.  She sometimes left the appellant with Tahir, but only if Tahir was settled as then they would each be in their own bedrooms.  If Tahir was not settled then she would take him with her on the school trip, as she did not want to leave him alone with the appellant.
10.	Zara said that on 30th June the appellant had been in the house overnight.  She woke up at about 7.30 am to hear Tahir crying.  She took him downstairs and then went to check on the other children.  She asked Priya to take Tahir upstairs while she made the appellant a cup of coffee.  Tahir was crying and she then tried to settle him.  She was going to take Tahir with her to school but the appellant told her not to.  She then left the appellant with Tahir at 8.40 am.
11.	She was out of the house for half-an-hour.  On her return, the appellant asked her to make him a cup of coffee, which she did.  She could hear the appellant trying to wake Tahir up and she thought that that was strange and went to check.  When she saw Tahir, his eyes rolled back.  She went to pick him up and his body flopped.  She told the appellant to call an ambulance but he told her not to panic.  The appellant then agreed to take them to the hospital in a car, which was due to go to the garage that day for repair.  She agreed that she had dressed Tahir before they had left for the hospital.
12.	Zara said she tried to give Tahir mouth to mouth resuscitation during the journey and the appellant kept telling her to calm down.  The appellant did not want to drop them off outside the hospital and told her to say that a friend had dropped them off.  She was also to say that he had not been there that night and that he was not left with Tahir but that she had taken Tahir to school with her.  The appellant also told her to say that Tahir had fallen from a bed.
13.	At the hospital Zara and Tahir and later the appellant were seen by a number of people.  One of the first of the doctors to see Zara was Mr Burke, the consultant on duty.  He asked Zara what had happened and she told him that she had returned home from school and had put the baby on a bed with a bottle; she heard a thud and immediately took Tahir to hospital.  Later, Dr Moss saw Zara.  Zara told her that she had telephoned her friend, Emma, for a lift to the hospital, after she had found Tahir.  Zara also told Dr Moss that she had been the only person who had looked after Tahir in the last two days.  Dr Moss told Zara that the explanation did not account for Tahir's injuries and that she was going to call the police.  At that point Zara told her that the appellant was her partner and that he had been looking after Tahir at the relevant time.  The doctor told Zara to tell the police the truth about what had happened.
14.	The pathologist, Professor Milroy, described various injures on Tahir's body including a blister on his arm consistent with a burn.  Professor Milroy opined that it was highly improbable that a 19 month old baby would be able to ignite a lighter and then burn himself in the area where the injury was found.  He also noticed that Tahir had bruises all over his body and stomach.  He had an old fracture to the ribs.  The bruising was consistent with prodding with fingers or squeezing and there were also recent fractures to the ribs.  There was a significant head injury and the underside of the scalp had massive bleeding which indicated a heavy impact to the head or the head being struck against a firm surface.  The cause of death was multiple injuries, and the force required to cause the injuries was severe and comparable to a road traffic accident.  It was likely that Tahir had been stamped or kicked but he could not rule out punching. 
15.	Akash gave evidence before the jury.  It included evidence to the effect that the appellant had told him to say that on 1st July Zara had taken Tahir to school with her.  Akash also gave evidence about being hit with a stick by the appellant and also being hit, on one occasion, in the same way by Zara.  
16.	Priya, who was only aged 8 at the time of trial, was also a witness, largely on the subject of chastisement that had taken place in the house at the hands of both the appellant and Zara, who she said also hit them with the stick, "but not so hard and not leaving marks".  She said that Tahir had not gone to school with them on 1st July.
17.	There was also evidence from two neighbours familiar with the family and their habitual movements.  Mr Salmon gave evidence that he often saw Zara taking the children to school and that he had seen her on 1st July at about 8.40 with her two daughters but without a pushchair.  Mrs Salmon also gave evidence that she had seen Zara with the two girls at that time, on that day, again, without a pushchair.
18.	After Zara had spoken to the police the appellant was arrested and interviewed.  In that interview, he maintained that he had indeed spent the night of 30th June into 1st July in the house, although he was later to say in evidence that he had not been in the house overnight, but elsewhere at an address in Stead Road.
19.	The appellant gave evidence of his previous good character.  He gave evidence about the history of his relationship with Zara, disagreeing with her about various details.  He was maintaining that he would stay over for a number of nights a week, but was not evidently accepting the proposition that he had moved into the house.  Rather he had maintained his address at Stead Road.  He denied ever hitting any of the children, saying that Priya's account was made up.  He said he had witnessed Zara hitting them, she just lashed out and was not bothered.  She would hit their arms and shoulders with her hands.  He denied responsibility for the burn on Tahir's arm and said that Zara had caused the injury when she was ironing.  He admitted lying to the police about where he had spent the night of 30th June into 1st July.  He accepted that he had driven Zara and Tahir to hospital on 1st July.  His account was that Zara had insisted that he did not park in the ambulance bay.  He said that he told her to try mouth to mouth resuscitation.  She told him to come back later and not to give his real name or say they were together.  He had asked her what had happened to Tahir.  She said he had fallen from a bed but she did not want social services to take the children away.  She said that if anyone asked he was to say he had stayed the night with a friend.
20.	As to the previous statement to the police that he had been in the house overnight, he said the truth was that he was watching a football match in the house but that after the match had finished he had gone back to Stead Road to get money for the following morning.  He said that on 1st July he got up at about 8.30.  He caught a bus to Zara's house in order to pick his car up to take it to the garage.  He arrived there about 9.00 am.  Zara was in the kitchen but the children were not there.  He sat down in the living room and Zara brought him a cup of coffee.  Zara then left the room and he heard her scream.  He made his way to Tahir's room where the noise was coming from and she told him the baby was not right.  She told him what she had done, and he asked her if she had been drinking.  They then took Tahir to hospital by car as Zara said it would be quicker than by ambulance.
21.	There was evidence of a telephone call being made from the appellant's mobile telephone at Zara's address by cell location at 8.49 am.  He said that he was not there at that time, but had left the telephone there the previous evening and Zara must have made the call as she was walking the children to school.  He had given a false name at the hospital to hospital employees but, he said, that that was on the suggestion of Zara.
22.	That then was the evidence.  Plainly, what it produced was a grave case in which one of two people had murdered Tahir and the issue was for the jury was whether the prosecution had proved that it was in fact the appellant.
23.	There are two grounds of appeal raised before us by Mr Wetherby. The first relates to the summing-up and in particular to the final stages of the summing-up.  The summing-up began on the afternoon of 17th November.  Apart from one point, which we shall deal with as the second ground of appeal, it is common ground that what the judge said to the jury in the space of 45 pages on 17th November was impeccable and fair.  No issue arises in relation to that as the regards the first ground of appeal.
24.	At the end of that day the judge told the jury that he would have a few matters to say in the morning but that they would then be retiring.  On 18th November the judge concluded his summing-up in terms which occupy two-and-a-half pages of the transcript.  Because of the complaint that is made about that part of the case it is necessary to set it out extensively.  It reads as follows:  
"Members of the jury, when you retire, bear in mind the submissions of counsel...The defence, you may think, realistically acknowledge that the numerous lies told by the accused make his position difficult, but they suggest that, because other witnesses had told lies as well, this is one of those cases where you simply cannot be sure who the killer of Tahir was; his mother or the accused.  If that is your conclusion, then you will find the accused not guilty.   
You will no doubt want to consider why so many lies have been told.  The accused claims to have told lies to the police out of loyalty to mother.  Do you find that credible in the context of a relationship which, from his point of view, seems to have been at best half-hearted, he claiming not to have been living with her and to have told her he was not going to marry her?  There is, you may think, a fairly constant theme or suggestion that many of mother's lies were told to prevent Social Services from finding out what was happening and so remove her children from her.   
The prosecution suggests that the mother's background is important to an understanding of this case.  Having emerged from an abusive relationship, she was infatuated by the accused, who showed her affection and did not abuse her.  Even though she was aware that he was doing things to the children, she did not want to believe it and turned a blind eye.  She would not be the first woman, would she, wrongly to protect a boyfriend who was abusing her children?   
You may want to ask what brought about her sudden change of story after Dr Moss had sat her down at the hospital and told her, in effect, that the story she was telling was nonsense.  Did mother then change her story to wriggle out of her own responsibility, or did what Dr Moss had told her bring home to her what the accused must have done?  As a result of this, her other children have been removed from her and you may think the account she has since given won't help her to have those children returned to her.  Does that help in deciding whether she has now told the truth? 
What the prosecution say is, if you stand back, the truth can be seen.  This was a home at which the accused was a part, in which violence to the children had become a regular feature.  You can be sure the children had told the truth about that, including that their mother used some violence on them.  The accused used to become particularly cross if Tahir cried and, say the prosecution, what happened on 1st July was in reality just the final and much more severe incident of violence at the end of a period in which the accused was extremely tired as a result of both wider family pressures and excessive amounts of driving, and he snapped probably because Tahir would not stop crying and delivered those forceful blows to his little body.  The prosecution say his lies thereafter to all and sundry are only consistent with guilt. 
If you are sure that this is the correct version and that the accused intended to cause Tahir really serious bodily harm, then he is guilty of murder.  You decide." 
All that followed was the direction about unanimous verdicts and the selection of a foreman.
25.	Mr Wetherby submits that those two-and-a-half pages represent an unbalanced approach to the case and that the judge was thereby descending into the arena and taking up the role of an advocate for the prosecution.  He submits that the principles which arise in relation to such a submission are well-known, although they are sometimes difficult to apply, each case turning on its own particular facts and circumstances.  
26.	In support of his submission, he draws attention to the case of R v Reed (unreported 22nd July 1999, No 9808082/W3).  There the complaint related to a summing-up which had been uneventful on the first day, but on the following morning was concluded in terms that were found to be unbalanced and unfair to the accused as well as being inaccurate in one respect.  
27.	In the present case, the code to the summing-up made points and posed questions which were robust, relevant and reflected the submissions previously made by respective counsel.  In our judgment, they did not cross the line into the territory of imbalance, unfairness or advocacy.  We reach that conclusion for two main reasons.  The first is that the comments and questions were not one-sided.  They began with a reminder of the central defence submission and at a crucial stage, included reference to the approach of both parties to the issue of motive for having told lies.  In that latter regard, we refer in particular to the sentence. 
"Did mother then change her story to wriggle out of her own responsibility, or did what Dr Moss had told her bring home to her what the accused must have done?"
28.	That is significantly different from the concluding passages to the summing-up that was under consideration in the case of Reed, which really amounted to no more than four questions enunciated in an entirely one-sided way, as well as being in part misleading. The concluding part of the summing up in the present case was for more carefully drafted.
29.	Our second reason is that the judge had not only directed the jury in conventional terms the previous afternoon about their right to reject judicial comment:  he had in effect repeated the direction in stark but telling words at the end of the passage the following morning, to which objection is taken.  We refer to the words: "You decide".  Those words, read in context, whilst admittedly terse, were a reminder to the jury of their right to reject judicial comments.  Much of what the judge said was plainly and expressly attributed to prosecution submissions, but was not unaccompanied by reference to defence submissions and the defence case.  All in all, we take the view that this is not a case in which the line was crossed.  In his written submissions Mr Kelson QC referred us to the recent case of R v Ungvari [2003] EWCA Crim 2346.  At paragraph 71, Clarke LJ said this:  
"The duty of the judge is to sum up the case and fairly and impartially.  He is entitled...to comment on the evidence but not in such a way as to make the summing-up as a whole unbalanced.  He must remain the judge throughout and never become the advocate."
30.	Later on, applying those principles to the facts of that case, Clarke LJ rejected the submission that the summing-up had been unfair or unbalanced adding at paragraph 93:  
"The judge's own view may have been apparent from time to time on different aspects of the case, but he never donned the mantle of the advocate. The jury can have been in no doubt what questions they had to consider.  In short they were sure in the case of each defendant who was convicted that he had the necessary knowledge."
31.	Likewise, in this case, we take the view that whilst there is an element of comment in the passage to which Mr Wetherby takes exception, it was permissible comment.  As we have said and repeated, the line was not crossed and the jury can have be been in no doubt that they should only convict the appellant if they were sure that he had been the person who caused Tahir's death.  Accordingly we find nothing in this ground of appeal.
32.	We turn to the second ground of appeal.  It seeks to take issue with one passage in the summing-up on the previous afternoon, 17th November.  The judge gave a good character direction in favour of the appellant in terms about which no complaint is made.  He next said:  
"In this case - more than many, perhaps - the credibility of both the Accused and Zara is very important, because on some issues there is no other evidence other than their differing accounts.  In deciding that, you are entitled to bear in mind that there is no evidence that Zara is of other than good character." 
There had indeed been not evidence about Zara's good character and lack of convictions, although we apprehend that that was her status.
33.	Mr Wetherby's submission is that the good character of Zara was not an admissible matter and that by appending his comment about her good character to the direction that he had given in relation to the appellant, he had thereby wrongly diluted the good character direction to which the appellant was entitled.  
34.	We accept that as a matter of general principle and historic doctrine, whereas the good character of a defendant is relevant and admissible, the good character of a prosecution witness is not -- a position described as "anomalous" as long ago as 1865, in the case of Rowton.  That doctrine was more recently referred to by Buxton LJ in the case of R v Errol Hamilton (unreported, 26th June 1998, No 97/6511/W2).  Nevertheless there are cases in which the good character of a prosecution witness may become relevant and admissible, not least because it may go to an issue in the case.  In Hamilton itself, Buxton LJ referred to the case of O'Connor (29th October 1996), of which we have not seen a transcript, but it is apparent from the citations in Hamilton that in a case in which the defence was that the police witnesses had given perjured and colluded evidence, it was relevant and admissible for there to be evidence of the lack of adverse and disciplinary findings against them.
35.	Buxton LJ expressed some unease about that when considered against the historic doctrine but went on to distinguish O'Connor on the grounds that there the police were being accused of conduct that was amongst the most serious of which a police officer could be guilty, including the infliction of serious violence on the appellant and a planned conspiracy of perjury to conceal that fact.  He described the case of Hamilton as "very different".  
36.	There have been other cases in which, one way or another, or favourable aspects of the character of a prosecution witness have been held to be relevant and admissible.  This has happened particularly in the context of sexual offences and a careful consideration of the problem in that context is to be found in the case R v Amado Taylor [2001] EWCA Crim 1898.  We have also been referred to the case of R v Tobin [2002] EWCA Crim 190, where this Court upheld a conviction in a case where the judge had allowed evidence of the complainant's good character to be given by the mother of the complainant.  It did so by analogy with the well-known case of R v Funderburk [1990] 1 WLR 587, in which Henry J had adopted the words of the current edition of Cross on Evidence, observing that the difference between questions going to credit and questions going to the issue may reduce "to vanishing point" in sexual cases. Henry J observed of the traditional "collateral test", "the utility of the test may lie in the fact that the answer is an instinctive one based on prosecutors' and courts' sense of fair play rather than any philosophic or analytical process."  It is apparent that in Tobin the questions were allowed on the basis of perceived fairness, which approach seems to have received the support of this Court.  It is right to record that the judgment in Tobin has been the subject of some criticism in the present edition of Archbold at paragraph 20 - 11, the present edition of Phipson on Evidence, at paragraph 18 - 24, and in [2003] Crim LR 408.  We do not propose to involve ourselves in that criticism one way or the other.  It seems to us that in the present case the good character of Zara became relevant because of the central issue in the case, namely, which of Zara and the appellant was the murderer.  Whilst no burden lay upon the appellant to prove that it was Zara who had killed Tahir, if the prosecution were to prove their case that the appellant was the murder, in reality it also had to prove that Zara was not.  In these circumstances, in our judgment, the good character of Zara became, to borrow Mr Wetherby's words, "issue relevant" and where good character is "issue relevant", it is beyond dispute that it is potentially admissible (see Phipson on Evidence 18 - 20).  In fact Zara's good character in the sense of lack of convictions had not been adduced in the present case.  Hence the language of the judge "There is no evidence that Zara is other than of good character".
37.	In the circumstances of this case, we do not consider that the direction given by the judge, either as it related to Zara or by reason of its textual proximity to the good character direction which was given in relation to the appellant, amounted to a misdirection in any way.  We consider that her evidence had become "issue relevant."  If there is to be a criticism of it, it is that although relevant and admissible as going to a central issue the judge dealt with it solely in terms of credibility.  Mr Wetherby is particularly critical of that.  However, we consider that the present case bears a similarity to sexual cases in which the boundary of issue and credit is ill-defined.  The similarity is the domestic provenance of the offences and that two people were describing events which occurred in the privacy of their own home.
38.	For all these reasons we do not consider that the judge fell into significant error in the way in which he treated Zara's character.  In any event, this was a case in which the technical good character of both principal factors was of limited value because there was evidence that both had told lies about events surrounding Tahir's death and both had been violent to Tahir in the past.  Even if there were anything in this ground of appeal, and in our judgment there is not, we would not consider it to affect the safety of the conviction.  We do not propose to say more on the subject of the admissibility of good character in relation to prosecution witnesses, save to observe that now the relevance of bad character has been the subject of a statutory revolution under the Criminal Justice Act 2003, and given the apparent departures from the pure historic doctrine evident in O' Connor, Tobin and to some extent in the present case, it would perhaps be timely for the subject to be revisited in this Court when a more suitable case presents itself.  
39.	It follows from what we have said in relation to both grounds of appeal that we shall dismiss the appeal.