Case No: 2014 00307 B2
Neutral Citation Number: [2016] EWCA Crim 1664

IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT ISLEWORTH

Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 4/11/2016
Before:

LORD JUSTICE SIMON
MR JUSTICE GREEN 
and
HH JUDGE AUBREY QC (sitting as a Judge of the Court of Appeal 

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Between:

	The Queen 		
	
and		
	
Sarbjit Singh		

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Mr Martin McCarthy for the Appellant
Mr Wayne Cranston-Morris for the Respondent

Hearing date: 14 October 2016

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Judgment
Lord Justice Simon: 
1.	On 4 August 2010 in the Crown Court at Isleworth (before Her Honour Judge Guggenheim QC and a Jury) the applicant was convicted on a single charge of wounding with intent to do grievous bodily harm to Tarjinder Padda.  
2.	There were other co-accused who were also convicted of this offence: Majinder Nagra, Jagjit Singh, Baljit Sandhu, Harjit Singh, and Gurvinder Singh.
3.	The present application is for an extension of time (approximately 3 years and 4 months) in which to apply for leave to appeal against conviction and for permission to rely on fresh evidence in support of the application. Those applications were referred to the Full Court by the Single Judge, who granted a representation order for junior counsel and solicitors. We grant the necessary extension and permission to appeal. We will address the issue of fresh evidence later in this judgment. 
4.	Since the basis of the application is relatively confined it is convenient to start with an outline of the facts relied on at trial by the Crown.
5.	In the early hours of 3 January 2010 Tarjinder Padda was out celebrating with a group of friends: Sohanjit Singh, Gurdev Basra, Narindajit Singh and Ramandeep Johal. As they left the ‘Glassy Junction’ public house in Southall a group of men armed with swords approached them. Tarjinder Padda and his friends tried to escape but were attacked with weapons, and Tarjinder Padda sustained serious injuries before he was able to escape in a vehicle driven by the owner of the pub (Kala Dhaliwal) who had been driving past at the time. This car was attacked and the rear window was broken before it could be driven away. 
6.	At some point Kala Dhaliwal flagged down a police car and informed officers that two of the attackers had run towards Orchard Avenue and the rest had got into a white van. The police were given the registration number of the van, and the information was circulated. At 00.50 the van was stopped by the police. It contained the appellant and three co-defendants (Baljit Sandhu, Jagjit Singh and Harjit Singh), as well as a sword and an axe. Two other co-defendants (Gurvinder Singh and Majinder Nagra) were arrested in Orchard Avenue. Gurvinder Singh had blood on his right hand, ripped clothing and was in possession of a sword. Another sword was recovered near Majinder Nagra.
7.	In an identification procedure held on 4 January, the appellant and Harjit Singh were identified as the part of the attacking group by Kala Dhaliwal, Sohanjit Singh, Narindajit Singh, Gurdev Basra and Ramandeep Johal. Some of these witnesses also identified some of the co-defendants.
8.	The appellant answered all questions put to him during his police interview, and his evidence at trial was consistent with this account: he had been in the van with Jagjit Singh and Baljit Sandhu shortly after midnight, but had got out of the van to talk to someone. His friends had picked him up 25-30 minutes later and shortly afterwards the van had been stopped by the police. He had not been involved in the violence. He knew all of the identifying prosecution witnesses; and said that Kala Dhaliwal had told the witnesses to identify him as a result of a dispute they had had regarding the management of a Sikh temple. 
9.	Some of the prosecution witnesses suggested that the assault was part of a long-running dispute involving Ramandeep Johal, and that he had been threatened in his own home in October 2009. The attack on 3 January 2010 had begun with the assailants abusing Ramandeep Johal and his friends, saying that they had escaped before and that they were going to kill them. It followed that, according to this view of the matter, Tarjinder Padda had not been the primary target of the attack. However, we note that the Judge specifically warned the Jury not to speculate about the motives for the attack.
10.	Although it could not say which of the defendants had inflicted the particular injuries, it was the prosecution case that they had all armed themselves and arrived together in the van driven by Baljit Sandhu, with the intention of attacking one or more members of Tarjinder Padda’s group.  
11.	We turn then to the evidence given at the trial.
12.	Tarjinder Padda told the jury that he had left the ‘Glassy Junction’ pub at 00.30 with Sohanjit Singh, Narindajit Singh and two men called ‘Gurinder’ and ‘Sontok’. Neither of these latter two gave evidence at trial. He did not mention leaving the pub with Ramandeep Johal.
13.	We note that Ramandeep Johal and the man who is said to be ‘Gurinder’ figure prominently in the grounds of appeal.
14.	Tarjinder Padda said he had seen a group of 8 to 10 men armed with swords and meat cleavers. Four of the armed men had attacked him striking his head and hand. The other men had chased his friends. He had run away and got into Kala Dhaliwal’s car with others. He had heard his attackers refer to one another by names which included ‘Jit’, ‘Nagra’ and ‘Jinder’. There was other evidence that the appellant was known as ‘Jit’ or ‘Jeet’, and that the defendant Jagjit Singh was known as ‘Nagra’. Tarjinder Padda said that, since the attack, he had formed the view that Ramandeep Johal had been the intended target of the attack and that it had been a case of mistaken identity. He denied that he knew the appellant. 
15.	Kala Dhaliwal gave evidence that he had closed the ‘Glassy Junction’ pub at half an hour after midnight and dropped a friend off in his car. While driving back down South Road he had seen men taking swords from their jackets and attacking somebody. He had stopped his car which within seconds was hit with a sword. A number of people got in the car (Tarjinder  Padda, Sohanjit Singh, Narindajit Singh and the man called ‘Sontok’). As he returned to the pub he saw a police car. He flagged it down, and provided the police with the registration number of a white van which he had seen. 
16.	Apart from Majinder Nagra he had identified all the defendants (including the appellant) as being part of the attacking group at the 4 January identification procedure. At the time of the attack he had recognised two of the attackers as ‘Sonny’ and ‘Jinder’. He identified Gurvinder Singh as being a male he knew as ‘Sonny’. When shown photographs of all the defendants on 15 January 2010, he had identified Jagjit Singh as the man he knew as ‘Jinder’. He had seen all those whom he had identified using swords. 
17.	In cross examination he agreed that he had known the appellant for 10 to 12 years. He had not seen his face at the time of the incident. It had only been at the time of the identification procedure that he realised that certain people had been involved. He denied having a dispute with the appellant or having any influence over the evidence or identifications provided by other prosecution witnesses. He also denied involvement in an attack on the appellant in October 2009. 
18.	Sohanjit Singh gave evidence that he had met Gurinder Singh and Gurdev Basra in the pub, and that Tarjinder Padda and Johal had arrived later. He had left the pub with Tarjinder Padda, Narindajit Singh, Gurdev Basra, a man named ‘Sooky’ and another male whose name he did not know. A group of 7 or 8 men armed with swords approached them. Two or three of these ran at him and two or three ran at Tarjinder Padda who fell and was struck on the head with swords. One of the attackers had said ‘Jinder’. Kala Dhaliwal had arrived in his car and one of the attackers smashed the rear window. Tarjinder Padda had been unconscious while in Kala Dhaliwal’s car and they had moved him into another car. The attackers had all been Punjabi speakers, had worn hoods and most were dressed in black clothing. He had recognised five of the attackers: the appellant (whom he knew as ‘Jit’) and men he named as ‘Jinder’, ‘Sonny’, ‘Nagra’ and ‘Buli’. 
19.	In cross-examination he said that he had seen the appellant holding a kirpan in his hand but had not seen him hit Tarjinder Padda. He had charged at them with the kirpan in his hand. He agreed that he had not named the appellant in his witness statement of 3 January 2010, although he had named others and provided descriptions of them. He explained that he had been under pressure when he had made his statement and had come to know the appellant had been present at the scene. He said ‘maybe [the appellant] was not there’, and ‘I was not aware whether he was there or not’. He agreed with the suggestion that he had just picked out someone he knew. 
20.	Narindajit Singh told the jury that he left the pub with Tarjinder Padda, Sohanjit Singh, ‘Sonny’, Gurdev Basra and a few others whose names he did not know. Six or seven people armed with swords came from in front, swearing and shouting that they were going to get Ramandeep Johal. He said all those whom he had identified at the identification procedure had swords, and had either hit Tarjinder Padda or chased another member of their group. 
21.	Gurdev Basra gave an account of 7 or 8 armed men attacking Tarjinder Padda soon after they left the pub. He had recognised two men he knew as ‘Jinder’ and ‘Nagra’. He had also identified the appellant whom he knew through his brother. He had been aware of a dispute concerning the Gurdwara (temple). He also identified three of the other defendants (Baljit Singh, Harjit Singh and Jagit Singh). He had observed them over his shoulder as he ran away.  The men he identified had all been armed with swords. The appellant was carrying a sword and was going to attack them with it. Harjit Singh had threatened to kill Tarjinder Padda and Ramandeep Johal. He had seen Harjit Singh on the Broadway three to four months before the incident and had been told his name was ‘Jinder’. He said all those he had identified had swords and either hit Tarjinder Padda or chased another man. It was suggested in cross-examination that he had not seen the attack.
22.	Ramandeep Johal gave evidence that he had left the pub with Tarjinder Padda, ‘Sonny’ and Gurdev Basra, when a group of 7 or 8 men armed with swords approached them, swearing and threatening to kill them. 5 or 6 men had hit out at Tarjinder Padda. He (the witness) had run away as soon as the attack began, but had seen the men attacking Tarjinder Padda, and recognised them as men he knew as ‘Nagra’, ‘Jinder’, ‘Jit’ and ‘Sonny’. At the identification procedure he had identified the appellant, whom he had known from the gym, and three of co-defendants (Jagjit Singh known as ‘Nagra’, Harjit Singh known as ‘Jinder’ and Baljit Sandhu known as ‘Joti’). He had known the appellant before this incident but had never spoken to him. He described him as one of the 4 or 5 men hitting Tarjinder Padda with kirpans. 
23.	In cross-examination he said that he had not mentioned Baljit Sandhu or the appellant in his original police statement as he had been in shock; and that when he had named Manjit Singh as being present he had meant to say the appellant. 
24.	Apart from police evidence, which it is not necessary to summarise, there were CCTV recordings showing a white van turning off South Road at about 00.32. Thereafter a group of men could be seen walking towards another group of men who were walking from the pub. The attack itself was not recorded. At 00.36 Tarjinder Padda and others from his group were filmed entering Kala Dhaliwal’s car which had a smashed rear window. At 00.37 other men, said to be the two men later arrested in Orchard Road nearby were recorded running along South Road. 
25.	The appellant gave evidence in line with the account he gave in his police interview, which was that he had been in the white van at a time before and after the attack, but had not been involved in any assault. Baljit Sandhu had picked him up in the white van shortly before they were stopped by police. He had been unaware that there was a sword and axe in the van. He knew all the prosecution witnesses and believed they had picked him out at the instigation of Kala Dhailwal. On 31 October 2009 he had been attacked by Kala Dhaliwal and had made a statement to police at the time. We note that there was an admission as to the facts of this incident as recorded on police records which was before the jury. He said that he had not named Kala Dhaliwal as the assailant, nor pursued the matter at the time, because Kala Dhaliwal had threatened him over the telephone. He accepted that he had lied in his statement to the police when he said that he did not know who had attacked him in October 2009.
26.	The appellant’s co-defendants also gave evidence. Baljit Sandhu’s account was that he was able to use a work van, the back of which was filled with rubbish. He had seen the axe in the back of the van but not a sword. After leaving a party at about 00.30 he had told the appellant that he would collect the van and did so in the company of Harjit Singh and Jagjit Singh. Jagjit Singh had been drunk and got into the back of the van. He had collected the appellant who had sat in the front with Harjit Singh. The appellant had got out of the van in Hanborough Road to talk to some friends. He (Baljit Sandhu) had then driven to Beaconsfield Road and South Road where the van was captured on CCTV at 00.32. His intention had been to buy alcohol from one of the off-licences on Beaconsfield Road and South Road. Harjit Singh had got out of the van further up South Road to talk to friends; and he had parked the van and got out, as he thought that he had seen some of his own friends. At this point he witnessed a fight between 10 to 12 people whom he did not know. A hooded man had struck him from behind with a pipe and run to a silver car. He had picked up this pipe and smashed the rear window of the car in order to stop it. When he returned he saw Harjit Singh at the side of the van and Jagjit Singh coming out of the back of it. He had asked Harjit Singh to drive, pick up the appellant and then go to hospital as his leg had been injured. Harjit Singh had driven the van and he had sat in the front, with Jagjit Singh still in the back. They had collected the appellant from Hansborough Road where they had left him, and were then stopped by police. 
27.	Jagjit Sandhu gave an account of getting drunk at the party and being driven around in the back of the van. He had only been aware of Harjit Singh and Baljit Sandhu in the van, and had not seen an axe or sword. He had got out of the van for about 30 seconds and had seen Harjit Singh standing by the van and Baljit Sandhu limping. He had got back into the rear of the van and the next thing he was aware of was being taken from the van and arrested. 
28.	Gurvinder Singh’s evidence was that he had been at the same party as the others but had left alone at about 00.25 heading to the train station. He had seen Harjit Singh and Majinder Nagra and spoken briefly with them. He crossed the road and was run over by a silver car, injuring his wrist, hand and nose. As he lay injured on the road Sohanjit Singh (the prosecution witness) had walked past him wearing a black hood saying, ‘We want to kill him, bring the car.’ He had got up and picked up a sword that had been lying on the ground. This was for his protection as he had been scared. He had run down an alleyway away from people who were swearing at him. In Orchard Avenue he had seen a car stop and he had thrown the sword to the ground. He had stopped when told to do so by police. Kala Dhaliwal might have identified him as he knew his face and Sohanjit Singh might have identified him as he had seen him lying on the ground.
29.	Two grounds of appeal are advanced on the appellant’s behalf by Mr McCarthy.
30.	First, it is argued that, although Ramandeep Johal had given evidence for the prosecution at the trial, he had not in fact been present at the time and place of the attack, and had given false evidence against the appellant. In support of this ground the appellant relies on the fresh evidence of two witnesses (Sukbir Singh Ghodra and Makhan Singh), who did not give evidence at the trial, that Ramandeep Johal had later confessed to them on different occasions that he had been persuaded to give false evidence by various prosecution witnesses.  
31.	Second, it is argued that the ‘Gurinder’, who had been described as one of the group of men leaving the ‘Glassy Junction’ pub by Tarjinder Padda and others, had not in fact been present; and that he had been approached and asked to give false evidence against the defendants, which he had refused to do. The evidence in support of this ground comes from Sukbir Singh Ghodra and from transcripts of telephone conversations between the appellant, Sukbir Singh Ghodra and a man named Gurinder Singh, said to be ‘Gurinder’, while they were all in prison.
32.	We heard the oral evidence of Sukbir Singh Ghodra and Makhan Singh in order to assess whether their evidence satisfied the test set out in s.23 of the Criminal Appeal Act 1968.
33.	Section 23(1)(c) provides that the Court may, if it thinks it necessary or expedient in the interests of justice, receive any evidence which was not adduced at trial. Section 23(2) requires the Court, in considering whether to receive evidence to have regard to four matters: (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 at trial 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 at trial?
34.	The main issues on this appeal depend on the answers to questions (a) and (b), but there is also an issue as to whether the evidence relied on now would have been admissible at trial since the evidence given by Sukbir Singh Godra and Makhan Singh in support of the first ground was evidence of what they say they were told by Ramandeep Johal. 
35.	Sukbir Singh Ghodra made two witness statements (dated 24 August 2014 and 27 January 2016). His evidence was that he first met Ramandeep Johal (whom he knew as ‘Jageera’) in December 2009 in the ‘Glassy Junction’ pub, and quickly developed a bond with him. He described him as being like a brother and someone with whom he would often socialise. From 2011 they lived together in the same accommodation; and it was in November 2011 that he had noticed a change in his character. He had asked him what was troubling him and he had confessed that he had been pressurised into giving false evidence at a trial by Gurdev Basra and Kala Dhaliwal. He had only become aware of the significance of this false evidence when he had seen the appellant’s wife and daughter at the temple. When he had tried to persuade ‘Jageera’ to go to the police he had replied that he was reluctant to do so because he feared reprisals from those who had persuaded him to give the false evidence and because he might face a charge of perjury if he made a statement confessing to what he had done. He referred to the man whose wife he had seen at the temple as ‘Jeet’. Sukbir Singh Ghodra’s evidence was that he had been convicted and sent to prison October 2013 for supplying class A drugs; and that, when he was transferred to HMP Huntercombe, he had met the appellant and realised in the course of a conversation that this was the man, ‘Jeet’, whom ‘Jageera’ had talked about. He told the appellant that ‘Jageera’ had often spoken of his remorse at having given false evidence. 
36.	Makhan Singh (unlike Sukbir Singh Ghodra) was a man of good character. He had come to this country in 1998 and been a good friend of the appellant since 1999. The material part of his evidence was set out in a witness statement (dated 12 February 2016).
… around the early part of 2012, either January or February … Ramandeep Singh Johal informed me that he had just, that day, been released from HMP Wormwood Scrubs. He explained that he had been in prison due to a complaint made by Mr Sohanjit Singh regarding an assault matter and that he was very upset after everything that he had done for him. Mr Ramandeep Singh Johal stated that despite not being present at the incident, Mr Sohanjit Singh had ordered him to meet outside Southall police station and told him what to say to the police, all of which was false and made up. Mr Ramandeep Singh Johal also went further to give false evidence on oath at the trial at Isleworth Crown Court and he said that he had made a big mistake and that he felt terrible for listening to Mr Sohanjit Singh.
As we have set out above, Sohanjit Singh was one of the prosecution witnesses at trial. 
37.	Makhan Singh said he had advised Ramandeep Johal to go to the police but, having consulted a solicitor, he said he was afraid that he would be at risk of going to prison for perjury.
38.	We note some of the features of this evidence.
39.	When Sukbir Singh Ghodra was asked by Mr Cranston-Morris in cross-examination whether he had known about the attack outside the ‘Glassy Junction’ pub at the time when it occurred, his reply was, at best, equivocal and unconvincing. He was then asked whether Ramandeep Johal had talked about giving evidence either before or at the time of the trial in the summer of 2010. He replied that he had not discussed this with him until November 2011, despite the fact the attack was at a pub that he visited at the time of the incident, the attack was a matter of considerable interest within the local Sikh community and Ramandeep Johal had given evidence at the trial over a period which covered 9 to 16 July 2010. This was at a time when Sukbir Singh Ghodra said that they were good friends and that his good friend, ‘Jageera’, confided in him. We found the evidence that nothing was said about the trial at the time it took place impossible to believe, as was the evidence that Ramandeep Johal had suddenly changed as a result of what he had observed at the temple. We also note that, when Ramandeep Johal was later said to have confessed to his alleged perjury to Makhan Singh in early 2012, his motivation was not said to be a sense of guilt at what he had done but resentment that Sohanjt Singh had repaid his assistance by being instrumental in sending him to prison for an assault. 
40.	The evidence of Makhan Singh was, on the face of it, more persuasive. Although he was a close and long-standing friend of the appellant, he was a man of good character. There were however, a number of difficulties with his evidence. First, we were left with the impression that the purpose of his evidence was to fill in a gap in the appellant’s case. Sukbir Singh Ghodra’s evidence went to a conspiracy to persuade Ramandeep Johal to give false evidence which involved Gurdev Basra and Kala Dhaliwal. Ramandeep Johal’s reported confession to Makhan Singh in early 2012 involved another prosecution witness, Sohanjit Singh. Secondly, this further evidence of a conspiracy has to be seen in the light of evidence that, although Tarjinder Padda was the victim of the assault, its intended victim was Ramandeep Johal, who had previously been attacked in October 2009. Thirdly, and in any event, the conspiracy was not said to include Tarjinder Padda who had heard the name ‘Jit’ being used during the attack.
41.	Finally, there was simply no credible explanation as to why, having heard Ramandeep Johal’s confession to perjury in early 2012, Makhan Singh waited four years before making a witness statement in which he described it. He gave evidence that he regularly visited the appellant in prison and had told him about his conversation with Ramandeep Johal at the time it occurred. Despite this, the appellant’s original grounds, dated 2 January 2014 and 25 June 2014, referred to a confession of perjury by Ramandeep Johal to the appellant, but made no mention of what, on the face of it, was a far more compelling and detailed confession made to Makhan Singh.
42.	In the light of the above we find that the hearsay evidence of Ramandeep Johal adduced by evidence of these two witnesses is incapable of belief and we reject it.
43.	We turn then to ground 2, which relies in large part on transcripts of telephone conversations (translated from Punjabi into English) which took place in prison between the appellant (assisted by Sukbir Singh Ghodra) and a man named Gurinder Singh, who is said to be the man named ‘Gurinder’ referred to in Tarjinder Padda’s evidence: the man who left the pub with him but did not give evidence.
44.	A number of preliminary issues arise in relation to this ground. First, the argument proceeds (as it did on ground 1) on the basis of hearsay evidence. Gurinder Singh was not called to give evidence. It is possible that he is no longer alive, which would render his evidence admissible under s.116(2)(a) of the Criminal Justice Act 2003. However, due to doubts about the true identity of the Gurinder Singh in the recorded telephone conversations, this cannot be certain. 
45.	In the absence of Gurinder Singh, the quality of his evidence depends on the view we take about telephone conversations and, to a lesser extent, on the credibility of Sukbir Singh Ghodra. We have already expressed our view on the latter. 
46.	There are two particular passages which are relied on in support of the contention that the Gurinder Singh in the transcript is the ‘Gurinder’ referred to by Tarjinder Padda and that he was asked to give false evidence.
Jeet (the appellant): I am asking about my case.
Jinder: Which case? That one. I was not there. Neither was I asked to give evidence and neither did I give evidence.
Jeet: Yes, but they were giving your name and they said you was with them.
Jinder: No! No! No! They gave my name and were telling me to give false evidence, but I told them that I am not giving evidence against anyone. I told them from the very start.
47.	In this short passage ‘Jinder’ initially says that he was not asked to give evidence and then that he was told to give evidence which was false.
48.	Later, the man who appears to be ‘Jinder’ answers to the name ‘Gurinder’ and that is the assumption made in the next passage. 
Appellant: Everybody your name (sic), they said Gurinder was with us. 
Gurinder: No, no, no. I don’t have any involvement in this, tell them.
Applicant: You was not there at that time yeah?
Gurinder: No, no. I was not there that is all.
49.	It is unclear who the ‘us’ in the first line is referring to. If ‘Gurinder’ thought the ‘us’ referred to the assailants, he would have good reason to deny it. 
50.	There is some support for the argument that the ‘Gurinder’ in the telephone conversation knew this part of the conversation was about the appellant’s case; and it is therefore possible that this ‘Gurinder’ was the person referred to by Tarjinder Padda.
51.	However, even on this assumption there are further issues about what he was saying about the 3 January 2010 attack. 
52.	In whatever way these short extracts are to be understood, it is important to bear in mind that they are only a part of conversations in which the appellant suggested information to Gurinder Singh that had been provided to him by others, without any attempt to identify such people or provide the witness statements from them before inviting comment. There are also other passages where the appellant is talking about his case and Gurinder Singh is plainly talking about his own case. The transcripts, when read as a whole, raise serious concerns as to Gurinder Singh’s character and credibility, and contain inconsistencies and ambiguities which makes his evidence on the issue difficult to assess.
53.	In the light of the above we are not persuaded that this evidence satisfies the test for its admission under s.23(2)(a) and (b) of the 1968 Act or that it would have been admissible at trial in the light of the uncertainty as to the true identity of ‘Gurinder’ and ‘Gurinder Singh’, see s.23(2(c).
54.	This was not a case which depended on identification; and we note in this context that Sohanjit Singh, who (on Makhan Singh’s evidence) was part of the prosecution witness’s conspiracy directed against the appellant, did not identify him. There was also the strong circumstantial evidence of the appellant’s presence in the white van in which a sword was found, shortly before and very shortly after the assault.
55.	In the light of the above we are not persuaded that the conviction is unsafe; and the appeal is accordingly dismissed.