R. v. MOHAMMAD SHAHZAD BASHIR

IN THE COURT OF APPEAL

1994, No. 661
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. This is an application for leave to appeal against conviction. It comes to us from a trial which took place before His Honour Judge Sweeney in the District Court late last year. The case concerns what happened at a certain flat in Shamshuipo on May 20 that year. The flat was used as a dormitory by a large number of men.

2. On that day and at that place, a young man who lived there sustained horrific wounds which by their nature must have been caused by a blade or a number of blades wielded with considerable force by a person or a number of persons. He gave evidence to the effect that he was the victim of four men who burst into the dormitory. Two of the culprits, he said, stood guard while the other two attacked him: one with a beef knife and the other with a kukri.He identified one of the knife-men as this applicant, also a young man.

3. The judge considered the identification evidence with care. And he was satisfied that the identification was reliable.

4. At the trial, the applicant did not testify. Nor did he call any witness. Those omissions were of course perfectly within his rights. But they left the prosecution's evidence uncontradicted by any evidence to the contrary. The challenge to the prosecution's case came only in the form of the defence suggestion, advanced by way of cross-examination and speech, that the victim bore this applicant a grudge and had made up a story that the applicant was one of his attackers.

5. The judge carefully considered whether that might be so. And he was satisfied that it was not. He convicted the applicant as charged i.e. of wounding with intent.

6. In his notice of application for leave to appeal against conviction, the applicant included three grounds.

7. By the first, he complains that the judge believed the victim even though the victim changed his story three times. In the circumstances, that does not cause us any anxiety about the view which the judge formed after seeing and hearing the victim in the witness-box.

8. By the second ground, the applicant says that the judge ignored the fact that there had been found a knife which had been used in the attack and which did not bear his fingerprints but those of another. In fact, no knife was produced at the trial. But even if a knife had been found bearing somebody else's fingerprints and not the applicant's, that would not undermine the victim's account which was of two knife-men.

9. In the third and final ground, the applicant makes reference to other witnesses who might have been called but who were not. The prosecution chose to call the victim. The judge chose to believe the victim. That the judge was entitled to do. The third ground is without substance.

10. There were other points urged by the applicant in person before us. For example, he said that an interpreter at the identification parade was a friend of the victim's. Even assuming that that is true, it makes no difference. It is not suggested that the victim needed help to pick out the applicant. The suggestion is that the victim had no difficulty in identifying the applicant. What he did, the defence suggested, was to pick out the applicant falsely: out of malice and as the result of a grudge.

11. Towards the end of his oral argument, the applicant said that the judge convicted him on the evidence of one man. That is exactly right. But the judge was entitled to do so.

12. Leave to appeal is refused.