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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Kwaik, R. v [2013] EWCA Crim 2397 (19 December 2013) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2013/2397.html Cite as: [2013] EWCA Crim 2397

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IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM Southwark Crown Court
His Honour Judge Pegden QC
T20117498

		Royal Courts of Justice Strand, London, WC2A 2LL
		19/12/2013

Lord Justice Treacy:

1. On 27^th September 2011 in the Crown Court at Southwark this appellant was convicted of a count of manslaughter and two counts of unlawful wounding. He was sentenced to a total of 12 years imprisonment with time spent on curfew ordered to count towards sentence. In addition, a forfeiture order was made in relation to his motor car, and he was disqualified from driving for a period of 10 years, and until he passed an extended driving test.
2. He appeals against conviction, limited to two grounds by leave of the Full Court.
3. The facts show that on 8^th November 2009 at 4:45am the deceased, Shenol Ahmet, was driving a Ford Fiesta motorcar from Barnet towards Bushey. Corey Holliday was in the front passenger seat, and Luke Hall in the rear nearside seat. There was a collision between his vehicle and a Honda NSX motorcar being driven by the appellant. As a result both vehicles left the road.
4. Ahmet died of his injuries the following day. Holliday's injuries were extremely severe; he was rendered incapable of caring for himself. Hall suffered a fractured elbow and wrist, and was detained in hospital for four days.
5. The deceased and his friends drove past a restaurant, The Sahara Lodge, in Stanmore Hill at 4:34am. That restaurant is owned by the appellant's brother. Holliday and Hall threw a number of eggs at customers sitting outside the restaurant. The appellant had been present when the eggs were thrown, and ran to his high performance Honda sports car which was parked at the rear of the premises. He then chased after the Fiesta. The distance between the restaurant and the collision site was 1.16 miles. The road has a 40 mile per hour speed limit. CCTV at a garage about a mile from the collision site, showed the two vehicles as 31 seconds apart.
6. At some point the appellant's Honda caught up with the Fiesta. There was contact between the front nearside of the Honda and the rear offside of the Fiesta on a straight stretch of road. The vehicles left the road and went into a wooded area on the offside. The appellant only suffered minor injuries and was released from hospital within a few hours.
7. The Crown's case was that the appellant had chased Ahmet's vehicle and, based on the evidence of Luke Hall, had overtaken the Fiesta and carried out a 90 degree handbrake turn, resulting in the Honda being broadside to the Fiesta. The Fiesta managed to get past the Honda, whereupon the appellant resumed his pursuit, caught up with the Fiesta, and deliberately steered his own vehicle so as to collide with the Fiesta. In effect the appellant was using his vehicle as a weapon.
8. Hall's evidence was that the Honda had nudged the Fiesta on two occasions, remaining in place on the second occasion. This pushed the Fiesta, causing it to change direction. Hall said that the Fiesta had not been driven so as to make contact with the Honda.
9. The appellant denied overtaking the Fiesta and conducting a handbrake turn. He said he had followed the Fiesta in order to take its registration number, as the police had advised after previous egg throwing incidents. He said that the Fiesta had started to weave from the nearside to the offside of the carriageway, and he was conscious of another vehicle following behind him. He thought this vehicle might be acting in concert with the Fiesta so as to box him in. Fearing attack, he decided to overtake the Fiesta. As he did so, the Fiesta had driven from the nearside to its offside, and collided with the Honda. He took his foot off the accelerator and lost control.
10. He denied having lost his temper because of the egg throwing incident, and denied deliberately colliding with the Fiesta or bumping it to get it off the road.
11. The issue for the jury on all three counts was whether or not the appellant had committed an unlawful act of deliberately driving his Honda into the Fiesta in circumstances where the risk of some harm was obvious. The core question was whether the Honda had been used as a weapon.
12. The prosecution and defence adduced expert evidence from well qualified accident and collision investigators. The Crown relied on PC Cousins, a serving officer of much experience. The defence relied on Malcolm Price, again experienced and a former police officer.
13. There appears to have been general agreement between the experts that the collision occurred when the nearside front of the Honda and the offside rear of the Fiesta came into contact. At that point both vehicles were travelling in parallel in the same direction close to the centre of the carriageway. Both vehicles were estimated to have been travelling at between 40 and 50 miles an hour at the time of the collision. After the contact there was a brief period of time when the Honda's nearside front was against the rear offside of the Fiesta. The greater momentum of the Honda (a heavier vehicle) caused the Fiesta to rotate in a clockwise direction about the Honda's nearside front. Both vehicles separated and left the carriageway on the offside. About two to three seconds elapsed between impact and leaving the carriageway.
14. There was, however, a fundamental disagreement between the experts. PC Cousins' opinion was that having considered the various possible causes of the collision, it had been caused by the Honda being steered towards the Fiesta and colliding with it. Mr Price's opinion was that the available evidence was inconclusive as to whether the collision had been caused by the Honda being steered towards the Fiesta or vice versa.
15. In passing a sentence of 12 years, the judge took account of the fact that an 18 year old youth had lost his life, and that another passenger had suffered such severe brain injury that he required full time care and was unlikely to recover. A third person had also suffered serious injuries.
16. The judge found the following aggravating features: pursuit of the Fiesta in a state of anger, passing the Fiesta at speed and attempting to block it, continued pursuit thereafter, and the application of a prolonged lateral force to the other vehicle at speed using his vehicle was a weapon. The flagrant disregard for the rules of the road had been intended to teach the young men in the Fiesta a lesson. It caused them to lose control of their vehicle. The death and injuries caused were a significant aggravating feature. The judge also took into account the appellant's claim that the deceased was responsible for what happened.
17. The judge had regard to appellant's good character, but held that the egg throwing did not mitigate the gravity of the offending. The offender is now 39. He has no previous convictions for motoring matters, or any other matter of relevance recorded against him.
18. Grounds of appeal against conviction are brought with the leave of the Full Court. The Single Judge's refusal of leave on sentence has led to a renewed application.
19. As to conviction, the grounds, shortly put, are that the opinion of the prosecution expert was inadmissible and should have been held to be such by the judge. The further ground is that there is now fresh evidence available from another expert, Michael Brown, showing that a computer modelling technique, known as MADYMO, demonstrates that it was not possible to reconstruct the collision in accordance with PC Cousins' opinion so as to recreate the post-impact results as presented to the court.
20. As to sentence, the term of 12 years is said to be manifestly excessive in that the offence involved a sudden and uncharacteristic use of violence. This was not a prolonged course of dangerous driving, but rather the culmination of an incident started by those in the Fiesta.
21. Returning to the conviction appeal, PC Cousins' opinion, which included taking into account Hall's evidence, was that the Honda, when beside the Fiesta, matched its speed and then applied prolonged lateral force against its rear offside. At paragraph 7.6.5 of his report he stated:

"There is insufficient physical and witness evidence for me to conclude which vehicle made the initial move towards the other without offering my opinion; I have therefore discussed the possibilities."

22. At 7.6.7 he stated:

"It is my opinion that the Honda steered towards the Fiesta. Mr Hall described that after the initial nudge that made the Fiesta judder, it was the continual pushing that caused the Fiesta to rotate sideways."

23. He then went on to discuss a finding of a rubber deposit consistent with a rotating tyre positioned on the rear offside panel of the Fiesta, above the wheel arch. He said it was likely that it was the front nearside tyre of the Honda that caused this, and that the tyre had lifted off the ground in so doing. This was more likely to have occurred with the Honda steering in towards the Fiesta. The severity of this would be based on the amount of steering applied. The rubber deposit was unlikely to have happened if the Fiesta had steered towards the Honda.
24. At 7.6.10 he stated:

"I suggest that the position of these marks shows that both vehicles were effectively travelling at the same speed at the time of contact, rather than one travelling faster than the other – as would have been the case if the Honda was overtaking the Fiesta as suggested by Mr Abu Kwaik. In addition, for the Fiesta to have lost control and rotated around the front of the Honda, a prolonged lateral force would have had to have been applied. Not only does this concur with Mr Hall's recollection of events, but would tend to suggest a more deliberate act on the part of Mr Abu Kwaik."

25. Thus it was that PC Cousins gave his opinion that based on all the evidence available to him, the Honda, "having matched speed with the Fiesta, steered towards the Fiesta and applied a prolonged lateral force against it".
26. The reference to "prolonged force" needs to be understood in its proper context. It means the deliberate and more than fleeting application of force. In duration it would not have lasted more than a second or so. Mr Price, the defence expert, agreed that to cause the mark, a prolonged contact in the sense described would have been necessary.
27. Mr Price, while agreeing that it was likely that one vehicle or another was subjected to lateral movement by its driver, resulting in the collision, stated that although the physical evidence was consistent with PC Cousins' conclusion, it was in truth consistent with either vehicle moving into the other.
28. Both experts gave their evidence in accordance with their reports and the judge summarised their evidence accordingly.
29. In relation to the first ground, Mr Holland QC submits that PC Cousins gave an opinion which was not based upon matters within his expertise, and so ought not to have been permitted to do so. The reference to "insufficient physical and witness evidence for me to conclude which vehicle made the initial move towards the other," means that his opinion was not based on an assessment of the physical and witness evidence, and so should not have gone before the jury.
30. Mr Holland underlined the danger of permitting a non-expert opinion given by an expert to be treated by the jury as expert opinion upon which they can rely. A not dissimilar submission had been made to the trial judge. He rejected the submission on the basis that the evidence of PC Cousins as to the presence of the tyre mark above the rear offside wheel arch of the Fiesta provided a basis upon which an expert opinion could be given.
31. Mr Penny supports the judge's line of reasoning, and points out that in addition there was Hall's evidence as to the overtaking and handbrake turn manoeuvre, which would permit an inference consistent with PC Cousins' opinion. So would Hall's evidence to the effect that it was the Honda which made the manoeuvre immediately preceding the collision with the Fiesta rather than vice versa. He points out that PC Cousins also took this piece of evidence into account in coming to his opinion.
32. Mr Holland placed strong reliance on PC Cousins' reference to "insufficient physical and witness evidence…", set out fully at paragraph 21 above. He submitted that that paragraph, which preceded the later paragraphs giving PC Cousins' opinion, was inconsistent with and invalidated any legitimate basis for an expert to advance an opinion.
33. Moreover, he relies on the fact that the following paragraph, 7.6.6, which contained speculation and trespassed on jury matters, had been excluded by the judge at the start of the trial, yet it must have formed part of the basis upon which PC Cousins had reached his opinion. This latter point can be disregarded since the ensuing paragraph, 7.6.7, begins "I have considered and discounted these scenarios…". It is clear therefore that the ensuing opinion left those particular matters out of account.
34. As we read PC Cousins' report, and consistent with the way in which he gave evidence before the jury, he was placing reliance for the purposes of his opinion on the finding of the tyre mark and the evidence which had been given by Mr Hall. Accordingly, there was a basis founded in fact by reference to which it was permissible for PC Cousins to give an opinion in his capacity as an expert. We do not accept the submission that there was nothing upon which he could properly found his opinion.
35. It is nothing to the point that PC Cousins was prepared to accept in cross-examination that the mark might have been left if the Fiesta had moved into the Honda, and the Honda's reaction was to steer to the left. PC Cousins' evidence under cross-examination was that the average reaction for a person whose car had been steered into, would be to steer away and to brake. This particular answer is itself criticised as improper. We are not persuaded that it was. Firstly, it was in response to a particular line of cross-examination envisaging a particular scenario, and there does not appear to have been any objection at the time to it. Secondly, the witness is a highly qualified driver and experienced collision investigator, which would provide a basis for him properly to give such an answer. Moreover, we note that no objection had been taken to a similar passage in PC Cousins' report referred to at paragraph 7.6.10 suggesting that if the Fiesta had steered towards the Honda, the deposit of a tyre mark was unlikely since the appellant would not in those circumstances have steered towards the Fiesta, but away from it. This would cause the nearside to dip and made it less likely to leave the rubber deposit found above the wheel arch.
36. Returning to Mr Holland's reliance on paragraph 7.6.5 of PC Cousins' report, we are satisfied that it means that the physical and witness evidence of itself was insufficient to provide a conclusive answer as to which vehicle moved towards the other in the absence of an opinion being given by PC Cousins. This is supported by a joint statement of the two experts created before trial in which they state:

"It is not possible to determine from the physical evidence exactly (our italics) which vehicle initiated that contact."

37. This confirms our view that the paragraph is to be read as showing that the physical and witness evidence could not, without more provide a definitive answer to what had happened. It was in that context that PC Cousins then moved on to give an opinion based on a combination of the tyre mark and the evidence of Mr Hall.
38. Mr Price did not agree with that opinion, considering that there was still insufficient material for a conclusion to be drawn. That does not affect the admissibility of PC Cousins' opinion. It merely demonstrates the key difference between the experts before the jury.
39. Accordingly, we are not persuaded that this fundamental challenge to the admissibility of PC Cousins' evidence succeeds, and this ground must fail.
40. The further ground is based on an application to adduce fresh evidence. Section 23(1) of the Criminal Appeal Act 1968 as amended provides that this court may, if it thinks it expedient or necessary in the interests of justice, receive any evidence which was not adduced below.
41. Section 23(2) provides that in considering whether to receive any evidence, the court shall have particular regard to:

"(b) Whether it appears to the court that the evidence may afford any ground for allowing the appeal;…

(d) Whether there is a reasonable explanation for the failure to adduce the evidence in those proceedings…"

42. The appellant seeks leave to adduce the expert opinion of a new expert in accident reconstruction, Michael Brown. He has available to him computerised accident reconstruction techniques not considered by the experts below.
43. We have received his evidence de bene esse, as well as evidence on the same basis from Dr Gary Coley, another acknowledged expert on behalf of the Crown. The thrust of the proposed fresh evidence is that based on the computer modelling, PC Cousins' opinion as to the use of the Honda as a weapon in deliberately turning into the nearside of the Fiesta, is seriously called into question. The evidence is said to support a finding that the scenario put forward by the prosecution does not match all the vehicle damage noted on the two vehicles, and would not result in the collision occurring as claimed.
44. The results obtained are said to be more consistent with the defence hypothesis that the Fiesta steered into the Honda. This evidence, if admitted, would undermine the credibility of PC Cousins' evidence, and raise doubts about the safety of the conviction based on the use of the Honda as a weapon.
45. The Crown's response is that this further work is of limited value. In particular, given the many unknowns and the ranges of variables relating to this collision, Mr Brown's report does not represent a robust analysis. In particular the computer modelling so far covers about two hundred different simulations, but several thousand would need to be carried out for a typical full stochastic vehicle dynamics analysis.
46. In short, there is a large number of variables relating to braking, steering, speed, overlap and separation of vehicles, and driver inputs which have not at present been explored and whose exploration would affect the outcome and balance of Mr Brown's report. Another example is the absence of post-impact steering inputs by either driver. The simulations carried out so far do not accurately represent the event or satisfy the essential criteria for an accurate simulation.
47. Such a simulation needs to fulfil the following criteria: (a) damage to the front bumper of the Honda from contact with the rear offside wheel/tyre of the Fiesta; (b) the front of the Fiesta travelling towards the tree it struck on a relatively straight path; and, (c) the contact across the front of the Honda being limited to no more than about one quarter inboard from its nearside. None of the simulations done fulfils all those requirements.
48. The experts have met and produced an agreed statement to the court. They agree that additional modelling work would be necessary fully to investigate all the variables relevant to this case. They agree that no simulation has satisfied the criteria mentioned above. They agree that the simulations failed to account for the position in which the Honda came to rest. Different steering inputs were applied to each vehicle when a more balanced approach was necessary. They agree that the model used to represent PC Cousins' scenario of a loss of control after prolonged contact between the front nearside of the Honda and rear offside of the Fiesta does not match all of the physical evidence and is based on continued left steering by the Honda after the collision. However, some simulations show that this could be consistent with the damage to the vehicles. They note that the computer simulation of the police scenario is based on Mr Brown's interpretation of PC Cousins' evidence.
49. Overall the two experts agree that due to the variables and also in part the limited physical evidence, it is unlikely that further modelling will be able precisely to reconstruct the vehicle movements and driver inputs at the time of the incident.
50. In relation to the tyre mark on the Fiesta, the experts agree that it indicates relatively diagonal movement between the tyre and the bodywork, but such contacts have yet to be included in the computer modelling. If caused by the rotating wheel of the Honda, this would indicate that part of a Honda wheel must have been higher than indicated by the tyre mark. The passenger loading of the Fiesta might affect its height. If the Honda steered left, whilst its nearside bodywork would rise, it is unlikely that the position of any part of the tyre would alter by a large amount because of the operation of the suspension.
51. Those matters relating to the tyre mark emerged for the first time as a result of a meeting between the two new experts very shortly before the appeal hearing. Their meeting took place in relation to the computer modelling, which has been the focus of the fresh evidence ground, but these additional observations have arisen from that meeting, and Mr Holland QC seeks additionally to rely on them.
52. In particular he seeks to rely on their observations that they disagree with PC Cousins as to which part of the tyre caused the mark on the Fiesta and the way in which the mark came to be on the Fiesta. In their view the tyre mark could be the result of the Honda steering into the Fiesta or vice versa or from near-parallel contact between the two vehicles. Mr Brown told us that in his view that although the tyre mark could have been made in the way described at trial by PC Cousins, there were other scenarios which could account for the tyre mark which do not involve the Honda steering into the Fiesta.
53. As far as this somewhat adventitious aspect of the matter is concerned, we note that it has never featured as a ground of appeal until it was referred to in Mr Holland's skeleton argument delivered the day before the hearing. The whole thrust of his fresh evidence ground hitherto had relied on the computer modelling. The question of the means by which the tyre mark or marks were caused to the Fiesta was fully investigated at trial.
54. Both PC Cousins and Mr Price gave evidence. Mr Price accepted that PC Cousins' opinion was a possible explanation for the way in which the mark had been caused, although he suggested that that manoeuvre would have led to the Honda continuing across the road towards the nearside instead of the offside. It is to be noted that the evidence of Mr Brown and Dr Coley on this topic is not to the effect that PC Cousins' opinion could not be correct. Their evidence was that his view was one of three possible scenarios. Their evidence in reality simply represents further opinion on an issue which was fully and properly considered by experts at trial in an area where knowledge and science was as readily available as it is now.
55. Given the need for evidence to be deployed at trial, and given the nature of what Mr Brown and Dr Coley have to say on the topic, we do not consider that it is necessary or expedient in the interests of justice to receive their evidence on this aspect of the matter.
56. Mr Holland himself appeared to acknowledge that our approach to the tyre mark material might well be different from that relating to the computer modelling.
57. Before we come to the effect of the tendered evidence, we will examine Section 23(2)(d). The statute and case law make plain that it is essential that a defendant in a criminal case advances his whole defence and any evidence upon which he relies before the trial jury. Where such evidence has not been advanced until the appellate stage, the court will be astute to investigate whether there is a reasonable explanation for the failure to call at first instance the evidence now relied on.
58. It seems to be common ground that neither of the two well qualified experts at trial was aware of the MADYMO computer modelling technique used by Mr Brown. There does not appear to be any dispute that the system is capable of providing simulations assisting in the analysis of collisions of the sort which occurred in this case. It appears, however, that this is only the second case in which such simulations have been used. The only other instance was in a pre-trial investigation occurring shortly after this trial.
59. Whilst there is material put forward by Dr Coley showing that this particular system was available and had been used well prior to 2011 (and had been referred to in at least one professional journal), we are prepared to accept, having considered materials tendered to us, that neither the experts below, nor the legal advisers for the appellant were aware of this computer modelling system. The material presented to us in this respect has been somewhat belated and sparse, but it has not been significantly challenged by the Crown and we are prepared to proceed on the basis that there is a reasonable explanation for the failure to call this evidence at trial, namely that its use for these purposes was not then reasonably capable of being ascertained. This may be somewhat generous to the appellant given that fresh legal advisers have had recourse to such evidence for the purposes of this appeal.
60. We turn then to the factor at Section 23(2)(b) (that the evidence may afford a ground for allowing the appeal). Our conclusion is that the evidence tendered is simply not clear or firm enough. Mr Brown frankly concedes that the simulations done provide indications favourable to the appellant's case, but no more. The work which has been done is but a small fraction of that which could be done. The simulations so far used and some of the important underlying inputs into such simulations have rather been concentrated in favour of the theory that the Fiesta drove into the Honda.
61. Although financial constraints have prevented fuller modelling, it is unlikely that further work would provide an accurate outcome. All that it might do is provide better understanding. Although the initial work done by the modelling may provide some evidence favouring the theory that it was the Fiesta that moved towards the Honda rather than vice versa, it has not in our judgment reached anything like the state of robustness necessary for it significantly to undermine the case put forward by the Crown. It seemed to us that Dr Coley was right in emphasising how much more work would need to have been done, (but without any certainty of outcome), and in his suggestion that Mr Brown had somewhat over-emphasised the significance to be drawn from the work done to date. We therefore conclude that Section 23(2)(b) cannot be satisfied by the fresh evidence tendered.
62. We recognise that the ultimate question as to the reception of fresh evidence is whether the interests of justice require us to do so, whatever our conclusions under Section 23(2). However, given our assessment of the computer modelling evidence above, we are clear that we should not receive this material as fresh evidence.
63. It follows therefore that this appeal against conviction must fail.
64. As to sentence, we are conscious that this is a case of manslaughter rather than a case of causing death by dangerous driving. We note, however, that the most serious level of sentencing in the Sentencing Guidelines Council's guideline for causing death by dangerous driving has a starting point of 8 years custody with a range of 7 to 14 years for a person of good character convicted after a trial. Such cases would cover those involving a flagrant disregard for the rules of the road and an apparent disregard for the great danger being caused to others.
65. The judge's finding that the high-powered Honda had been used as a weapon against the occupants of the Fiesta clearly falls into that category. Those guidelines recognise that the starting point is to be increased where serious injury has been caused to one or more victims in addition to the death, and that a false claim that one of the victims was responsible operates as further aggravation. Mr Holland criticised this latter feature of the guidelines, submitting that they were a consequence of contesting the trial for which the appellant should lose potential mitigation, but for which he should not positively be penalised. Even if we were to leave this aspect of the matter out of account as an aggravating factor, the harm suffered by the survivors, with one victim suffering catastrophic injuries, represents very significant aggravation.
66. Moreover, a conviction for manslaughter allied with the two Section 20 offences will clearly fall at a higher level still in the sentencing spectrum. Since the guideline was published, the decision in Attorney General's References Nos 60, 62 and 63 of 2009 [2010] 2 Cr App R (S) 46 and later decisions have emphasised that special attention must be paid to the consequences of the offence of manslaughter and to give the fact of death resulting even greater weight than hitherto.
67. In a case where a vehicle was used as a weapon of revenge to strike another vehicle at significant speed with the obvious serious risk that the victims' vehicle would run out of control, a severe sentence was required. In this case the aggressive nature of the driving was demonstrated by the overtaking, followed by the handbrake turn, which the judge was satisfied had taken place. Notwithstanding that dangerous manoeuvre, the appellant then proceeded to execute an even more dangerous one in his anger.
68. That the source of his anger was the behaviour of the occupants of the Fiesta, does not in our judgment serve to mitigate this offence. The appellant had ample time to control his anger, both as he made his way to his car, then on the journey catching up with the Fiesta, and again after the handbrake turn. Each of those actions gave the opportunity to reflect and reconsider. The appellant's ultimate actions were out of all proportion to the insult offered by the egg throwing incident.
69. The only available mitigation to this appellant who had contested his guilt, lay in his previous good character. In accordance with well established principle, the graver the offence, the less weight this factor can carry. This offence, with the allied offences, speaks for itself. In the circumstances, although the sentence imposed was a firm one, it cannot be said to have been manifestly excessive.
70. Accordingly, in our judgment this renewed application against sentence must fail.