Neutral Citation Number: [2007] EWCA Crim 1845
Case No: 2006/06004 D1
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT WOLVERHAMPTON
HHJ Dudley 
T2006 0372
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 23/07/2007
Before:

LORD JUSTICE HOOPER
MR JUSTICE McCOMBE 
and
MR JUSTICE OPENSHAW 
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Between :

	Majid Javaid	Appellant	
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	The Crown 	Respondent	

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Mr D Kershaw (instructed by BKM Solicitors) for the Appellant 
Mr M Barnes (instructed by The Crown Prosecution Service) for the Respondent

Hearing date: 12 July 2007
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Judgment

LORD JUSTICE HOOPER : 
1.	On 10 November 2006 the Crown Court at Wolverhampton before His Honour Judge Dudley and a jury the appellant was convicted of sexual assault. He appeals against conviction by leave of the full court. The only ground of appeal now pursued depends upon what is said to be fresh credible evidence. 
2.	At the conclusion of the hearing we announced that the appeal was dismissed. We now give our reasons.
3.	It is not necessary to set out the facts of the case in any detail. It is sufficient to say that the jury convicted the appellant of a sexual assault on the 6 June 2004. In substantial measure the case against the appellant depended upon the identification of him as the attacker. The appellant himself denied being the person responsible. The alleged assault took place on the 6 June 2004. The appellant was not arrested until November 2005. At trial he denied the assault and denied being present. He did not put forward an alibi, understandably given the period of time that had elapsed between the date of the alleged offence and his arrest. 
4.	The appellant now seeks to show that he was in Pakistan on 6 June 2004 and therefore could not have committed the offence. 
5.	The appellant gave evidence before us that he was in Pakistan between those dates and had forgotten about it.
6.	His elder brother, Amjad Javaid, gave evidence during the course of the appeal to the effect that in January 2007, some month and a half after the conviction, he had examined the appellant’s passport and discovered that, according to the stamps which appear in the passport, the appellant was in Pakistan from 1 June to 15 June. That reminded him he had bought through a travel agent for cash, an open ended Gulf Air ticket for the appellant to go to Pakistan and visit his grandmother in Jhelum and that he had delivered the appellant to Heathrow.
7.	Amjad Javaid said that after two weeks the appellant decided it was too hot in Pakistan and returned to England. His father and the appellant gave similar evidence. However, according to the appellant and his father, the appellant spent the two weeks in Karachi.  According to Amjad Javaid he had spoken to the appellant in Jhelum (which is some 24 hours away from Karachi by train), learnt that the appellant had decided to come back and picked him up at Heathrow on his return.
8.	The issue for us is whether the evidence that the appellant was in Pakistan at that time is credible. We have no doubt that it is not credible.
9.	There is no substantial challenge to any of the following facts or conclusions:
1.	The appellant has a very low intelligence quotient. 
2.	His evidence that he would not have remembered that he had been to Pakistan at the beginning of June 2004 is (just) capable of belief.
3.	The two stamps in the appellant’s passport showing his entry into Pakistan on 1 June 2004 and his departure on 15 June 2004 are genuine stamps, current at the time. 
4.	If the stamps were not placed upon the appellant’s passport upon his entry into Pakistan then the passport has been stamped in circumstances when it should not have been.  
5.	There is no evidence that any member of the family has been out of the country.  
6.	The entry and exit stamps used by the Pakistan authorities have been replaced over the last year or so. 
7.	It follows that if the stamps were not placed upon his passport lawfully old stamps have been obtained and almost certainly they must have been placed on the passport after the appellant’s conviction and remand into custody. 
8.	There is no document in either the travel agent records or the records of Gulf Air supporting the evidence of the purchase of a ticket for the appellant. 
10.	Central to the issue of this appeal is the credibility of the two family members who gave evidence, the elder brother, Amjaid Javaid and the appellant’s father. The appellant lived at home with his mother and father, two brothers and a sister. The father has been in this country for a long time and his command of the English language is good. It was clear from the evidence of Amjad Javaid that he is a shrewd man with a perfect command of the English language. 
11.	Javaid accepted that he had been to the solicitors during the course of the preparations for the appellant’s trial. Although it is not known precisely upon which day he attended we note that in a defence statement dated 6 July the defendant said that he was unable to provide any details of his whereabouts on 6 June. 
12.	Whereas the appellant may have been unable to provide any such details, we ask ourselves whether it is conceivable that Amjad Javaid could have forgotten the fact, if fact it be, that his brother flew to Pakistan in early June 2004. 
13.	The appellant had been released on bail following his arrest in November 2004 and the trial took place in the following November. The whole family had one year to think about what the appellant was doing on 6 June. If he had been in Pakistan at that time, is it inconceivable that Amjad Javaid and the father, both anxious to establish the appellant’s innocence, would have forgotten it. The same applies to other members of the family. 
14.	According to the appellant’s father the passport which was produced in court was the appellant’s first passport. If that is right this would have been his first trip to Pakistan. The brother on the other hand recollected two earlier trips, although there was no documentary evidence to support that. Whether or not it was the appellant’s first trip it was certainly, on the evidence, his first trip alone. Given the appellant’s psychological condition, the fact (if it was a fact) that he was travelling alone would have caused the family considerable concern. 
15.	We do not believe that either the father or Amjad Javaid would have forgotten that the appellant was in Pakistan during the relevant period. 
16.	There were discrepancies in the evidence. We have referred to the contradictory evidence about where the appellant was. Likewise there was a discrepancy in the evidence as to the source of the money being used for the ticket. According to Amjad Javaid it was his savings.  According to the father, the money came from his wife.  We place little reliance on these discrepancies. 
17.	Counsel for the appellant pointed to the fact that the appellant’s evidence about the house in Karachi was consistent with that of the father. That is of no evidential value because the appellant did go to Pakistan for a period of three months in October 2005. 
18.	At the end of the day we have no doubt at all that Amjad Javaid and the appellant’s father (and probably other members of the family) would have remembered that this disadvantaged young man was in Pakistan at the time of the offence if he had been. 
19.	We conclude that the evidence of the appellant being in Pakistan has been fabricated.