Saima Jan [2019] EWCA Crim 1449
Summary
R v Saima Jan [2019] EWCA Crim 1449 concerned a renewed application for leave to appeal against conviction heard by the Court of Appeal (Lord Justice Green, Mr Justice Garnham and His Honour Judge Michael Chambers QC sitting as a judge of the Court of Appeal Criminal Division), which was refused.
The applicant, Saima Jan, and her husband Rahim Saeed had been convicted on 22 March 2018 at the Central Criminal Court of theft contrary to section 1 of the Theft Act 1968. The particulars alleged that between 23 October 2010 and 19 March 2011 they stole approximately £367,416.66 belonging to Gregory Moniak. Mrs Jan was sentenced to two years’ imprisonment suspended for eighteen months with requirements, whilst Mr Saeed received four years’ imprisonment.
The complainant, Mr Moniak, was a mutual friend of the applicant and her husband. On 11 November 2010 he received an inheritance of £448,797.50 from his father’s estate, of which approximately £370,000 was transferred into a savings account. In December 2010 Mr Moniak and Mr Saeed travelled to Thailand, then to Pakistan in January 2011, and back to Thailand in February, where Mr Moniak remained for several years.
Within a short period of the monies being transferred into the savings account, sums were syphoned from it through a series of transfers and transactions into various accounts belonging to the applicant, her husband, and their associates. £160,000 was transferred via internet banking into accounts belonging to the co-accused. Between 30 December 2010 and 14 January 2011, £38,000 was transferred in six tranches to a joint account in the names of the applicant and co-accused. Between 19 November 2010 and 22 February 2011, a further £59,000 was transferred in fifteen tranches to an account in the sole name of the applicant. Eight other beneficiaries related to the defendants received a total of £83,000 transferred into their accounts. The transfers typically moved money first from Mr Moniak’s savings account to his current account and then into the accounts of others. A cheque for £20,000 drawn on the account on 18 November 2010 was made out to the applicant. Eventually only 80 pence remained in the complainant’s account. After depletion of the funds, both defendants sent sums out to Mr Moniak in Thailand so as not to arouse suspicion.
The prosecution case was that the two defendants had acted in concert. The fact of the transactions was not in dispute; what was contested was whether the complainant had consented to them and whether the applicant was party to them. The complainant’s evidence was that he had not given consent to any of the transactions and had no knowledge of them.
The single ground pursued on appeal concerned the sufficiency of evidence at the close of the prosecution case. Mr Morris, appearing for the applicant, submitted that there was insufficient evidence on which a jury properly directed could convict to show that the applicant had knowledge of the entirety of monies transferred. He argued that in a joint enterprise of this nature the jury needed to be directed that her criminal liability was limited to only those transactions in respect of which she had direct involvement and knowledge, unless there was sufficient evidence to show she had knowledge of all of them, which he contended was absent.
The court considered the submission made under the principles of R v Galbraith and the approach to adverse inferences set out in R v G and F [2011] EWCA Crim 1756. In that case this court had held that where the key issue is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference from a combination of factual circumstances based upon prosecution evidence, the question is whether a reasonable jury could, on one possible view of the evidence, reject all realistic possibilities consistent with innocence and reach that adverse inference, not whether all reasonable juries would do so.
Mr Traversi, for the respondent, emphasised that if one looked at the timings of the transactions, their number and pattern, and the fact that following depletion of the monies the applicant was also involved in the transfer of monies to allay the complainant’s suspicions, the jury could be satisfied firstly that the two defendants had acted in concert and secondly that the applicant was fully aware of the totality of the fraudulent endeavour.
The court held that at the close of the prosecution case there was sufficient evidence for a jury to infer that the applicant had full knowledge not simply of the transactions in which she was directly involved but of the transactions as a whole because this was a joint venture with her husband. The court emphasised that the case turned primarily on the credibility of the complainant and that issues of credibility are for a jury. Having perused carefully the ruling of the learned Recorder and the evidence, the court was satisfied that a jury properly directed could have returned a verdict of guilty in relation to the applicant as charged in the particulars of the indictment. In short, the renewed application for leave to appeal was refused on the basis that sufficient evidence existed for a properly directed jury to convict the applicant of theft based on inferences drawn from the pattern and nature of the transactions and her involvement in the joint venture.
The applicant, Saima Jan, and her husband Rahim Saeed had been convicted on 22 March 2018 at the Central Criminal Court of theft contrary to section 1 of the Theft Act 1968. The particulars alleged that between 23 October 2010 and 19 March 2011 they stole approximately £367,416.66 belonging to Gregory Moniak. Mrs Jan was sentenced to two years’ imprisonment suspended for eighteen months with requirements, whilst Mr Saeed received four years’ imprisonment.
The complainant, Mr Moniak, was a mutual friend of the applicant and her husband. On 11 November 2010 he received an inheritance of £448,797.50 from his father’s estate, of which approximately £370,000 was transferred into a savings account. In December 2010 Mr Moniak and Mr Saeed travelled to Thailand, then to Pakistan in January 2011, and back to Thailand in February, where Mr Moniak remained for several years.
Within a short period of the monies being transferred into the savings account, sums were syphoned from it through a series of transfers and transactions into various accounts belonging to the applicant, her husband, and their associates. £160,000 was transferred via internet banking into accounts belonging to the co-accused. Between 30 December 2010 and 14 January 2011, £38,000 was transferred in six tranches to a joint account in the names of the applicant and co-accused. Between 19 November 2010 and 22 February 2011, a further £59,000 was transferred in fifteen tranches to an account in the sole name of the applicant. Eight other beneficiaries related to the defendants received a total of £83,000 transferred into their accounts. The transfers typically moved money first from Mr Moniak’s savings account to his current account and then into the accounts of others. A cheque for £20,000 drawn on the account on 18 November 2010 was made out to the applicant. Eventually only 80 pence remained in the complainant’s account. After depletion of the funds, both defendants sent sums out to Mr Moniak in Thailand so as not to arouse suspicion.
The prosecution case was that the two defendants had acted in concert. The fact of the transactions was not in dispute; what was contested was whether the complainant had consented to them and whether the applicant was party to them. The complainant’s evidence was that he had not given consent to any of the transactions and had no knowledge of them.
The single ground pursued on appeal concerned the sufficiency of evidence at the close of the prosecution case. Mr Morris, appearing for the applicant, submitted that there was insufficient evidence on which a jury properly directed could convict to show that the applicant had knowledge of the entirety of monies transferred. He argued that in a joint enterprise of this nature the jury needed to be directed that her criminal liability was limited to only those transactions in respect of which she had direct involvement and knowledge, unless there was sufficient evidence to show she had knowledge of all of them, which he contended was absent.
The court considered the submission made under the principles of R v Galbraith and the approach to adverse inferences set out in R v G and F [2011] EWCA Crim 1756. In that case this court had held that where the key issue is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference from a combination of factual circumstances based upon prosecution evidence, the question is whether a reasonable jury could, on one possible view of the evidence, reject all realistic possibilities consistent with innocence and reach that adverse inference, not whether all reasonable juries would do so.
Mr Traversi, for the respondent, emphasised that if one looked at the timings of the transactions, their number and pattern, and the fact that following depletion of the monies the applicant was also involved in the transfer of monies to allay the complainant’s suspicions, the jury could be satisfied firstly that the two defendants had acted in concert and secondly that the applicant was fully aware of the totality of the fraudulent endeavour.
The court held that at the close of the prosecution case there was sufficient evidence for a jury to infer that the applicant had full knowledge not simply of the transactions in which she was directly involved but of the transactions as a whole because this was a joint venture with her husband. The court emphasised that the case turned primarily on the credibility of the complainant and that issues of credibility are for a jury. Having perused carefully the ruling of the learned Recorder and the evidence, the court was satisfied that a jury properly directed could have returned a verdict of guilty in relation to the applicant as charged in the particulars of the indictment. In short, the renewed application for leave to appeal was refused on the basis that sufficient evidence existed for a properly directed jury to convict the applicant of theft based on inferences drawn from the pattern and nature of the transactions and her involvement in the joint venture.
The applicant and her husband were convicted of the theft of £367,416.66 belonging to a friend. The applicant was sentenced to 2 years imprisonment suspended for 18 months, and her husband to 4 years imprisonment. The prosecution case was that money was syphoned, by the two acting in concert, from the complainant’s savings into accounts of the defendants and persons associated with them. The thrust of the applicant’s appeal was that there was insufficient evidence to show that she had knowledge of the entirety of the monies which had been transferred. The Court found there was sufficient evidence at the close of the prosecution case and the renewed application was refused.