This is what i was going to put in the appeal,
- It was HHJ intention to advise the jury that the Appellant’s police interviews were to be regarded as not being evidence. Defence Counsel challenged this approach and HHJ altered his position to say that in the case of Robertson (the Applicant) they were to be regarded as evidence in his case only but not as evidence against the other defendants. When HHJ referred to the police interview he did so only in its entirety and made no references to the answers given in interview which explained the case against the Applicant. Further HHJ Atherton made no references to defence counsels closing speech. There were also a number of factual errors made.
- At page 6 F-h and 7 A HHJ Atherton said:- each count alleges an offence of Conspiracy to defraud. purposes I am just going to read the particulars of one of them. I am going to read the particulars in relation to count 4 because it is the one which covers all three defendants: “Alick Kapikany, ***** *****on, Iren Perciful, between the 1st of March 2007 and the 31st December 2007, conspired together with Marshall Joseph, ***** *****, Peter Tanner and others to defraud financial institutions by dishonestly transferring the registered freehold and leasehold titles to 364, 3268, 372, and***** Worsley and thereafter fraudulently obtaining mortgages in respect of those properties.” And the difference which appears amongst those five counts of course relate to the premises concerned. The essential questions remain the same.
- On the 4th February 2014 Counsel applicant made an application that the guilty pleas of Myra Trigg, ***** ***** and Peter Tanner should be excluded because the admission of that evidence could render the conviction unsafe or unsatisfactory. And if it was to be allowed then HHJ Atherton should give clear direction to the jury as to the use and effect of that evidence and its limitations. An application was made under section 78(1)
“in any proceedings the Court may refuse to allow evidence on which the prosecution proposes to rely to be given if it appears to the Court that, having regard to all the circumstances, including the circumstances in which the evidence was obtained, the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it”
- HHJ Atherton having given careful consideration to defence counsels’ application on the 5th February 2014 ruled in favour of the applicant. In doing so he clearly recognised the possible danger to fairness in the defendants’ interest.
- On the 9th March 2014 a Jury note was sent to HHJ which sought, clarification of Joseph Tanner, Campbell and others. The matter was discussed without the jury. HHJ said:- that is a question thought might come, hoping when retired. Position Joseph is in the evidence. Position re others is not in evidence. The response given to the jury is taken from Jr defence counsel, Mr Dusters notes, HHJ Atherton said “Re your question- say so far as Joseph, you have evidence before you as to his position in admission 1. We know he pleaded guilty on counts 1,2,4 & 5. You have heard other names. Have to concentrate on 3 defendants. Other people come into picture, ask you to accept that”.
- At page 11 A-E of HHJ Atherton summing up he says:-
The guilty pleas of Marshall Joseph, I have mentioned different forms of evidence which the prosecution may rely upon, and in relation to both questions you have read a vast amount of evidence. But there is one source of evidence that specifically relevant to the first question of whether the prosecution has proved the existence of a conspiracy to defraud, at least so far as counts 1,2,4 and 5 are concerned. And it comes from the fact that Marshall Joseph has pleaded guilty to those counts, that is in admissions. But I tell you when it was given in evidence, it explains the reason he is not on trial.
- This gave the jury an immediate explanation of Campbell and Tanners position and brought into evidence not only their convictions but also the volumes of evidence given in the course of the trial which no cross examination of was possible. He in effect brought into evidence matter which he ruled on the 5th March 2014 would be excluded.
- It is accepted that the Learned Judge did not do this deliberately or maliciously not withstanding this HHJ ruled that in the interests of justice the jury should never be told that Tanner, Campbell and Trigg had pleaded guilty. The Learned Judge sought to and in fact did maintain that position in relation to Myra Trigg. It is my considered opinion that this error prejudiced the applicant more than any other defendant as Tanner was described throughout the trial by the prosecution as “Mr Robertson’s employee Mr Tanner” and Mr. Campbell was said to have sent two payments of £25,000 from a fraud on H and F Finance (count 4) to the account of Redbox Trading Ltd a company owned by the applicant.
- Further Mr Campbell pleaded guilty to substantive of money laundering in the sum of £5850.00 and not guilty to the conspiracy. Mr Tanner also pleaded guilty to a substantive and not a conspiracy. By not correcting his error he left the jury in no doubt as to the position of Mr Tanner and Mr Campbell as being the same as Mr Joseph which clearly was false.
- Accordingly, it is my view that the convictions are unsafe because the Learned judges summing up was fundamentally unbalanced it gave unintended weight to the prosecution’s case against that of the applicant. It is further submitted that unintended disclosure undermined numerous defence points. In short the legs were cut from under me.
- HHJ Atherton at page 201 C-E address the issue to the jury:- Ladies and Gentlemen, I can now answer the question which you posed – the only question which you posed – in the course of the evidence which I could not answer at the time and had to sidestep it to an extent. And that is the position in relation to Myra Trigg, Mr Campbell. The others pleaded guilty gone from me… Mr Tanner, Peter Tanner. They pleaded guilty to other offences as well arising out of this matter. Myra Trigg, part, going and representing another woman, Peter Tanner pretending he was Wyse and Campbell money. But at the stage of the evidence when you asked it, we had had I had had a discussion with counsel, there had been submissions as to whether you nshould or should not be told and I had taken a view that should not be told because it might have had an effect in relation to your deliberations which would have been, on balance, unfair. Anmd that is why I could not answer it. So I am sorry that I could not answer it openly as I would have looked to have done, but there was a good legal reason doing so.
- The Learned Judge miss direct the jury when he explained the elements of a mortgage and a loan secured on property. At page 38 E he says:-
Many of us borrow money to buy our house. Commonly we would say, “I’ve got a mortgage”. But you can also have a loan which is exactly the same. Creating the charge on a property is exactly the same and has the same function it is just in a different context: one uses mortgage and in another context you use a charge.
- The term Mortgage and charge are very much used interchangeably these days, at least where land is concerned. They are conceptually different. The essential nature of a mortgage of land is that it is a conveyance of a legal interest in land. A charge of land is not a conveyance. A charge in land is the appropriation of an interest in land of a debt or other obligation, without the creditor having either a general or a specific property in or possession of the land. Section 87(1) the law of property Act 1925, introduced a charge known as the charge by deed (see section 52 of the law of property Act 1925). This is also referred to as a legal charge. A legal charge is essentially a statutory form of legal mortgage. Under statutory form of legal mortgage there is no conveyance of any estate to the mortgagee. The definition of a conveyance is in section 205 of the Law of Property Act 1925 and includes a charge.
- In simple terms mortgages and bridging loans both require a charge to be registered on the properties at land registry. All of the counts involved bridging loans and not mortgages, therefore no title in the land was transferred to any third party as a consequence of a bridging loan taken out by the defendants. All bridging loans were secured via a first charge CH1 over the property. Whilst it may appear to be technical argument there is a difference in law. A simple example would be an offence of theft by stealing £50.00 ten times or one offence of stealing £500.00, there is in law a difference.
- The Learned Judge went on to say:-
And you have seen in this case so that you will now never forget the TR1, at least, even if you are fortunate enough not to need to see a CH1 or the CH4 or whatever. And you have seen lots of them and how they can be obtained. And they are very precise at the time at which they are issued. You can have a look at the title on a particular day, and then see whether a month or two later it is different. And of course we have that. And different entries are put on depending on: change of owner, to use the lay term, or, depending upon the charges; but there are all sorts of different types of charges which can be put on them.
- HHJ should have given clear direction so as to explain the difference between CH1 and a mortgage or CH1 and a loan and or a TR1 transfer of title, HHJ stating them in the way he did was confusing and miss-leading, it was a prerequisite to given the same meaning to them all and to their use one way or the other would amount to a transfer of title which it does not.
- The Crown particularise the agreement in words that are conjunctively used, Count 3 has two stages/objectives/ingredients in agreement and in Count 4 three stages/objectives/ingredients in agreement. In both cases a defendant could have committed the first stage and may not be party to an agreement to the second or third stage. Equally a defendant could commit and agreed to the second or third part without having any knowledge as to the first stage or after the first stage has been completed (Transfer of Title). The indictment makes no provision on either stage 1 or 2 alone, in Count 3 or stage 1,2 or 3 in Count 4 as alternatives to each other. It must follow that the jury in reaching its verdict must have been satisfied that the offence proved to the satisfaction of each and every member of the jury that the defendants were guilty of all the stages particularised within the indictment
- In R v ***** *****, it was held that “Counsel appellant was correct in his submission that it is a fundamental principle that in arriving at their verdict the jury must be agreed that every single ingredient necessary to constitute the offence has been established”. Stage 1, the transfer of title is an essential ingredient. It is submitted that title in 36 Broad Lane Hale was not transferred at any time during the indictment period of 1st March 2007 and 31st December 2007. Title remained with the true owner Mr Mohammed Acrum Malik. Therefore the Applicant cannot be guilty of an offence which has not taken place. [See diagram 1 Fig 1]. It is further submitted that title of*****Worsley was not transferred at any time during the indictment period of 1st March 2007 and 31st December 2007. Title remained with the true owner Mrs Gwyneth Cooke. Therefore the applicant cannot be guilty of an offence which has not taken place. [See diagram 1 Fig 1].
- It is submitted that HHJ failed to direct the jury that they must first find that the defendants guilty of transferring the title to the properties and if so satisfied they could then BUT only then go on to consider whether the defendants are guilty of fraudulently obtaining mortgages on the properties.
- Where the first stage (objective/ingredient) particularised within the indictment has not taken place. A conviction in these circumstances would be putting the threshold of the crime lower than the conspiracy alleged in the indictment required. (R v Bennett (sharon), unreported, May 6, 1999 CA(###) ###-####Z3), Andrews v The Queen  HCA 84; (1968) 126 CLR 198, at p211)
- LORD BINGHAM C.J. giving the Judgement of the Court, referred to R v Mc Hugh, 64 Cr. App. R. 9, CA; R v Pickford  1 Cr. App. R. 420 CA 111, CA; R v Ayres  A.C 447, HL and R v Power, 66 Cr App ,R 159, CAand said that a conviction would not be regarded as unsafe because it was possible to point to some drafting or clerical error, or omission, or discrepancy, or departure from good or prescribed practice. If however, it was clear that the particulars of the offence specified in the indictment could not, even if established, support a conviction of the offence of which the defendant was accused, a conviction of such any offence had, in their Lordships opinion, to be considered unsafe. If a conviction of such an offence had, in their Lordships opinion, to be considered unsafe. If a defendant could not in law be guilty of the offence charged on the facts relied on, no conviction of that offence could be other than unsafe.
- HHJ Atherton miss-directed the jury at page 143 C-E, he was referring to the witness statement of Mr Forrester from H and F Finance and a loan secured against 364, 368 and*****he said:- “Mr Kapikanya and Mr Wyse were invited to go to the office. He said he remembered the visit because they arrived in what he called “a baby Bentley”. And he was quite taken with Mr. Wyse, so that when he saw a photograph of the TRUE MR WYSE he could say that it was not the man who came into the office”.
- This was in fact wrong, Mr Forrester’s statement was read to the jury and therefore there are no disputes as to the content of what was read aloud.:- “When DC Moylon of Greater Manchester Police showed me a copy of a passport bearing the picture of a white male with goatee beard and the name Phillip Weiss and I can 100% categorically state that the man I met is not the man on this passport” The picture of the man shown to Mr Forrester was that of Peter Tanner NOT the true Mr Wyse as stated by HHJ Atherton. Further when DC Moylon was cross examined on this point he confirmed that the picture shown to Mr Forrester was in fact the picture of Mr. Peter Tanner. The consequence of that miss-direction would have led the jury to believe that the only other person it could be was “Mr Robertson employee Mr Tanner”. (As did HHJ Atherton).
Payment of £50,000.00
- It has been held by the prosecution that the applicant involvement in count 4 was limited to the benefit he allegedly received, this is supported by the prosecution proceeds of crime application which was set by them at £50,000.00 and has been settled with them based on those terms.
- Below is defence Counsel closing speech by Mr Panayi [tab 12 p573] said:-
“What of count 4. We know BR receives £50k. We say that is repayment of money owed by AK . AK accepted say undertaking. Crown say whatever route he gets proceeds of fraud. We can test that quite easily, look at 5.4d. Look at bottom see Redbox gets £50k. Crown say proceeds of fraud. HANDF loan £385k on strength of securities shown top of page that goes to Elliot Stephens. They deduct £36k, that’s interest costs and fees, 1st month’s repayment. So Wisemove receive £348k give or take. £317k goes to casino account of AK at 50 St James. £5,850k goes to flywheel £7,706 goes to Wisemove. That if you add it all up leaves £18,130. That’s what’s left. Just apply acid test does BR receive £50k from fraud or not. Know he doesn’t’ because £50k would take total above that received. Numbers don’t add up to support case that BR is paid from this fraud. BR is paid because strength of his undertaking. Prosecution’s case doesn’t hold water on suggestion benefitted from fraud. Teach new fraud investigators follow the money. Find that £50k not the proceeds of this fraud at all. People tend not to commit offences to assist them repayment of legally enforceable debts.”
- HHJ Atherton Failed to give direction
HHJ Atherton left open to the jury the question of did the applicant receive £50,000.00 from a fraud on H and F Finance secured on 364,368 and*****Worsley. Defence counsel had made it clear that the Crowns evidence could not support a payment of £50,000.00.
Payment received into Wise Move Solicitors
Payment to Kapikanya
Payment to Fly Wheel
Wise Move Solicitor Fees
Red Box Trading Ltd a Company (Applicant)
- HHJ Atherton should have directed the jury to the prosecution’s evidence showing that the Crowns case could not survive defence Counsels scrutiny. When a defendant had answered questions in interview and not given evidence, a judge should remind the jury of the significant points in defence counsels speech. It was his duty to instruct the jury that the payment of £50,000.00 could NOT come from the fraud as alleged. Instead HHJ Atherton said when summing up the Applicants evidence:- “In a fraud case follow the money” and that is a good line. If you follow the money where is it going to? Fraudsters are in it to make money.”
- Further it is submitted that if you took all the frauds within count 4 and added them together there would not be sufficient surplus funds to pay the applicant the £50,000.00 [See diagram 2]. This defence evidence went to the heart of the prosecution case. It is submitted that HHJ undermined this central defence point by reference to the prosecution’s case, HHJ favoured the prosecution by presenting or giving prominence to their case but frequently if not always omitting the alternative explanations thereby presenting an unfair and unbalanced summary of evidence and undermining the defence case. In the circumstances HHJ summing up on this point was likely to arouse in the minds of the jury hostile feelings against the applicant.
- I stand convicted of receiving £50,000.00 from the above fraud in count 4, I have endured a proceeds of crime application in that sum and I have made a payment in full and final settlement of the £50,000.00. Yet the crowns evidence clearly shows that the funds I received did NOT/COULD NOT come from the fraud as alleged but instead from a solicitors undertaking commercial debt the crown agree was due.
- The Crowns count 3 shows no connection between the offences nor is there alleged concert between the defendants. At [tab 17] you have all the Crowns exhibits used by them regarding the Woodruff Loan at 36 Broad Lane Hale, below are the crown’s witness statements of :-
- Mr ***** *****ruff (the Lender) [pages 892-894]
- Kevin Murtagh (Solicitor at Dobson Jones) [page 443-445]
- Anthony O’Donnell (solicitor at ***** *****) [pages 94-96]
HHJ Atherton has made no reference to the applicant in his summing up in respect of the loan made by Mr Woodruff, NONE at all. The only reference to this incident is the unsupported allegation of the prosecution. A simple review of the evidence will confirm this position. I refer you to pages 87 to 98 of HHJ summing up. The crown refer to a search done by my employee but this was done 6 weeks after the fraud had occurred, this was agreed with DC Moylon in his cross examination.
- HHJ Atherton summed it up, when referring to Count 4 “it is a nightmare so many twist and turns”. There are 6 (victims) financial institutions and 7 (other victims two of which are dead) property owners within the Crowns framing of Count 4. It would I submit be imposable to provide a defence in the singular to such as the Crowns count 4. There is uncertainty and misjoinder of offences across all the Counts. If the Court accepts that the Framing of the offences are as the Applicant has set out in [diagram 1], it will be clear that the misjoinder extends to offences, defendants and counts within the indictment. It should have been obvious from the police investigation that, assuming the correctness of the Crowns evidence, that there were a number of different conspiracies, not just one common conspiracy. When you put the Crowns evidence with [diagram 1] the offence and evidence fit like a hand in a glove. There are no twist and turns as HHJ Atherton expressed it. I cannot particularise it and need professional assistance or the opportunity to explain, I will attempt to give a brief description below.
- Kapikanya agreed to locate unencumbered properties , Joseph agreed to pay a fee property that Kapikanya could get transferred into his name. It is Attwells evidence that Joseph acted alone, this is supported by the crowns evidence. Kapikanya and Joseph conspiracy extended to the transfer of title only. [See diagram 1 FIG 2]. Kapikanya use fraudulent documents, imposters and casinos of payment [see diagram 3] different methods used by Kapikanya and Joseph.
Once Joseph has obtained title by void disposition he makes loan applications in his own name, with no fraudulent documents. Joseph obtains professional valuations on all the properties in his name, has the loan agreements in his name and has the loan funds sent to his bank account. The only fraudulent act by Joseph is not declaring that he is not the legal owner of the properties. [see diagram 1 FIG 3]. From this Kapikanya runs a series of independent frauds [See diagram 1 FIG 1]. In some case he recruits imposters and in others he does not need the imposters only the fraudulent paperwork to support the appearance of a vendor. Each participant is only aware of the adjacent parties and their role in the conspiracy. (R v Griffiths  21 Cr App R 94; R v Griffiths  1 QB 589; Gerakiteys v R (1984) 153 CLR 317). A review of the evidence supports this position, we do NOT need a retrial to establish these facts, its is already in the crowns evidence.
- Another example of the manner in which evidence was dealt with in an unfair and unbalanced way by the learned judge is how he failed to refer to evidence within the applicants Police Interviews. HHJ summary of evidence can be found at half way down page 154, 155 and 156 which is 1.3% just under 3 pages of a 201 page document of the summing up. He says this about my police interviews:-
“Now you have in the papers the transcript of the interviews and I spoke on Friday (this is now Monday) about the relevance of that and the support , the weight that it has. It is not the same as giving evidence which is subject to cross-examination. And questions that were posed, Well what more could he have said in relation to it than he has been asked to?”
What else could he referred to:-
- DC Moylon confirmation that Kapikanya had had dealings with Mrs Fleming from Ruston Lloyd Solicitors in the past and was not used in any fraud
- That the search done on 36 Broad lane was done 6 weeks after the fraud on Mr Woodruff loan and the search was not used in any fraud
- That the search done on 36 Broad Lane was done 2 weeks after the attempted fraud on Cheshire Mortgage Corporation and was not used in any fraud
- That the Search done on*****on the 23rd July 2007 was not used in any fraud
- That it was the applicant that identified in a police interview that the picture within in a passport with the name of Mrs Cooke was Irene Perciful, my sister.
- That in a police interview the applicant asked DC Moylon to corroborate that mail had been diverted from 101 Mill Lane, he agreed to do so and then failed to undertake the work. (This is admitted by the prosecution in their response to my application).
- That all the address used in the fraud were known to Kapikanya alone.
- That Mr Forrester told DC Moylon that it was not Peter Tanner that acted the part of Mr Wyse.
- That all lenders approached in the frauds and attempted frauds would have conducted the same search that the applicant did.
- That the applicant was licensed to provide regulated loans
- That the applicant had a solicitors undertaking from Wise move Solicitors in the sum of £50,000
- That Kapikanya said to all the lenders that he was acting vendor or that the vendor was holding the property in their name .
- That in police interview the applicant asserted that no correspondence had come to 101 Mill Lane and that the witnesses Malik and Morsy reportedly had paperwork sent to them which they also say they never received.
- That the applicant was also a victim of Kapikanya and Wise Move Solicitors and had to recover £150,000 from Wise Move insurance company.
I could go on
- It is not the absence of anyone that is concerning but the absence of them all combined with the other points above
- Archbold 2009, 7-65. Failure to refer to defence:- R v Badjan, 50 Cr.App.R 141, CCA, it was held that where a cardinal line of defence is placed before the jury and that finds no reflection at any stage in the summing up, it is general impossible to say that the conviction is secure. See also R v Jones (P.)  Crim.L.R 701, CA (in a complicated and lengthy case, it is incumbent on the judge to deal with salient points arising in the evidence, and to put the essential thrust of the defence); R v Bury  10 Archbold News 2 (where summing up fails to put defence before the jury, it will be rare Court of Appeal not to conclude that conviction is unsafe); R v Akhar  1 Archbold News 2 (Where the defendant neither gives nor calls evidence, but has been extensively interviewed, it is of particular importance that the summing up should at least summarise the main points made by the defence. Only rarely, if ever, would a conviction be adjudged safe notwithstanding a failure to sum up the defence).