Court of Appeal: Counsel not incompetent

A criminal silk was not to blame for a man being convicted of importing and supplying large quantities of heroin, the Court of Appeal has decided.

Attique Sami argued that “no competent counsel” would have called a witness who gave “highly damaging evidence” against him in a case where 230kg of heroin – with a street value of over £37m – was found hidden in a Jaguar car imported from Pakistan.

Mr Sami also claimed that his counsel failed to prevent the judge directing the jury that they could draw an adverse inference against him from an omission in the defence statement that was in his original proof of evidence.

The third ground was that his previous convictions and the fact he was awaiting trial on a separate charge should not have been put in evidence.

Lady Justice Thirlwall said it was “very likely” that Mr Sami knew he had a choice about whether the jury should be informed of his convictions, but “was guided by the advice of counsel”. She said the court was satisfied that the issue was discussed in conference.

She went on: “The convictions ran from 1996 to 1999. There was theft, taking a motor vehicle without consent, driving whilst disqualified, handling and possession of an offensive weapon, there were other offences taken into consideration.

“The appellant told the jury of the various sentences which included four months’ imprisonment in 1998.

“Towards the end of his evidence, after an intervention from the prosecution, the appellant also told the jury that he was awaiting trial in respect of handling stolen motor parts, an allegation he denied.”

Thirlwall LJ said the purpose of adducing the convictions was to demonstrate to the jury that Mr Sami was being “candid” and make the “very powerful point that his previous offending was relatively low level and nothing like as serious as the offences with which he was charged”.

Delivering judgment in Sami v R [2018] EWCA Crim 552, she continued: “We are quite satisfied that the decision to put the appellant’s previous convictions before the jury was one which many barristers would have taken. It was not incompetent.”

On Mr Sami’s defence statement, and whether it should have referred to a particular telephone call in a way that prevented the judge from telling the jury it could draw an adverse inference, Thirlwall LJ said: “We accept the evidence of [counsel] that the appellant’s instructions about the telephone calls were not consistent even in the days running up to the decision to call him…

“His evidence departed from his most recently expressed instructions. In those circumstances it would have been improper for either counsel to seek to suggest that the evidence was consistent with what the appellant had said throughout.”

On the decision to call Mohammed Safder as a witness, Thirlwall LJ said he was an employee of Mr Sami who had been acquitted of importing and supplying heroin. Thirlwall LJ said Mr Safder and Mr Sami were friends.

The lady justice said to suggest that it was unwise to call Mr Safder because of low credibility was a “misplaced criticism”, and at his trial the jury had believed him.

She said that during cross-examination at Mr Sami’s trial, Mr Safder had been “consistent and firm” in his defence of Mr Sami.

“He accepted that he had been upset with the appellant at the time of his trial but he was adamant that he did not think he was a drug dealer. He said he was there to help an innocent man by giving his evidence. He repeatedly denied being under any sort of pressure to give evidence. “

Thirlwall LJ said the appeal judges were not persuaded that it was incompetent to call him to give evidence. She said the case against Mr Sami was strong, “to which we would add the inherent unlikelihood of high level drug smugglers trusting an unknown person to take delivery of such a huge quantity of heroin”.

She dismissed his appeal against conviction. However, the Court of Appeal reduced his “manifestly excessive” sentence of 20 years in prison to 14 years.

Sir Nicholas Blake and Her Honour Judge Williams, sitting as judges of the Court of Appeal, contributed to the judgment.


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