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England and Wales Court of Appeal (Civil Division) Decisions
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Cite as:  EWCA Civ 647
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COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
MR JUSTICE COLLINS
MR COMMISSIONER MAWREY QC
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE BROOKE
LORD JUSTICE DYSON
| The Queen on the application of MUHAMMAD AFZAL
|- and -
|Election Court & Ors
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Rabi Sukul (instructed by Midlands Solicitors) for the Petitioners in the Election Court
Philip Coppel (instructed by CMS Cameron McKenna) for the Returning Officer
Jonathan Swift (instructed by the Treasury Solicitor) for the Department for Constitutional Affairs as interveners
Crown Copyright ©
Lord Phillips, MR:
This is the judgment of the Court.
1. An elector who was in prison at the time of the election, neither asked for nor received a postal vote. Nevertheless his postal vote for the Labour Candidates was returned to the Election Office.
2. Two electors, a married couple, were persuaded to sign a form to register for postal votes. They did not receive the voting pack and were told that they could not vote when they turned up at the polling station on polling day. Their postal votes for Labour Party candidates were nevertheless submitted to the Election Office.
3. Evidence from a rival candidate in the election indicated that he saw one of those who were elected as councillors collect a black bag from a postman, which he assumed contained postal votes. In another incident, a postman was seen handing postal votes to the same elected councillor outside a house belonging to his brother.
1. The election in Bordesley Green had been avoided by reasons of corrupt and illegal practices committed by the Labour Party Candidates and their agents;
2. By reason of general corruption within the meaning of s164 of the 1983 Act for the purposes of promoting or procuring the election of the Labour Party Candidates, corrupt and illegal practices had so extensively prevailed that they may reasonably be supposed to have affected the result.
1. The election for the Bordesley Green Ward be declared void in respect of all three seats;
2. The three elected councillors were guilty of corrupt and illegal practices and would be declared incapable of being elected to fill the vacancy or any of the vacancies caused by the avoiding of the election; and
3. Each of the Labour Party Candidates would be named by him in his report to the High Court under ss145 and 158 of the 1983 Act as guilty of corrupt and illegal practices.
"1. There had been massive electoral fraud by the Labour Party representatives throughout Birmingham, but particularly in Aston where the candidates and their supporters had unlawfully obtained a large number of blank ballot papers and had used them to personate the true voters and cast their votes;
2. The Labour Party representatives had obtained and altered completed ballot papers and the Returning Officer had wrongly accepted the altered ballot papers into the count;
3. The Labour Party representatives had been caught with others vote-rigging in a warehouse in an industrial estate on the night of 8/9 June 2004;
4. There had been instances of bribery and undue influence by the candidates and their supporters; and
5. The Returning Officer had failed to conduct the election properly in a variety of ways, but primarily by accepting into the count postal votes which had been found at the count in a plastic shopping bag."
The 1983 Act
145 Conclusion of trial of local election petition
(1) At the conclusion of the trial of a petition questioning an election under the local government Act, the election court shall determine whether the person whose election is complained of, or any and what other person, was duly elected, or whether the election was void, and the determination so certified shall be final to all intents as to the matters at issue on the petition.
(2) The election court shall forthwith certify in writing the determination to the High Court.
(3) Where a charge is made in the petition of any corrupt or illegal practice having been committed at the election the court shall, in addition to giving a certificate, and at the same time, make a report in writing to the High Court as required by sections 158 and 160 below and also stating whether any corrupt practices have, or whether there is reason to believe that any corrupt practices have, extensively prevailed at the election in the area of the authority for which the election was held or in any electoral area of that authority's area.
158 Report as to candidate guilty of a corrupt or illegal practice
(1) The report of an election court under section 144 or section 145 above shall state whether any corrupt or illegal practice has or has not been proved to have been committed by or with the knowledge and consent of any candidate at the election, and the nature of the corrupt or illegal practice.
(2) For the purposes of sections 159 and 160 below-
(a) if it is reported that a corrupt practice other than treating or undue influence was committed with the knowledge and consent of a candidate, he shall be treated as having been reported personally guilty of that corrupt practice,
(3) The report shall also state whether any of the candidates has been guilty by his agents of any corrupt or illegal practice in reference to the election; but if a candidate is reported guilty by his agents of treating, undue influence or any illegal practice, and the court further reports that the candidate has proved to the court-
(a) that no corrupt or illegal practice was committed at the election by the candidate or his election agent and the offences mentioned in the report were committed contrary to the orders and without the sanction or connivance of the candidate or his election agent, and
(b) that the candidate and his election agent took all reasonable means for preventing the commission of corrupt and illegal practices at the election, and
(c) that the offences mentioned in the report were of a trivial, unimportant and limited character, and
(d) that in all other respects the election was free from any corrupt or illegal practice on the part of the candidate of his agents,
then the candidate shall not be treated for the purposes of section 159 as having been reported guilty by his agents of the offences mentioned in the report.
159 Candidate reported guilty of corrupt or illegal practice
(1) If a candidate who has been elected is reported by an election court personally guilty or guilty by his agents of any corrupt or illegal practice his election shall be void.
160 Persons reported personally guilty of corrupt or illegal practices
(1) The report of the election court under section 144 or section 145 above shall state the names of all persons (if any) who have been proved at the trial to have been guilty of any corrupt or illegal practice
(4) Subject to the provisions of subsection (4A) and section 174 below, a candidate or other person reported by an election court personally guilty of a corrupt or illegal practice-
(a) shall during the relevant period specified in subsection (5) below be incapable of-
(i) being registered as an elector or voting at any parliamentary election in the United Kingdom or at any local government election in Great Britain,
(ii) being elected to the House of Commons, or
(iii) holding any elective office;
164 Avoidance of election for general corruption etc
(1) Where on an election petition it is shown that corrupt or illegal practices or illegal payments, employments or hirings committed in reference to the election for the purpose of promoting or procuring the election of any person at that election have so extensively prevailed that they may be reasonably supposed to have affected the result-
(a) his election, if he has been elected, shall be void, and
(b) he shall be incapable of being elected to fill the vacancy or any of the vacancies for which the election was held."
The Commissioner's decision
1. There were corrupt and illegal practices committed by the Labour Party candidates and their agents;
2. By reason of general corruption within the meaning of s164 of the 1983 Act for the purpose of promoting or procuring the election of the Labour Party Candidates, corrupt and illegal practices had so extensively prevailed that they may reasonably be supposed to have affected the result.
He therefore ordered that:
1. The election for the Aston Ward be declared void in respect of all three seats;
2. Mohammed Nazrul Islam, Muhammad Afzal and Mohammed Amin Kazi were guilty of corrupt and illegal practices and that, pursuant to ss159 and 160 of the 1983 Act, they would be declared incapable of being elected to fill the vacancy or any of the vacancies caused by the avoiding of the election; and
3. Each of the Labour Party Candidates and Mr Zulfiqar Khan (the Ward organiser) would be named by the Commissioner in his report to the High Court under ss145 and 158 of the 1983 Act as guilty of corrupt and illegal practices.
He so certified at the end of his judgment and reported accordingly to the High Court.
The warehouse incident
The Commissioner's findings
"The Warehouse Incident
440. At about 1.30 in the early hours of the morning of 9th June 2004, four police officers of the West Midlands force attended the "NT" warehouse on the Wryley Trading Estate off Birch Road East. On this, otherwise deserted, estate, there were several cars outside that particular warehouse. The officers saw two men about to get into one of the cars and spoke to them. The officers were then taken to a first floor office in the warehouse.
441. In the office were several men sitting at a table. They had documents on the table in front of them which the police recognized to be election documents.
442. How had this arisen? Who were the men? What were they up to?
The story as told by the Petitioners' witnesses
443. Evidence was given by two of [the Liberal Democrat candidates] Mr Ayoub Khan's brothers, Mr Asif Iqbal and Mr Naser Iqbal.
444. In summary, what the Iqbal brothers said was as follows. Believing that the Labour Party candidates were up to mischief, on the evening of 8th June 2004 they decided to watch the Ward Labour Party campaign office, a lock-up shop in Witton Road. I have seen photographs of this shop. It is secured by an iron shutter which covers the entire front of the shop. It stands in a well lit main road near a bus-stop.
445. As they arrived in Witton Road, the Iqbal brothers saw the Ward organiser Mr Zulfiqar (sometimes spelled "Zulfigar") Khan and the Respondent Mr Mohammad Afzal sitting in Mr Afzal's Primera car outside the campaign office. They described Mr Zulfiqar Khan as looking "anxious and uneasy". The Iqbal brothers parked further up the road and kept watch.
446. A Volvo then arrived, owned and driven by the Respondent Mr Nazrul Islam, with a passenger. Mr Nazrul Islam and his passenger got out of the car and one of them retrieved a carrier bag, placed it under his clothing and walked into the campaign office.
447. Some time later, several men came out of the campaign office. Mr Afzal placed a carrier bag in the boot of his Primera and he, Mr Zulfiqar Khan, and Mr Nazrul Islam (with one other) got into the Primera. One of the other cars was a Carina owned and driven by the Respondent Mr Kazi. The cars drove off and the Iqbal brothers decided to follow the Primera.
448. They followed the Primera to the trading estate and saw it drive in. Shortly thereafter, the Iqbal brothers drove into the trading estate to look for the Primera. They found it with Mr Afzal in the driving seat. The Iqbal brothers parked on a road outside the estate and saw a BMW car arrive and a Mercedes car with a number plate "NAJ 1B" (clearly, "Najib"). They saw a Lexus arrive at the estate and then Mr Kazi's Carina. At this point the police arrived.
The story as told by the police officers
449. The police were summoned by telephone calls which alerted them to the Primera, BMW and Lexus cars and said that Labour councillors were "rigging blank ballot papers" at the NT warehouse.
450. In summary, five officers in total attended the warehouse: PS Rattenberry, PC Parsons, PC Harrison, WPC Bradley and WPC Grundy. They initially attended at about 12.30 am on 9th June. They discovered a number of Asian men in an office on the first floor of the warehouse. In their statements and in court they were able to identify Mr Nazrul Islam, Mr Kazi and Mr Zulfiqar Khan.
451. WPC Grundy identified:
...one person in specific who was sitting on a sofa. I remember this man as being chubby, bald and wearing glasses. He was being very obstructive and he was speaking in a different language.
452. I asked WPC Grundy in the witness box whether she could recognise this person again. She immediately identified Mr Afzal and said that she had recognised him when she had arrived at court that day."
The story as told by Mr Islam, Mr Kazi and their witnesses
464. Evidence was given by Mr Nazrul Islam, Mr Kazi, Mr Mohammed Najib, his son Wahid Najib and his brother Tariq Hussain.
465. Their evidence may fairly be summarised as follows. Labour canvassers had collected a large number of completed postal packages from voters. The reason why they had collected them was twofold. By the evening of 8th June it was by no means certain that the vagaries of the British postal service would ensure delivery of the packages by close of poll on 10th June and also there were serious worries about the safety of the post, given that a pillar box had been set alight in the neighbouring Ward of Washwood Heath, apparently in order to destroy postal votes.
466. These votes had been taken to the campaign office but Mr Kazi, Mr Nazrul Islam and Mr Zulfiqar Khan did not believe it to be secure. They had seen the Iqbal brothers skulking around Witton Road and they knew that the lock on the metal shutter was unreliable. They feared that, were they to put the votes in the campaign office, Mr Ayoub Khan's (admittedly large) band of brothers would burgle the shop and remove them.
467. So the decision was taken to enlist Mr Mohammed Najib, who owned this secure warehouse and he was duly contacted. For reasons that were not entirely clear, Mr Mohammed Najib required his son Wahib and his brother Tariq Hussain to come to the warehouse. There was much confused evidence about keys which never really got sorted out.
468. The votes were taken to the warehouse. Eventually all six men were in the upstairs room. Although the intention had been to put the documents in the safe, it was thought wise to count them first so the men sat down at a table and asked young Wahib to get them cold drinks. They were still counting them when the police arrived.
469. The five witnesses confirmed that the police had been given the explanation that the documents were merely being checked and also the incident of the "dip sample". They denied, however, that there were any ballot papers on the table although they admitted that some of the envelopes were open.
470. Mr Nazrul Islam said that he left at the end of the first incident and one of the police officers gave him a lift home. The police officers did not recall this but nothing turns on it.
471. Mr Mohammed Najib remembered the police returning but disputed that it was as late at 3.55 am. He recalled it as being only about 20 or 30 minutes after they had first left.
472. None of the witnesses however could account for what had been happening between 1.30 am and 3.50 am if the police log had stated the times correctly. Similarly none of the witnesses could explain why the documents never got into the safe.
The story as told by Mr Afzal
473. Were this a criminal trial, Mr Afzal could be said to have set up a plea of alibi. His witness statement, signed 14th February 2005 said:
On Tuesday 8th June 2004, two days before the Election, I was campaigning as normal. At about 8 to 8.30 pm, I went to an informal meeting of Indian Muslims at the request of Cllr Kazi to discuss the Labour Government's actions affecting Muslims both at home and abroad. I believe I left the meeting between about 10 and 10.30. Cllr Kazi was still there when I left. I was not feeling well that day so I drove straight home and went to bed after taking a hot drink and some medication.
At about 9 o'clock in the next morning, I was telephoned by Amjad Hussain, the Labour Party candidates' election agent. He began describing an incident involving the police at a warehouse which I had already known to be owned by a Mr Najib. I asked Mr Hussain to come to my house and explain in detail what had happened. I had not been involved in the decision to take postal ballot envelopes to the warehouse on the night before nor had I been aware of the storage of postal ballot envelopes anywhere outside the campaign office.
474. In short, Mr Afzal was not in Witton Road, he did not drive his Toyota Carina [sic] car to the warehouse and he was not in the warehouse. He was peacefully asleep at home. The first he knew of the Warehouse Incident was at 9.00 am the following morning.
Where does the truth lie?
475. I shall start with Mr Afzal and consider whether he was telling me the truth.
476. If his statement were true, it would successfully distance Mr Afzal from any possible wrongdoing with the votes in the warehouse. The identification by WPC Grundy could be put down to mistake and the absence of Mr Afzal's name from the list of names and addresses taken by the officers would corroborate his story.
477. Given a fair wind and, more to the point, given the burden and standard of proof required to incriminate him, this story might well have worked.
478. The Petitioners' lawyers, however, had a brainwave. They knew that, as a councillor, Mr Afzal had a mobile telephone provided by the Council. They applied for, and I granted, an order for the Council to disclose the records for Mr Afzal's mobile telephone for the night of 8th/9th June 2005. When this arrived, it blew Mr Afzal's carefully crafted alibi out of the water, because, far from showing Mr Afzal asleep in bed at home, the records showed him as being very active between the hours of 10.00 pm on 8th June and 5.00 am on 9th June. It appeared to show him telephoning home at a time when he claimed he was already at home. It showed him telephoning Mr Mohammed Najib at about 11.00 pm.
479. When Mr Afzal went into the witness box, he knew what was coming: Mr Sukul had opened his case by referring to the mobile telephone records and had cross examined Mr Najib on the topic. Mr Afzal took a bold course. He disavowed his witness statement. It had, he said, been put together by Messrs Steel & Shamash just before they took themselves off the record: these solicitors were, he claimed, more interested in protecting the position of the Labour Party than the position of their supposed clients (including himself). The true story, he said, was quite different.
480. It would perhaps be kinder to draw a veil over Mr Afzal's attempts to explain his activities over the period between 10.00 pm on 8th June and 5.00 am on 9th June. When questioned by Mr Sukul with some interventions from myself, Mr Afzal's evidence became wilder and wilder and less and less credible. Obvious lie followed obvious lie until even Mr Afzal realised that he was doing himself no favours.
481. The brutal fact is that he could not account satisfactorily for his movements on the night nor could he account for the telephone calls that had been disclosed by the records.
489. I return to the question of whether Mr Afzal was at the warehouse. It will be recalled that WPC Grundy had given a description of a man "chubby, bald and wearing glasses". In the course of cross examination of the police officers, the suggestion had been floated that perhaps she might have been identifying Mr Tariq Hussain, who was a balding, middle-aged Asian gentleman. This suggestion might well have succeeded in planting a doubt in my mind, had not Mr Hayes, for reasons of his own case, decided actually to call Mr Tariq Hussain.
490. The moment Mr Tariq Hussain went into the witness box, any suggestion of mistaken identification disappeared. He is some ten years younger than Mr Afzal and looks more. Far from being "chubby", he is of slim build and appears quite fit. True his hair is getting a bit thin and he does wear glasses. But the killer point was that Mr Tariq Hussain sports a well-cut black beard, whereas Mr Afzal is clean-shaven. I was moved to comment, perhaps facetiously, that Mr Tariq Hussain would be ill advised to enter a "Councillor Afzal look-alike competition". The suggestion that WPC Grundy had mistaken him for Mr Afzal was ludicrous.
491. Once that had been established, it was clear that none of the six men who claimed to be at the warehouse could possibly fit WPC Grundy's description. Mr Afzal, though, did.
What really happened
492. I have no doubt whatsoever that the three Labour Party Respondents and their witnesses have told me a pack of lies. Having seen them in the witness box and having heard their attempts to answer questions about the obvious holes in their evidence, I cannot accept their evidence as truthful.
493. I do believe the witnesses called by the Petitioners, even accepting that the Iqbal brothers, as supporters of the Liberal Democrats and brothers of Mr Ayoub Khan, have an obvious axe to grind. I accept their account of what happened in Witton Road as essentially correct.
494. Similarly, I accept the evidence of the police officers of what happened at the warehouse.
495. Thus I find as facts:
(a) Mr Afzal and his Primera car were in Witton Road at about 11.00 pm on 8th June 2004;
(b) Mr Afzal, Mr Kazi, Mr Islam and Mr Zulfiqar Khan drove in more than one car to the warehouse with a quantity of votes in at least one package in the boot of a car (probably Mr Afzal's Primera but which car is irrelevant);
(c) Mr Afzal was at the warehouse and was correctly identified by WPC Grundy; .
496. Although I am, as I have said, satisfied that Mr Afzal was at the warehouse, how is it possible to account for the fact that his name did not appear on the police list? There are several potential explanations and it is not necessary to make a definitive finding. By far the most probable explanation arises from WPC Grundy's recollection that the "chubby" man was speaking a language other than English and was being "obstructive". Mr Afzal, realising that the police officers had not recognized him, told the others to give a false name, preferably that of someone like Mr Najib's brother who could be relied on to back up the story if necessary. The police were given Mr Tariq Hussain's name and particulars (which would, of course, be known to his brother). Those present almost certainly believed that, as turned out to be the case, if they put a bold face on things, the police would lose interest and go away."
WPC Grundy's Evidence
"2. I was on duty with my colleague WPC Bradley on 9 June 2004 and at approximately 00:34 hours we attended a warehouse known as "NT" situated on the Wryley Industrial estate off Birch Road East, following a call in connection to allegations of Postal voting irregularities.
3. Upon arrival we had just parked up outside the NT warehouse. I saw 3 or 4 vehicles outside the warehouse and read the details of the vehicles to the controller. I then saw one Asian Male who appeared to be leaving the Warehouse.
4. We asked if we could go into the Warehouse and he said yes. Both myself and WPC Grundy went into the building and went up a flight of stairs to the first floor and into a large room. When we entered the room I saw approximately 6 to 7 Asian males.
5. On a large oval shaped table in the room I could see a lot of different coloured including white and yellow paperwork scattered about in piles. I saw plenty of ballot papers, some with crosses on them and I saw unsealed envelopes that were of A5 size. The other papers were approximately A4 sized.
6. I remember one person in specific who was sitting on a sofa. I remember this man as being chubby, bald and wearing glasses. He was being very obstructive and he was speaking in a different language. We did not want them to speak in any other language and I told them to speak in English but he refused and continued speaking in a different language. All of these men I would say were over the age of 40 years.
7. I was not sure of whether any criminal offences had been committed and so my colleague requested supervision of a senior officer.
8 A short while later PC Harrison 7615 and PC Parsons 9628 arrived and then PS Rattenberry 6180. Both myself and WPC Bradley left the scene at approximately 01:30 hours and had no further dealings with this matter.
9. Both myself and WPC Bradley made notes of the individuals present. However, these were not made in our personal note books. I can further state that I conducted no search of the premises.
10. I have been shown a Labour Party Candidate leaflet (Exhibit C1) which contains pictures of individuals. I can identify 1 of the individuals who were present on the night in question. The name of these individuals from the leaflet is Nazrul Islam."
The puzzling reference to 'myself and WPC Grundy' in paragraph 4 is probably explained by the fact that the first four paragraphs of WPC Bradley's witness statement were in almost identical form and may well have been used as a model for the formal parts of WPC Grundy's statement.
"The Commissioner: The gentleman you describe in paragraph 6 as chubby, bald and wearing glasses, is that gentleman by any chance in court?
A. He is, yes.
The Commissioner: Could you say where he is sitting?
A. The gentleman in the blue shirt and the stripey tie.
The Commissioner: Thank you."
"Officers attended HT Warehouse, Birch Road East, Witton to report of local councillors doctoring the postal votes. Six persons present with a table full of election forms. Explanation given was that they visited residents and collected as they would not get there in time if they posted them. None of the envelopes were sealed. A random check was completed by officers on one of the addresses to verify explanation and it appeared genuine. The agent present was Zulfigar Khan (26/08/71) of 141 Fentham Road, Aston Tel 240 1236. Others present Mohammed Kazi (21/07/52) 15 Hampton Road Aston Tel 240 1398. Mohammed Islam (01/10/41) 16 Little Oaks Road, Aston Tel 322 2499. Tariq Hussain (14/08/56) 113 Cherry Orchard Road, Handsworth Tel 523 5782. Wahid Najib (23/01/80) 13 Church Road, Edgbaston Tel 0797 3559191. Mohammed Najib (31/12/53) 13 Church` Road, Edgbaston tel 454 5473."
It appears that because of a reference to the Official Secrets Act on their copy of the memorandum, the Petitioners' legal advisers did not feel that it was open to them to disclose it, or even that they had it, when WPC Grundy was giving her evidence.
Mr Najib's evidence
i) At 2145 a call to Mr Najib's mobile lasting 52 seconds;
ii) At 2259 a call to Mr Afzal's home lasting 7 minutes and 4 seconds;
iii) At 2317 a call to an 'Orange' mobile lasting 25 seconds;
iv) At 2318 a call to the same mobile lasting 46 seconds;
v) At 2339 a call to Mr Najib lasting 31 seconds;
vi) At 2344 a call to Mr Najib lasting 13 seconds;
vii) At 0443 a call to Mr Zulfigar Khan lasting 2 minutes and 14 seconds.
This record was put in evidence.
Mr Afzal's evidence
"The slight problem of course is that Mr Najib says he did not get the quarter to ten phone call because his phone was turned off. It is certainly a problem, but there we are".
In fact the evidence given by Mr Najib in relation to his movements and to the use of his mobile phone was consistent with the evidence given by Mr Afzal.
The challenge to the procedure adopted by the Commissioner
i) The Commissioner should not have invited WPC Grundy to make a 'dock identification' of Mr Afzal as the man who had been sitting on the sofa in the warehouse.
ii) The Commissioner should not have accepted WPC Grundy's evidence of identification of Mr Afzal without recalling her for examination as to why the names and addresses that she had noted of those who were in the warehouse, as recorded in the memorandum, did not include his.
iii) The Commissioner should not have made a finding that Mr Afzal had probably passed himself off as Mr Tariq Hussain without informing Mr Afzal and those acting for him that he had this in mind, so that they could have a chance to deal with the suggestion.
iv) These shortcomings were the more marked in that the Petitioners had not set out to prove that Mr Afzal was in the warehouse on the basis of WPC Grundy's identification, nor had it been part of their case that Mr Afzal had passed himself off as Mr Tariq Hussain.
v) The Commissioner's acceptance of the identification evidence of WPC Grundy was, or may well have been, the critical factor leading to all the other findings adverse to Mr Afzal made by the Commissioner.
The 'dock identification'
"The Commissioner: Obviously Mr Sukul will have to give thought as to whether and to what extent it is still the case that Councillor Afzal was at the warehouse.
Mr Hayes: Absolutely. My concern obviously is whether we should recall WPC Grundy so that I can cross-examine her as to her allegation that none of the envelopes were sealed. If you do not think it is truthful, sir, I will not waste the court's time.
Mr de Mello: Before my learned friend sits down, something turns up from his point. If my learned friend Mr Sukul were to, after some considered thought, take the view that he is not going to press the case that Councillor Afzal went to the warehouse and was there --
The Commissioner: He was there when the police came.
Mr de Mello: Yes. Then I would not need to recall WPC Grundy merely to cross-examine her that she was mistaken about that identification.
You may take a view that it is open to you not to attach much weight to her identification in the way that it has arisen.
The Commissioner: We have apparent conflict between that and the list of names that was taken here.
Mr de Mello: Yes.
The Commissioner: It may be something that I have to resolve but I think you have that evidence. I will reserve my position, I think, as to whether WPC Grundy should be recalled until a later stage but I will leave that, as it were, an open question for the moment.
Mr Hayes: After listening to my learned friend I have slightly hardened my position because if she was totally wrong about Mr Afzal, she was certain that none of the envelopes were sealed. That undermines her credibility.
The Commissioner: The problem with that is if this is a correct record of who was there and relied on as such, then it may be considered I have no doubt it will be argued that it is correct record with regard to what they found.
So it is a two-edged weapon. On one view of it, as it were, it establishes Mr de Mello's alibi for him, but on the other it does not necessarily help those who were at the warehouse as to what was found.
So I am inviting that to be reconsidered later I will leave it to a later stage when you have all had a chance to think further about it."
"Mr Sukul: Either way, your evidence is that Mr Afzal was not present.
A. I said I did not see Mr Afzal at all. So how can you say that at that time.
Q. Were you there yourself?
A. Yes, I am there, and I open the warehouse with the key, and I left when the second time the police arrived. Then we locked the doors then went home.
Q. You did not make an arrangement for someone to give your name and address to the police, did you?
A. The police officers have to prove you that. My BMW was there and the police always check and they took my details fully with my date of birth, so what else
Mr Sukul: Thank you.
Mr de Mello: May I just mention one thing as a result of your very careful way of putting it Mr Sukul. These proceedings are partly inquisitorial. I was careful with the former witness to follow questions following your questions.
The Commissioner: If anything I have asked puts you at a disadvantage you may certainly pick it up in cross-examination.
Mr de Mello: What I would like is this: some sort of indication that if you were to draw any inference, and I will be careful not to say too much in case Mr Sukul bounces up.
The Commissioner: I simply wish to give Mr Sukul the opportunity to raise a matter with the witness in case it needed to be raised later. I myself have no views at all at this stage, but one of the things that clearly crossed my mind as a possibility, which had I been in Mr Sukul's position I would have considered, it therefore seemed to be to be a fair wind to ensure, particularly in view of unhappy events with Mr Mirza Ahmed, to make sure that absolutely everything was on the table, unlike the ballots, face up."