R v ANIRUDH BHAGCHANDKA (2016)

The appellant (B) appealed against his conviction for perverting the course of justice and against a sentence of 12 months’ imprisonment and a five-year disqualification from driving imposed following his conviction for dangerous driving.

B had driven a car at excessive speed. There were five passengers. The car collided with bollards, flipped onto its side and stopped in the basement area of a property. All the occupants got out of the car. According to a police officer, one of the passengers stated that he had been driving, B heard that statement, and B claimed to be a passenger. B and the passenger were charged with perverting the course of justice. B’s co-accused failed to attend trial and his trial was severed from B’s. B denied telling the officer that he was a passenger. His interview under caution was put before the jury. That included a passage in which the interviewing officer put to B a statement made by the co-accused in his own interview, in which he had said that B had asked him to say that he was the driver. That passage was put to B in cross-examination. The judge directed the jury that the co-accused’s statement had not been made on oath and that they should not rely on it to find B guilty.

B argued that the co-accused’s interview assertions could not be admissible in evidence against him and he should not have been cross-examined upon them. He further argued that the judge should have given a Lucas direction in relation to a statement he had made that he had not heard the conversation between the co-accused and the police officer, as the jury might have relied upon finding that statement untruthful as support for a finding of guilt.

HELD: (1) The passage in B’s interview was not properly evidence against him. No application had been made for the co-accused’s statements to be adduced as hearsay. The passage should not have been before the jury. If the offending part had been excised as it should have been, the cross-examination objected to would not have been possible. There had therefore been material irregularities in the trial process. Had the co-accused been present at the hearing as intended, his interview under caution would likely have been adduced. In those circumstances, it might not have mattered had B’s interview record contained the offending passage. The usual course in such a case at a joint trial was for the judge to tell the jury that the interview answers of one accused, implicating a co-accused, were not evidence against that co-accused. The summing up had not cured the irregularities. Far from directing the jury that the co-accused’s statements were to be ignored, the judge appeared to afford his statements some evidential significance. The direction that the jury “should not rely on [the co-accused’s] comment to find [B] guilty” was hardly a clear direction to the effect that they should ignore it. The irregularities rendered the conviction unsafe. The court could not be sure that the jury had taken no account of the co-accused’s statement when reaching their verdict. In a case where the crucial issue had turned upon the oral evidence of the police officer on the one hand and B on the other, the effect on the minds of the jury of the inadmissible material could have been significant (see paras 22-25 of judgment). There had been no need for a Lucas direction. The potential lie had not been one upon which either counsel or the judge had focused as material. Lucas directions had been introduced as a safeguard where the Crown relied on lies told as a specific support for its case. They were not required in every case where a potential lie, of whatever significance to the issues, could be extracted from the evidence (para.30).

(2) The sentence and disqualification imposed for the dangerous driving were excessive. However, the offence had been a serious example of dangerous driving in an urban environment at night. The driving had been persisted in in the face of protests from passengers. The sentence was reduced to six months’ imprisonment and the disqualification period was reduced to three years (paras 40-41).

Appeals allowed

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