Petkar & Anor v REGINA

Factual and Procedural Background

This opinion concerns the appeals of two appellants who were convicted on two counts of theft at a retrial in the Crown Court before HH Judge Smith and a jury by majority verdicts. Both were sentenced to concurrent terms of five years imprisonment. One appellant also faced a third count related to concealing or transferring the proceeds of criminal conduct, which was left on the file. The appeals were heard together, with leave granted for additional grounds of appeal arising from a recent decision of the Court of Appeal. The appeals against conviction were dismissed, but one appellant was granted leave to appeal against sentence, resulting in a reduction of the sentence.

The appellants were former employees of a financial institution ("Company A") in the City of London. The case involved two transfers of substantial sums from Company A’s account to accounts controlled by one appellant and an associated company. Disputes arose as to the ownership and handling of these funds, with one appellant claiming the money was his colleague's own funds transferred for investment, and the other claiming duress to commit the transfers. The trial featured a cut-throat defence where each appellant’s evidence was damaging to the other.

The prosecution presented evidence including bank records, witness testimony from bank employees, and telephone call transcripts between the appellants. The defence presented explanations for the transfers, alleged threats, and inconsistencies in statements made to the police and others. The trial was complicated by incidents involving alleged intimidation and the death of a witness, necessitating the admission of statements under statutory provisions. The first trial was aborted and a retrial was conducted.

Legal Issues Presented

1. Whether the trial judge's direction under section 34 of the Criminal Justice and Public Order Act 1994 regarding adverse inferences from the defendants' failure to mention facts in their police interviews was defective.
2. Whether the judge failed to adequately warn the jury about the danger of relying on the evidence of each co-defendant against the other, particularly in the context of cut-throat defences.
3. Whether the judge erred in his summing-up concerning the admission and treatment of a deceased witness's statement under section 23 of the Criminal Justice Act 1988.
4. Whether new evidence relating to one appellant's previously undisclosed bank account warranted allowing an appeal based on potential impact on the jury's assessment of the defence.
5. Whether the delay in trial caused by one appellant's absconding justified a reduction in sentence.

Arguments of the Parties

Appellants' Arguments

• The section 34 direction was defective for failing to clearly identify relevant inferences, failing to warn the jury not to convict wholly or mainly on adverse inferences, failing to require the prosecution to have made out a prima facie case before drawing inferences, failing to instruct that an adverse inference should only be drawn if no sensible explanation existed for the failure to mention facts, and failing to remind the jury of the defendants’ explanations for silence or lies.
• The judge failed to give an appropriate or any warning about the danger of relying on the evidence of each co-defendant as against the other, contrary to established case law.
• Regarding the deceased witness's statement, the judge wrongly stated it was "not accepted" without clarifying the prosecution's neutral stance, potentially prejudicing the appellant.
• The newly discovered evidence of the appellant's bank account transactions could explain the disappearance of funds and might have led the jury to accept the appellant's denial of receiving stolen money.
• The delay in trial caused by the co-appellant's flight and subsequent return justified a reduction in sentence for the appellant.

Respondent's Arguments

• The section 34 direction, while imperfect, was adequate in context and did not render the convictions unsafe.
• The judge’s failure to give a Jones and Jenkins warning was either covered by other directions or was not prejudicial given the nature of the cut-throat defences.
• The judge’s characterization of the deceased witness’s statement was accurate in context and did not mislead the jury.
• The new evidence relating to the bank account did not undermine the prosecution’s case or the safety of the convictions.
• The sentence reduction was appropriate due to the trial delays caused by the co-appellant’s conduct.

Table of Precedents Cited

Court's Reasoning and Analysis

The court conducted a detailed analysis of the trial judge’s directions, the evidence, and the appellants’ defences. On the section 34 direction, the court found that while the judge’s direction was imperfect—particularly in failing to remind the jury that adverse inferences could only be drawn if no sensible explanation existed for the defendants’ failure to mention facts and in not linking the defendants’ explanations to the direction—these defects did not render the convictions unsafe. The judge’s examples of possible inferences were appropriate to the facts and interviews in this case, and the jury had also been given a Lucas direction on lies, which mitigated the impact of the section 34 misdirection.

Regarding the absence of a warning about the danger of relying on co-defendant evidence, the court recognized this as a misdirection. However, given the nature of the cut-throat defences and the overall directions emphasizing separate consideration of each defendant’s case, the court concluded that the omission was not sufficiently prejudicial to undermine the verdicts. The court acknowledged the difficulty judges face in tailoring such warnings without prejudicing either defendant.

On the issue of the deceased witness’s statement, the court found the judge’s characterization as "not accepted" to be accurate in context, noting that the prosecution was neutral but the defence did not accept the statement. This did not amount to a misdirection.

The newly discovered bank account evidence was examined thoroughly. The court found that the funds passing through this account were largely explainable by subsequent legitimate transactions and that the timing and nature of these deposits meant the evidence did not assist the appellant’s case sufficiently to warrant allowing the appeal.

Finally, the court considered the sentence appeal based on trial delay. It accepted that the delay caused by the co-appellant’s absconding was a mitigating factor warranting a reduction in sentence.

Overall, the court emphasized that the overwhelming evidence against the appellants, combined with the nature of the misdirections and the directions given, meant that the convictions were safe and the trial fair.

Holding and Implications

The court DISMISSED the appeals against conviction of both appellants, holding that the identified misdirections did not render the convictions unsafe. The appeals against sentence were ALLOWED in part for one appellant, reducing the sentence from five years to four years and six months due to mitigating factors relating to trial delay.

The direct effect of this decision is to affirm the convictions and reduce the sentence for one appellant. No new legal precedent was established beyond the court’s application and discussion of existing authorities concerning section 34 directions, warnings about co-defendant evidence, and handling of new evidence. The judgment clarifies the court’s approach to assessing the impact of misdirections and the balancing of fairness against overwhelming evidence in complex cut-throat defence cases.