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England and Wales Court of Appeal (Criminal Division) Decisions |
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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Dybicz, R v [2020] EWCA Crim 1047 (21 July 2020) URL: http://www.bailii.org/ew/cases/EWCA/Crim/2020/1047.html Cite as: [2020] EWCA Crim 1047 |
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CRIMINAL DIVISION
Royal Courts of Justice The Strand London WC2A 2LL Tuesday 21st July 2020 |
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B e f o r e :
(His Honour Judge Dickinson QC)
(Sitting as Judge of the Court of Appeal Criminal Division)
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R E G I N A |
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- v - |
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TOMASZ DYBICZ |
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Lower Ground, 18-22 Furnival Street, London EC4A 1JS
Tel No: 020 7404 1400; Email: [email protected] (Official Shorthand Writers to the Court)
Mr P Moulson QC appeared on behalf of the Crown
Tuesday 21st July 2020
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Crown Copyright ©
LORD JUSTICE HOLROYDE:
"34. Effect of accused's failure to mention facts when questioned or charged
(1) Where, in any proceedings against a person for an offence, evidence is given that the accused —
(a) at any time before he was charged with the offence, on being questioned under caution by a constable trying to discover whether or by whom the offence had been committed, failed to mention any fact relied on in his defence in those proceedings;
…
being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, … subsection (2) below applies.
(2) Where this subsection applies —
...
(d) the court or jury, in determining whether the accused is guilty of the offence charged,
may draw such inferences from the failure as appear proper."
(1) The judge failed to direct the jury in accordance with the specimen direction, and in particular failed to direct them: (i) that they may only draw an inference adverse to the appellant if they were sure that the prosecution case was such "as it appeared to the appellant (and in this case his solicitor) at the time of the interview that it called for an answer"; and (ii) that they should consider the explanation given by the appellant for his failure to answer questions, including legal advice, and unless they were sure it was not the genuine reason for failure they should not draw any adverse inference.
(2) The judge failed to give the jury any proper guidance as to the "circumstances prevailing at the time" and failed to direct the jury that in deciding whether the appellant could reasonably have been expected to mention facts later relied on at trial, they should take into account things such as the appellant's age (29) and good character; that he had been arrested for murder; that his girlfriend had been arrested and he did not know the whereabouts of his young daughter; and that he was a foreign national and had a limited understanding of English.
(3) The judge wrongly permitted the prosecution in cross-examination of the appellant to rehearse questions asked of the appellant in interview, contrary to his right to remain silent and when he had given evidence that he made no reply on the advice of his solicitor.
(4) The judge wrongly directed the jury that the appellant now relied on a fact, namely that "whoever caused the deceased's injuries was nothing to do with him", not previously mentioned when questioned, when in fact before his second interview on 27th December 2018 the appellant had in a prepared statement asserted that he was not involved in causing any fatal injury to the deceased.
(5) The judge in summing-up failed to remind the jury of the critical evidence of the neighbours, much of which supported the account given by the appellant and contradicted the account given by Polomka's partner and by Piotrowski.
(6) By reminding the jury as to questions asked in cross-examination of the appellant as to his failure to answer questions, the judge negated the purport of the section 34 direction, which was unfair and prejudicial.
"The time referred to is the time of questioning, and account must be taken of all the relevant circumstances existing at that time. The courts should not construe the expression 'in the circumstances' restrictively: matters such as time of day, the defendant's age, experience, mental capacity, state of health, sobriety, tiredness, knowledge, personality and legal advice are all part of the relevant circumstances; and those are only examples of things which may be relevant. When reference is made to 'the accused' attention is directed not to some hypothetical, reasonable accused of ordinary phlegm and fortitude but to the actual accused with such qualities, apprehensions, knowledge and advice as he is shown to have had at the time. It is for the jury to decide whether the fact (or facts) which the defendant has relied on in his defence in the criminal trial, but which he had not mentioned when questioned under caution before charge by the constable investigating the alleged offence for which the defendant is being tried, is (or are) a fact (or facts) which in the circumstances as they actually existed the actual defendant could reasonably have been expected to mention.
Like so many other questions in criminal trials this is a question to be resolved by the jury in the exercise of their collective common-sense, experience and understanding of human nature."