Petkar & Anor, R. v

A jury considering an adverse inference under section 34 of the Criminal Justice and Public Order Act 1994 must be directed that an inference is available only where it is fair and proper. The jury must consider whether any explanation for the omission is sensible, and must not convict wholly or mainly because of the inference.

Where co-defendants give mutually incriminating evidence, the judge should give a neutral warning that each may have an interest to serve. A failure to give either direction is a misdirection, but a conviction remains safe where, on the whole evidence and with correct directions, guilty verdicts were the only reasonable and proper result.

Following a retrial at the Crown Court at Middlesex Guildhall, Petkar and Farquhar were convicted by majority verdicts of two thefts arising from two unauthorised transfers of £420,000 from their employer bank. Petkar denied dishonesty and said he believed the money belonged to Farquhar. Farquhar admitted making the transfers but relied on duress by Petkar and others.

Both appellants challenged the judge’s direction on adverse inferences from matters not mentioned in police interview and the absence of a warning about mutually incriminating co-defendant evidence. Farquhar also challenged the treatment of his deceased grandmother’s statement and relied on fresh financial evidence. Petkar appealed his sentence on the basis of delay not attributable to him.

1. The conviction appeals were dismissed. The judge misdirected the jury on two matters, but the convictions were safe.
2. On section 34 of the Criminal Justice and Public Order Act 1994, the judge should have made clear that an adverse inference could be drawn only if the only sensible explanation for the omission was that the defendant then had no answer, or none likely to withstand scrutiny. The jury should also have been reminded, in connection with that direction, of the explanations advanced for the omissions. The omission of those safeguards was a misdirection. The judge’s references to the need for other prosecution evidence were nevertheless sufficient to convey that an inference could not alone establish guilt.
3. Applying the approach in R v. Jones and Jenkins [2003] EWCA Crim 1966, a judge should normally give a neutral warning where each co-defendant gives evidence adverse to the other. The jury should assess each case separately, consider all the evidence, recognise that a co-defendant may have an interest to serve, and assess that evidence as it would any other witness’s evidence. The absence of any such warning was a misdirection. In this genuine cut-throat case, however, the risk was obvious and the omission was not serious enough to undermine safety.
4. The evidence against each appellant was overwhelming. Petkar’s account was contradicted by the source and use of the funds and by admitted lies. Farquhar’s account of duress was inconsistent with the contemporaneous telephone evidence, his conduct after the thefts, and his own lies. The description of Mrs Wells’s unagreed and untested statement as not accepted was accurate. The fresh account material could not have affected the jury’s view.
5. Petkar’s sentence appeal was allowed. The prolonged delay to trial, caused by matters unconnected with him, warranted mitigation. The concurrent sentences were reduced from five years to four years and six months.

• Court of Appeal (Criminal Division). The appeals against conviction were dismissed. Petkar’s appeal against sentence was allowed and his concurrent sentence was reduced to four years and six months.
• Crown Court at Middlesex Guildhall (HHJ Smith). At a retrial, both appellants were convicted of two counts of theft and sentenced to concurrent terms of five years’ imprisonment.