Sabi, R. v

Where forensic and other circumstantial evidence permits a reasonable inference that an accused participated in violence, rather than being its victim, the issue is properly left to the jury. The jury may consider proven lies told shortly after the event as additional support, but not as the sole basis for conviction.

A direction under section 34 of the Criminal Justice and Public Order Act 1994 may be given where an accused later advances a substantially fuller account and could reasonably have given material parts of it when interviewed, even though later forensic evidence was then unavailable. The direction should identify the salient facts omitted. A failure to do so does not make the conviction unsafe if the jury would have understood the omitted account from the summing-up and the direction as a whole.

The appellant was convicted at Inner London Crown Court of violent disorder arising from a sword fight in Southall. The prosecution did not allege that he took part in a separate assault on another man. It relied principally on blood and DNA evidence linking him to swords and to a co-accused, his account at hospital, his largely silent first police interview, and his failure to answer police bail.

He appealed against conviction. He contended first that the forensic evidence was equally consistent with his being a victim and that the case should have been withdrawn from the jury. Secondly, he challenged the judge’s direction under section 34 of the Criminal Justice and Public Order Act 1994, both in principle and in its form.

1. Appeal dismissed. The judge was entitled to leave the case to the jury. The blood and DNA evidence, particularly the contact staining showing close physical contact between the appellant and a co-accused, was capable of supporting an inference that the appellant participated in the violence rather than being an innocent victim. The appellant’s flagrant lies shortly after the incident were capable of providing significant additional support. The ultimate question remained one of fact for the jury on the whole of the evidence.

2. The judge was entitled to give a direction under section 34 of the Criminal Justice and Public Order Act 1994. Although the appellant had not then seen the later forensic evidence, he could reasonably have given substantial parts of the explanation later advanced which did not depend upon expert evidence. His later interview was significantly more forthcoming than the first.

3. The direction was defective because it did not identify the salient facts relied on at trial which the appellant had failed to mention in his first interview. However, the defect did not render the conviction unsafe. In the context of the summing-up, the jury would have understood that the reference to the account not emerging in broad outline concerned the salient features of the appellant’s trial account. No request was made for amplification of the direction.

• Court of Appeal (Criminal Division): dismissed the appeal against conviction in [2010] EWCA Crim 180.
• Inner London Crown Court: convicted the appellant of violent disorder on 23 February 2009.