Bhayani & Anor, R. v

A late disclosure identifying a potential defence witness does not by itself render a criminal trial unfair. The appellate court must assess the practical opportunity given to meet the evidence, including disclosure of material undermining the witness, time to obtain rebuttal evidence, cross-examination, and the judge’s directions.

Fresh evidence under section 23 of the Criminal Appeal Act should not be received if it adds no material substance and could not afford a ground for allowing the appeal. A disparity argument fails where different sentencing structures reflect a co-defendant’s murder sentence. Credit for remand time is an administrative matter where section 240ZA(4) of the 2003 Act excludes time during which the offender was also detained on another matter.

Rakesh Bhayani was convicted at the Central Criminal Court of murdering Carole Waugh, having also pleaded guilty to fraud-related offences. Nicholas Kutner was acquitted of murder but convicted of fraud and perverting the course of public justice. Bhayani appealed his murder conviction. Kutner renewed his application for leave to appeal against his total sentence of 13 years’ imprisonment.

The principal issue on Bhayani’s appeal was whether late disclosure identifying prisoner X as the source of an alleged confession made the trial unfair or rendered the conviction unsafe. The court also considered fresh material said to undermine X’s credibility. Kutner relied on alleged disparity with Bhayani’s sentences and on the absence of credit for time spent in custody before sentence.

1. Bhayani’s conviction appeal was dismissed. The late identification of X as the source of the disclosed information was regrettable, but it did not make the trial unfair. Once X was identified, the defence received extensive material capable of undermining his credibility, had time to take instructions and investigate, called rebuttal witnesses, and cross-examined X at length. The Crown did not rely on X’s evidence against Bhayani, and the judge gave a detailed warning that the jury had to approach it with great care.
2. The further material tendered on appeal did not materially strengthen the attack on X. Even taken cumulatively, it added next to nothing to the adverse material already before the jury. The court therefore declined to receive it under section 23 of the Criminal Appeal Act, since it could not afford a ground for allowing the appeal.
3. There was a strong case against Bhayani independently of X. It remained for the jury, properly warned, to decide what weight to give X’s evidence alongside the other evidence. The jury’s acceptance of evidence capable of implicating Bhayani alone did not make the conviction unsafe merely because the Crown maintained a joint-enterprise case and Kutner was acquitted of murder.
4. The court added that, in a trial involving cutthroat defences, the interests of justice would normally strongly favour trying both defendants together. On the facts, the trial process was capable of addressing the consequences of the late disclosure.
5. Kutner’s renewed application for leave to appeal against sentence was refused. There was no tenable disparity with Bhayani. Bhayani’s concurrent sentences for the fraud and perverting-justice counts reflected the fact that those features had been taken into account when fixing the 27-year minimum term for murder. Kutner’s 13-year sentence remained just.
6. Credit for time spent on remand was no longer a judicial act following the abolition of section 240 of the 2003 Act. Under section 240ZA(4), time could not count towards Kutner’s sentence because he was also detained on recall in connection with another sentence. The judge’s mistaken indication that credit would be given did not alter the intended 13-year sentence or create a legitimate expectation of a lesser sentence.

• Court of Appeal (Criminal Division): Bhayani’s appeal against conviction was dismissed and Kutner’s renewed application for leave to appeal against sentence was refused in [2015] EWCA Crim 352.
• Central Criminal Court: Bhayani was convicted of murder and sentenced to life imprisonment with a minimum term of 27 years. Kutner was acquitted of murder but convicted of fraud-related offences and sentenced to a total of 13 years’ imprisonment.