Duarte & Anor v R.

A prosecutor may rely on an accused’s changed defence under Criminal Procedure and Investigations Act 1996 even where the accused does not give evidence. The relevant contents of a defence statement may, in principle, be adduced during the prosecution case.

However, a direction to give the jury a copy under section 6E(5)(b) requires an identified live issue which the statement will help resolve. An ambiguous reference to incorrect identification, made while testing weak identification evidence, does not without more establish a denial of presence or a changed defence. The jury must decide whether there was a change before any adverse inference can arise. An erroneous direction will not render a conviction unsafe where the properly admitted evidence of guilt is overwhelming and the error is peripheral.

Duarte was convicted at the Central Criminal Court of manslaughter and violent disorder arising from a group attack in a shopping mall in which another participant fatally stabbed the deceased. He appealed against conviction. During the trial, the judge permitted the prosecution to place an edited part of his defence statement before the jury and gave a direction about an alleged change of defence.

Yakymchuk pleaded guilty to murder, violent disorder and possessing a bladed article. He received a life sentence with a minimum term of 24 years. His renewed application concerned the length of that term. The central issues were the proper use of a defence statement and the appropriate minimum term for the murder.

1. Conviction appeal. The court dismissed the appeal against conviction. A defendant may put forward a changed defence through cross-examination without giving evidence. If section 11 applies, the prosecution may in principle comment or invite an adverse inference, and may seek to adduce the relevant parts of the defence statement during its case. The application was therefore not premature.
2. Section 6E direction. The judge nevertheless erred in allowing the jury to receive the edited statement. Under section 6E(5)(b) of the Criminal Procedure and Investigations Act 1996, the statement had to assist the jury to understand the case or resolve an actual issue. The case was already clear. The ambiguous reference to incorrect identification did not fairly amount to a positive assertion that the appellant was absent from the scene, especially when the prosecution had initially relied on arguably insufficient identification evidence. His later acceptance that the further evidence identified him did not establish a changed defence.
3. Jury directions. The judge should have left the jury to decide whether there had been a change of defence. Instead, the directions effectively assumed that question and concentrated on whether the statement was a deliberate lie. They also did not address counsel’s explanation of the phrase used. This was a material irregularity.
4. Safety. The convictions remained safe. The wrongly admitted material had little significance compared with the compelling CCTV evidence and the other evidence of the appellant’s participation. The trial was not rendered unfair.
5. Sentence appeal. The court granted leave and allowed the appeal against sentence in part. The sentencing judge was entitled to find an intention to kill. However, aggravating and mitigating features should have been treated as equally balanced, leaving the statutory 25-year starting point unchanged before credit for the guilty plea. Applying the guilty-plea guideline, the proper reduction was three years. The 24-year minimum term was quashed and replaced with a term of 22 years, less 226 days on remand.

• Court of Appeal (Criminal Division) — in [2019] EWCA Crim 1466, dismissed the conviction appeal and allowed the sentence appeal to the limited extent of reducing the murder minimum term from 24 to 22 years.
• Central Criminal Court — Duarte was convicted of manslaughter and violent disorder. Yakymchuk pleaded guilty to murder and related offences and received life imprisonment with a 24-year minimum term.