Case No: 2000/1324/X3 
Neutral Citation Number: [2001] EWCA CRIM 444
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice
Strand, London, WC2A 2LL

Wednesday 28th February 2001

B e f o r e :

LORD JUSTICE WALLER
MR JUSTICE CONNELL
and
MR JUSTICE FORBES

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	Regina		
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	Jose Dos Santos RODRIGUES		

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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Mr I Morris appeared on behalf of the Crown
Mr J C Rees QC; Mr Taylor appeared on behalf of the appellant

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Judgment
As Approved by the Court

Crown Copyright ©

Lord Justice Waller: 

1.	On 30 September 1999 in the Crown Court at Cardiff before His Honour Judge John Prosser QC and a jury, the appellant was convicted by a majority of 10-2 of damaging property with intent to endanger life and was sentenced to 8 years’ imprisonment.  
2.	The appellant appealed against conviction by leave of the single judge.  At that stage grounds had been prepared by counsel who were not counsel for the appellant at the trial.  Those grounds did not include significant matters which were added, with our leave, at the commencement of the hearing before us on 12 February 2001.  The leave at that stage was confined to ground 1 of the then draft and the first four lines of ground 2.  Those grounds essentially related to a criticism of the judge in relation to the way in which he had dealt with the ingredients of the offence, and in particular, the required intention to endanger the life of Maria Barros, the former wife of the appellant.  As already indicated, at the commencement of the hearing before us leave was sought to argue further grounds.  Those grounds asserted that the judge had failed to give the jury a Turnbull direction in respect of the identification evidence of Maria Barros; that the judge had failed to give the jury any direction in respect of the appellant’s alibi evidence; and that the judge had failed to give the jury a Lucas direction in respect of the lies relied on by the prosecution to support the evidence of the guilt of the appellant.  
3.	Without objection from Mr Morris for the prosecution, we gave leave to argue those further grounds.  At the conclusion of the hearing we allowed the appeal against conviction and ordered a retrial.  These are our reasons for so doing.  
The facts 
4.	The case for the Crown was that the appellant went to 14 Tensing Close, Llanishen, Cardiff about 12-20 am on Friday 5 February 1999, and severed the brake pipe on a Ford Escort car belonging to his son Joseph Rodrigues.  The case for the Crown was that the appellant believed that the car would be used by his former wife, the mother of Joseph Rodrigues, Maria Barros.  The defence case was one of alibi.  That alibi asserted that at the time of the offence the appellant, who was incapacitated by a back injury suffered at work, was at his own home with his fianc.  
5.	By agreement between counsel for the prosecution and defence the statement of Christopher Parsons, the service manager of a Cardiff Ford dealership, was read to the jury.  That statement stated that if the brake pipe had been severed “the system would only have been 50% efficient” and contained his opinion that “there is no doubt that this was a deliberate act to dissolve the braking system of the vehicle”.  Thus it was that the main issue at the trial was whether it was the defendant who had severed the brake pipe.  
6.	The appellant’s ex-wife Maria Barros testified that they had had an unhappy marriage ending in an acrimonious divorce.  She said that the appellant followed her around and she also said that she had seen him near her house.  She said that on the night of Thursday 4 - Friday 5 February she had been driving her Mercedes motor car but that from time to time she had also used the Ford Escort.  She said that on that night she went to bed and shortly after midnight from her bedroom she looked out and saw a red Peugeot motor car which she thought was being driven by the appellant.  She further stated that 10 minutes later the red Peugeot drove down her driveway and from the same window she thought she saw the appellant.  She then went downstairs and from a window downstairs, about a yard away, she saw the appellant again.  She also said that in the driveway she found a business card of the appellant referring to his restaurant and with his writing on it.  
7.	The Crown also put into evidence the interviews of the appellant.  One reason for so doing was that an alibi notice had been served stating that the appellant would say that he was suffering from a back injury and was at his own home with his fiancé.  But in interview he had said that he was nowhere near Tensing Close because he had been at work that evening.  In the interview he also said that the card must have been obtained by his ex-wife either from the rubbish outside the restaurant or the restaurant itself or from his pocket.  He further said in interview that he did not know that his son had a Ford Escort motor car.  
8.	When the appellant came to give evidence he gave evidence in accordance with the alibi notice.  He also then said that he thought the card must have been obtained by his ex-wife when his car was broken into.  And in evidence he said that he did now know that his son had a Ford Escort motor car, and indeed he said that he had seen the car with his son in it in November 1998 i.e. some 3 or 4 months before the evening in question.  
9.	He also called other evidence in support of his alibi.  His fiancé gave evidence that he had been so incapacitated on 4/5 February that she had to help him put on his underclothes and had to drive him to the chiropractor.  Her evidence was that he had otherwise remained in bed.  
10.	She also gave evidence about the Peugeot motor car.  She had heard a noise and had thought that she had locked the Peugeot but she said that she could not have done as the appellant’s card was taken from that car.  
11.	Evidence was also given of the appellant’s back injury by employees at his restaurant.  Alberto Vieria and Claudio Pinto said that on Wednesday 3 February 1999 the appellant fell to the kitchen floor and was helped up by Alberto Vieria.  Claudio Pinto said that the appellant was not at work on 4 or 5 February and only returned to work on Saturday 6 February.  Jose Gouveia said that he had to visit the appellant at his house and on both days found the appellant in bed, as a result of which Fernando Ferria was asked to come in to work on 4 February because the appellant was not there.  He saw the appellant for the first time on 6 February.  
12.	Evidence was read from Gareth Lloyd, a chiropractor, that the appellant attended hour long appointments at 10-15 on Thursday 4 February and at 11-15 on Friday 5 February.  
Grounds of appeal 
13.	Various criticisms are now made of the summing up, as already indicated, and we will deal with each of them in turn.  However, we should say at the outset that it is clear from the transcript we have that a considerable problem was experienced by the transcriber in transcribing from the tape what the judge said in his summing up.  Indeed there are considerable gaps.  At the top of p.8 of the transcript we have, the summary of the evidence moves from the middle of the evidence of Maria Barros through into what would appear to be the middle of the appellant’s evidence.  Time and again in the summing up as transcribed the word “Inaudible” appears.  We do not know what the problem was but it is a little puzzling that the difficulty seems to relate to the summing up and not to the transcription of the evidence.  We have a transcript of the appellant’s evidence and there does not appear to have been the same difficulty in transcribing that evidence.  It may be that the judge in his summing up was in some way rendering part of what he was saying inaudible without him so appreciating that fact.  Clearly this problem needs drawing to the attention of the judges who sit at the Cardiff Crown court and at the Law Courts in Cardiff, and the problem ought also be drawn to the attention of the Administrators because it is clearly not satisfactory that transcripts should in any way be incomplete.  
14.	We must in addition say this.  We have had regard to the obvious problems with transcription and the way that may have exacerbated understanding what the judge was telling the jury, but we are clear that the criticisms that have been made in this case are justified, at least in large measure, and we have to say that this summing up bears the hallmarks of a lack of preparation.  It may be that the judge thought that this was a simple one issue case and took his eye off the various points that might otherwise need addressing.  Indeed that view of the case is supported by the fact that it was not until Mr Rees QC sought leave to add various grounds before us, that anyone appreciated the absence of certain important directions.  This latter factor caused us to consider with some care whether the points being taken at so late a stage were in reality valid in the context of this case.  We ultimately concluded there was no answer to certain of the points, but in addition, certain directions which the judge did give on any view lacked clarity, as a reading of pp. 11 to 13 of the transcript shows, a matter to which we will return.  
15.	It is convenient to start with points that were made by way of amendment to the grounds of appeal when Mr Rees opened the appeal before us.  
16.	Part of the case for the Crown was founded on changes in the appellant’s version of events between interview and the giving of evidence.  They were suggesting that he had deliberately told lies in the interview.  Their suggestion was of lies in three areas:- 
			1.  In interview he was saying that he was at work at the material time, but in 		evidence he was saying that he was at home in bed with a bad back and he had 		served an alibi notice and called evidence to support the alibi.
			2.  In interview he was saying that he did not know what car his son drove, but 		at trial he was saying that he did know that his son drove a Ford Escort and 		that he had seen his son driving that car in November 1998.
			3.  At interview he was saying that his ex-wife might have obtained the 			business card from the rubbish outside the restaurant or from his pocket, but at 		trial he was saying that his ex-wife had deliberately damaged his car and had 		stolen the card then from the car.  
17.	In addition the defence of the appellant was one of alibi.  The case for the Crown was obviously that the alibi was false.  
18.	
Nowhere in the summing up did the judge give a Lucas direction, or any direction, to the jury as to the way to approach the possibility that they might conclude at one time or another that the appellant had told lies.  Mr Rees submitted that the jury should have been told that they would have to ask themselves whether they were sure the appellant had lied; if they were not sure, then they must discount the alleged untruth or change in version as playing any part in the evidence against the appellant.  The judge might in that context have given an example where the jury might take the view that the appellant was not lying but simply guessing at explanations as to where his ex-wife might have obtained the business card.  In interview the appellant was speculating as to where she had obtained the card, then in his evidence he was further speculating and the jury might easily form the view that on neither occasion was he lying.  Those speculations would thus in no way go to support the Crown’s case.  The direction should then, as submitted by Mr Rees, have continued that only if they were sure that the appellant had lied in a material particular would they be entitled to contemplate taking it into account; but then they must appreciate that people do lie for totally innocent reasons simply to enhance what is otherwise a true story, or because the appellant was trying to conceal some other conduct.  The direction would have continued only if they were sure that the lie was not told for an innocent reason that they could take the lie into account as part of the evidence for the prosecution.  
19.	Mr Rees further submitted that the jury should have been warned that even if they were sure that the appellant had lied and it was not for an innocent reason, that they could take it into account in relation to the question whether the appellant was present at the scene, but it would not necessarily support the Crown’s case that the appellant had intended to endanger life as opposed to frighten or harass his ex-wife.  (It is convenient to come back to that aspect below).  
20.	In addition Mr Rees was correct in submitting that there was no direction on alibi.  It is possible that in the first passage of the summing up where there is “Inaudible” in the transcript, that the judge gave the first part of the alibi direction i.e. that it was for the Crown to disprove the alibi.  It is however equally possible that he did not give that direction.  But, on any view, he did not give the other part of the standard alibi direction that if the Crown proved that the alibi was not established that would not necessarily prove the guilt of the appellant; that it was a matter to be taken into account, but an alibi can be invented to bolster a true defence.  
21.	Mr Rees submitted that the judge in fact made matters worse by virtue of the fact that from p.11 through to p.13 he gave a direction in accordance with s.34 of the Criminal Justice and Public Order Act 1994.  That section provides that:- 
	"34. - (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; or 
	(b) on being charged with the offence or officially informed that he might be prosecuted for it, failed to mention any such fact, 
	being a fact which in the circumstances existing at the time the accused could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, subsection (2) below applies."
	Subsection (2) allows inferences to be drawn from the failure so far as it may appear proper to do so.  
22.	In giving the direction under s.34 the judge highlighted the discrepancies, but on any view the direction lacked clarity.  
23.	But, Mr Rees’s submission was that s.34 is simply intended to deal with situations in which an accused has said nothing.  We are not sure that it is right to go that far, although certainly the section was mainly aimed at such a situation.  It may be that a s.34 direction could be given in relation to the appellant’s evidence respecting the business card on the lines that even if the jury did not take the view that he was lying in the witness box they might take the view that his allegations against his ex-wife that she had broken into his car in order to obtain his card was something that he might have mentioned to the police when he was being interviewed.  
24.	Mr Morris sought to suggest that the criticisms were misplaced.  He submitted that this was a case in which it would have been unnecessary to give a lies direction.  He relied on a passage in Archbold at paragraph 4-402a and the case of R v Harron [1996] Crim.L.R. 581, CA, where it was said that a Lucas direction is not required if there is no distinction between the issue of guilt and the issue of lies.  He sought to suggest that this was simply a case where there was a contest as to who was telling the truth and who was not.  However, as that paragraph makes clear, a Lucas direction is required where a lie is being told or is alleged to have been told on some collateral matter.  This was not a case where the issue of guilt and the issue of lies was the same issue.  This is a case in which the Crown was relying on the fact that the appellant had given one version of an alibi on one occasion and a different version of an alibi on another occasion.  
25.	Mr Morris made a similar submission in relation to an alibi direction.  He submitted that this was a case which was simply concerned with who was telling the truth.  Once again it does not seem to us that that is an answer to the criticism that the full alibi direction was required.  First it was for the Crown to disprove his alibi.  Second, a direction was required that if the Crown disproved the alibi that did not necessarily establish his guilt.  It was a matter that the jury were entitled to take into account, and they should be directed that a false alibi can in fact be given to bolster good defences.  
26.	Thus, in our view, the criticisms of Mr Rees that there was no Lucas direction and that there was no alibi direction, and indeed that matters were made worse by a direction under s.34, are established.  
27.	We are not going to set out precisely how a direction in this case should be given because that will depend on how the evidence comes out at any retrial.  But, in a case of this sort, the direction will need some careful working out dealing with the alibi direction, a Lucas direction, and then in so far as is necessary, a s.34 direction.  It is one of those instances where discussion with counsel as to the appropriate direction would be invaluable.  
28.	Mr Rees also criticised the summing up for not containing a Turnbull identification direction.  Certainly the summing up does not do so in this case which is dependent on identification.  It seems to us that a Turnbull direction was required specifying the need for caution and why there is that need.  Furthermore, as the Turnbull direction demonstrates, the need for caution is there whether the person being identified is a relative or friend.  There is a necessity to point out any weaknesses that there might be so far as identification evidence is concerned, and there would be a necessity for a direction as to the way in which any lies or false alibi might support the identification.  
29.	In relation to that last point Mr Rees submitted, as already indicated, that a lie or false alibi may simply support whether the appellant was present at the scene; it may not support the Crown’s case in relation to intention.  It is convenient in that context to turn to the criticisms of the judge, that he did not deal fully with the ingredients of the offence, and in particular the question of intention.  
30.	This is the ground on which the single judge gave leave to appeal.  We have to say that there was a time when we wondered whether this was a valid ground of criticism.  It seemed to us that the case had probably been fought on the basis that intention was not in issue in relation to the person who actually severed the brake pipe.  There was no evidence, for example, that there would be a pool of brake fluid under the car, and/or that a warning light would go on, or any of the other matters that had been relied on by Mr Rees.  However, we were ultimately persuaded by Mr Rees that in the absence of an express concession in relation to intention, it was necessary to direct the jury firmly that they had to be sure that whoever did sever the brake pipe intended to endanger life.  The terms of the summing up do not indicate an express concession, and Mr Morris, very fairly, did not suggest that there had been one.  
31.	We think accordingly that a direction was required that the jury should be sure that there was an intention to endanger life; an intention to frighten or harass would not be enough.  The direction should also have included reference to those matters which might cast doubt on the jury being entitled to be sure of that intention, for example that the car was parked on an incline down towards the garage, that it was the son’s car and that it was unlikely that the appellant would intend to endanger the life of his son, that there would be a pool of brake fluid under the car and that the pedal would be obviously different when the driver got into the car.  We would thus accept the submission that a direction in this case would have to draw a distinction, so far as the lies and false alibi were concerned, between supporting the Crown’s case as to intention and the Crown’s case as to the presence of the appellant.  
32.	In the light of the above criticisms it would be impossible to conclude that this verdict was safe, and it was in those circumstances that we have allowed the appeal against conviction and ordered a retrial.  At the retrial careful consideration will need to be given as to the directions to be given.  We stress that we do not pretend that we have drafted out the precise form of those directions.  They will need careful consideration with the assistance of counsel so that the matter can be put fairly before the jury.