CRIMINAL LAW

Defence statement inconsistent with defendant's evidence - judge to direct jury to accept inconsistency as mistake - defence statement to be signed by defendant personallyR v Wheeler: CA (Potter LJ, Hidden J and Judge Goddard QC): 3 July 2000

The defendant was tried on an indictment charging an offence contrary to s.170(2) of the Customs and Excise Act 1979 relating to the importation of cocaine.

In cross-examination counsel for the prosecution exposed a contradiction between his evidence and the account contained in the defence statement served by his solicitors, in which he appeared to have admitted knowledge which in evidence he had denied.

The defendant claimed that there was a mistake in the document.

The judge in his summing-up referred only in passing to the alleged mistake and gave the jury no special guidance.

The defendant was convicted.

He appealed.

Jason Dunn-Shaw (assigned by the Registrar of Criminal Appeals) for the defendant.

Charles Gratwicke (instructed by Solicitor, Customs and Excise) for the prosecution.

Held, allowing the appeal, that it was clear that the defence statement had not represented the defendant's case, and that there had been a mistake; that in such delicate cases a judge would be wise to raise the issue with counsel and to direct the jury to accept the mistake as a fact; that a defence statement should be signed by the defendant personally and should not be permitted to be served by solicitors on his behalf without steps being taken to ascertain accuracy; and that, since credibility was at the heart of the case and the jury's decision could not fail to have been affected by the apparent inconsistency, the conviction was unsafe.