England and Wales Court of Appeal (Criminal Division) Decisions

R v. QUANG VAN BUI Appel lant [2001] EWCA Crim 1752 (15th January, 2001)

Case No: 99/4079Z2

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CRIMINAL DIVISION)

Royal Courts of Justice

Strand, London, WC2A 2LL

Monday 15^th January 2001

LORD JUSTICE LAWS:

1 On 30 April 1999 before His Honour Judge Graham Boal QC and a jury at the Central Criminal Court the appellant was convicted of murder on count 3 of the indictment which he faced. He was convicted also upon count 1, of an offence of wounding contrary to s.20 of the Offences against the Person Act 1861. There were two co-defendants, Tran and Dang. They too were convicted of the murder, and of wounding with intent (s.18 of the Act of 1861). The jury was discharged from returning a verdict on count 2, which alleged a conspiracy as an alternative to the murder charge in count 3. On 4 May 1999 the three defendants were inevitably sentenced to life imprisonment for murder. Tran and Dang were each sentenced to concurrent terms of 7 years for wounding with intent. The appellant was sentenced to a concurrent term of 5 years for the lesser offence of simple wounding.

2 The appellant and Tran were refused leave to appeal against conviction by the single judge. Dang made no application. The appellant and Tran renewed their applications to the full court. On 30 March 2000, the court (Swinton Thomas LJ, Rougier J and HHJ Francis Allen) refused Tran's application but granted leave to appeal to the appellant. They did so, however, on three only of the grounds enumerated in the "Expanded Perfected Grounds of Appeal": Nos. 4, 5, and 6b. We shall explain the substance of these grounds shortly. It is convenient first to turn to the facts.

3 The appellant and his co-defendants were refugees from North Vietnam. Late in the evening of 23 February 1998 they went to the Hippodrome, a night club in the vicinity of Leicester Square which is popular among members of the Chinese community. The victims of the offences and some of their friends had also been in the night club that evening. The appellant and his co-defendants left at about 3 am. The victim of the wounding offence charged in count 1, who was to be known as witness 213, left shortly after 3 am. (We should notice that a procedure was adopted whereby all the oriental witnesses called for the Crown remained anonymous and were referred to throughout the trial by number only. This procedure was the subject of submissions before the trial started, and was to give rise to a ground of appeal upon which leave has been refused.)

4 The facts relating to count 1 on the indictment may be summarised thus. Witness 213 had been in the night club, and left with three others. As he stepped into Leicester Square he was approached by a group of people. One of them put him in a head lock. He was attacked with bottles which were smashed over his head. A broken bottle was dragged across his throat. Some third party intervened and he was let go. He sought help at a nearby restaurant, and later went to hospital where he received treatment. There were numerous abrasions and a bruise to his back. He had suffered a laceration under his chin, and another over the left breast, both of which had to be stitched. There was also a wound on his back consistent with having been caused by a stab. Four months after the incident he attended separate identification parades at which he picked out Tran and this appellant.

5 We turn to count 3. Following and as a result of the attack to witness 213, the man who was to be killed, Wai Loon Yong (known as Loon) together with witness 99 went out into the street to look for culprits. They were approached by four people whose manner was threatening. Nothing then happened; there was a police officer in the vicinity. Loon and witness 99 went to a flat in Lisle Street for a time, but later returned to the street. Then it was that witness 99 noticed two vehicles approaching. The appearance of the occupants prompted him to shout to Loon to run. Witness 99 himself ran past the cars and stopped to look back. He saw a number of persons attacking Loon on the ground. They were using fists and feet. Loon was defenceless. Others who had been in the Lisle Street flat heard the commotion. They armed themselves with a bat, a rice flail and a machete. They ran out into the street and attacked the vehicles and their occupants who fled. Witness 99 went to see to Loon, who was covered in blood. Ambulancemen who came to the scene found that Loon was unconscious but still breathing. On the way to the hospital his heart stopped. Despite attempts to revive him he was pronounced dead at 5.38 am. The post mortem revealed that he had suffered three stab wounds to the chest. Each wound had pierced one or other of his lungs. The scalp, face, buttock, forearm and wrist were also lacerated and there was a slash wound across his shoulder. The stab wounds had an appearance consistent with their having been inflicted with a single edged knife. The scalp wounds had been caused by a blunt instrument.

6 It was the Crown's case that the appellant, his co-accused, and another man named Trong, were together at all relevant times that night; they had been in the Hippodrome together, and they left it together. As a group the confronted and attacked witness 213 outside the Hippodrome. They then confronted a larger group near Leicester Square. They were intent on further violence and got into the two cars probably with others, and set off in search of a further victim or victims. Loon was in the street on his own. He was the worst for drink. These four (perhaps with others) attacked him. The case was one of joint enterprise: the Crown said that each of the four knew that potentially lethal sharp weapons were being carried. Each intended that such a weapon or weapons should be used to inflict grievous bodily harm.

7 Tran's case was that he was not present at the attack on witness 213 charged in count 1. As for count 3, he was to say that he had been walking in Lisle Street when he saw a vehicle which he thought belonged to his friend Binh. He saw that someone was being attacked on the ground. He thought it was Binh. He intervened, pulling one man away and struggling with him. After this people started running towards them. The attackers ran away. Tran turned the injured person over and saw that it was not his friend after all. He went up to the first of the two cars and tried to open the driver's door; but he was pushed away. Then he ran off.

8 This appellant's case was that he had earlier become separated from Tran and he made to intervene to stop the attack on witness 213, and helped the latter escape. He knew two of the attackers whom he named - Chen Lay and Tan. After this incident, he said he went home. So he was not present in Lisle Street at all and had nothing to do with count 3. Tran did not give evidence. It was submitted on his behalf that the Crown had not proved that he was party to any attack; alternatively the jury could not be sure that he was aware of any real possibility that a sharp weapon was going to be used.

9 In light of the specific grounds upon which leave to appeal has been granted it is unnecessary to travel through the whole of the evidence. For reasons which will appear, we should give a particular account of the evidence of witness 99.

10 Witness 99 was Malaysian. He told the jury that he was Loon's friend. Loon had a great deal to drink in the Hippodrome. The two of them left the night club at about 3.10 am and met witnesses 36, 37 and others. As they walked along the road, they were approached by four persons who were speaking Cantonese and carrying bottles. They were aged between 23 and 28. They looked relaxed, but they stopped. Witness 99 asked them what the matter was. Their appearance became aggressive. One of them told witness 99 to be quiet, and asked if they wanted a fight. Witness 99 dropped the bottle he was carrying so as to demonstrate that he did not. One of the other group picked up the bottle, and told 99 not to look at him; so he looked down. Nothing else happened at that moment. Shortly afterwards 99 saw a police officer in the street. Then he went to the flat at 25 Lisle Street with Loon. They were angry because of what had happened. 99 told others at the flat that he had been verbally abused for no reason. He stayed in the flat for about 15 minutes, smoking cannabis. After that he and Loon left to go and get a snack. They had no expectation that they would see the group of four people again; but in fact they were to do so.

11 Witness 99 said that as he walked along Lisle Street with Loon, two cars passed them and stopped. The car in front was red, and there were four or five people in it. He had seen the driver before; he had been amongst those who had abused him earlier. He was not, however, the man who picked up the bottle. He did not know how to describe him (the driver of the red car), but then said that he was fair skinned, of oriental appearance, and with a pointed chin. He had no recollection about the man's clothing. He thought that the one who had picked up the bottle was sitting next to the driver in the red car, but he could be mistaken about that. He was shorter than witness 99 himself (99 had told the jury that he was 5ft 7in), and had unusually shaped eyes. He also recognised two others from the earlier confrontation. He thought that there were three or more men in the second car, which was blue.

12 The red car's driver approached Loon and 99 and said that he had something to talk to them about. 99 could not see if he was carrying anything. He was frightened. He told Loon to run. Loon, however, was drunk. 99 was not sure whether he tried to run. Loon was beaten up by the people coming from the red car. About five people set on him. Once he was down, he had no defence. He was kicked like a football, and jumped on. Two or three of them were telling him to die. 99 could not see any weapons. The driver was one of those who were kicking Loon. 99 could not see whether the one who previously had the bottle was involved in the attack. One of those he had argued with before joined in the kicking and calling. 99 said he was about 40 ft away, but his view was clear because of the street lights. He shouted for help. Occupants of the flat at 25 Lisle Street appeared on the scene. None of them, said 99, was involved in the attack on Loon. However they carried rice flails and a baseball bat. They chased Loon's attackers. 99 thought that three people, who had got out of the blue car, had stayed in front of him and kept an eye on him - 99 - while Loon was being attacked. At length both cars were driven away. He did not actually see the various perpetrators get back inside them. He did not believe he could have done anything to intervene: he and those with him were out-numbered. The whole episode was very confused, and he had banged on the blue car with his hand as it was being driven away. He attended to Loon while the people from the flat chased the cars.

13 He was an overstayer in the United Kingdom, and after learning that Loon had died, he returned to Malaysia. There in Kuala Lumpur, in September 1998 - seven months after the relevant events - he was visited by police officers from London. On 8 September he was shown video tapes of two identification parades. Tran had stood on the first of these, but 99 identified no one from it. He said that on the second video parade he saw the person who had abused him at the Hippodrome: and picked out this appellant, who was placed at position number 8 on the parade. 99 said that he was one of the four who had approached his group, and had done the talking. He said that he saw the same person in Lisle Street kicking and beating Loon. He was much taller than was 99 himself. He was one of those who had been telling Loon to die. His hair had been black and curly; half his hair was different on the video.

14 When he was cross-examined he told the jury that he had asked to view numbers 6 and 8 on the second parade again. The video was paused at number 8 at his request, and he said "if I am not mistaken that is number 8: that is the person who had an argument with me. I can only identify him by seeing from the video, but I cannot hear his voice. Can I view 8 again". Then he went on say that number 8 was "most probably" the person in question. He complained that he could not see number 8's whole body on the video. The officer told him that if he could not make a positive identification he should say so; then it was that he told the officer that he was not sure.

15 He made a statement the following day, 9 September. It was made quite clear to him that he should leave nothing out. He said that his comment the day before, about not being sure, meant that he was not a 100% sure; but he was 80% sure. It was put to him in terms in cross-examination that the sergeant - Sergeant Horrocks - was "letting him know" that number 8 was the suspected man; and he told the jury that that was not what had happened.

16 Three months later, on 31 December 1998, he made a further statement. In it 80% had become 100%. 99 said that the change was because he had tried to concentrate on number 8. He conceded that because the sergeant had expressed interest in number 8 he had been led on "a tiny bit". But he denied that he had picked out the wrong man.

17 When he was re-examined he told the jury that he could not say exactly how sure he was about number 8. Number 8 had looked very much like the man who had argued with him. He said that he recognised him "by a very large per cent". He said it was the person he had argued with outside the Hippodrome, and whom he had seen in the road kicking and shouting at Loon, and telling him to die. His last answer was that he was sure that that man and number 8 were the same person.

18 We should next summarise the appellant's evidence. He told the jury that his solicitor had advised him not to answer police questions. As we will show that is important in light of one of the grounds of appeal and in due course we shall have to look more closely at the evidence relating to it. He said that he left the Hippodrome with Tran when everyone else did. He was not drunk. He was tired. Tran agreed that they should go home. He had a bottle with him from which he had been drinking. He supposed that they would share a cab, but Tran was waiting for two girls. However he was eventually persuaded to abandon that, and they walked on. Tran said something about meeting a girl in Chinatown. The appellant did not want to go, and the two of them parted. Then it was that he, the appellant, turned back and heard smashing glass. It seems there was a fight going on. He approached the scene and recognised two of three people who were hitting another. He named them, as we have said earlier; neither was a co-defendant at his trial. He told the jury that he went over and broke up the fight because he did not want one of the men, Chen (who he said was his ex-girlfriend's brother), to get into trouble. He got between the participants and told them to leave it alone. He told witness 213 that he had better go away before they did any further damage to him. He was not aware that 213 was already injured. After this, he got into a taxi and went home.

19 He said that both before and during the police interview he had been given advice to remain silent. He thought that his solicitor did not seem to be happy with the way in which the police were handling the matter. He said that he had been in the Suzuki - that, seemingly, was the red car - with "Uncle Dang" and Binh driving. He, the appellant, was 5ft 7in. He was not a good friend of either Dang or Chong.

20 A fingerprint of his was found in the red car, and that was put to him; his solicitor still advised him to make no comment. It will be necessary at a later stage to look further at the details of his evidence concerning his solicitor's advice.

THE GROUNDS OF APPEAL

21 The three points upon which leave to appeal was granted by the full court are as follows.

(1) (Ground 4) The identification evidence given by witness 99 should have been excluded under s.78 of the Police and Criminal Evidence Act 1984. A submission to that effect had been made at the trial and rejected by the judge. Essentially the argument is that in the succession of events which took place in Malaysia, well after the critical incident itself, Sergeant Horrocks influenced witness 99 to "firm up" his identification of the appellant. Following correspondence between Mrs Baird QC for the appellant and the Criminal Appeal Office a transcript of 99's evidence before the jury has been obtained. Mrs Baird says also that after 99's evidence had been given, the judge should have acceded to her submission that the trial be aborted because of what had been said by 99 about the identification.

(2) (Ground 5) There was a question raised before the judge in the course of the evidence whether the appellant had waived legal professional privilege when he told the jury that he had made no comment at the police station on his solicitor's advice. After putting certain further questions to the appellant, the judge ruled that he had waived privilege. It is said that the judge was wrong to do so, and that some answers thereafter given by the appellant in the witness box were damaging to his case so as to render the conviction unsafe.

(3) (Ground 6b) The judge should have given a Lucas direction in relation to the effect of the appellant having told lies by way of his assertions in evidence that he had parted company from Tran before the attack on witness 213, and that the aggressors on count 1 were not Tran and Dang, but two other men whom he named as Chen Lay and Tan; and he should not have directed the jury (pursuant to s.34 of the Criminal Justice and Public Order Act 1994) that they were entitled to draw adverse inferences from the fact that the appellant had not mentioned any of these matters to the police in interview.

Ground 4: The Identification Evidence of Witness 99

22 In submitting below that this evidence should not be adduced before the jury, Mrs Baird rightly did not suggest that the police officer concerned, Sgt Horrocks, had deliberately sought to influence 99 to make a positive identification of the appellant. If he had done so, this court would, of course, have taken a very grave view of the matter: Willoughby [1999] 2 CAR 82, 88G per Lord Bingham CJ: "There would of course be the utmost ground for concern if there were any question of the police nudging, prompting or encouraging any witness... to make a more positive identification of a suspect." We have already summarised (paragraphs 13 - 17 above) 99's account of the police enquiries in Kuala Lumpur so far as they related to him. We have examined the transcripts of 99's evidence, and also Sgt Horrocks' evidence given both on a voir dire (held in the context of the question whether the evidence of 99's identification should be admitted) and later before the jury, and also the two statements made by 99 on 9 September and 31 December 1998. The tenor of all that material shows in our judgment that there is no question of any deliberate manipulation by Sgt Horrocks. In his ruling that 99's identification evidence might properly go before the jury, the trial judge accepted the submission of counsel for the Crown to the effect that all the defence points made in relation to that evidence went to weight rather than admissibility. We also agree with that submission. Subject to proper warnings to be given in the summing-up (to which we shall come), and absent any question of deliberate manipulation by the officer, this was a case where the evaluation of the identification evidence was within the jury's province. It is to be noted that there were features of the video which could well have caused the identifying witness to think twice: the appellant's hair style had been changed since the night of the killing - a fact of which 99 was not told; the video only showed those participating from the waist up, so that the viewer could not judge the height of any of them; and no. 8 was not heard to speak on the tape.

23 However that is not the end of the matter. We must still consider whether (however innocently) 99's identification evidence, as it was actually given to the jury, should be regarded as so corrupted by the way in which it was over time obtained that the judge should have acceded to Mrs Baird's submission that the trial be stopped; translated into the terms of our statutory jurisdiction, the question is whether the jury's reception of that evidence makes the conviction unsafe.

24 We have already summarised witness 99's evidence. But to deal fully with this part of the case, we should set out these following short passages from the transcript.

(1) At p. 77E of the transcript 99 is being cross-examined about the statement he gave on 9 September:

"Q. ... did he [Sgt Horrocks] say to you words like `Well, it was no. 8 you weren't sure about, how sure were you? A. I think he did ask me that. Q. So the officer drew your attention to his interest in no. 8, did he not? A. No."

(2) 79E:

"Q. He was anxious for you to say more about no. 8, was he not? A. No."

(3) 80C-F:

"Q. Well, the fact is, is it not, that to put it shortly one way or another: Sgt Horrocks let you know the man they suspected was no. 8, did he not? A. No, no. Q. He encouraged you, I suggest, to say more about no. 8 and he did not encourage you to say anything about anybody else? A. This question, I think my answer is no. Q. Well, you have already agreed he did not talk about anybody but no. 8? A. Yes. Q. By talking only about no. 8 he quoted [?] to you that the police were very interested in no. 8, did he not? A. You could say that."

(4) Cross-examined about his further statement of 31 December: 86A-C:

"Q. Well, why did the first change from `not sure' to `100% sure'? Why did that change occur? A. Because I was, I tried to concentrate on no. 8 and he, if it wasn't him he would not be worried, he would be innocent. Q. Mr 99, is it not the case and let me be plain this is not a suggestion that you have behaved improperly , nor, in fact, that the officer necessarily has but is it not the case that because Mr Horrocks expressed interest in no. 8, you have been led by that and then become more sure? Do you not think that is what happened, Mr 99? A. A tiny bit."

25 This evidence having been admitted before the jury, here is the judge's treatment of it in his summing-up (transcript, 135H-136C):

"You know full well the point Mrs Baird makes about it when `not sure' becomes `80%', becomes `100%'. And Mrs Baird suggests you should use the most extreme caution about that evidence. Members of the jury, I underline that submission. You must exercise great caution about it. You must examine it with great care. It is for you to decide what you make of it in the context of all the evidence you have heard in the case."

The judge then proceeded to remind the jury of the passage in 99's evidence which we have set out at (4) above. These were clearly entirely proper directions. The evidence having, as we have found, been correctly admitted before the jury, there was no basis for the judge to stop the case once it had been given; and he gave a careful and certainly adequate warning as to the need to approach it with great caution. The force of the warning must in our opinion have been increased, certainly underlined, by the fact that the judge's means of putting it over to the jury was by giving express endorsement to the submission made by counsel for the defence. There is in our judgment nothing in this part of the case to bring into question the safety of the appellant's conviction of murder.

Ground 6b: Lucas

26 It is convenient to deal with this ground next.

27 It is well established that a trial judge need not, indeed should not, give the jury what has become known as a Lucas direction - relating to the proper approach to be taken to lies found by the jury to have been told by the defendant - in relation to anything said by the defendant which is integral to his defence. Lucas is concerned with what may be called `collateral' lies: see Burge & Pegg [1996] 1 CAR 163. The reason is not far to seek. Where the defendant denies the crime, or makes some assertion whose truth is critical to his defence, it makes no sense to direct the jury that proof of a lie is not proof of guilt and that people may lie for innocent reasons, since in such a case once the jury are sure that the denial or other assertion is a lie, they are ipso facto sure of guilt; there is no room for a Lucas direction.

28 By force of s.34 of the Criminal Justice and Public Order Act 1994 a trial judge is entitled to direct the jury that they may draw adverse inferences against a defendant who in his police interview fails to mention some fact which is "relied upon in his defence" later at trial.

29 The question on this part of the appeal is whether the appellant's assertions in evidence that he had parted company from Tran before the attack on witness 213, and that the aggressors on count 1 were not Tran and Dang, but two other men whom he named as Chen Lay and Tan, were matters (a) "relied upon in his defence" - if not, the judge should not have directed the jury (as he did: 214H-215A) that they were entitled to draw such inferences as they considered fair and proper from his failure to mention them in interview; and (b) integral to his defence, rather than merely collateral to his case - if the latter, the judge should have given a Lucas direction against the event that the jury found that in making these assertions the appellant was lying. These two issues are in truth one: were the assertions we have identified an essential part of the appellant's defence?

30 Plainly, the definition or scope of a defendant's defence in any particular case cannot be confined to a bare contradiction of the Crown's assertion that the legal elements of the offence are established. In this case, despite Mrs Baird's vigorous submissions to the contrary, we are quite satisfied that the assertions in question were an essential part of the appellant's defence; they were "relied upon in his defence", or integral and not collateral to it.

31 Any assessment of this question depends first upon seeing clearly what was the Crown's case. It is plain that the Crown set out to show that the appellant and Tran (and the other co-defendant, Dang) were together throughout the night, acting together: Mr Holland for the respondent points in particular to a passage in the summing-up at 46E, which we need not repeat. But Mrs Baird submitted that at any rate it was not central to the appellant's case on count 1 and count 3 that he had parted company from Tran before the attack on witness 213. She referred in particular to a short passage in her client's cross-examination. The context is the street scene before and at the time of the attack on witness 213 (count 1) (transcript, 8B-C):

"Q. What about Dang and Tran, where did they go? A. I can't recall where did they go, but when I come back and saw the fight they was on the right-hand side of the road."

But this is by no means inconsistent with the suggestion that the appellant and Tran had parted company before the attack on witness 213. We should record this following passage from the summing-up, dealing with the appellant's account of the street scene after he and others had left the Hippodrome. There is no argument that it inaccurately reports the appellant's evidence (summing-up transcript, 217A-E):

"... Tran told me he wanted to get the girl's telephone number. I said to him that he can do that next time. Eventually, he agreed to leave, and, at that time, I intended to get a cab. We just walked and talked. We walked about 15 or 20 metres to near the Chrystal Rooms. Tran asked if I wanted to come with him to meet a girl in Chinatown. I said I did not want to come because I would feel left out. So, we parted. He went to meet the girl and I went to get a cab and he went along Cramborne Street towards Macdonalds. On my way back towards the Hippodrome I heard glass being smashed to my left. I looked to see what was happening. There was what appeared to be a fight going on by the fire exit to the Hippodrome. I was about 30 feet away. I seemed as though three men were hitting one. I went over to see what was going on. As I got closer I recognised two of the three."

Then the appellant proceeded to name Chen Lay and Tan.

32 In our view it was correctly submitted for the Crown that it was crucial to the appellant's defence that Tran was not an attacker of witness 213. It is to be noted that witness 37 (whose testimony we have not summarised) put Tran and the appellant in the red car together. The appellant's account of his separation from Tran, and his naming of two others as those responsible for the attack on witness 213, were features of his evidence which went to the core of his case on the facts. The judge was entitled to give the direction he did pursuant to s.34, and was not called on to give a Lucas direction in relation to this part of what the appellant had to say. There is nothing in this part of the appeal.

Ground 5: Legal Professional Privilege

33 In his evidence in chief the appellant was asked why he did not answer the police officers' questions asked of him in interview. He said (transcript, 15 April 1999, 2G): "I was advised by my solicitor to say `no comment'." Mrs Baird then began to ask about who was present and so forth when that advice was given, and the judge interrupted her, saying (3B) "... we may be trespassing into the territory of privilege". This exchange followed (3F-4D):

"JUDGE BOAL: (to the witness): It is your right to say one way or the other whether you wish the jury to know what passed between you and your solicitor. Do you understand that?

A. Yes.

JUDGE BOAL: You can say, and if you say it no criticism will be made of you, `I do not wish to go into what was said between me and my solicitor'.

A. Yes.

JUDGE BOAL: If, however, you do want to go into what was said then you can be asked any questions about it that anybody wants to ask you. Do you understand that?

A. Yes.

JUDGE BOAL: Do you want to tell us or do you not want to tell us what passed between [sc. you and] your solicitor?

A. I want to tell the court and the jury what has been spoken with me and my solicitor on the day.

JUDGE BOAL: Right.

MRS BAIRD: I think you probably already told us, what did she say to you?

A. She advised me to say no comment."

34 There followed argument upon the question whether the appellant had waived the legal professional privilege which of course otherwise attached to what passed between him and his solicitor. In the course of that argument Mr Pownall for the Crown made clear what manner of questions he would wish to put to the appellant (transcript of argument, 16 April 1999, 10E-F): "... I do seek to ask Mr Bui, in general terms, when the version he gave in the course of yesterday [sc. that is, his positive case on the facts] first saw the light of day and it is my suggestion that it is recently fabricated." The judge proceeded to hold that the appellant had waived privilege by his affirmative answer (as we understand the transcript) to the judge's own question, "Do you want to tell us or do you not want to tell us what passed between [sc. you and] your solicitor?"

35 There followed the appellant's cross-examination. Although the judge had ruled that privilege had been waived, he was nonetheless at pains to ensure (perhaps inconsistently with his ruling) that the appellant should only give evidence as to what had passed between him and his solicitor if in truth he wished to do so (transcript, 16 April 1999, 18C-F). At all events the appellant was asked (19A-B) whether he had given his solicitor "the innocent account" that he was now putting forward. He answered that he could not recall: "I can't recall anything apart from when she advised me to make no comment." Then, pressed with the question whether he could recall, the appellant said (20F): "I think the only person who can answer that question is my lawyer."

36 The judge reminded the jury of this evidence, and then added this comment (summing-up, 223B-C):

"Well, it will not have escaped your attention that no such lawyer has been called and you will make of all that what you think it is fair and proper to make of it."

37 It is said that the judge was wrong to hold that the appellant had waived privilege, and that his evidence that he could not recall what had passed between him and the solicitor was damaging, as was the judge's comment which we have just set out.

38 The issue of waiver by a defendant of legal professional privilege in relation to his solicitor's advice in the context of police interviews was examined in Bowden [1999] 2 CAR 176, a decision of this court presided over by the Lord Chief Justice. The court considered earlier decisions including Wilmot (1989) 89 CAR 341 and Condron & Condron [1997] 1 WLR 827. It is plain from this and earlier authority that the defendant's evidence merely that he had been advised to say `no comment' will not waive his privilege in the substance of communications between himself and his solicitor. Moreover it seems to be established (Condron, 837) that a defendant may seek to rebut an allegation of recent invention by calling his solicitor to testify that his account at trial had been earlier given, without losing the veil of privilege.

39 On a proper consideration of Bowden and the other authorities there considered it seems to us that the trial judge in this case was wrong to rule that the appellant had waived his privilege. In substance the appellant had said no more than that his solicitor had advised him to make no comment. Asked by the judge whether he wanted to say what passed between him and his solicitor, he answered affirmatively - as if there was more to come; but all he had to say about it was to repeat, "she advised me to say no comment". This was no waiver of privilege.

40 But whether this mistake by the judge affects the safety of the conviction is another matter altogether. We accept Mr Holland's submission that, quite aside from any question of legal professional privilege, the Crown was entitled to cross-examine the appellant upon the footing that his account of the crucial events given to the jury had been fabricated after the event. It would have been wholly proper to ask, whether the appellant had given such an account to anyone before. If he had said he had told his solicitor of it, issues of privilege would of course have arisen; though if he had done so he would, no doubt, have been only too anxious to waive privilege. The Crown's case is that there was nothing put forward to rebut the suggestion of recent invention. That is the point on the merits which they were entitled to put before the jury, and it is unaffected by the argument as to privilege. In our judgment, the Crown's position upon this aspect of the case is correct.

41 This appellant's convictions are safe, and his appeal against conviction is dismissed.