Irish Court of Criminal Appeal

Judgment Title: DPP -v- Anthony Hardiman

Neutral Citation: [2011] IECCA 69


Court of Criminal Appeal Record Number: 67/10

Date of Delivery: 19/10/2011

Court: Court of Criminal Appeal

BETWEEN/

Judgment of the court delivered by Macken, J. on the 19th day of October, 2011

This is an application for leave to appeal against conviction and sentence. The present judgment, in the usual way, is concerned only with the application for leave to appeal against conviction. The applicant faced fifty-one charges against two women, who were young girls at the time of the events. One count was in respect of buggery contrary to s.61 of the Offences Against the Person Act, 1861, against one of the girls, as well as a series of 39 counts of indecent assault against the same girl, and a further series of 20 counts of indecent assault against another girl. All the charges on one set date from between 1972 and 1979 and from 1978 to 1980 on count 1. In respect of the twenty indecent assaults, the subject of the remaining counts, these dated from 1968 to 1973.

On the 11th December, 2009, following a trial at Galway Circuit Criminal Court, the applicant was convicted on all the foregoing counts, and, on the 24th February, 2010, was sentenced as follows:

Count 1: Five years imprisonment.

Counts 2 to 30: Two years imprisonment to run concurrently with each other, and with the sentence imposed on count 1.

Counts 31 to 51: Two years imprisonment in respect of each offence to run concurrently with each other, but to run consecutively to the sentence of five years imprisonment imposed on count 1, with the last year of each such two year sentence imposed in respect of counts 31 to 51 to be suspended on terms.

By a Notice of Application for Leave to Appeal dated the 12th March, 2010, the applicant sought leave to appeal. Insofar as the grounds are concerned, these are the following:

The convictions were unsafe, and against the weight of the evidence, in that:

1. the trial judge failed to sever the indictment so as to provide for separate trials in respect of each complainant;

2. the jury should have been discharged during the course of the trial upon the application of the accused;

3. evidence was admitted in the trial which was more prejudicial than probative;

4. the trial judge characterised evidence as being corroborative evidence which did not in law constitute the same;

5. the trial judge misdirected the jury in the course of his charge:

(i) By inviting the jury to place undue weight upon the fact that the accused did not give evidence.

(ii) By inviting the jury to discount the effect of conflicts within the prosecution evidence.

(iii) By failing to put the defence case properly to the jury.

These stated issues are identical to issues arising, in the most general sense, in every criminal trial, since the prosecution must establish by admissible evidence that an accused is guilty beyond reasonable doubt of the charge(s) laid. Of more relevance are the specific grounds set out above invoked on behalf of the applicant in contending that this was not so, and that the convictions were unsafe. This Court deals with the application on the basis of the grounds as lodged.

Background Trial Context
An application was made on behalf of the applicant at the commencement of the trial to sever the indictments, on the basis that this “would alleviate some of the difficulty which has been recognised by the Court of Criminal Appeal for persons in the position of the applicant”. This statement must be seen in the specific evidential context of this case. The indictment concerns two girls, and relates to acts of sexual abuse by a next door neighbour over a ten year period, commencing with one sister in 1968, and with the other sister in 1972, the abuse taking place both in the accused man’s house and in the complainants’ house. Mr. Giblin, senior counsel, contended there was an obvious danger in this case that a jury would make up for the absence of detail in an individual count, by having regard to evidence on other counts and to the fact that there are two complainants (in the present case, sisters). On its face, it is said, it is prejudicial to try an accused on an indictment of the current type “unless there is good reason from the point of view of the prosecution”, for example, in the case of system evidence, which counsel did not consider was being contended for.

Mr. Fahy, senior counsel on behalf of the prosecution, in response, invoked the relevant section of the Criminal Justice Administration Act, 1924, which provides:

“(3) Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.”

“The rules of evidence should not be allowed to offend commonsense, so where the probative value of the evidence outweighs its prejudicial effect it may be admitted …”.

In reply, Mr. Giblin pointed out that this was a case in which there was no corroboration in the individual cases. In such circumstances there was an obvious danger that the evidence of one complainant would be taken as the evidence of the other complainant, regardless of how carefully the jury was warned not to. If the indictments were severed, the evidence of one complainant would not be admissible in the case of the other. In that regard, he too invoked the case of DPP v. BK, supra., and, in particular, the following extract:

“the test as to whether several counts should be heard together was whether the evidence in each count, would be admissible on each of the other counts. To be so admissible, it would be necessary for the probative value of such evidence to outweigh its prejudicial effect.”

This Court considers the approach of the learned trial judge an acceptable exercise of the discretion vesting in him. In this application there is no appeal as such against that determination.

Grounds 1 and 2: Failure to Sever Indictment and Discharge the Jury
Against that background, the Court now turns to the several grounds invoked. It is acknowledged by both parties that the two “issues” identified at the commencement of this judgment had to be determined in isolation, one from the other. The applicant accepts that the trial judge gave clear and precise warnings to the jury in that regard. However, it is contended that he applied an incorrect legal test in refusing the application to sever the indictment as between the two complainants, when the application to sever was renewed on the fourth day of the trial.

At the close of the prosecution case, having cross-examined the last of the witnesses for the prosecution (a garda), counsel for the applicant renewed the application to sever the indictment, and, arising out of that, applied also for the jury to be discharged. According to the argument, as appears in the transcript, this application was made in the following terms:

“No factual basis has been established which would allow the complaints of the two individual complainants to be heard together, and in my submission in the circumstances of the case as they have unfolded – as the evidence has unfolded, there is a grave danger that the warning which the court will be giving to the jury to deal with the two cases independently of each other will not be effective, in line with the principles outlined in the BK case. And in my submission the way that the trial has progressed has demonstrated that the counts should have been severed, and for that reason, my Lord, because of the obvious dangers involved, in that the jury may look to the cases to be corroborative of each other, [that] there is a danger of a miscarriage of justice.”

“I respectfully renew my application to sever the indictment, and for that reason to discharge the jury.”

Counsel accepted that the jury had to be charged on the basis that there were two separate cases; that they had to deal with each of the cases on its own merits; that this would also apply to each count on the indictment in relation to each complainant, each count being a separate trial, as it were; and that the jury would have to consider each of the charges on that basis. There was no evidence of any incident of embarrassment or prejudice to the accused in the evidence of either complainant as a result of the way in which the trial had been run. It was perfectly logical, in a legal sense, to proceed on the basis on which the trial had proceeded, concerning allegations of sexual abuse that occurred a long time ago in particular circumstances, having regard to the family background, and so forth.

Upon further exchanges with counsel on the role of the jury, and their ability to heed warnings given by the trial judge, the learned trial judge concluded that the primary obligation was to see that the trial was conducted fairly, and that if there was to be a conviction, that conviction was one which was established in proper course of law. He acknowledged, as counsel for the applicant contended, that there were a considerable number of warnings which must be given to a jury trying a case of this nature with the particular circumstances that apply, and pointed out that the matter was somewhat complicated as a consequence of that. However, he ruled:

“But in one sense, the more warnings that are given to a jury, the more careful they are to listen to them. But at the end of the day, I have to determine whether or not I believe that the jury are competent and capable of understanding the warning in respect of being alert to avoid cross-contamination, if I might use that term, and whether or not they will follow the order and directions of the court in that respect.

There is any amount of Superior Court authority for the proposition that juries should be trusted, that juries by and large are extremely careful, and certainly it has been my experience, not that that is particularly relevant, but is certainly my experience that juries act with the greatest of care in listening to the judge’s charge, and to the warnings that are given and in applying them. It is a matter of wonder at times [that] the ability of juries in this country to be forensic in the manner in which they apply themselves to their consideration of a verdict, and apply the charge of a judge in all respects. I am not going to make an assumption that this jury isn’t as capable as any other jury of paying attention [to] and understanding the warnings that the court will give and applying those warnings.”

Conclusion
The question which arises for consideration is whether, on the basis of the application made at the close of the prosecution case to sever the indictments, based on substantially the same grounds as those which had arisen in the course of the application made at the commencement of the trial, first the application was erroneously dealt with by the learned trial judge, and secondly whether the learned trial judge did not lawfully or properly exercise the discretion vested in him pursuant to the provisions of the Act of 1924.

No additional material was placed before this Court on behalf of the applicant arising out of what is sometimes called “the run of the case”, or indeed arising out of any specific evidence of either of the two complainants, or of any other party who was a witness on behalf of the prosecution, up to the close of the prosecution case, contending that the defence was, in consequence, embarrassed or prejudiced in any way. If there had been any material or any such evidence tendered which might have supported the second application to sever the indictment, the Court is satisfied that learned counsel on behalf of the applicant would have drawn this Court’s attention to that.

The Court considers that the learned trial judge approached the issue on the correct legal basis, and indeed, although the case of DPP v. BK, supra., had not been opened on behalf of the applicant in the course of the application (most probably because it had been opened by his counsel in considerable detail in the course of the first application at the commencement of the trial), nevertheless the learned trial judge, when it came to the reply stage of the application, invited counsel to address him again on the import of that case, and counsel took the opportunity to cite the headnote in that case again, upon which he was relying. The learned trial judge invited counsel for the applicant to confirm that his argument was that no matter how strong a warning might be given to the jury, there was still a real risk that the jury would be contaminated in their minds, and they might look for corroboration, as a matter of ordinary human instinct or curiosity, in the evidence of one complainant in respect of the charges concerning the other. Mr. Giblin confirmed this was so, and contended that there was a greater danger in the case of what he called “stale complaints” of events that happened many years before.

It is clear from the transcript, that the learned trial judge, in the course of these exchanges with counsel for the applicant, probed in considerable detail the concerns which counsel had in relation to the matter, in particular in relation to the role of the jury in cases of this nature. It seems quite clear that this was done so as to satisfy himself that he, the trial judge, fully understood the arguments being made on behalf of the applicant and that he was not in any way unclear as to the ambit of the objection and its grounds.

The learned trial judge, having exercised the discretion vested in him, and having given a full and detailed analysis of the difficulties arising, and having given adequate reasons – indeed more than adequate reasons – of a legal nature, for his decision to permit the trial to proceed, and not to sever the indictment, this Court can find no error in law arising from the manner in which this application was dealt with. No evidence given during the trial, up to that point, was invoked by the applicant with a view to establishing, or even suggesting, that any particular evidence given by either complainant, or any other witness, was in any way embarrassing or prejudicial to the defence, within the meaning of the Act of 1924, or was in any way troublesome, having regard to the judgment of Barron, J. in DPP v. BK, supra.

The Court is satisfied that there are no grounds for finding that the failure to accede to this application led to an unfair trial, or to the conviction of the applicant being in any way unsafe.

Grounds 3 and 4: Wrongly Admitting and Characterising the Evidence of MM
The next ground upon which this application for leave is based concerns counts 31 to 51. It is alleged the trial was fundamentally flawed by the judge permitting the evidence of MM to be admitted, in respect of the charges in which GC was complainant, because, according to the grounds as lodged, it was more prejudicial than probative, and by wrongly characterising it as corroborative. The proposed evidence was that on an unspecified date between June, 1973 and June, 1975, MM, a friend of GC, came upon the applicant who was in close proximity to the complainant, GC, in GC’s home. Counsel argued that all but three months and ten days of this period was outside the time period covered by the charges on the indictment. On a more general basis, the ground is based on two arguments. First, it is contended that the evidence, objected to by the defence prior to its admission, should not have been admitted at all. Secondly, having regard to the terms in which it was, in fact, tendered, the jury should have been discharged.

As to the allegation that the evidence was wrongly admitted, this argument is made against the following context. The book of evidence contained a statement of proposed evidence from MM concerning an incident that she said had “disturbed her”. The statement was to the effect that she had come into the complainant’s house, which she visited several times a week. The applicant was “in close proximity” to GC at the time, who was, according to the witness, extremely upset. MM said she “instinctively knew something was wrong”, and roared at the applicant, who left the house. She also stated that GC said that she (GC) “hated the applicant”. GC did not give evidence in relation to this event. The admission of this evidence was objected to by the defence, and there was a voir dire as to its admissibility.

Following exchanges between counsel, when counsel for the applicant pointed out that portion of the statement to which he took objection, in particular that part be called “instinct evidence”, and counsel for the respondent indicated the precise part of the statement which he wished to have adduced in evidence, the statement was considered by the trial judge and by counsel. All parties were apparently of the view that they knew what the learned trial judge was prepared to allow to be admitted, but Mr. Giblin persisted in his argument that the evidence, or evidence to the same effect, was not admissible at all, on the basis that it was prejudicial and had no probative value. The learned trial judge considered it was probative, but to a limited extent, which he mentioned. Counsel for the prosecution also went through the statement arguing that the entire of it could not be held inadmissible. Immediately after these exchanges, the witness gave evidence.

According to the transcript, there was no formal ruling by the trial judge on precisely what parts of the statement the witness would be entitled to give in evidence, the matter proceeding, on the basis that the learned trial judge considered that all parties were ad idem as to what would be admitted, it being implicit in the context that the entire of the statement was not to be excluded, because the witness was, in fact, permitted to give evidence. The witness commenced giving evidence in quite general terms, to the effect that she would visit the household of GC about five times a week, and perhaps even twice a day sometimes. She recalled being about 14 or 15 and certain events taking place on a particular day. Her evidence, in chief, in relation to this part of the applicant’s application was in the following terms:

“Q. And how often would you visit the C household?

A. was regularly there because it was just so near; I would’ve been there five times a week, maybe even twice a day sometimes.

Q. Can you remember being in the house when you were about 14 or 15?

A. I certainly can, yes.

Q. And do you remember any particular day?

A. Well, there was a day that disturbed me, yes. I remember one particular day, yes.

Q. Which room did you go into in the house?

A. Into the kitchen.

Q. And who was in the kitchen?

A. In the kitchen was GC and AH.

Q. And what did you notice about GC?

A. Well, I walked into the kitchen; I noticed her just disgruntled, disturbed, anxious whatever. I wouldn’t have been able to describe it at that age, but I just knew she was very, very distressed.

Q. Right. Did you notice her doing anything with herself?

A. Well, she was fixing herself and she was absolutely just standing there and AH was in very close proximity.

Q. Right, Thank you.

A. You’re welcome.

MR. GIBLIN: I have an application, my Lord.”

The learned trial judge refused to discharge the jury. He took the view that the expression that she was “disturbed” was open to the interpretation that it was the feeling which the witness had as to how she found her friend. It did not appear to the learned trial judge, he said, that his ruling had been breached. Counsel on behalf of the applicant thereafter cross-examined the witness, including in relation to the above evidence as tendered, inviting the witness to concede that the incident had never occurred.

Conclusion
First, it appears clear to the Court that the learned trial judge, in dealing with the question of the evidence of MM, considered the statement of proposed evidence in very considerable detail. Indeed, according to the transcript, it was considered more or less line by line. He made it clear that certain portions of the proposed evidence could not be given by this witness, on the basis that it was not relevant to the issues before the jury, in particular that she could not give evidence relating to her instinct. It is equally clear that when the witness did give evidence, she did not make use or make reference to the phrase which was of particular concern to counsel for the applicant, namely, “I instinctively knew there was something wrong”.

It is equally true that when the witness did give evidence, she stated that the complainant was “disgruntled, disturbed, anxious whatever … I just knew she was very very distressed”. Further, when the application was made to the learned trial judge for the discharge of the jury on the basis of the foregoing evidence, it was quite properly acknowledged by counsel on behalf of the applicant that “I know the prosecution didn’t seek to lead that evidence, it’s just the way it came out …”. He nevertheless argued that what had been stated was, in fact, “instinct evidence” which was evidence which should not have been stated by the witness.

According to the case law, there is no automatic entitlement to have a jury discharged in circumstances where evidence has been given inadvertently as in the present case, in the course of a trial, it being accepted by counsel on behalf of the applicant that the prosecution did not lead the evidence which “came out” when MM was being examined. The nature of the evidence given, the type of charges involved, and the ability or not to deal with evidence inadvertently given in the course of a charge by appropriate warnings and/or other instruction to the jury, are all matters which have to be taken into account. In the present case, the evidence which was tendered was important in the context of the charges made on the complaint of GC, but did not extend to offending the decision of the learned trial judge on what was not to be stated, that is, what her instinct was. The learned trial judge heard argument on behalf of both counsel, but took the view that it was not of such a nature as to justify the trial being aborted, for the reasons given. The ruling of the trial judge not to dismiss the jury in the course of the trial on the application of counsel for the applicant was not an error in law, or of such a nature as would lead this Court to conclude that the fairness of the trial was undermined, or the convictions were unsafe.

Turning now to consider whether or not the charge to the jury, in fact, properly characterised the evidence actually tendered by MM as corroborative, the learned trial judge briefly recited the evidence of this witness. In considering the question of corroboration, the learned trial judge, as part of his overall description of the evidence, earlier advised the jury that there was “no corroborative evidence in the case” save what is referred to next. The charge to the jury was very extensive, as sometimes occurs in cases such as this, extending to more than 30 pages. The learned trial judge, having briefly reminded the jury of the evidence of MM, continued:

“Now you will remember at the outset I said to you that there was no corroborative evidence in this case, save that there may be one incidence of corroboration, if you viewed it as such. The prosecution here are inviting you to conclude that what MM came upon was an incidence of sexual assault and that it ceased when she came into the house. And the prosecution are inviting you to infer consequently that that is corroborative in part of the evidence given by G. In this regard I just want to say, just to warn you, you are entitled to come to that conclusion if you believe that it is corroborative evidence, but be very very careful for this reason, that MM didn’t see anything in the nature of sexual impropriety. Rather it is the case that she came to the conclusion, arising from what she saw in the kitchen, she came to a conclusion that something wrong was taking place. Now just be alert to that, that she was 14 or 15 years of age at the time, and it is now a long time since that happened, that if she was 14 at the time, that was 1973 or thereabouts, 1974, that is 35 years ago. It’s difficult for people to remember things as best they can, but be very alert to the period of time which has passed from the time MM says she entered the kitchen on that occasion to give her evidence. I just – just as it were, I’m warning you again just to be alert and careful about your assessment of her evidence.”

In DPP v. Meehan [2006] 3 IR 468 this Court (Kearns, J.) stated:

“As pointed out by Lord Pearson in DPP v. Hestor [1973] AC 296 at 321:

‘The word corroboration in itself has no special legal meaning: it is connected with a Latin word “robur” and the English word “robust” and it means “strengthen”: perhaps the best synonym is “support”.

“Before addressing this issue it is important to point out, that as a matter of law, the distinction which can properly be drawn between evidence which is in the legal sense corroborative on the one hand or merely supportive on the other arises only in a limited number of cases. In the vast majority of circumstances the distinction between corroborative and supportive evidence is of little substance. It is only in the limited category of cases where either –

(a) Corroboration is required as a matter of law, or

(b) There is established either in case law or as a matter of statute an obligation to warn a jury as to the dangers of convicting without corroboration, that the technical requirements for evidence to qualify as being corroborative in the formal sense are relevant.”

These extracts help to place corroboration in its correct context, and make it clear that there is no legal basis upon which the eye witness evidence of one person of an assault on another person, or evidence of disturbance after a possible or likely assault, as in the present case, provided that the evidence is accepted by the jury as being credible and independent, cannot corroborate the evidence of a complainant. It quite clearly can.

The Court is satisfied that the learned trial judge considered the matter very carefully, reminded the jury that there was, in fact, no corroborative evidence in the case, save the above possible corroboration contended for by the prosecution. He furnished extremely strong warnings, both about the period of time which had elapsed, and also about the fact that the evidence which was tendered was being tendered by a person who was of a very young age, merely 14 or 15, 35 years ago. The learned trial judge was bound to put the prosecution case fairly to the jury, but did not himself characterise the evidence as being corroborative of GC’s evidence.

This careful approach by the learned trial judge satisfies the Court that the trial was not in any way unfair to the applicant, and the lapse, if any, by the witness in giving the evidence she did, did not to lead to the convictions being unsafe.

Ground 5: Misdirection to the jury in the charge
The next several grounds for this application concern the charge of the learned trial judge. The Court deals first with the allegation that he did not put the defence case to the jury in adequate or appropriate terms, by failing to link specific instances in the evidence to the counts on the indictment.

The written grounds allege that in cross-examination, counsel for the defence suggested to GC that there was an inconsistency in her evidence in relation to the words “touch me” used by her in oral evidence, and which had not appeared in the account of events in her statement of evidence to the gardai. The context in which this evidence was given is made by reference to the charge which the trial judge gave to the jury in describing this element of the defence case, in the following terms:

“It was put to her that none of this happened. “He never touched you inappropriately”. “That’s incorrect, he did touch me”. It was put to her that he never said “touch me, touch me”. And she said “on many occasions he would ask me to hold or touch his penis. That’s when he would say “touch me”. He’d grab my hand and would be saying that”.

“The purpose for which the defence raised that matter in cross-examination was because that was inconsistent with the garda statements, and to deal with the cross-examination but not deal with the point on that matter, I think, doesn’t fairly put the defence case on my point.”

The Court considers that, having regard to the charge as a whole, which is, according to the principles of law found in the jurisprudence of this Court and of the Supreme Court, the obligation of this Court to do, and having regard to the fact that the charge to the jury was very detailed, extending over 30 pages in total, of which the description of the evidence of the various witnesses extended to almost 20 pages (although interspersed with certain warnings and so forth), it is impossible to accept that the case for the defence was not adequately put.

A charge does not have to include every single comment or material adduced on behalf of the defence or indeed the prosecution, but must fairly draw the jury’s attention to the important elements in the case, including the defence being put forward, and by reference to specific evidence. The charge of the learned trial judge in the present case met all the appropriate criteria applicable to a trial of the type in issue here was complete and detailed, and dealt with all legal requirements, as well as giving a fair synopsis of the evidence of the various parties. Moreover, it is clear that the words mentioned by the judge as being part of the cross-examination, which did not appear in the statement of evidence, clearly implied an allegation of lack of credibility on the part of the witness.

The Court is satisfied that the learned trial judge was not obliged to recharge the jury on the specific point of the alleged inconsistency between evidence given in court and the evidence given in the course of a statement to the gardai, thereby pointing to lack of credibility. The absence of this evidence in the complainant’s statement of evidence was not fatal; it was legitimately part of the overall description by her of what happened to her, in the course of her evidence at the trial, within a reasonable elaboration of the events as recalled.

The final ground contends that in his charge to the jury, the learned trial judge “invited the jury to place undue weight upon the fact that the accused did not give evidence”. This is the manner in which the ground is worded in the application for leave to appeal, but the ground as it appears in the written submissions filed on behalf of the applicant is in a different format. This Court considers the matter from the point of view of the ground as originally asserted in the application for leave to appeal. It is based on the following extract from the charge:

“Questions were asked in the course of interview, and again today if you like, as to, well, why would these girls make up those stories about the accused if they are not true, and expect the accused in the course of interviews to give an explanation for it. Just be very careful about that. If you are to draw or come to a conclusion based on that then you want to be very careful; the onus doesn’t shift to the accused. And whilst you may view it as part of the case, but be very alert as to how important it is that no explanation is forthcoming as to why somebody would make up a tissue of lies about somebody. That of itself is not evidence, and it’s not evidence to be relied upon and you must be very careful how you view it. It is of course part of the case, and you are entitled to view it as part of the case.” (emphasis added)

“The position is, my Lord, that you told the jury that the only sworn evidence in the case relating to the sexual assaults is from the complainants. I would respectfully submit, my Lord, that there is sworn evidence, other sworn evidence, and that is the evidence of Detective Garda Flaherty, who read out the memos of interview, and Garda Flaherty’s evidence is sworn evidence. I think too, on the one hand, to say they can’t draw any inference from the fact that the accused didn’t give sworn evidence in court and then, on the other, to say that the only sworn evidence they have on the sexual assaults, (is from the prosecution) is to diminish the value of the interview notes, and to somehow reflect on their worth as evidence when, of course, in the circumstances it’s the defence case. … I think in my respectful submission, or I respectfully submit, that the manner in which it was put by the court in effect invites the jury to draw an inference from the fact that evidence wasn’t given in court by the accused. That’s my comment on it.”

The learned trial judge pointed out to counsel for the applicant that if he had to recharge, as requested, he would have to balance the charge by reminding the jury what inferences they were entitled to draw, and not to draw, and counsel for the applicant indicated a preference for the jury not to be recharged, in such circumstances.

Conclusion
The first matter to note is that this does not suggest that the learned trial judge placed “undue weight” on the fact that the accused did not give evidence. The learned trial judge, in this extract, is rather warning the jury in clear and certain terms that the fact that the prosecution have commented on the absence of an explanation by the accused is something that requires him to warn the jury about, and that the warning is that the jury must be extremely careful about it. There is a clear statement to the jury that the absence of any explanation does not constitute “evidence of any nature whatsoever”, and further that there is, in any event, no obligation whatsoever on an accused person to give any such explanation, since there is no onus on the accused at any stage.

This part of the charge to the jury, when read in context, and when read together with all of the explanations given about the obligations on the prosecution to establish the case beyond reasonable doubt, on there being no onus on the accused at any stage, and on the inferences which may not be drawn by reason of the fact that the accused does not give evidence, which will be dealt with next, does not suggest the charge placed undue weight on the accused not giving evidence. There is no risk arising from the same that the trial was unfair in any way arising from the content of the charge, or that the convictions of the accused were in any way unsafe.

Having regard to the clear decision of the accused not to pursue the application to recharge, in light of the possibility that the learned trial judge might at the same time warn of the inferences that could be drawn, it seems impossible to conclude that the applicant is now entitled to complain about the content of the charge on this issue, which this Court considers is, in any event, without merit.

The application for leave to appeal is rejected.