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Cite as: [2014] IECCA 21

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Judgment Title: Director of Public Prosecutions -v- M.J.

Neutral Citation: [2014] IECCA 21

Court of Criminal Appeal Record Number: 111/10

Date of Delivery: 03/06/2014

Court: Court of Criminal Appeal

Composition of Court: McKechnie J., Herbert J., White Michael J.

Judgment by: McKechnie J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
McKechnie J.	Link	Refuse leave to appeal against conviction

Notes on Memo: Refuse leave to appeal against conviction

THE COURT OF CRIMINAL APPEAL

[C.C.A. No. 111 of 2010]

McKechnie J.
Herbert J.
White J.

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

And

M.J.

Accused/Appellant

Judgment of the Court of Criminal Appeal Delivered on the 3rd day of June, 2014 by McKechnie J..

Background:
1. On the 27th July, 2006 at the Circuit Criminal Court, the accused person was convicted of four counts of indecent assault against one of his daughters, Ms. H.. This conviction was quashed on the 14th March, 2008 by the Court of Criminal Appeal, arising out of concerns in relation to the length of time and the circumstances in which the jury had deliberated ([2008] 2 IR 410). The retrial was transferred to the Dublin Circuit Court, on application being made pursuant to s. 32(1) of the Courts and Court Officers Act 1995. On the 22nd March, 2010, the accused was again convicted, by unanimous jury verdict, of the same four counts on the indictment.

2. The particulars grounding the indecent assault charges, which were stated to be contrary to common law as provided for by s. 10 of the Criminal Law (Rape) Act 1981, read as follows.

Count no. 1:
that “[the accused person] did, on or about the 31st October, 1981 (Halloween) in his car at a gateway on the [(specified road in specified county)], indecently assault [Ms. H.] by making her masturbate him.”

Count no. 2:
that “[the accused person], did on a date unknown between the 1st November 1981 and the 31st December 1981, did [sic] force [Ms. H.] to masturbate him while he was in his car in County [(specified)].”

Count no. 3:
that “[the accused] did, on a date unknown between the 7th June 1981 and the 7th June 1983, indecently assault [Ms. H.] in his car on [(specified road in specified county)] by making her engage in masturbation of him.”

Count no. 4:
that “[the accused], did on a date unknown between the 31st December 1983 and the 31st March 1984 in County [(specified)] indecently assault [Ms. H.] by forcing her to perform oral sex on him.”

3. The road location differed as between Count no. 1 and Count no. 3 but the county location was the same in all charges, being that in which the family home was located at the time.

4. At a hearing subsequent to his conviction, he was sentenced by O’Donnell J. to six years imprisonment, with the final three being suspended on certain terms and conditions.

5. By notice in writing dated the 18th June, 2010, the appellant applied to this Court for leave to appeal against his conviction, relying on ten grounds as specified in the said notice. These grounds can conveniently be considered in conjunction with the legal submissions advanced to support them, which when read therewith, can be referenced as follows:

(1)
the admissibility of evidence issue;

(2)
the refusal of the trial judge to grant a direction at the close of the prosecution’s case;

(3)
the failure of the said judge to discharge the jury at the conclusion of the charge;

(4)
the inadequacy of that charge and also the recharge, on the “right to silence”; and finally

(5)to (8)
the judge’s failure to give to the jury a “Cronin” type direction (The People (D.P.P.) v. Cronin [2003] 3 I.R. 377 (“Cronin”)).

Grounds nos. 9 and 10 in the said notice have now been abandoned, with Grounds 5 to 8 inclusive, constituting what defence counsel described as his “slip stream points”.

6. It should be noted that at the original trial the appellant also faced a number of other charges of indecent assault and of incestuous behaviour in relation to the complainant, but was acquitted of such charges. In addition, he was tried and acquitted in respect of a number of indecent assault claims made by another daughter of his, who features prominently in this case; Mrs. M..

7. To help avoid confusion, which otherwise might occur because of the requirement to preserve anonymity, the following designations are applied to those individuals who are referred to in this judgment, in addition of course, to the accused/appellant himself, Mr. M.J.: Ms. H. is the complainant; her married sister is Mrs. M., whose husband is Mr. A.: and finally Mrs. B. is the wife of the appellant and the mother of both Ms. H. and Mrs. M..

The Voir Dire:
8. The trial commenced with a voir dire, in which the appellant challenged the prosecution’s intention to adduce evidence, relating to an alleged family confrontation which took place some time in the early 1990s, during which it was claimed that the accused had admitted to having sexually assaulted Ms. H.. This admission it was said, took place in the home of Mrs. M., some short time after all of the family members involved in the incident, had returned from being in a local public house (“the pub”). Four such members gave evidence on this issue: the complainant, Mrs. M. and Mr. A., and Mrs. B..

9. At the conclusion of the evidence, counsel on behalf of the accused submitted that, in the exercise of its discretion, the Court should not permit the prosecution to lead such evidence before the jury. This application was presented on the following basis:

(i) that a serious doubt existed as to what, if anything, was admitted, and in particular whether it related to sexual abuse;

(ii) that even if such an admission was made, it was impossible to relate it specifically to the counts on the indictment in view of the other charges of a similar nature involving the complaint, of which the accused had previously been found not guilty;

(iii) that given the significant inconsistencies in the evidence, described by counsel as “massive”, it would, in this particular case, be impossible for the accused to obtain a fair trial, if the normal course was followed, of leaving such matters to the jury - particularly so when the timeframe of events is also considered; finally and in any event,

(iv) that if the accused person was compelled to defend himself against such evidence, given the antiquity of the relevant events, then the same would inevitably result in an unfair trial.

10. In his ruling, the learned trial judge was satisfied that in relation to the family confrontation, there was sufficient evidence, of the matters put to the accused and of their nature, which the jury, if properly instructed, could take into account. He referred to the inconsistencies in the evidence, which undoubtedly existed, but held that the assessment thereof fell within the jury’s domain. He was conscious of the lapse of time involved, which he said would require continuous scrutiny by the Court. Finally he also stated that, “at the moment”, meaning as the evidence then stood, he would have no difficulty in giving a “Cronin” type direction.

Grounds of Appeal:

Ground No. 1:

Admissibility Issue:
11. This ground of appeal, which relates to the family confrontation last mentioned, is based on exactly the same submission as made to the trial judge at the end of the voir dire. As stated above it involves four points, the last two of which can conveniently be linked and dealt with as part of Ground No. 2. Before considering the other matters raised under this heading however, some general observations are required.

General Observations:
12. In his submission to this Court on this ground of appeal, counsel on behalf of the appellant opened, what he said was the relevant case law. He referred to R. v. Galbraith [1981] 2 All E.R. 1060 (“Galbraith”), Cronin and The People (D.P.P.) v. P.O’C. [2006] 3 IR 238 (or “P.O’C.”). The well-known passage from Galbraith was then quoted (para. 30 infra). Cronin was relied upon as stating the law regarding inferences of fact, and in particular what inferences an accused person is entitled to have drawn in his favour, with P.O’C., a delay case involving sexual offences, being referenced as having confirmed that a trial judge is under a duty at all stages of a trial to ensure the fairness of the process and of the trial itself.

13. At the commencement of this hearing it was quite unclear, and even now it remains much the same, as to the precise legal basis upon which this ground of appeal is asserted. If it is, as it seems to be on at least one reading of the submissions, an admissibility point, the principles in Galbraith would not appear to be relevant in that regard. Even however if that be the case, there nevertheless undoubtedly remains a Galbraith point in the appeal which must be considered. For the avoidance of doubt therefore it thus seems appropriate to deal with the issue under both headings.

14. Galbraith has been classically understood as setting out for a trial Court, guidance on how it should deal with an application, usually made at the close of the prosecution’s evidence, to have the charge(s) withdrawn from the jury, on the basis that even if properly instructed, no reasonable jury could convict on the admissible evidence presented before it. The infirmities which might deprive such evidence of all or of most of its probative value so as to justify granting such an application, are of course variable and are occasioned by many different circumstances. However, in ruling upon any such application, the judge is not technically deciding an issue of admissibility in any true evidential sense. What he is determining is whether, having considered the evidence as it stands, it is of such a character that it would be safe or unsafe to allow the jury to convict on it. If the latter, then in the absence of further evidence not so affected, the trial must be terminated; if the former, its evaluation becomes a matter for the jury.

15. That type of submission is quite unlike an application usually made before but in anticipation of certain evidence, to the effect that what is intended to be lead, is not as a matter of “evidence” law, admissible. The test and principles, between the two situations, are altogether different and should not be confused. Firstly, some observations on the evidential point.

16. At the pure admissibility level, the Director of Public Prosecutions (the “D.P.P.”) has referred the Court to May and Powles, Criminal Evidence, 5th Ed., (London, 2004), p. 8, where the following passage is quoted:

“The golden rule of admissibility is that all evidence which is relevant is admissible and that which is irrelevant is inadmissible. … The matter may be summarised in this way. For the purpose of a criminal trial, evidence is relevant if its effect is to make more or less probable the existence of any fact which is in issue,

i.e.

upon which guilt or innocence depends. Or, as Lord Steyn recently put it: ‘[to] be relevant evidence need merely have some tendency in logic and common sense to advance the proposition in issue’” (

A (No. 2)

[2001] 2 Cr. App. R. 351, p. 362).

17. As no substantive debate was had on this statement of the law, this Court does not find it necessary to offer a definitive view on either its accuracy or its completeness, but makes the following points in the context of the issue under discussion.

18. Firstly, it is a necessary precondition to the admissibility of any piece of evidence in a criminal trial (or for that matter in a civil action), that it be relevant; evidence which is irrelevant is not admissible. Secondly, “relevance”, at least in a general sense, will be established where the evidence tends to prove or disprove, or as May and Powles say, renders it more or less probable, that the accused person did or did not commit the act in question. Thirdly, even if this threshold be met, evidence, although relevant, may not be received if any of the exclusionary rules - either common law or statute based - are applicable to it. Fourthly, such evidence may also be excluded if fairness of procedure or the vindication of Constitution or Convention rights require it. In essence therefore, evidence is at least prima facie admissible if relevant, material and probative, but may be excluded on any of the grounds indicated.

19. In seeking to have the evidence of the family confrontation declared inadmissible it does not appear that the learned trial judge was being asked to apply the test of “relevance”, or to consider any of the exclusionary rules above mentioned, but rather was being asked in effect, to pass judgment on and to appraise the cogency and weight of such evidence. This in essence was what the submission regarding “inconsistencies” required the judge to do. Therefore, this Court does not regard the point made as being one touching on admissibility in an evidential sense, but instead believes that its true import is founded on the Galbraith principles.

20. Having said that however, lest this reading of the submission be incorrect and if the point was truly intended as an admissibility one in the strict sense, the Court has no doubt whatsoever but that it is unsustainable. There was no basis advanced in that regard before the learned trial judge which could possibly justify its acceptance. Thus further consideration of the point, in that respect, is not required.

21. It is also not quite evident how the principle in Cronin applies to this ground of appeal. That principle arises when a judge is giving an instruction to the jury as to the benefit of the doubt which an accused person is entitled to, if the evidence, correctly assessed, permits of more than one view or conclusion, as to matter or effect. To afford such benefit should not in any way be looked at as a concession to the accused: rather, it stems from the presumption of innocence, which he is entitled to as a matter of fundamental right and also underscores the prosecution’s obligation to establish a person’s guilt beyond reasonable doubt.

22. In this context it should be noted that what Kenny J. said in The People (A. G.) v. Byrne [1974] I.R. 1 (“Byrne”), must now be understood and applied in light of the more complete statement of the principle given by Hardiman J. in Cronin. In essence, an accused person is entitled to the benefit of the inference which is most favourable to his position, unless such inference has been excluded beyond a reasonable doubt by the D.P.P.. This is so not only where the inferences in issue are equally open on the evidence, but also to an “inference [which] is relatively unlikely, unless it has been excluded beyond reasonable doubt” (Cronin at p. 390).

23. There is no difficulty about these principles which this Court fully accepts, and when the required circumstances exist, it will readily apply them: see para. 83 et seq. where Grounds of appeal nos. 5 to 8 are considered.

24. It is also fully accepted that a judge, from the moment he embarks upon a trial until he is functus officio that trial, is under a duty to ensure that both the process and substance of the trial is fair, and that both are duly compliant with appropriate principles - otherwise the trial will not be one conducted within the due process of law. This duty has existed at common law for many years (R. v. Lee Kun [1916] 1 K.B. 337), but also and of much more significance, it has a constitutional status of particular importance, given that the prime obligation imposed upon the judiciary is, to uphold the Constitution and the rights protected thereunder: The State (Quinn) v. Ryan & Ors. [1965] I.R. 70; The State (Trimbole) v. Governor of Mountjoy Prison [1985] I.R. 550; and P.O’C..

25. This obligation to vindicate such rights applies no less to the District Court and to the Circuit Court then it does to the High Court and the Supreme Court. The status of the courts last mentioned as being “superior”, does not affect this duty, as such description is primarily intended to convey that the authority of these courts derives directly from the Constitution rather than from statute. In any event, having pointed out that the vast bulk of criminal trials are dealt with in the lower courts, and having referred to the judicial oath taken by all judges on appointment, Walsh J., in The People (D.P.P.) v. Lynch [1982] I.R. 64 at p. 84, had this to say on the point:

“Therefore, the judges of the District Court and the judges of the Circuit Court are not dispensed from, or expected to overlook, their constitutional obligation to uphold the Constitution in the discharge of their constitutional and legal function of administering justice. It would be most incongruous if they were to apply a general test of basic fairness because the Constitution requires it, and not to rule on questions of the admissibility of evidence obtained as a result of breaches of the constitutional rights of the accused. The judicial obligation is to uphold all of the Constitution.”

These principles were reaffirmed by Hamilton C.J. with particular reference to the Circuit Court, in I.O’T. v. B. & Ors.; and in M.H. v. Doyle & Anor. [1998] 2 I.R. 321, at pp. 338 to 339.

26. Whilst the nature and extent of the jurisdiction which the Circuit Criminal Court has to discharge this obligation and duty has not been fully explored, nonetheless, this Court is perfectly satisfied that at the level of principle it is as extensive and as far-reaching as is required. In particular in relation to this case, the trial Court had full capacity to determine all objections and to rule upon all issues which were raised during the currency of the trial (see para. 57 et seq. where Ground no. 2 is dealt with).

27. To summarise therefore on these general points: this Court does not believe that the question of admissibility, as such, arises on this ground; nor is there is any uncertainty about the Cronin principle or the duty of the trial judge to ensure due process and where necessary, to safeguard all rights.

The Galbraith Issue:
28. What must now to be considered is the Galbraith issue, which if the appellant is successful on, will have a decisive effect on the overall appeal.

29. Lord Lane’s remarks in his rather celebrated judgment in Galbraith, are almost self-evident in at least two respects; these, where he said that if there was no evidence of the accused person having committed the crime with which he was charged, the prosecution must be terminated; as it must be if the available evidence is not such, that a jury properly instructed, could safely base a conviction on it. It is what the Chief Justice said regarding the type of evidence which may be found within these parameters, which distinguishes the case.

30. The full passage at p. 1062 of the report reads as follows:

“How then should the judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the [prosecution’s] evidence, taken at its highest, is such that a jury properly directed could not properly convict on it, it is his duty, on a submission being made, to stop the case. (b) Where however the [prosecution’s] evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred.

There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”

31. It is of course quite clear that the application of this rule must be fact and circumstance specific. Therefore, it is essential to look at what evidence emerged during the voir dire, by reference to which the trial judge was called upon, to apply these principles.

32. Before so doing however, it would be helpful to an understanding of how Galbraith should be applied, and was so in this case, if the Court was firstly to isolate what are claimed to be the inconsistencies, so that these are immediately recognisable within the evidence when the totality of what was tendered, is considered. The major discrepancies, as highlighted are as follows:

(i)

The Year of the Confrontation:

• Ms. H. said 1996, but it could have been 1993 or 1994: Mrs. M. said 1993. Mrs. B. could not remember, but her best guess was 10 years before the hearing,

i.e.

about the year 2000.

(ii)

Who was Present when Ms. H. First Told her Sister of the Abuse:

• Both the complainant and Mrs. M. said that her sister’s husband, Mr. A., alone was present, whereas Mr. A. felt that a female friend of Ms. H. was also present.

(iii)

The Location Where Mrs. B. was First Told of the Abuse and Where the Confrontation First Started:

• Ms. H., in her original statement and in evidence, said that her sister had told her mother in her sister’s house before going to the pub: as a result the accused was called to the house and some type of row broke out there.

• In her oral evidence however, she placed the row as having started in the pub.

• Mrs. B. said that she first became aware of the accusation of abuse whilst in the pub, where the row started.

(iv)

What Happened in the Pub:

• Ms. H. said that an argument started and a row broke out, concerning the accusation of sexual assault.

• Mrs. M. said that there was no reference to sexual assault in the pub.

• Mrs. B. said that sexual assault was mentioned, as does Mr. A..

(v)

Time of Arrival and Duration of Stay in Pub:

• The evidence of Ms. H., Mrs. M. and Mrs. B. varied as to the time of arrival and the duration of the stay in the pub. Mr. A. did not recall these details.

(vi)

The Amount of Alcohol Consumed:

• Evidence varied from a “social” drink to “loads” of drinks.

(vii)

The Sequence of Arrival at the Pub:

• Three witnesses said that they were in the pub before the accused arrived.

• Mrs. M. said that all they arrived together.

(viii)

Were there Children in the Pub?

• Two witnesses said that there were. One made no reference to children being present.

• Mrs. B. originally said that there were, but later changed her mind.

(ix)

How Long did the Confrontation Last?

• Two witnesses could not say how long: the others’ accounts varied between one/one-and-a-half hours and a couple of hours.

(x)

What was Said:

• Ms. H. originally did not recall, but then stated that the accused said “I am sorry that I abused her”.

• Mrs. M. said that she accused her father of sexually abusing her sister, Ms. H., to which he replied: “Yes I did”.

• Mrs. M. also said that Ms. H. intervened when she made this accusation and backed her up. The other witnesses made no mention of this.

• Mrs. B. did not recall.

33. In addition to relying upon these matters in support of the submission that the ruling of the trial court was erroneous in point of law, counsel also stressed that the allegations put to his client were not confined to sexual abuse, but clearly also included allegations of verbal abuse, violence, and aggression, thus adding even greater uncertainty as to what precisely any alleged admission related to. Further, much reliance was also placed on the witnesses’ inability to outline the full range of topics covered during the confrontation or to clearly set out what the exchanges were which immediately preceded the alleged admission.

34. So much for the inconsistencies upon which this submission is, in part based, but what in fact was the state of the overall evidence at the conclusion of the voir dire? The transcripts of Day 1 and Day 2 show the following:

Family Members Told of Abuse:

(i) Some short time before the confrontation, Ms. H. had told her sister, Mrs. M., that the appellant had sexually abused her for a number of years: this conversation was confirmed by Mrs. M.. Ms. H. also said that whilst she did not tell her sister every gory [sic] aspect of what occurred, she did outline in detail the Halloween incident which is the subject matter of Count no. 1 and also told her about other incidents of a similar nature.

(ii) Mrs. B. had been told of this sexual abuse, either in the house or in the pub, but either way, before the appellant arrived - in fact she only called him because of what she had been told.

(iii) Ms. H., Mrs. M., Mrs. B., and the husband of Mrs. M., namely Mr. A., and the appellant, were in the pub on “the occasion” which was being referred to, whenever that might have been,;

The Pub Visit:

(iv) There was some reference made, discussion had, or allegation put to the appellant in the pub to the effect or having the meaning that he had sexually assaulted Ms. H..

(v) Some one, or more than one, of the group had then said that the pub was not the place for that type of discussion and all went back to the home of Mrs. M. and Mr. A..

Relocation to the House:

(vi) Whatever took place, did so in the kitchen of that house: all agreed on this precise location.

(vii) There was much roaring and shouting in the kitchen and evidently the atmosphere was very tense and highly charged.

35. It is also of course of the first importance to consider the evidence of what transpired in the house and in particular what was said in the kitchen. In this regard the following emerges:

Ms. H.:

(i) Whilst the complainant could not recall the entirety of what was said word-for-word, she stated and frequently repeated that her sister had confronted the appellant, and had accused him of doing, what she had told her sister of earlier; namely, that he had sexually abused her for years.

(ii) She went on to say that Mrs. M. wanted to know from the accused whether that was the truth. The accused then broke down and cried and “admitted to her what happened”: “he admitted that he had interfered with me and abused me”. He said that “he had done” it and that he was “sorry”.

(iii) While never resiling from this evidence under cross-examination, she did however confirm that in her original garda statement, she had said “he admitted it without saying what happened”.

Mrs. M.:

(i) She confronted her father and accused him of having sexually abused her sister, Ms. H., having been previously told by her sister that this had happened. She demanded to know whether this was true, to which he replied: “Yes I did it”.

(ii) She never moved from this evidence.

Mrs. B.:

(i) The evidence of this lady was that the row in the kitchen was about the appellant having sexually abused their daughters, and in particular, Ms. H., and he had admitted to doing so. He also said that he had gotten treatment “for it”.

Mr. A.:

(i) This witness said that the house row was about sexual abuse and in the context of expressing a concern which as a father he had for his own children, some comments were passed by the accused to the effect that “I don’t do it anymore. I can control it now”.

36. Having therefore set out in considerable, if not in fact in excessive detail, what both the substance and infirmities of the evidence were, it now becomes necessary to review how the Galbraith principles were applied to point no. 1 (para. 9 supra), namely whether what was admitted, could properly be regarded as relating to the sexual abuse of Ms. H..

37. To that end, and noting the discrepancies above identified, this Court considers that it was necessary for the D.P.P. to have produced by the close of the voir dire, evidence to cover key events leading up to and ending with the alleged admission, which, if accepted by the jury, was capable of sustaining the following matters:

(i) that a family confrontation had taken place;

(ii) that the accused was present throughout, or at least was present at the time of and for the duration of, the allegations as made;

(iii) that the confrontation was about, or at least included, an explicit and direct allegation against him of having sexually abused Ms. H.;

(iv) that he was so confronted;

(v) that he understood the subject matter of that confrontation, namely the sexual nature of the allegations being made and the identity of the victim of that abuse; and

(vi) that, with such understanding, he admitted to having committed acts and engaged in conduct of that nature, with this particular daughter of his.

38. The D.P.P.’s evidential framework by which these events were sought to be established, involved producing evidence that all of the relevant parties met in a public house, that some discussion therein took place about these allegations, that those involved retired back to Mrs. M.’s house, that in her home, an allegation or series of allegations was/were put to the accused about him sexually abusing his daughter Ms. H., and that, he understood those allegations in the context in which they were intended. Further there was also evidence that his response, when taken in conjunction with the allegations, was, and was properly capable of being accepted by the jury as, an admission by him of the misconduct as alleged.

39. Having analysed the issue in this way, this Court is fully satisfied that the trial judge’s ruling in this regard was not only open to him, but was probably the only one which by law he could arrive at. The evidence above set forth addressed each of the essential matters as outlined, and did so to a threshold which as a matter of law, was well capable of withstanding the scrutiny of the Galbraith test. In this respect the evidence of both Ms. H. and Mrs. M. can be considered as having been the most pertinent and most influential, with some support from Mr. A. and to a greater extent, from Mrs. B.. As such evidence covered each event or step in the sequence required to give both coherence and rationality to the alleged confrontation, and therefore in turn the admission, the Court is satisfied that the ruling so impugned cannot be disturbed on this first basis, of Ground no. 1.

40. In fact, this challenge, as to whether the prosecution’s case on the confrontation should ever have gone to the jury, because on key matters of fact, the evidence was inherently unsatisfactory (Galbraith), is put beyond doubt when one considers “the instructions” of the accused person, which were put by counsel, to the witnesses during the course of cross-examination, and the response of those witnesses to what was put. Regarding the pub, the interaction shows that he was present with all others as identified; that whilst therein, Mrs. M. mentioned inappropriate sexual behaviour to him; and that in response, it was he who had said that this was no place to have such a discussion. Further, it was put to the witnesses that it was the appellant who had suggested returning to his daughter’s house, that the entire group so returned and that amongst other allegations made, were allegations against him of having sexually abused Ms. H.. In addition, counsel for the defence suggested that if any concession had been made by the accused, it was directed in reply to allegations other than those of a sexual nature. Whilst the accused did not himself give evidence, nonetheless, these instructions and the response of the various witnesses are matters for consideration, and manifestly support key elements in the sequence above mentioned.

41. There is no doubt but that, as scripted, there are inconsistencies within the evidence tendered by family members with regard to certain matters. Such was expressly acknowledged in the trial judge’s ruling on the voir dire. These matters however are largely external to the key events which go to the heart of this ground of appeal. In describing them thus, this Court is not in any way suggesting that these were irrelevant or should be disregarded. On the contrary, they should, on the one hand, have been of concern to the D.P.P. as potentially casting doubt on the core evidence, and on the other, of value and utility to the accused, to further that doubt. In reality however, these are matters not of admissibility, but of weight. Classically, the probative force or cogency of any piece of evidence is a matter of weight; inconsistencies go to weight and both are firmly within the remit of the tribunal of fact - in this case the jury. Consequently this point on Ground no. 1 of the appeal, cannot succeed.

The Evidence Cannot be Related to the Counts on Indictment (para. 9(ii) supra):

42. The next aspect upon which this ground of appeal is moved, is based on the submission that even if the evidence of an admission had been admissible, it would nonetheless have been impossible for the jury to conclude, beyond a reasonable doubt, that the same supported the charges on the indictment, as distinct from being related, or related solely, to the other indecent assault charges of which the appellant had previously been acquitted (para. 6 supra). To convict on the latter basis it was said, would be to offend the autrefois acquit principle. Further, the principles stated in Cronin were also claimed in aid regarding what possible inferences the jury might legitimately draw from the evidence such as it was.

43. This point on first impression, seems some distance from the basis previously advanced, and above rejected, to support this ground of appeal. It bares little, if any, resemblance to the admissibility issue or to the Galbraith point, and if directed to the underlying issue of trial fairness, could comfortably have been joined with the second ground of appeal. In these circumstances, it might be best to treat it as a discreet point, although of course it may also feature elsewhere in this judgment.

44. The reference to autrefois acquit has no relevance to this issue. Autrefois acquit is a plea which, if successful, is a bar to the further prosecution of the person in whose favour it stands, on the charge(s) covered by it. If the jury was satisfied that the evidence in issue related only to those allegations of which the accused had been acquitted, such evidence could not be relied upon, either in whole or in part, as a basis for convicting the appellant on the present charges. The reason for this however is not that the plea of autrefois acquit would be available to the accused on these charges; it is rather, that such evidence would be entirely irrelevant to such charges. Therefore, the form of defence based on a plea of acquittal in bar, is not available in the current circumstances.

45. What therefore is the real essence of this point, as it was made during the course of the voir dire and as it presently stands, on this appeal? There are I think three possibilities.

46. In the first instance it could be viewed as a complaint that, apart from Count no. 1, the dates of the alleged incident, as given in the indictment, are not more specific; or that apart from Counts nos. 1 and 3, the precise location of the charges are not specified. Such an interpretation of the submission however might well be unfair, as this type of argument, focused so narrowly on lack of specificity, has rarely if ever, without more, been upheld.

47. But in this case, one can rightfully point to additional factors of some relevance. On the evidence as a whole, it would not be unreasonable to say that the allegations put to the accused at the confrontation, did not identify specific dates, locations, or the type of sexual activity of which he was being accused. Equally so, it seems quite clear that the accused did not, in his admission, whatever else its scope may have been, detail such matters. Therefore no individual or explicit connection is evident between the said admission and the particulars given in the indictment.

48. A further complicating issue is of course the previous acquittal of the accused on similar charges, which he had faced involving the same complainant.

49. Therefore in light of these matters, the second possibility, at the level of principle, is that the jury, irrespective of how charged, simply could not have been satisfied that the particulars on the indictment had been established beyond reasonable doubt. And the third and related possibility is that, even if correctly directed, inter alia, on the question of inferences, the same outcome inevitability would result.

50. The appellant was charged with a number of specific counts of indecent assault. These, as detailed in the indictment, showed, (i) that all incidents took place in his car and within the same county, (ii) that in respect of two, a location specific to a particular road was identified, and (iii) that Count no. 1 took place on Halloween night in 1981, that Counts nos. 2 and 4 took place within a particular period of two and six months respectively, and that the final count had a longer time span of two years.

51. The complainant, Ms. H., gave evidence of these assaults, which evidence by its nature, was capable of sustaining the charges on the indictment. To suggest the contrary is almost to suggest that without a sophisticated level of specificity, no person could be charged if the evidence rested at the level which it does in this case. That is not, and could not be the law. It was of course a matter for the jury to decide whether that evidence, having regard to the vagueness, inconsistencies and other infirmities as alleged, was sufficient, when considered with any other admissible evidence, to satisfy them beyond reasonable doubt that the accused person was guilty of the particular offences the subject matter of its verdict.

52. With specific regard to the family confrontation, the situation is that, if the jury was satisfied on the evidence that the accused had made a general admission of having sexually assaulted Ms. H., then such admission was also capable of being accepted by them, as being referable to and connected with the specific counts on the indictment, with which he was charged. If on the other hand, the jury, whether by reference to the non-sexual allegations which were also made, to the alleged incidents of which the accused had previously been acquitted, or otherwise, had a reasonable doubt regarding such connection, then it could not rely upon that evidence to convict him. To the extent that the jury accepted the evidence of Ms. H. that sexual abuse had occurred within the particulars on the indictment, it was properly entitled to conclude, that the general admission of the accused corroborated her evidence in this regard (The People (D.P.P.) v. C. [2001] 3 I.R. 345 at p. 362 and R. v. Medcraft (1932) 23 Cr. App. R. 116 at p. 118). Evidently, if it did not accept her evidence, the general admission in itself, could not be sufficient to discharge the burden of proof. The accused could not reasonably or rationally be taken to have admitted to specific assaults of an indecent nature, if the jury had rejected the complainant’s evidence that such assaults had in fact occurred.

53. A general admission of sexual assault on a complainant is not admissible as amounting to evidence of bad character or of propensity; neither can it be tendered as prejudicial evidence relating to other alleged incidents involving a complainant, which are not charged on the indictment. It is complainant-specific and is properly capable of being accepted by a jury, as connected to and corroborating so much of a complainant’s evidence as relates to specific indecent acts perpetrated against her (and included in the indictment), as it, the jury, in the absence of a corroboration warning, would be satisfied beyond reasonable doubt, to accept. If the trier of fact is satisfied, on the evidence and to that standard of proof, that a general admission of sexual assault was made by an accused, then it will not be open to him to submit, that the admission so made could not, as a matter of law, connect him with or encompass, any of the particular charges of sexual assault on the indictment.

54. On this basis, the Court does not accept that as a matter of principle the admission made by the accused was not capable of sustaining the counts on the indictment and accordingly, the ruling so made by the trial judge in this regard must be upheld.

55. The third possible interpretation of the submission, being one clearly related to the question of inferences (para. 49 supra) is really a matter referable to the adequacy of the charge and accordingly the complaint made in that regard, will be dealt with under that heading.

Points No. 3 and No. 4:

56. The other two bases upon which Ground no. 1 was advanced (para. 9(iii) and (iv) supra), can, as previously stated, be more properly and conveniently dealt with as part of Ground no. 2.

Ground no. 2:
The Refusal of a Direction at the Close of the Prosecution’s Case:

57. As the Court has above indicated, Ground no. 1 was based on four pillars, the last two of which asserted that if the accused was compelled to defend himself against these charges, given the antiquity of their setting and also and in particular, if the evidence of the alleged admission was allowed in, the same would inevitably result in a deprivation of a trial with due process. In effect, this submission, which was firstly advanced as part of the voir dire, was in substance repeated at the close of the prosecution’s case, although suitably adapted to reflect the point to which the trial had then reached. It was made in support of an application to have the case withdrawn from the jury.

58. Although the trial judge said, and perhaps understandably so, that very little had changed in the intervening period, i.e. between the end of the voir dire and the close of the evidence, matters in fact had progressed quite significantly by that time, in that, in line with the expectation created in the voir dire, evidence of the confrontation had been given by family members, as had the complainant’s evidence (both direct and on cross-examination), regarding the sexual assault charges. So at this stage, all of the evidence upon which the prosecution intended to rely, had been unfolded before the jury.

59. On the factual side it was submitted to the learned judge, that the accused person was being denied a fair trial, inter alia, because of the historical age of the charges, the lack of specific dates (apart from the Halloween incident), and the absence of specific locations at which the offending conduct was alleged to have occurred. In addition, the time intervals between certain key events were highlighted, such as that between the family confrontation and the garda investigation. It was said that this was a very old case, that the accused person could not defend himself properly and was not in a position to counter any version of events, which others might tender in evidence against him. Further, the evidential frailties inherent in the admission evidence remained, and the submission previously made in that respect, was repeated.

60. These matters it was suggested gave rise to great prejudice and undoubtedly put justice to the hazard (J.O’C. v. D.P.P. [2000] 3 I.R. 478 (“J.O’C.”)); they prevented the accused from effectively defending himself and rendered the constitutional right of cross-examination meaningless (In re Haughey [1971] I.R. 217 (“In re Haughey”) and The State (Healy) v. Donoghue & Ors. [1976] I.R. 325). In all of these circumstances, it was submitted that no jury should be required to consider a verdict, in particular as no sufficient evidence existed upon which they could assess the charges; the Court’s jurisdiction, set out in The People (D.P.P.) v. P.O’C. [2006] 3 IR 238 and supported by J.F. v. D.P.P. [2005] 2 IR 174 (“J.F.”) should be applied and that the case should be withdrawn from further consideration. In essence this can be considered a submission based on delay and unfairness.

61. There is no controversy about the trial Court’s power or duty to ensure a fair trial: such has been referred to at paras. 24 to 26 supra. What falls to be considered is how those principles should be applied to the presenting circumstances, in particular whether the trial Court should have taken the most dramatic step possible, namely the termination of the prosecution, without a verdict on the merits. Of course, if such a step was required, it should be taken, and experience on the criminal side shows, that on a regular basis this is in fact what happens. However, recourse to such means should only be had if the other safeguards available to a judge are not adequate to protect the right(s) in issue and to deal effectively with, and resolve the matters which it is claimed, are undermining such right(s). The trial judge in this case refused to accede to the application, pointing out that the only real complaint upon which it was made, related to Count no. 3, where the offence was alleged to have taken place between June 1981 and June 1983, a period of two years. Save for this point, nothing further at a specific level was asserted. Nothing therefore in his view had changed which would justify a ruling on this submission, different to that which he had made in the voir dire. He therefore refused to withdraw the case from the jury.

62. This Court is quite satisfied that the judge’s ruling on such application was correct and that it cannot be disturbed on appeal. The evidence in the case went much further than resting solely on an “unsupported assertion”, with the defence likewise being far removed from “bare denial” (J.O’C., Hardiman J. at p. 504). It will be recalled that Ms. H. gave some explicit details about the assaults and their surrounding circumstances. Moreover, when one considers how the accused interacted with the evidence of the family confrontation (para. 40 supra), it is quite apparent that he had not suffered from any serious recollection frailty or memory deficit, with regard to this crucial event.

63. The question of vagueness or inconsistencies in the evidence, which has previously been identified, goes to weight which, having regard to the Galbraith test, is purely a jury matter: the requirement of associating the admission evidence with the instant charges, as distinct from the acquitted charges, is again - subject to proper direction - a matter for the jury. In addition, apart from the antiquity of the charges, nothing further of a specific nature has been pointed to, as might create an additional difficulty for the accused in defending himself or as could result in an overall unfairness in that regard.

64. In reality, it appears to this Court that the argument as advanced, could be made in relation to any historic sexual abuse case, and indeed in respect of any fresh complaint, previously cloaked in circumstances of secrecy or privacy. If accepted, such an argument runs very close to the proposition that cases falling within this category cannot, at the level of principle, be prosecuted. As case law has shown, this is not and never has been the situation.

65. In the Court’s view, there was no subversion of the appellant’s right to cross-examine either in an In re Haughey sense or by way of restriction, curtailment or other created barrier. As the transcript shows, each witness was subject to rigorous testing by cross-examination of what she or he said. This was no empty exercise, pointlessly undertaken or aimlessly pursued. Far from it; with the imperfections above outlined, being testament to its utility.

66. Undoubtedly the charges occurred many years ago, as unfortunately happens in a considerable number of sexual abuse cases. That fact of itself, however, would not have justified accepting the submissions as made. Consequently when the evidence is looked at on an overall basis, and when the appellant’s engagement with it is considered, it is not possible to conclude other than, that the trial was fair and in accordance with constitutional requirements.

67. The case of J.F., which has already been referred to, is entirely distinguishable from the instant case. In J.F., the applicant had obtained leave to apply for judicial review, to restrain his further prosecution on two charges of indecent assault alleged to have occurred in January, 1988. In the statement of opposition, the D.P.P., dealing with an allegation of delay, sought to rely on an affidavit of a chartered clinical psychologist, to suggest that such delay was attributable to the on-going effects which the abuse was having on the complainant. To respond to this assertion the applicant sought to have the victim examined by his own expert, of similar speciality. This was refused. It was in this context that the Supreme Court commented adversely on the unfairness of the applicant’s position, in circumstances where an expert retained by him would be seriously disadvantaged in comparison to the expert retained by the respondent. It was purely within that narrow parameter that the reference to subversion of the right to cross-examine, was made. No unfairness of that type arises in the present case: therefore J.F. is not relevant. Finally, it should also be noted that the appellant in the instant appeal was unsuccessful in judicial review proceedings instituted by him, in which he sought to prohibit his trial. Consequently, this ground of appeal must be rejected.

Ground No. 3:
Failure to Discharge the Jury at the Conclusion of the Charge:

68. At the conclusion of the judge’s charge, counsel on behalf of the accused applied to have the jury discharged, as in his view the matters of which he complained were so serious, that their irremediable effect could not be cured by any recharge, no matter how comprehensive. There were I think more than a dozen requisitions made to the judge by counsel for the accused. Some of these have now fallen out of the case as either having been withdrawn or else following acceptance that the same were adequately dealt with by the recharge. The most important of those remaining relate to the following:

(i) the weight to be attached to out of court statements;

(ii) the right to silence;

(iii) the direction with regard to inferences;

(iv) the reference to two stories in the workplace;

(v) the corroboration issue; and

(vi) the delay/warning direction appropriate to old cases.

69. The D.P.P. opposed that application, as she does this ground of appeal, on the basis that any infirmities in the charge could have been, and as a matter of fact were, corrected by the judge in his recharge to the jury. It is also said that the errors complained of related to matters of law and not fact and therefore, are more readily correctable than the later.

70. The Court at the outset would make two general points: firstly, the basis of the discharge application related solely to the directions which the judge gave to the jury on legal matters, and the manner in which these were explained. The application therefore was quite unlike a situation where, for example: key aspects of the evidence were mis-quoted or mis-described; disparaging comments were made of the accused or of the complainant; deprecating remarks were addressed to the witness(es) or evidence thereof; or that some prejudicial material, inadvertently or otherwise, was placed before the jury, such as serious misconduct of an extraneous nature or previous convictions. All of these type situations and many others, are well documented, and case law shows how, depending on circumstances, both trial courts and appellate courts should deal with them (Walsh, Criminal Procedure (Dublin, 2002), paras. 17.32 to 17.37 and O’Malley, The Criminal Process (Dublin, 2009), paras. 20.43 to 20.44).

71. The position here, as stated, is different, to the examples above outlined, but nonetheless would have to be regarded as serious by the trial judge. The difficulty which the requisitions created for him was whether he could address, even with an appropriate direction, the concerns raised so that the trial could safely proceed, or whether to maintain the integrity of the process, he should discharge the jury. To take such a step is of course a serious matter and in general, should be resorted to only where all other means capable of re-establishing the fairness of the trial and of the trial process itself, are inadequate to that end (The People (D.P.P.) v. Mulder [2007] 4 IR 796 and People (D.P.P.) v. Lonergan [2009] 4 IR 175). Such a decision is a matter of adjudication, and whilst an appellate court will normally be reluctant to interfere with its exercise, it will not hesitate to do so if necessary, for an accused person should never be put on a verdict if there is a serious or substantial risk of his rights being eroded or of justice in his case being imperilled.

72. The second general point is that whilst it may be true to say that mis-statements of legal principle may be more easily correctable than mis-statements of fact or mis-descriptions of events, nonetheless, scrutiny of equal importance must also be applied to such situation. The individual facts and particular circumstances are all important: the type of charge involved, the nature of the mis-statement, the extent of the rectification required, the scope of the evidential framework which may be effected, the length of the trial, the complexity of the issues, the time lapse between charge and recharge, and the possibility of jury confusion, are but some of the matters which immediately come to mind. Therefore, it is by no means to be assumed that all mis-directions of law can be and are more readily capable of being, corrected by way of recharge.

73. Regarding the specific matters of complaint on this ground of appeal, this Court’s decision thereon, given in the same sequence as above outlined (para. 68 supra), is as follows.

Out of Court Statements:

(i) The trial judge was quite correct in the manner in which he dealt with this issue: he was right to point out to the jury that out-of-court statements and evidence given at the previous trial, which were put to witnesses, were not to be regarded as evidence in the case before them, unless what was suggested was adopted by the relevant witness as his/her own evidence. As was concisely stated by the learned judge:

“Remember, what counsel says is not evidence. Their questions and answers are not evidence. What they read out to witnesses is not evidence. What is evidence is the answers given in the witness box”.

Right to Silence and the Question of Inferences:

(ii) The right to silence issue will be dealt with separately, as it constitutes Ground no. 4 of the appeal; as will be the direction given in relation to inferences, as this is Ground no. 6.

Stories in the Workplace:

(iii) Objection was taken in relation to the judge’s illustration of hearing two stories in the workplace, the first of which a juror might accept and the second of which, he might reject. The concern in this regard was that, given the sequence in which counsel addressed the jury, a juror might align the prosecution with the first person as mentioned and the defence with the second person. The D.P.P. readily accepted that this possibility should be addressed and that the Court should tell the jury that the sequence in which they were addressed by Counsel was of no importance, as the illustration was simply to suggest how a juror might find one person credible and another not so. On the recharge, this Court is satisfied beyond any doubt that the terms thereof corrected any possibility of the jury being misled or of taking the wrong impression from what was previously stated.

Corroboration:

(iv) This issue arises in two possible ways; the first of which relates to the complainant’s evidence and the second to the admissions of the appellant which are separately dealt with at para. 74 et seq.. With regard to the evidence of Ms. H., it is very difficult to understand what the objection is under this heading, as the trial judge exercised his discretion under s. 7 of the Criminal Law (Rape) (Amendment) Act 1990 and gave a corroboration warning in respect thereof. He explained what corroboration was and pointed to the admissions as being capable of amounting to corroboration, subject of course to the jury accepting the evidence in relation to such admissions. In fact the warning, which he gave on more than one occasion, could only be described as being both forceful and emphatic, as he indicated that without corroboration it would be dangerous to convict on the evidence of the complainant alone. Further and in the same context, he reiterated where the onus of proof lay and the standard of the imposed burden, which at all time rested on the prosecution.

Delay Warning:

(v) Understandable concern was expressed at the brief and general way in which the trial judge informed the jury of the inherent difficulties which an accused person faces, when having to defend himself against charges based on events and circumstances occurring many years ago. In his recharge however, these difficulties were more fully identified both at a general and at a specific level, with particular regard to the rather complex background to this case. In that redirection he corrected any shortcomings in the original charge and sufficiently contextualised the particular history, so that the jury, in a timely manner, was well appraised of such difficulties. The Court is therefore satisfied that there is nothing in this point and that the recharge complies with the principles stated in The People (D.P.P.) v. R.B. (Unreported, Court of Criminal Appeal, 12th February, 2003); The People (D.P.P.) v. L.G. [2003] 2 I.R. 517; and The People (D.P.P.) v. E.C. [2007] 1 IR 749.

Section 10 of the Criminal Procedure Act 1993:

74. As will be recalled, the effect of the judge’s ruling on the events surrounding the family confrontation, was that the evidence of “an admission” made by the accused could be led before the jury. As a result the provisions of s. 10 of the Criminal Procedure Act 1993 (“the Act of 1993”) might become relevant. That section reads as follows:

“(1) Where at a trial of a person on indictment evidence is given of a confession made by that person and that evidence is not corroborated, the judge shall advise the jury to have due regard to the absence of corroboration.

(2) It shall not be necessary for a judge to use any particular form of words under this section.”

75. There was however no mention or suggestion that it might apply, until the requisition stage of the trial, following the judge’s charge. On that occasion it was submitted on behalf of the accused that the section did in fact apply and therefore, given the absence of any corroboration relative to the admission, a mandatory warning under its provisions, was required.

76. On behalf of the D.P.P. this was disputed. It was submitted that the section was never intended to cover a situation such as that arising in this case. It was claimed that its enactment related to situations whereby, for example, a suspect in garda custody might make a confession to a garda, which confession subsequently became the sole evidence on which he was charged. That was not the situation here, where the recipients of the admission were members of the same family and could be regarded as persons of equal status with the accused. The trial judge accepted this submission and as a result did not make any reference to the section during the course of his recharge.

77. This point regarding the provisions of s. 10 of the Act of 1993, was not included in the grounds of appeal submitted in the notice of appeal dated the 18th June, 2010. It did not form any part of the written submissions filed by either party for the purpose of the instant appeal. It was however referred to in argument by counsel for the appellant and was responded to by counsel on behalf of the D.P.P.. It was only in that way that the issue was mentioned at all before this Court.

78. Given the fact that this issue did not form any ground of appeal, this Court does not consider it necessary to deal with the substantive point as to whether or not the provisions of s. 10 of the Act of 1993 apply in circumstances such as those arising in this case. If however the Court decided that the section did apply in such circumstances, which it does not, the Court would also be satisfied that the evidence of Mrs. M. and of Mrs. B., regarding the “admission” made by the accused during the course of the family confrontation, is sufficient, as a matter of law to constitute corroboration, it being a matter for the jury thereafter whether, as a matter of fact, it does so. That being so, the requirement of a mandatory warning as provided for by the section would not in such circumstances have arisen.

79. This ground of appeal must therefore be rejected.

Ground No. 4:
The Right to Silence:

80. The trial judge, in the context of explaining where the burden of proof rests, informed the jury that there was no obligation on an accused person to give evidence, and that he has an absolute right “to remain silent”, if he so wishes. The accused claims that the reference to “silence” could have been taken up by the jury as a reference to a suspect’s right, to this effect, when in garda custody and not what was intended. It was claimed that, given the then recent public debate about this right, which had taken place against the background of a substantial increase in organised crime and the legislative changes which followed, the reference may have misled the jury, who may not have fully appreciated what it referred to. In other words, they may have overlooked or misunderstood the import of the direction which was that an accused person does not have to give evidence and that nothing adverse can be taken from the exercise of his right, in not doing so.

81. The Court is entirely satisfied that such concerns are quite misplaced, and that on any fair or balanced reading of the transcript, when properly contextualised, it was abundantly evident what circumstances the judge was addressing.

82. Moreover, in the present context any distinction between the phrase, “the right to remain silent” and that of “the right not to give evidence”, may be more philosophical than practical. Some of the case law demonstrates that the use of either expression is interchangeable. In The People (D.P.P.) v. Lavery (Unreported, Court of Criminal Appeal, McGuinness J., 19th March, 2002), McGuinness J., at p. 2, referred to the terminology employed by the trial judge (at p. 61 of the transcript) in his charge to the jury: “[h]e can either give evidence or he may remain silent. If he remains silent he admits nothing”. This was used, without giving any concern for the safety of the conviction. Again, without adverse comment, similar phraseology was used in The People (D.P.P.) v. M.K. [2005] 3 IR 423 at p. 431 (McGuinness J.). Notable also is what Coonan & Foley state at p. 765 in The Judge’s Charge in Criminal Trials (Dublin, 2008):

“An accused may not wish to give evidence in court. This is, of course, a manifestation of his constitutionally protected right to silence.”

Therefore once the substance of the right is clearly and accurately put, the use of the impugned expression may be unobjectionable. Consequently, there is no substance to this ground of appeal.

Grounds Nos. 5 to 8:
The Cronin Type Warning:

83. As pointed out in para. 10 above, the judge, when ruling on the voir dire application said that if matters remained as they appeared to him at the time, he would have no difficulty in giving a Cronin type direction. It is claimed that this indication was influential in the defence strategy which was pursued throughout the trial. That strategy, what ultimately might prove favourable or disfavourable to the accused, involved disclosing aspects of the background to the jury which otherwise might not have emerged; with particular focus being placed on attacking the accuracy and reliability of the admission evidence, which, if found wanting as anticipated, would create great difficulty for the prosecution, in relating such evidence to the indictment.

84. In his charge, the trial judge did give a direction regarding inferences, but unfortunately it did not reflect adequately what is now required (para. 21 to 22 supra). He corrected this error in his recharge. However, despite further requests, he refused to expressly link it with the admission evidence. It is therefore said that he failed to honour what previously he had said and by so doing had fatally undermined the strategy, carefully worked out, upon which the accused person had decided to defend himself against these charges.

85. The rationale for giving a Byrne (para. 22 supra) and Cronin type direction to the jury is to explain how the benefit of the doubt should operate; in furtherance of the presumption of innocence on the one hand, and in light of the burden and standard of proof, on the other. The direction, when given, applies to and covers all available evidence from which inferences may be drawn. Once it is given in such a way that the jury understands its purpose and is clearly instructed as to its application, that will be sufficient. It is not necessary for the trial judge to identify each piece of evidence individually and in respect thereof to inform the jury repeatedly, of the principle. He may do so, but at least at the level of generality, such is not essential. Provided that it is explained fully, its application then becomes a jury matter.

86. The Court is satisfied that on the recharge the Cronin principle was fully and accurately outlined to the jury. In addition however the judge also in fact effectively particularised the direction in the manner sought by the defence, but albeit in a different context.

87. On a question being raised by the foreman, the judge specifically told the jury that in order to rely on the admission:

“You must be satisfied that the admission relates to the particular charge that you are relying on. If you have any difficulty in relation to this, then you must resolve it in favour of the accused. So, insofar as you are relying on an admission, you have to be satisfied on the basis of the evidence that you have heard. It is for you to resolve the evidence that relates to the charge that you are dealing with. If you cannot be satisfied in relation to that, then you must resolve it in favour of the accused”.

This direction was both correct and appropriate and had the effect in specific terms, of focusing the jury’s mind on having to align the admission evidence with the specific charges which they were then about to consider. Consequently, noting the completeness of the direction as ultimately given, this Court cannot accept this ground of appeal.

88. In conclusion, this application for leave to appeal, on all grounds, is dismissed.

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