The Court of Criminal Appeal has set aside two sexual assault convictions and directed a retrial after finding that a prosecution comment about the accused’s failure to give evidence breached the law and was not adequately addressed in the trial judge’s directions to the jury.
The judgment, delivered by Macken J on 17 June 2010, concerned an application for leave to appeal against conviction by a person identified in the judgment as P. (P.) M. He had faced four charges. The jury acquitted him on the first two counts and convicted him by majority verdict on counts 3 and 4. In June 2008, he received sentences of 18 months, with the final six months suspended, on count 3, and 12 months, with the final nine months suspended, on count 4.
The convictions concerned allegations by two young sisters, identified as L.K. and S.K. The appeal court focused first on the applicant’s claim that prosecution counsel had improperly commented on his decision not to testify. The prosecution’s closing speech referred to the “best evidence” about a bedroom door as evidence from the accused, who had installed it. The door’s lock was a significant issue in the defence challenge to L.K.’s account of an alleged assault.
The court held that the comment was an indirect but pointed reference to the accused’s failure to give evidence on a material issue, contrary to section 1(b) of the Criminal Justice (Evidence) Act 1924. The court acknowledged that the comment came in the context of the defence having raised the door issue during cross-examination, but said that did not permit the prosecution to comment on the accused’s silence.
The trial judge repeatedly told the jury that the accused was not required to give evidence and that no inference could be drawn from his decision. The appeal court nevertheless found those directions did not sufficiently address the prosecution’s specific comment. It said the jury should have been directed to decide the door issue solely on the evidence presented and to disregard any consideration of what the accused might have said.
Because the comment could have affected the jury’s assessment of both complainants’ allegations, the court could not conclude that the verdicts were safe. It treated the application, insofar as it concerned this ground, as the appeal, set aside the convictions on counts 3 and 4 and directed a retrial. The court did not consider the remaining grounds, including a separate challenge about uncertainty over which alleged incident supported count 3. The judgment does not report the outcome of any retrial.