D appealed against his conviction of indecently assaulting his young stepdaughter, on whose nightdress a small amount of seminal staining had been found. Giving evidence at trial he was asked by his counsel if he could think of any way in which semen might have found its way onto the nightdress, and he proffered an explanation. Since the appellant had not mentioned this explanation when questioned the trial judge gave the jury a section 34 direction.
Held: The judge was wrong to do so. When he was questioned both police and appellant were unaware of the staining. He could not reasonably have been expected to mention an explanation of a phenomenon of which he was unaware. ‘the wording of section 34(1)(a) refers to a failure ‘to mention any fact relied on in his defence’. At no stage in his defence did the appellant assert as a fact that the seminal staining was due to a visit by the complainant to the lavatory. He was asked whether he could think of any explanation as to how the staining came to be on the nightdress. His answer about the complainant’s visit to the lavatory was a proffered explanation but was not and could not be construed as a fact. It was more in the nature of a theory, a possibility or speculation. ‘
Judges:
Maurice Kay J
Citations:
[1998] EWCA Crim 238
Statutes:
Criminal Justice and Public Order Act 1994 34
Jurisdiction:
England and Wales
Cited by:
Cited – Regina v Webber HL 22-Jan-2004
The defendant complained that the judge had given a direction under s34 even though his counsel had only put matters to witnesses for the prosecution.
Held: A positive suggestion put to a witness by or on behalf of a defendant may amount to a . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 11 October 2022; Ref: scu.153112
