O'Leary, R. v

A defendant cannot be criticised for failing to advance a defence in a private conversation, even where the conversation is monitored. However, statements made in that conversation are admissible if a jury could reasonably infer that they acknowledge an assault and are inconsistent with the defendant’s denial.

Relevant evidence of a defendant’s conduct shortly after an alleged offence may properly be left to the jury, particularly where the judge fairly identifies the competing explanations and cautions against placing undue weight on it. A summing-up is adequate where it fairly and fully places the defence case before the jury.

The applicant was convicted of murder at Norwich Crown Court and sentenced to life imprisonment with a minimum term of 13½ years. He renewed an application for permission to appeal against conviction after the single judge had refused permission.

The proposed appeal challenged rulings admitting a monitored conversation between the applicant and his son, and evidence of his belligerent conduct at a police station shortly after arrest. It also challenged the refusal to permit a paramedic to give expert-style opinion evidence, and alleged inadequacy in the summing-up on causation and the possibility that the deceased had fallen.

1. Permission to appeal was refused. The proposed appeal had no prospect of success. There was ample evidence capable of supporting the murder conviction, including admissions said to have been made to two independent witnesses.

2. The monitored conversation with the applicant’s son was properly admitted. The prosecution could not invite an adverse inference merely because the applicant had not stated his defence in that conversation. Nevertheless, the words he did use were capable of supporting an inference that he accepted having assaulted the deceased. That was material to the prosecution case and the inference was for the jury.

3. The judge’s directions on that conversation were fair. He distinguished an express confession from an inference that the conversation implied an admission of assault. The jury were properly directed to use the evidence only if sure that it amounted to such an admission.

4. The evidence of the applicant’s belligerent conduct at the police station was also capable of bearing, albeit to a limited extent, on his attitude shortly after the alleged attack. The trial judge was entitled to leave it to the jury after identifying the defence explanation and cautioning them not to place significant weight upon it.

5. The paramedic was not qualified to give expert opinion on whether the wider injuries were consistent with assault. His proposed evidence about one temple injury added nothing material, since the medical evidence already accepted that some injuries might have resulted from a fall. The causation issue was fairly and fully put to the jury in the summing-up.

• Court of Appeal (Criminal Division): renewed application for permission to appeal against conviction refused in [2013] EWCA Crim 1170.

• Crown Court: the applicant was convicted of murder before the Recorder of Norwich and sentenced to life imprisonment with a minimum term of 13½ years.