16 There was no objection at trial to the evidence concerning the applicant. It was, of course, disputed but it was not inadmissible. His Honour made no error by reason of s 114 or at all in admitting the evidence.
17 Ground 2 complains of what the applicant refers to as double jeopardy. In addition to the written submissions we have this morning received an elaboration which essentially advances the same things.
18 The applicant has extracted from reported judgments, statements relating to the doctrines of autrefois convict and autrefois acquit. He has also referred to s 23 of the Criminal Procedure Act 1986. The only part of that provision which is presently relevant is the affirmation of the entitlement of the Crown to insert alternative counts in an indictment.
19 That is what happened here. The elements to be proved in respect of counts 1 and 3 were not identical in all respects to those requiring proof in counts 2 and 4, nor were the elements of the alternative counts subsumed within the principal charges. The doctrines referred to have potential to operate only when the elements are the same.
20 The references to s163 of the Criminal Procedure Act and other sections are similarly misguided. There was only one indictment and, by definition, there were no further proceedings. It does not assist the argument to extract from dictionaries (as was submitted) various meanings of the word "further". What needs to be determined is what "further proceedings" means in the context of this statute. Verdicts on alternative counts in one indictment do not involve "further proceedings."
21 The applicant's submissions show a misunderstanding of the relevant principles and an attempt to misapply that misunderstanding. There is no merit in this ground.
22 Ground 3 asserts that the jury was misled. Submissions revert to complaint about the absence of an identification parade. As I have already discussed, there was no issue requiring identification of the applicant as a person engaged in the melee which left the Zikria brothers wounded, but the issue was what the applicant did. The jury were not misled.
23 Ground 4 refers to the directions given by the learned trial judge concerning the election of the applicant to remain silent at trial. His Honour directed the jury in these terms:
"Ladies and gentlemen, the other thing I want to say to you is this, that in this trial there has been reference to silence. You heard it said by Mr Amer and I think the Crown might have referred to it as well, the right to silence. Can I just say this to you, that in this case the accused exercised his right to silence in this courtroom. The accused in this courtroom pleaded not guilty and he said nothing else to you in this courtroom, but he has that right and ladies and gentlemen, the law is very clear, that you must not draw any adverse inference against the accused because he exercised his legal right to silence. You must not interpret that in some way as being an acknowledgment on his part of the Crown case or any part of the Crown case. It is not. You might be tempted to reason or argue well because he remained silent therefore he is guilty, but that would be quite wrong. Ladies and gentlemen, as a judge, you act only on the evidence, nothing else and as a judge, the fact that he exercised his right to silence means in this court, nothing more than he exercised his right to silence. It is a legal right. If you think about it there would be no point us having a legal right to silence if we cannot exercise it. But that is an important principle which you heard Mr Amer refer to again today and I repeat that for you.
Ladies and gentlemen, in the interview he could have again, when he spoke to police, he could have said, 'I want to say nothing', but indeed in that interview he made a statement. He gave the police officer a prepared statement which he had made and you have regard to that. That is part of the evidence which you now look at and you might think well, because he has given that statement, that might be the reason why he never gave evidence in this courtroom. You do not know. Or he might have received legal advice not to give evidence in the courtroom. You do not know. There are so many variables that you do not know about that as a judge all you can do is to say to yourself, well he exercised his right to silence. As a judge I draw no adverse inference against him. Ladies and gentlemen, I repeat that that is a very important principle."