Court of Appeal dismisses rape conviction appeal, upholding jury verdict as safe and not perverse despite cross-examination damage.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

Record No: 28/2017

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

PO’D

Appellant

JUDGMENT of the Court delivered on 17th May 2018 by Mr. Justice Edwards.

Introduction

1. The appellant in this case was tried on 84 counts of rape against the complainant before the Central Criminal Court in a trial lasting

five days. On the 4th of November 2016 the appellant was convicted of rape contrary to s. 48 of the Offences against the Person

Act, 1861 and s. 2 of the Criminal Law (Rape) Act 1981, in respect of counts 5 to 65 on the indictment, by the unanimous verdict of

a jury. Verdicts of not guilty by direction of the trial judge were returned on counts no’s 1-4 and counts no’s 66-84.

2. On the 17th of January 2017, the appellant was sentenced to a term of imprisonment of ten years in respect of each count of rape

that he was convicted of, with the final year of each suspended. All sentences were to run concurrently and were ordered to run

from the 4th of November 2016, the date on which the appellant entered into custody.

3. The appellant now appeals against both the conviction and sentences. However, this judgment deals solely with the conviction

issue.

Background facts

4. The complainant was born on the 9th of March 1992. She is the appellant’s daughter and the eldest of her siblings. The family,

which is of traveller ethnicity, moved to County Cork in 2008, having spent several years living in various locations in England and

Wales. The alleged offences forming the subject matter of the present case were alleged to have taken place at various addresses in

Cork City and were said to have taken place when the complainant was between the ages of 16 and 17.

5. The primary evidence adduced on behalf of the prosecution at trial was the testimony of the complainant herself. Her evidence was

that on the 4th of March 2008, her family moved to an address in Cork City (“House A”). The complainant gave evidence that at first

the appellant (her father) had to take her mother around the city by car as she was unfamiliar with the city, but that after a certain

period of time, the complainant’s mother became self-sufficient and was able to carry out daily tasks such as the shopping without

the aid of the appellant.

6. The complainant gave evidence that the first time her mother went to do the shopping in the absence of the appellant, he ordered

the complainant into his bedroom, where he “tied my hands behind my back”, and she said “he spread my legs wide and then he

raped me. He put a pillow over my head which he used to do all of the time”. When it was over on this occasion he said “I’ve missed

this” and that “I won’t go without it any more”. The complainant stated that this initial incident lasted for about 15 minutes, and that

thereafter there were similar incidents on a nearly weekly basis, usually when her mother was out shopping on a Monday. The

complainant’s evidence was also that these incidents would occur “basically wherever he felt like he was going to do it, he’d do it”

and at times where his younger siblings would be present in the house but not actually present at the place of the incident. The

appellant would threaten the complainant that if she told anyone about the abuse that he would kill her or himself, and that “I’d never

see my sisters and brothers if I told anybody and that to this day it’s the truth, I don’t see them”. The complainant claimed that she

was not always raped in her parent’s bedroom, that sometimes it would occur in the bathroom, and that afterwards “he used to tell

me to go to the toilet in case I got pregnant”.

7. The family moved from House A in November of 2008 to another address in Cork City (“House B”). The complainant’s evidence was

that she was again raped at least weekly after they moved to House B when her mother would be out shopping, and daily indeed

during the very first week that they were there as her mother was out of the house every day during that period. The complainant

described one particular incident that occurred in or around January 2009, wherein the appellant raped her in the kitchen. The

complainant also gave evidence that there were also incidents involving sexual assault other than rape. She described how “[the

appellant] used to come up to my room nearly every single night, and be touching me whether I was pretending to be asleep or not.

It didn’t matter to him, he didn’t care and my little sister [N] used to be in the bed next to me”. The family later moved again in

December 2009 to another house (“House D”) on the same street as House A. [It emerged later in cross-examination of the

complainant that, due to a flooding incident, the family had also briefly lived during part of November 2009 in temporary

accommodation at a fourth location (“House C”).]

8. The complainant met her current partner (“LC”) on the 13th of June 2009. The evidence given throughout the trial was that initially

LC had presented himself as coming from another traveller family. The appellant’s evidence was that he initially did not mind the

complainant having a boyfriend so long as certain ground rules were obeyed with respect to curfew etc. However, relations soured

between LC and the complainant’s family when it was discovered that he did not come from a traveller family. This discovery, coupled

with the fact, as disclosed by the appellant in his evidence that LC was “keeping her out past her curfew and basically not bringing

her to the places that he was supposed to be bringing her and stuff like that” resulted in relations worsening significantly to the

extent that blows were exchanged between LC and the appellant.

9. The complainant’s evidence was that the alleged abuse continued for a time after she began going out with LC. The complainant

gave evidence that the abuse stopped about eight months before she left the family home as she used to run out of the house or

lock herself in her room. The complainant left the family home, at which time they were living in House D, on the 4th of April 2010.

10. The complainant was extensively and forensically cross-examined by counsel for the appellant and we will refer with some

particularity to this cross-examination later in this judgment.

11. On the 3rd of April 2010, the complainant made a complaint in respect of the above matters to Sergeant Clare Corcoran.

Subsequently, Garda Michael Dolan took a number of statements from the complainant over the course of 2010- on the 11th June,

12th June, 18th June and 19th October respectively. Thereafter, an investigation was launched into the complaints made by the

complainant against the appellant. Ultimately, on the 21st September 2011, the appellant was arrested at his house by Garda Dolan

on suspicion of rape.

12. Following his arrest he was taken to a Garda Station where he was detained pursuant to s.4 of the Criminal Justice Act 1984 for

the proper investigation of the offence(s) for which he had been arrested. The appellant was interviewed by Garda Dolan on three

occasions. In the first memo of interview, dated the 21st of September 2011, the appellant was asked about, and gave an account

of, various addresses that the family had lived at in the United Kingdom and Ireland, as well as a general family history. In the second

memo of interview, on the same date, the allegations against the appellant were put to him, to which he responded “none of it’s

true…I have no concrete evidence [about why the complainant made these allegations] but I believe it’s connected with her

boyfriend. I left her go out with him initially believing he was a member of the travelling community, but when I realised he wasn’t, I

did not let her go out with him”.

13. After successfully making an application to extend the period of detention, Garda Dolan conducted a third interview with the

appellant. After reading one of the statements of complaint by the complainant to the appellant, he denied the allegations, stating

that the complainant’s partner, LC, “has her brain- washed”.

14. The appellant was called by the defence to give evidence at trial. Again, he re-iterated his belief that it was LC who was behind

the allegations being made against him by the complainant. During cross-examination, the appellant stated that “[the complainant]

was the most loving, caring child and teenager until she met [LC]”.

15. Ultimately, the appellant was charged with 84 counts of rape on the complainant, was sent forward for trial and was convicted on

60 counts.

Grounds of Appeal

16. In the notice of appeal, dated the 12th of June 2017, the appellant appeals against his conviction on the following grounds:

a) the learned trial judge erred in law and in fact in his various rulings, including his charge to the jury, rendering the

verdict resulting from the trial unsafe and unsound

b) in answer to a request by the jury to have the evidence of the complainant read over to them the learned trial judge

caused the digital audio recording of the complainant’s evidence to be played rather than reading the evidence which had

an emotionally prejudicial effect on the jury.

c) the verdict was against the weight of the evidence and/or perverse, particularly in light of the obvious untruths told by

the complainant.

17. Whilst the notice of appeal contained the above three grounds, counsel for the appellant in their written submissions prepared for

this Court only addressed the final ground appearing in the notice of appeal. Moreover, only the final ground of appeal was argued at

the oral hearing.

Inconsistencies in the complainant’s evidence giving rise to the present appeal

18. During her cross-examination, the complainant was asked about her relationship with her boyfriend, LC. The following exchange

took place:

“Q. In terms of your boyfriend, LC, am I correct in thinking that he doesn't want you seeing your family?

A. Oh, he's never stopped me from seeing my family, never.

Q. All right. Would you say would he say he was a controlling individual?

A. Oh, he's not controlling, not one bit, he's not.

Q. Do you recall that did he ever strike you?

A. Hit me?

Q. Yes?

A. He did hit me, but not before we were living together and it was only when he was drunk, I'm not going to lie. I told

him straight out I'm not putting up with this life, I've had enough at home. He didn't do it again.

Q. Do you recall when you lost your mobile phone and you wanted to get another one? Do you recall that?

A. No, I don't recall that, sorry.

Q. And he didn't want you to get another mobile phone?

A. That's a complete lie because I've never lost my mobile phone.

Q. All right. Well, do you recall that as part of this case you signed a consent that the defence could look at various

documentation, including counselling documentation and that?

A. Yes, correct, yes.

Q. And do you recall telling your counsellor that

A. Are you on about after I left home?

Q. I'm talking about I'll get the exact reference for you, probably 2012 I think?

A. Okay.

Q. That when you lost your

A. I thought you meant when I was at home, I'm sorry, yes. I did actually lose my well, broke my mobile phone.

Q. All right?

A. And, yes, L didn't want me to get another mobile phone, but just for the sake of I was getting threatening messages

when I did have a mobile phone, but I had one within a week or two.

Q. Did you not did you not were you not concerned that he said no, I'll take anybody who wants to ring you I'll take the

messages, so you couldn't contact anybody. You were concerned about that and you were saying about him that he

was a controlling individual. Did you not say that to your counsellor?

A. You have to understand, this was at the start when my head was all over the place.”

19. Defence counsel then moved on to another line of cross-examination, but later on returned to the subject matter of whether LC

had been a controlling person:

Q. Ms O'D, when I spoke to you this morning … I suggested to you that, you know, your partner, LC was a controlling

influence on you and you disagreed with that?

A. I disagreed, yes.

Q. And I referred you to some counselling notes because you consented to those being disclosed?

A. Mm hmm.

Q. And I think in July of 2012, you attended a lady called SK; isn't that right?

A. Yes.

Q. And on the 6th of July 2012, she made a note of what you said to her?

A. Okay.

Q. And she said: "Spoke about her boyfriend and how controlling he is. When client lost her phone, he told her there was

no need for her to get a new one, that people could contact her on his phone. He tells her there's no need for her to

wear makeup. He does not want her going out, even to the cinemA. He was supposed to drive her to counselling this

morning but refused, saying she didn't need counselling."

A. That was just me being hot tempered saying that stuff. It's not true, he's not like that. I had a phone after a week.

Q. Okay?

A. It was actually his Dad and Mam that drove me to counselling that morning because me and L weren't getting on.

Q. And again on the 13th of July, you told Ms SK because she noted: "Client spoke about her relationship with L. Said he

has been lying to her from the start. Said he was a traveller and that his surname was O'S, not C. Found out many

things about his family that he never told her."

A. That's correct, yes.

Q. And on the 1st of August you told the same lady that you felt again speaking about your relationship with L, how you

felt you're losing all the things that make you who you are by being in the relationship, her friends, fun, courses, says

that engaging in these things leads to arguments which result in L beating client?

A. Which was correct, he wasn't well at the time.

Q. Okay, so he wasn't well, is that what you're saying?

A. Mm hmm, he had a lot of stress over my family.

Q. Then on the 12th of September which was a couple of weeks or a few day after the earlier thing about the phone:

"Said that she is getting a mobile phone today. Knows that he will drive away, then come back, pull her into the car and

hit her but feels it will be worth it."

A. Correct, yes.

Q. So, not only was he controlling but he was beating you?

A. He was, I never denied that he hit me, he did hit me, but that look that's four years ago. He haven't laid a finger on

me since.”

20. It was further suggested to the complainant that after she had moved out of home and had gone to live with LC at a town in Co

Cork she had been visited by her sisters D and S, but that this had made LC very unhappy, and that he wanted them to leave that

night. It was further put although they had stayed the night they had remained in a room by themselves and had been collected by

the complainant’s mother the next morning. The complainant denied that LC had been unhappy with the visit but agreed that they

had been collected on the following morning.

21. During her examination-in-chief, the complainant had been asked whether or not she was attending school at the time of the

alleged offences, to which she responded “Oh, no I weren’t left going to school. I had to stay at home and mind the kids, clean,

cook, basically be a housewife at my age”. Later in her examination-in-chief, she stated that she hadn’t been to school since she

was 13.

22. However, under-cross examination, the complainant did accept that she attended two educational institutions with her younger

sister (“D”) and had completed her junior certificate. She also confirmed that she had attended school on Mondays and that her

mother would not do the shopping until they were home from school. The complainant’s attendance at school was subsequently

confirmed by Des Cullinan, the director of Cork City Learning Support Services. Mr Cullinan was called to give evidence by the

prosecution. Mr Cullinan confirmed that both the complainant and her sister, D, had attended two different educational institutions,

stating in evidence that, having checked the relevant records, they had both finished in the first such institution in December 2008

and had begun in the second such institution in February 2009 and attended there until January 2010. He gave evidence that both

students had done well in their Junior Certificate and that, whilst there would have been unpermitted sick days whereby they would

have signed in in the morning and left during the day, attendance was not a significant problem for either girl.

23. D, when called by the defence to give evidence, confirmed that she and her sister had attended school until Junior Certificate.

She stated that they would attend the classes they liked but would otherwise sign in in the mornings and then head down the town

for the day.

24. D’s evidence contradicted the complainants in a number of other respects. D contradicted the complainant’s assertion that it was

only for the first while after the family moved into House A that the appellant used to drive his wife to do the shopping on a Monday.

D also contradicted the complainant’s evidence that her mother would always do the shopping, stating that, about four times a

month, herself and the complainant would do the shopping “because we were cheaper”.

25. The appellant in his evidence also stated that “My wife is quite capable of driving, but she didn't use to drive. It was myself that

used to do most of the driving”.

26. The complainant accepted under cross-examination that she used to attend school on Mondays, but contended that he mother

would not do the shopping until she and D had arrived home. There was then the following further exchanges:

Q. All right. And indeed your sister, D, will also say that when you moved to [House B], we'll just deal with that first,

when you moved to [House B] that you were only effectively across the road from the shopping centre?

A. Yes, correct, but she never used to do it in Dunnes. She used to drive out to Wilton to Tesco.

Q. All right?

A. That's where my Mam used to do the shopping.

Q. Okay. Well, let me just -- let me just say that D will tell the Court that, in fact, you and her used to do the shopping

in [the shopping centre near House B] because there was a kind of a suggestion that you could do the shopping more

cheaply when the two of you went than when your mother went to the shopping centre?

A. That is incorrect, because that wasn't in [the shopping centre near House B] Blackpool, that was [when they were in

House A] and it was at the start.

Q. All right. Well, that's what D will say in relation to [the shopping centre near House B] ?

A. Well, we actually never used to do the shopping in Dunnes, it used to be Tesco in Wilton.

Q. And that when you lived in [House A] that the shopping was always done in Wilton?

A. Mm hmm.

Q. And that your father used to drive your mother to Wilton to do the shopping?

A. At the start before she found her way around herself, yes, he used to drive her.

Q. Yes. Well, apparently she will say that she never drove to Wilton, that your Dad used to drive her all the time to

Wilton?

A. That's a complete lie.”

27. Further, the complainant in her direct evidence had stated that she was made to stay home and essentially carry out the

functions of a housewife. However, this was contradicted in the course of her cross-examination when she accepted that her father

had bought her a car shortly after her seventeenth birthday, that he had taxed the car and had insured her to drive it, that she used

to drive herself and D to school, that she and D had been inseparable at this time and that she regularly socialised around the city

with D.

28. D denied in her evidence that they were treated like house-slaves, saying that they were “left off in the evening as long as our

work was done”.

29. It was also established in the cross-examination of the complainant that, in her initial complaint to An Garda Síochána, she had

mentioned only two addresses as being locations in which she was abused. These were House B, and also House C, the latter of

which she had not mentioned in her evidence in chief. Her evidence was that she “completely forgot about that address”. Further, no

mention was made in her complaint to the Gardaí of House A, which was the subject of the first group of counts on the indictment.

This was confirmed by Sergeant Corcoran in the course of him being cross-examined. Consequently, it was indicated to the trial judge

at the end of day 2 of the hearing that counsel on both sides were agreed that counts 1-4 and counts 66-84 should be withdrawn

from the jury.

30. The complainant had also suggested in her direct evidence that she had not seen her family or siblings since making her complaint

to An Garda Siochána on the 3rd of April 2010, and that she missed them terribly. It was put to her in cross-examination, and

accepted by her, that it was not strictly correct to say that she had not seen them. She accepted that she had seen them just

under two months after her report to An Garda Siochána at the time of her sister’s wedding. She had in fact called to the house in

which her parents were staying at a location in Co Cork in order to see her sister, and that her whole family had been there including

the appellant. She agreed that she had left abruptly when she received a phonecall to say that LC had been in a car accident.

Appellant’s submissions

31. The appellant submits that the present case falls within the rubric of cases where an appellate court would be justified in

quashing a conviction as being perverse identified by MacMenamin J. in The People (Director of Public Prosecutions) v Tomkins [2012]

IECCA 82 (at para 21) as being those “where there are very serious doubts about the credibility of evidence which was central to

the charge, or where a guilty verdict, even by a properly instructed jury was against the weight of the evidence”. Counsel for the

appellant submits that such intervention is warranted in the present case in light of the particular circumstances of the case, namely;

the very serious doubts concerning the credibility of the complainant on whose evidence all counts on the indictment either stood or

fell; the weight of contradictory evidence adduced, and; the complete lack of corroboration in the case.

32. Counsel for the appellant also relies on the decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions)

v Quinn (Court of Criminal Appeal, ex tempore, 23rd March 1998). In that case the primary evidence against the appellant was

comprised of two inculpatory statements made by him while in Garda custody. In quashing the conviction the court noted various

internal inconsistencies within the statements themselves as well as those contained in the account of the complainant given in

evidence. O’Flaherty J, giving judgment for the court, stated:

“The Court does not pass any concluded judgment on that except to say that it has a residual jurisdiction to quash a conviction if it

is of the opinion that the conviction is unsafe, and we so conclude. We think the conviction was really reached against the weight of

the evidence which is something that this Court does not often pronounce on because weight of evidence is quintessentially a matter

for the jury. However, in this case having regard to the contradictions that emerge from the prosecutrix's evidence, as against the

totally unreliable nature of the confession documents, the Court concludes that this is a conviction that must not stand.”

33. In addition, the appellant relies on the decision of the Court of Criminal Appeal in the case of The People (Director of Public

Prosecutions) v Morrissey (Unreported, Court of Criminal Appeal, 10th July 1998), another case in which that court quashed

convictions as unsafe. The facts of that case involved allegations of sexual abuse within a domestic environment. The accused was

the partner of the complainant’s mother. The alleged conduct was said to have occurred when the complainant came home from

school and when she was going to bed. In quashing the convictions of the accused, the Court of Criminal Appeal noted a number of

inconsistencies in the evidence. The complainant’s evidence given in chief differed significantly from that elicited when she was under

cross examination. There were also inconsistencies between certain evidence of the complainant and that of her mother in relation to

the circumstances in which certain incidents of sexual assault were said to have occurred.

34. Counsel for the appellant urges this Court to provide the above principles to the present case in quashing the convictions of the

appellant.

Respondent’s submissions

35. In response, and in reliance on the Quinn case, counsel for the respondent has submitted that the assessment of what weight, if

any, ought to be attached to any particular evidence is “quintessentially” a matter for the jury. In the present case, counsel for the

respondent submits that this is precisely what occurred – the jury considered all of the evidence in the case, including that of the

appellant who was asked if he had ever raped or sexually assaulted the complainant, which he denied. Counsel for the respondent

points out that the jury were present for this and were in a position to assess and test the credibility of the appellant. Counsel for

the respondent also relies on the remarks of this Court in The People (Director of Public Prosecutions) v. JRM [2015] IECA 65, where it

was held (at para 48) that it is for the jury to assess the weaknesses or inconsistencies inherent in the prosecution’s evidence “and

make of it what they will, unless they state of the evidence is so infirm that no jury, properly directed, could convict upon it”.

36. Reliance is also placed by counsel for the respondent on the decision in The People (Director of Public Prosecutions) v. M

(unreported, Court of Criminal Appeal, 15th February 2001) where Denham J, giving judgment for the court, held that “inconsistencies

[in the complainant’s evidence] are matters which go to issues of reliability and credibility and thus, in the circumstances, are solely

matters for the jury”. Counsel for the respondent submits that, having regard to the evidence in its totality, the finding of the jury as

to the guilt of the appellant is safe and should not be quashed by this Court.

Discussion, Analysis and Decision

37. Ordinarily if there is a major doubt as to the quality of the evidence in a trial, to such an extent as to give rise to a concern that

a jury properly charged could not convict on it, one would expect to see an application for a direction.

38. We regard it as being of significance that there was no application for a direction in this case. Moreover, there were no significant

requisitions in relation to the trial judge’s charge. That this was the case suggests that there was a recognition on the part of the

defence that while inconsistencies and contradictions in the complainant’s evidence had certainly been established, these were only

in respect of peripheral issues; and that in respect of the central issue, i.e., whether the complainant’s evidence in respect of the

essentials of her complaints, namely that she had been repeatedly raped and sexually abused by the appellant, the complainant had

given her evidence that this had occurred, and had never resiled from it, and that a jury properly charged could potentially regard her

as reliable and credible and be satisfied beyond reasonable doubt as to the appellant’s guilt. If there had been an alternative view it

would have been incumbent on the defence legal team to apply for a direction based upon the second leg of the celebrated

statement of principle by Lord Lane in R v Galbraith (1981) 73 Cr App R 124; [1981] 1 W.L.R. 1039. However, the defence did not do

so.

39. Counsel for the appellant disputes that progress made in cross-examination related only to peripheral or collateral issues and has

stressed that the terms of the complaint were successfully challenged in several respects, and that a large tranche of counts had

been withdrawn by the prosecution on consent. While there might have been some residual case to answer at the close of the

prosecution’s case, when an application for a direction is normally made, his contention, in effect, is that once the appellant had gone

into the witness box and had given evidence in chief denying the charges and had been subjected to, and had withstood, cross-

examination from prosecuting counsel; and D and the other witnesses for the defence had given their evidence, the weight of the

case against conviction was in effect overwhelming so that any jury verdict other than one of acquittal could only be regarded as

perverse.

40. While we can readily accept that the evidential picture had altered somewhat after the close of the defence case, and that the

defence might well have been in a somewhat better position than they had been in at the close of the prosecution’s case, there was

nothing in criminal procedure that would have prevented an application for a direction even at that late stage if it was truly

considered that it was beyond argument that there was no case to answer. Despite this no direction was applied for.

41. In The People (Director of Public Prosecutions) v M [2015] IECA 65, there had been an application to the trial judge to withdraw

the case from the jury based upon the second leg of Lord Lane’s statements of principle in R v Galbraith. The trial judge refused that

application, the case went to the jury, and the jury convicted. This gave rise to an appeal to this Court in which it was alleged that

the trial judge’s ruling on the direction application had been erroneous, and/or that the verdict of the jury had been perverse. We

rejected both arguments. In doing so we stated:

“47. At the outset the Court wishes to address a misconception that it occasionally encounters, that the second limb of

Lord Lane’s celebrated statements of principle in R v Galbraith represents authority for the proposition that a case must

be withdrawn from the jury if the prosecution’s evidence contains inherent weaknesses, or is vague, or contains

significant inconsistencies. This Court wishes to emphasise that it is not authority for that proposition.

48. On the contrary, the emphasis in Galbraith is on the primacy of the jury in the criminal trial process as the sole

arbiter of issues of fact. What Lord Lane was in fact saying in Galbraith was that even if the prosecution’s evidence

contains inherent weaknesses, or is vague, or contains significant inconsistencies, it is for the jury to assess that

evidence and make of it what they will, unless the state of the evidence is so infirm that no jury, properly directed,

could convict upon it. Accordingly, what Galbraith is in fact concerned with is fairness.

49. Moreover, implicit in the Galbraith principles enunciated by Lord Lane, is that withdrawal of a case from a jury should

be an exceptional measure, to which resort should only be had for the purpose of avoiding a manifest risk of wrongful

conviction.

50. This Court considers that the matter is well put in the following quotation from Archbold, Criminal Pleading Evidence

& Practice 2014 at page 484, where the authors state:

‘In making the judgment in line with the second limb of Galbraith, as to whether the state of the evidence called by

the prosecution, taken as a whole, is so unsatisfactory, contradictory or so transparently unreliable, that no jury,

properly directed, could convict, the judge must bear in mind the constitutional primacy of the jury and not usurp

its function.’

51. Further, in The People (Director of Public Prosecutions) v M. (Unreported, Court of Criminal Appeal, 15th February,

2001) Denham J, as she then was, provided the following exegesis, with which we fully concur, concerning how the

Galbraith principles ought properly to be applied:

‘If there is no evidence that an element of the crime alleged has been committed, the situation would be clear.

The judge would have to stop the trial. However, that is not the case here. If a judge comes to the conclusion

that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict

it is his duty to stop the trial. However, that is not the case here. Here there is lengthy evidence from the

complainant in which there are some inconsistencies. These inconsistencies are matters which go to issues of

reliability and credibility and thus, in the circumstances, are solely matters for the jury. The learned trial judge

was therefore correct in letting the trial proceed. These are matters quintessentially for the jury to decide.

However, if the inconsistencies were such as to render it unfair to proceed with the trial then the judge in the

exercise of his or her discretion should stop the trial. However, that is not the situation here. On the facts and the

law the learned trial judge did not err in refusing to withdraw the count in respect of the sexual assault from the

jury at the conclusion of the prosecution case.’

52. Approaching matters in that way, this Court finds itself in agreement with the respondent that in the present case

the trial judge’s decision on the application for a direction was a legitimate exercise of his discretion, and one that was

made within jurisdiction. The mere fact that aspects of the complainant’s evidence might be characterised by some, as

counsel for the appellant sought to do, as ‘bizarre’ and ‘extraordinary’ and ‘outside of the norm’ did not render it unfair

that the jury should be asked to consider that evidence. Whether it was correct to so characterise it, or indeed to

characterise her overall account as being ‘in the realm of fantasy and not reality’, were quintessentially matters for the

jury. These were matters for consideration by the jury in assessing whether the prosecution evidence, and

complainant’s evidence in particular, could be regarded as credible and reliable. This Court asks rhetorically was there

any reason why it would be unfair to ask the jury to make that assessment? There was nothing in the evidence that

rendered it necessarily incapable of belief, or inherently unreliable. It was therefore proper that the jury were allowed to

consider that evidence. It was then a matter for the jury to determine whether it was in fact credible and whether they

could in fact rely upon it. However, this Court is satisfied that the trial judge was correct in the circumstances of the

case to allow the evidence to go to the jury. The state of the evidence was not such as to render it unfair to proceed

with the trial.

53. In regard to the suggestion that the verdict was perverse, the Court has already found that it was legitimate to

allow the jury to consider the evidence adduced up to the closure of the prosecution’s case, and there was no

unfairness in it. No further evidence was adduced, and there was nothing about the remainder of the trial to suggest

that any unfairness might have crept into the process. The matter was allowed to go to the jury on the basis that a

jury, properly directed, could potentially convict upon it. It was significant that the matter was allowed to go to the jury

on the express basis that the jury would be given a strong discretionary corroboration warning by the trial judge, which

was in fact given and in respect of which no complaint was made. It is difficult in the circumstances to understand how

it can be contended that the jury’s verdict was perverse.

54. It appears to be the case that the verdict is being characterised as perverse simply because the appellant disagrees

with the trial judge’s decision to allow the prosecution case to go to the jury. The fact that he disagrees with that

decision is neither here nor there. To secure a finding of perversity he would have to be in a position to persuade this

Court that no jury, properly directed, could have returned a guilty verdict on the evidence in this case. The Court is not

so persuaded for the reasons stated above upholding the trial judge’s decision to allow the case to go to the jury.”

42. We find a strong parallel in the present case to the circumstances that obtained in the M case. However, the appellant’s position

in the present case is even weaker. In M there was at least an objection to the evidence going to the jury. In this case there was

none.

43. We have considered the transcript in the present case, and have had close regard in particular to the cross-examination of the

complainant, and to the defence evidence. It is correct to say that the complainant gave her evidence as to the central issue and did

not resile from it, certainly insofar as the counts in respect of which convictions were recorded were concerned. That having been

said, significant progress was certainly made in cross-examination with respect to peripheral or collateral matters e.g., her relationship

with the boyfriend, the animus towards the boyfriend by the family, the complainant’s claim of being substantially denied the

opportunity to attend school, her claim of being essentially a domestic slave. Progress was also made with respect to some matters

that were not wholly peripheral or collateral. Some concessions were obtained which arguably narrowed the scope of opportunity for

the appellant as the alleged abuser. However, it did not eliminate it. It was also established in cross-examination that the boyfriend

had a motivation for an animus towards the appellant.

44. The concessions obtained were unquestionably valuable and significant in the context of the two pronged defence that was being

run. The first of these was to seek to damage the complainant’s credibility and reliability as a witness in the eyes of the jury. The

second was to seek to explain the making of the allegations in terms of the complainant being put up to it by her boyfriend, who was

a controlling individual with an animus against the appellant.

45. However, it seems to us that the issues raised, and very effectively raised, by the defence legal team, who appear to have

defended the case very competently, were quintessentially issues for a jury to resolve. Notwithstanding that considerable damage

was done to aspects of the testimony offered in chief by the prosecution’s main witness in the course of cross-examination, and that

there was a firm denial of the charges in the course of the defence case and the proffering of a possible explanation as to why

allegations of rape might have been fabricated, we do not consider that it would have been valid at any point to conclude that there

was no case to go to the jury. This was so even after the defence had gone into evidence. Although her account was ragged at the

edges, the complainant had stood her ground and remained unimpeached in relation to the essentials of her complaint and so

remained at least capable of being believed, and capable of being regarded as reliable, in that regard by a jury properly charged. It

was properly for the jury to determine if she was in fact credible, and if she was in fact reliable.

46. As it happened the jury seemingly did regard her evidence as being credible and reliable and they convicted the appellant. It

cannot be said that their verdict was perverse in circumstances where there was evidence on which the jury were entitled to act, if

they were prepared to accept it.

47. In all the circumstances of this case we are satisfied that the trial was satisfactory and the verdict was safe. We therefore

dismiss the appeal against conviction.