Court of Appeal allows rape conviction appeal due to significant dilution of delay warning by judge's comments.

THE COURT OF APPEAL Record Number: 259/18 Birmingham P. McCarthy J. Kennedy J.

BETWEEN/ THE DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

- AND - TG APPELLANT

JUDGMENT of the Court delivered on the 4th day of February 2020 by Ms. Justice Kennedy.

1. This is an appeal against conviction. On 16th May 2018, the appellant was found guilty of a count of rape. Verdicts of not guilty were returned in respect of two counts of sexual assault. The trial involved DW who was 15 years old at the time of the offence alleged, which related to the period 1st October 1983 to 1st July 1984.

Background

2. The circumstances of the alleged offence are as follows: DW was babysitting her nephews, the children of her older sister and the appellant. Having returned from work, the appellant summoned her to the marital bedroom on the pretext that he had something to show her. When she entered the room, he produced pornographic magazines from beneath the bed. The magazines contained very explicit images of sexual intimacy. He put her sitting on the bed and showed her the sexually explicit images. She recalls him asking her what she thought of the pictures. He then pushed her down on the bed and raped her.

3. The act was aggressive, painful and terrifying for her. She recalls his grunting and a contorted look on his face as he raped her. In the aftermath she felt wetness in her vagina area, but it was only later when she acquired more information about sexual matters that she realised that he must have ejaculated. The complainant was afraid to tell anyone what had happened because she thought that she had done something wrong.

4. A few years later, when the complainant was 18 or 19, she disclosed the rape to her mother, but her mother discouraged her from reporting due to her concern for the effect a complaint would have on her two young grandsons. Her complaint of rape was again discussed with her mother, her younger sister and her younger brother in the early 00's.

But again the complainant was dissuaded from reporting the matter to the authorities.

5. In 2003, the appellant’s younger son, TG, died by suicide and fifteen months later in October 2004, the complainant's brother died in the same way. In the years that followed, the complainant, DW suffered greatly with depression, anxiety and self-esteem issues. Her difficulties were such that she was hospitalised in 2013 and during the course of her treatment she disclosed to her treating psychiatrist that she had been sexually abused as a child by a family member but declined to name the perpetrator.

6. In early June 2014, DW attended a charity function in a hotel in the local area where she met a woman named SD and her husband. They were the maternal grandparents of the appellant’s grandchildren, the children of his son DG. The complainant was concerned that following a period of estrangement, that DG and his family were back in contact with the appellant and his wife and, having regard to her own experience with the appellant, she had concerns for the safety of his granddaughter. She told them that she had been raped by the appellant when she was 15.

7. Following this disclosure, the appellant caused a solicitor's letter to be sent to DW threatening her with defamation proceedings and other legal consequences of repeating her allegation of rape. DW received that letter on the 24th of June 2014 and three days later on the 27th of June 2014 she made a statement of complaint to the Gardaí. The appellant was arrested and retained for the investigation of the allegation of rape on the 25th of November 2014.

Grounds of appeal

8. In written submissions the appellant pursues a number of grounds relating to:-

(1) Delay

(2) Evidence of the complainant

(3) Evidence of the “wedding incident”

(4) Corroboration warning

(5) Jury deliberations

(6) Perverseness of the jury’s verdict

This judgment will focus on grounds (1), (3) and (4).

Delay and Missing Witnesses/Employment Records

9. The issue of delay was significant in this case given the passage of time between the offence and the formal complaint. Two issues arise on this aspect of the trial.

10. Firstly, the appellant submits that he has been denied the benefit of potential evidence due to delay. This evidence relates to two potential witnesses, NK and BG, with whom the complainant shared babysitting duties and who are now deceased and the employment records of the appellant and his wife which are no longer available. The appellant submits that the evidence of the two potential witnesses could have been helpful to the accused regarding the babysitting arrangements and it is submitted that the employment records of the appellant and his wife would have been critical to rebutting the complainant’s evidence about the time of day the incident occurred and why the appellant’s wife was not present.

11. The appellant submits that the paucity of “islands of facts” relating to the period upon which the complainant could be cross-examined serve to increase the risk of an unfair trial in the absence of evidence which would have previously been available to the appellant. In summary, it is argued that the delay in the case is inordinate and the absence of the two witnesses who shared babysitting duties coupled with the absence of employment records renders the trial inherently unfair.

12. Secondly, as regards the delay warning given by the trial judge; the appellant accepts that the warning was given in the terms of Haugh J. as approved in The People (DPP) v.

RB (Unreported, Court of Criminal Appeal, 12th February 2003) and takes no issue with the content of the direction given by the trial judge. However, the appellant submits that the trial judge’s comments which bookended the warning severely undermined the warning, and possibly erased its effect entirely. The comments preceding the warning are as follows:-

“We understand why children can't speak about abuse. There can be family reasons. It could be that they were abused by somebody who was close to them and who they loved but who was abusing them, that they didn't want to bring shame on the family or themselves. The courts finally understood came to the view that we now understand that people don't disclose and why they don't disclose and the pressures that might be on them not to disclose and so we ended we had no more of the psychiatrists and the psychologists coming in to explain to us why the disclosure had taken so long because, as a society and as a legal system, we understood that people have, for various reasons, have difficulty coming forward and making allegations of sexual abuse. But the problem of delay still is there. As I say here is somebody giving evidence to you about something that happened now

35 years ago, at the time of complaint 30 years ago. ”

The trial judge then proceeded to direct the jury as to the difficulties which may arise in cases where there is a delay in making a complaint of a sexual nature and following the warning, the trial judge said as follows:-

“Now, that was the warning given by Mr Justice Haugh. Now, while he gave the warning, part of his warning was due to the fact that in certain cases there's just a bare assertion that somebody sexually assaulted me or somebody raped me. In this case, whereas there isn't precision on date, there is a lot of detail. Mrs W has told you it happened on an occasion when she was babysitting, that Mr G was working in Odlums, that he came home and that he called her into the room and showed her – told her he had something to show her and he showed her pornographic magazines and following that he raped her. So, it isn’t just a bare assertion that oh by the way he raped me 30 years ago. There is detail and there is context in this case but I think nonetheless one does have to take into account that there is a significant delay in the case.”

13. It is contended on behalf of the appellant that these comments significantly undermined the warning, moreover that the comments made by the trial judge resulted in an inherent unfairness towards the appellant in that the trial judge failed to balance the comments regarding the detail given by the complainant and the absence of details when crossexamined. To this extent, Mr Naidoo refers to the complainant’s inability to recall the date, the time of year, or any other possible detail of relevance surrounding the allegations made.

Submissions of the respondent

14. The respondent submits that appellant’s submissions ignore the repeated assertions of the courts that delays of long periods are not necessarily fatal to a fair trial but ought to be assessed on a case by case basis and says that the claimed prejudice suffered by the appellant is not borne out on an analysis of the evidence. There is no suggestion that the complainant did not babysit for the appellant and it has never been contended that there were other witnesses present while the complainant was babysitting. It is extremely speculative to suggest that these witnesses may have been in a position to give any evidence of assistance at trial.

15. The respondent submits that the claim as to loss of employment records is also untenable given that the appellant accepted that the complainant babysat his children when she was around 15 years old. As such, it is submitted that no prejudice was suffered by the appellant as a result of the absence of the two witnesses and the employment records.

16. In relation to the judge’s charge, the respondent submits that the claims of the appellant are not borne out upon examination of the charge as a whole. The trial judge clearly highlighted the problems associated with delay and gave a warning in the form prescribed by Haugh J. in The People (DPP) v. RB (Unreported, Court of Criminal Appeal, 12th February 2003).

Discussion

17. We will firstly address the suggestion that by reason of the delay, coupled with the absence of witnesses and employment records, the trial was rendered inherently unfair.

18. A trial court has an inherent power to protect its processes from abuse and as stated in the well-known decision of The People (DPP) v. PO’C [2006] 3 I.R. 238:-

“…that this power includes a power to safeguard an accused person from oppression or prejudice.”

19. The Supreme Court went on to say as follows:-

“It must be stressed that whether such an application for judicial review is granted or not, and even if such an application results in a refusal to grant an injunction or prohibition, the trial court retains its inherent power to protect its process and to make such orders as are necessary during the course of the trial. This includes orders arising from evidence or issue relating to delay.”

20. There is no doubt in the instant case that the delay was a lengthy one, however, this, of course, does not in and of itself render a trial unfair. Each case rests on its own particular set of circumstances and a court must carefully consider the impact of delay and any issue of specific prejudice which it has claimed arises as a result of the delay. A trial judge must be on alert to ensure that there is not a real and serious risk of an unfair trial which cannot be avoided by directions in the charge. Central to an adjudication as to whether there is a real and serious risk of an unfair trial is a consideration of the issue of prejudice.

The missing witnesses

21. It is contended on behalf of the appellant that the death of the two witnesses who shared babysitting duties and the absence of the employment records of the appellant and his wife cause specific prejudice which cannot be rectified by the appropriate directions of the trial judge. It is well-settled that the type of specific prejudice with which a court is concerned is prejudice which would have bearing on the evidence in the trial, thus there must be specific engagement with the facts of the case.

22. There is no suggestion in the evidence that at the time of the rape offence that any adult was present in the house. There is no evidence to suggest in particular that either NK or BG were present. Moreover, on scrutinising the appellant’s interviews, there is no issue but that the complainant babysat for the appellant’s children. Moreover, there is no suggestion in the cross-examination of the complainant that the complainant did not babysit for his children.

23. Therefore, it is difficult to see how the unavailability of BG or NK might in some respect assist the defence. It is also noteworthy that EG gave evidence, EG was one of the people who babysat for the appellant’s children. The suggestion that either of the deceased witnesses could be of material assistance to the appellant is highly speculative and does not withstand even the most modest scrutiny of the evidence. In this respect, we refer to extracts from the appellant’s interview whilst in Garda custody as follows:

Q. “Who looked after the children?

A. A’s granny, NK, up until she died and A’s sisters, DW and M, and I looked after them a bit and there were out in Cushina a little bit too.”

The interview then continues;

Q. “When A’s sisters were babysitting, did they stay over?

A. M stayed a good few times, DW could have I’m not sure. M often did though on a regular, even years after. I wouldn’t like to say if DW did or didn’t because I’m not sure.”

Therefore, it can be seen that the appellant did not deny that DW babysat for his children nor did he indicate at any point in his interview that any other adult was present when DW babysat for his children.

Missing employment records

24. The appellant claims that the absence of his own and his wife’s work records for the relevant period caused him irreparable prejudice in mounting his defence to the allegations. His employment records, it is claimed, were critical in order to rebut the complainant’s evidence regarding the time of day of the incident and his wife’s records were of equal importance. It is contended that his wife’s records would have shown whether she was present and in effect if it was necessary for the complainant to babysit.

Conclusion

25. It seems to us that the evidential value of the deceased witnesses and the missing employment records was speculative indeed. One of the persons who babysat the children was available and gave evidence for the defence, there is no suggestion that the deceased witnesses would have been in a position to give evidence favourable to the defence, indeed there is no suggestion at all as to the evidence either witnesses could in fact have given. Moreover, it would have been necessary for the witnesses to give evidence that the complainant did not babysit the children at any time during the relevant period. If this evidence were given, it would have been contrary to the appellant’s own account in interview that not only did the complainant babysit for his children, but that she did so when she was 15 or 16 years old. The complainant’s direct evidence was that she was 15 years old at the time of the incident. The complainant did not give a specific date when the incident occurred and was only in a position to guess the time at around 5 or 6pm, therefore the value of the missing records is equally negligible, and particularly so, where the appellant accepted the presence of the complainant in his house when she was 15/16 years old. This was most certainly a case whereby the question of any potential prejudice as a result of the deceased witnesses could be addressed by the trial judge once the evidence in the trial closed.

The delay warning

26. The trial judge’s charge to the jury on the issue of delay was a detailed and lengthy one.

Having apprised the jury of the difficulties encountered by complainants in reporting cases of historic sexual abuse, she then proceeded to highlight an accused person’s right to a fair trial and said that whilst delay in reporting cases may be understandable, nonetheless difficulties can arise as a result of that delay. The trial judge then advised the jury of the difficulties that may be encountered in terms of RB.

27. In light of the judge’s remarks emphasising the difficulties faced by an accused and an accused’s right to a fair trial, we are not persuaded that the appellant’s complaints regarding this portion of the charge are made out.

28. In the aftermath of the warning, the judge advised the jury that the present case was not one which was lacking in detail. She then proceeded to highlight the various aspects of the evidence concerning the offence itself and having done so, then again reminded the jury that it was necessary to take into account that there was a significant delay.

29. The appellant contends that the warning given by the trial judge was undermined both by the words she uttered before and after the warning. Moreover, that in directing the jury on this issue, she failed to strike a balance by setting out the factors where there was no detail. While we do not agree that her remarks prior to the warning rendered it ineffective, we are concerned that her remarks after the warning undermined the impact of the warning and indeed possibly removed its impact altogether.

30. Whilst the warning given in this case drew extensively from the decision in The People (DPP) v. RB (Unreported, Court of Criminal Appeal, 12th February 2003), matters which arose in that case were not necessarily pertinent to the instant case. There is no requirement that the entire RB warning be repeated in every case, much depends on the circumstances and of course on the period of time which has elapsed. It is preferable that the warning be tailored to the needs of the case. The purpose of the warning is to emphasise for a jury the difficulties which can be encountered for a defendant due to the passage of time, whilst some of the difficulties will be generic, some will be unique to the particular case and care should be taken to appropriately identify the difficulties which arise on a case by case basis.

31. In our view, the judge’s comments following the warning diluted the effect of the warning.

She pointed to the detail as including the fact that the appellant worked in Odlums, that he came home, called the complainant into a room and showed her pornography and then raped her. In our opinion, the matters to which the trial judge referred as constituting detail and context related directly to the immediate circumstances of the offence itself and were quite limited and did not elevate the case to one beyond bare assertion, sufficient to lead to a contention that this was a case with detail and context. We say this in light of the fact that the offence occurred in the context of a familial relationship, where it was not in dispute that the complainant was in the appellant’s home babysitting his children at the relevant time. Given the relationship, she would have been aware of the appellant’s place of employment, she would have been in the house on a regular basis babysitting and so these factors did not lend detail to the offence.

32. We are satisfied that the comments of the trial judge, that is to say, that the rationale for aspects of the warning in RB was due to the fact of bare assertion, whereas in this case there was ‘a lot of detail’, was factually incorrect and served to undermine the warning. In those circumstances, we consider that the trial was unsatisfactory.

33. We will now consider the complaints regarding the corroboration warning and the evidence of the ‘wedding incident.’

The Refusal to give a Corroboration Warning

34. The trial judge refused to give a corroboration warning in the following terms:-

“That the whole introduction of corroboration and whatever is it can be unnecessarily confusing for a jury but I would contrast it with a case that occurred last night, for example, where you'd have independent evidence maybe of injury or forensic evidence or whatever.”

35. The appellant submits that the trial judge erred in failing to give a corroboration warning.

The appellant accepts that this was a matter entirely within the discretion of the trial judge, but it is submitted that a warning would have been appropriate given the circumstances of the case and in particular the delay between the allegations and the trial. The appellant refers to The People (DPP) v. Gentleman [2003] 4 IR 22 where the Court considered the adequacy of corroboration warning given. In so doing, the Court remarked that there were certain facts which made it unsurprising that a warning was given,:-

“This was quite obviously a case in which one would not be in the least surprised to find that a trial judge would consider it necessary to give a warning for three reasons: first of all there was no corroboration of the applicant's story; secondly, this happened some 22 years ago and time can do strange things to people's memories of events so long in the past; thirdly there was no complaint made at the time and while there may well have been reasons, assuming the complainant's version of events was true, as to why there was no complaint it is nevertheless a factor to be considered. These were all points to which the jury's attention had to be drawn once the trial judge had quite properly come to the conclusion that this was a case in which, clearly, a warning should be given.”

36. The appellant further submits that the reasoning of the trial judge in refusing to give a warning was that of jury confusion and such was deemed to be an insufficient reasoning in The People (DPP) v. Hanley [2018] IECA 173.

Submissions of the respondent

37. The respondent submits that the trial judge exercised her discretion in not giving a corroboration warning and concluded, as she was entitled to do on the basis of the evidence, that it would have been confusing for the jury.

38. The respondent also submits that The People (DPP) v. Hanley [2018] IECA 173, relied upon by the appellant, can be distinguished from the present case as Hanley manifestly required a corroboration warning, in accordance with the principles laid down in The People (DPP) v. JEM [2001] 4 IR 385. In Hanley, the complainant changed her evidence concerning ejaculation by the appellant between trial and re-trial and admitted she had done so having become aware that the SATU examination had found no traces of semen.

The respondent submits that in the present case there was no such infirmity which required a warning.

39. The respondent adverts to a number of authorities that emphasise the discretionary nature of the corroboration warning including, inter alia, The People (DPP) v. Garvey [2018] IECA 280 where this Court observed, at paras. 10-11:-

“…the issue of whether or not to give a corroboration warning is by statute a matter for the trial judge's discretion. It is made clear in the jurisprudence on this point that an appellate court should be slow to intervene with a decision and interfere only if the decision is made on an incorrect legal basis or was clearly wrong in fact.

In DPP v. KC [2016] IECA 155 Birmingham J stated: ‘The starting point for consideration of this issue is that the decision to issue a warning or not is a matter for the trial judge's discretion. The Court will be slow to intervene with the exercise of that discretion by a trial judge and a court will intervene only if it appears that the decision was made upon an incorrect legal basis or was clearly wrong in fact.’

Further, in DPP v. Ryan [2003] 3 I.R. 550 at 566, Geoghegan J stated:

‘as in the case of all discretionary orders, an appellate court may interfere if, on the facts of any particular case, a failure to give the warning was manifestly a wrong exercise of the discretion.’”

Discussion

40. Section 7 of the Criminal Law (Rape) (Amendment) Act, 1990 leaves the issue of a corroboration warning to the discretion of the trial judge who will decide on the evidence whether or not to give a warning.

41. In the present case the trial judge decided in her discretion, not to give the warning. This was a case where there was no corroboration of the complainant’s account and where at the conclusion of the evidence, the issue was raised, properly in our view, by counsel for the respondent. It is well established at this stage, that counsel should ventilate issues which may be of concern at the conclusion of the evidence and prior to counsels’ speeches and the judge’s charge.

42. When the matter was raised by counsel for the respondent, the judge indicated that she did not see that this was a case where she would be disposed to give a warning.

43. It is well-settled that this Court will not interfere with a trial judge’s discretion unless the exercise of that discretion is clearly and manifestly wrong. The respondent relies on the jurisprudence from this Court in support of its proposition that the trial judge did not err in declining to give a corroboration warning, in other words, the refusal to give a warning does not constitute a manifestly incorrect exercise of the discretion vested in the trial judge.

44. However, the central issue in our mind is not the actual decision taken by the trial judge but the manner in which she exercised her discretion and the reason for her refusal.

45. The trial judge indicated her disinclination to give a warning before either counsel had addressed the Court on the issue; thereafter counsel for the appellant immediately sought a corroboration warning, but it seems that both counsel for the appellant and the trial judge had been down this route in a previous trial and clearly both were very familiar with such applications. This may explain why the application was addressed in succinct terms by counsel and by the judge leading to the trial judge’s view that a corroboration warning can be unnecessarily confusing for a jury. Counsel for the respondent then emphasised that the matter was one within the discretion of the judge and sought to emphasise the role of the courts concerning the discretionary nature of the warning, highlighting issues such as the primacy of the trial judge’s position in observing witnesses. The judge confirmed that she was exercising her discretion as she had stated.

Conclusion

46. It is clear that the judge was disinclined to give a corroboration warning and in the circumstances of the present case, we can readily see why she was of this view. It is unfortunate, however, that the judge indicated her view prior to hearing counsel for the appellant. When counsel addressed the judge, he did so in succinct terms, no doubt as this was a well-trodden path for counsel for the appellant and for the trial judge.

However, it is preferable that a factual foundation for a corroboration warning be made apparent. In saying this, we are not suggesting that the application be unduly lengthy as this would not serve any legitimate purpose and this is all the more so where the trial is before a very experienced judge, however, some ground should be laid for the application.

47. The issue of whether to give the warning is one for a trial judge and this Court will only intervene if the decision is one which is wrong in fact or in law. Our concern in the present case is twofold; firstly, the peremptory nature of the judge’s response once the issue was raised and secondly, her reason for declining to give a warning on the basis that such can be unnecessarily confusing for a jury.

48. While the judge’s immediate response to counsel for the respondent simply raising the issue of corroboration was suboptimum, we are not persuaded that it amounts to an error. This was a case which involved an experienced judge and one who is very familiar with the issue of corroboration.

49. We now move to consider the criticism of the basis for the judge’s refusal to give the warning. In The People (DPP) v. Hanley [2018] IECA 173, this Court observed that the avoidance of complexity is desirable, but the giving of a warning need not necessarily introduce any greater layer of complexity into a case and it is not a compelling reason to refuse to give a warning. In The People (DPP) v. TOD [2017] IECA 160, this Court quashed the conviction for three reasons, one of which was the refusal to give a warning for the reason that the warning would only serve to confuse the jury.

50. An appellate court is reluctant to intervene where a trial judge has exercised his or her discretion on a particular basis as the trial judge is best placed to make decisions of that nature on the evidence at trial. However, in the present case, the refusal to give a corroboration warning by reason of confusing a jury is not one which commends itself to this Court.

51. This was a case where there was no corroboration, it was one of historic sexual abuse.

The fact that it is an old case does not in and of itself give rise to the need for a corroboration warning, there must be something more, some evidence suggestive of unreliability, such as an alteration in account of a significant nature, as in The People (DPP) v. Hanley [2018] IECA 173 where the evidential basis for a warning was strong.

This was not the position in the present case. The criticisms advanced of the treatment of the application for a warning, while not without substance, do not serve to oust the discretion of the trial judge. The state of the evidence was not such that it could be said that there was only one way in which the discretion could be exercised. Therefore, we are not persuaded that the complaints surrounding the application for a corroboration warning constitute an error of principle.

Evidence of the wedding incident

52. On day 2 of the trial, the respondent sought unsuccessfully to have evidence of an encounter between the complainant and the appellant at a wedding in 1996 adduced:-

“The night M got married he made a pass at me after the wedding was over. On my way back from the loo he said to me, ‘You're not getting through those doors until I get a feel of your breasts’. I said, ‘Open that fucking door or I will scream the place down’ so he opened it. He knew I meant business. I was an adult at this stage”

53. On day 5 of the trial, the respondent sought leave to re-examine the complainant on the wedding incident following the cross-examination of the complainant. This application was made in light of the suggestions made during cross-examination that the complainant had no problem spending time with the appellant throughout the years at various family gatherings and on holidays where she had sunbathed topless in his company.

54. The trial judge acceded to the application in the following terms:-

“Yes. Having regard to the nature of the cross examination and the repeated suggestions that the complainant was at all times at ease with the accused, contrary to her suggestion to the Gardaí that she always felt uneasy around him thereafter, and the treating of the evolving relationship or interpersonal reactions over the years and in particular the suggestion that she was comfortable enough in his company in, whenever the holiday was, in 2004 I think it was, was it, 2004/2005, to reveal intimate parts of herself to him makes evidence which the Court had originally ruled out now relevant in the context of the nature of the cross examination. So, I am going to allow it.”

Submissions of the appellant

55. The appellant submits that there is a significant contrast between the evidence of the complainant sunbathing topless in front of the appellant and the wedding incident. It is submitted that the sunbathing evidence was merely adduced to show that normal familial relations were extant during the period.

56. By contrast, the appellant submits that the wedding incident is quite clearly of a sexual nature and highly prejudicial and the trial judge erred in weighing the probative value of the evidence against its prejudicial nature.

57. It is further submitted that this evidence was not required as relevant background evidence, demonstrated bad character and did not come within the principles elaborated in The People (DPP) v. McNeill [2011] IESC 12 as to when background evidence may be introduced.

Submissions of the respondent

58. The respondent submits that it was never argued that the evidence was suggestive that the appellant was a person of bad character. Rather, the evidence demonstrated how the complainant’s attitude towards the appellant had evolved.

59. The respondent submits that it is well-settled that cross-examination may render evidence admissible on re-examination which would not have been admissible on direct examination.

60. The respondent refers to The People (DPP) v. S’OC [2017] IECA 23 where Birmingham J.

(as he then was) considered that a real unfairness would arise if the jury was deprived of wider contextual complaint evidence, at para 14:-

“It is clear that the judge felt that there would be a real unfairness if the jury was left with the false impression that there was no complaint until recent times. The nature of the cross examination brought the question of complaint centre stage and in those circumstances this Court cannot conclude that the judge exceeded his discretion when he permitted the jury to hear what the complainant had told her friend and the psychiatrist who was treating her. This ground of appeal therefore fails.”

61. Without prejudice to the foregoing, the respondent submits that the evidence was properly adduced in the context of the McNeill principles, applying the criteria of relevance and necessity.

Discussion

62. The respondent applied to the Court to introduce this on the basis of the crossexamination of the complainant. In the course of that cross-examination it was suggested to the complainant that she was not uneasy around the appellant and this was evidenced by a number of matters, including the fact that on holiday, in 2004/2005, the complainant sunbathed topless in his presence. The prosecution then sought to introduce this evidence of an incident at a family wedding in 1996. The trial judge was of the view that the inference to be drawn by the jury from that line of cross-examination was that the complainant was prepared to reveal herself intimately in front of the man she contended had raped her. The prosecution was anxious to introduce the evidence in order to contextualise an ever-evolving relationship between the parties and contended that the jury were entitled to have evidence before them in order to demonstrate the evolution in the attitude of the complainant towards the appellant from the time when she was 15 years of age and rebuffed the appellant by kneeing him in the groin to a mature woman of 27 years who verbally rebuffed an unsavoury and sordid approach.

63. The argument advanced on behalf of the respondent was that the behaviour of the appellant at the wedding was unsavoury but that its probative value outweighed its prejudicial effect. Moreover, that the incident did not amount to criminal wrongdoing, but that if it were so, the dual tests of relevance and necessity as in McNeill applied.

Conclusion on this issue

64. The trial judge had, in our view, properly excluded the evidence earlier in the trial.

However, the purpose of the introduction of the evidence, following cross-examination was to demonstrate the evolving maturity of the complainant in her attitude to the appellant. While we are not entirely convinced that it arose from the cross-examination of the complainant, it is the position that she was cross-examined extensively on her attitude to the appellant and so it seems to us that the issue was a very finely balanced one. Undoubtedly, the appellant would rather have avoided the introduction of such offensive comment attributed to him however, we are not persuaded that the introduction of the evidence rendered the trial unfair.

Decision

65. We are satisfied that the delay warning was significantly diluted by the judge’s comments concerning the presence of detail following the warning to the jury.

66. On that sole ground, we will allow the appeal and quash the conviction.

67. We do not find it necessary to address the balance of the grounds of appeal.