Appeal against indecent assault conviction dismissed; jury not misled on corroboration and delay issues.

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Mahon J.

No. 48/13

The People at the Suit of the Director of Public Prosecutions

Respondent

V

M.R.

Appellant

JUDGMENT of the Court delivered on the 6th day of February 2017 by

Mr. Justice Birmingham

1. On the 6th February, 2013, the appellant was convicted of four counts of indecent assault. The indictment on which he had stood

trial contained fifteen counts in all. Two counts of indecent assault in respect of each summer between 1975 and 1982, and one

count of rape alleged to have occurred in the summer of 1981 or 1982. He was convicted on counts of indecent assault relating to

the summers of 1980 and 1982 when the complainant was aged 12 years and 14 years. Subsequently, on the 25th February, 2013, he

was sentenced to eighteen months imprisonment in respect of each count relating to the summer of 1980 and to four years

imprisonment in respect of the summer of 1982 counts. All sentences were to run concurrently, with the final year suspended. This

judgment deals with the appeal against conviction.

2. The procedural history of the appeal is a somewhat complicated one. A notice of appeal with a number of grounds of appeal was

lodged on behalf of the appellant. These were directed to the argument that the conviction was perverse. Subsequently, a motion

was brought seeking liberty to have a further ground added, arising from the decision of the Supreme Court in The People (Director of

Public Prosecutions) v. Gormley [2014] 1 I.L.R.M. 377, notwithstanding that at trial the legality of the appellant’s detention had been

conceded.

3. On the 28th July, 2014, the appellant was admitted to bail by the Court of Criminal Appeal in circumstances where it appeared likely

that he would have served the sentences imposed on him before his appeal came on for hearing.

4. Following a change of legal team, submissions were delivered in substitution for those that had originally been filed.

5. The grounds of appeal advanced in written submissions were:

1. That the direction in relation to corroboration that was given by the trial judge was inadequate.

2. That the trial judge erred in telling the jury that proof beyond reasonable doubt was not proof beyond all reasonable

doubt.

3. That remarks made by the judge when dealing with the issue of delay were capable of being interpreted by a jury as

amounting to a comment on the failure of the appellant to call family witnesses.

4. That the judge had not made it clear to the jury that any consensual activity that occurred between the appellant and

the complainant after she reached the age of fifteen years was not an offence.

6. None of the matters sought to be raised now on appeal were raised at trial, and there were no requisitions in respect of any of

these matters. In these circumstances, counsel on behalf of the appellant, while not formally abandoning any of the grounds relied on

in the written submissions, has acknowledged that having regard to decisions such as The People (Director of Public Prosecutions) v.

Cronin (No. 2) [2006] 4 I.R. 329 he would face major difficulties in arguing grounds 2, 3 and 4, and so oral argument has been

confined to ground no. 1 relating to the manner in which the trial judge dealt with the issue of corroboration.

7. Grounds 2, 3 and 4 may be disposed of quickly.

Ground No. 2

The trial judge erred in law in instructing the jury that proof beyond reasonable doubt was not proof beyond all reasonable doubt.

8. This arose in circumstances where the judge when dealing with the standard of proof commented as follows:-

“Now, the prosecution’s responsibility, as I have briefly mentioned, is to prove the case if they are to satisfy you of the

accused’s guilt to that standard of proof known as proof beyond reasonable doubt. It is not proof beyond all reasonable

doubt. It is not proof beyond doubt. It is proof beyond reasonable doubt and you can see the first key there, to that

concept, is the use of the word reasonable. It is a doubt based upon human reaction. It is – the issue which you face is

whether or not the prosecution has proved a particular element of the case beyond reasonable doubt and you can

appreciate, ladies and gentlemen, that nothing can be proved beyond doubt. You can appreciate, ladies and gentlemen,

that are told, even in mathematics, there is no certainty. But I think we could say, for practical purposes, that there may

or may not be mathematical or scientific certainties, but that is not what you are concerned about here. You are

concerned about proof beyond a reasonable doubt. You cannot, in human affairs, reach what we call certainty in respect

of any aspect of decision making. So the prosecution must prove the case to that standard.”

9. This Court has to attach very considerable significance to the fact that there was no issue raised by way of requisition. Assuming

that the transcript is accurate, it is the case that although there were very experienced and able legal teams on both sides of the

court, nobody raised a requisition. In the Court’s view the failure to requisition on this point precludes the issue from being raised

now.

Ground No. 3

The trial judge erred when dealing with the issue of delay, in that remarks made by him could be interpreted by the jury as a

comment on the failure of the appellant to call family witnesses.

10. This arose in the following circumstances. The judge when dealing with delay commented as follows:-

“Now this particular case you have the antiquity. There is some degree to which some purchase can be obtained by the

defence on defending the case, because the allegations, at least, are limited to the summer holidays in August, that at

least arises. On the other hand that – and the position is that that is still a lengthy period and apart, altogether, from the

length of time which has passed. Equally, you can – without speculating, it is proper, I think, to infer that in a given case,

witnesses might, for example, not be available to the defence, who might reasonably be inferred to be of some assistance

to the defence. Now, you can see, as a matter of reasonable inference, that if an event was alleged to have occurred

last year when the hay was being cut, I might be able to bring in the farmer who I – the outside – who I was contracting

for. I might be able to pinpoint who I was working for. I might be able to say that summer I definitely milked no cows,

because I was working from 6.00 in the morning to 12.00 at night, it was a great summer and I was 10 miles away. So,

you can see one could – one is deprived of the opportunity of engaging with the evidence and potentially from being

witnesses. On the other hand, in this case, there are witnesses who are potentially available, that is to say the

siblings of both the accused and the complainant. So, to that extent, the potential difficulty may not be as grave

in this case.” (Court’s emphasis)

11. The appellant focuses on the highlighted portion of the charge and says that these remarks gave rise to a danger that the jury

might have believed there was some obligation on the appellant to call those witnesses who the judge pointed out were potentially

available.

12. In the view of the Court, even if there was no Cronin issue, this is not a ground of appeal that could succeed. The highlighted

extract does not take into account the fact that the judge went on to say:-

“… that it might well be, in principle, that witnesses might potentially be available, but the witnesses would equally, any potential

witnesses, be in a position where their evidence would be subject to the infirmity of age, might have been forgotten or might be more

limited than might be supposed, given the passage of time.”

13. The Court feels that the judge was merely dealing with the issue of delay and was doing so in an appropriate fashion, and there

was no question of the jury being led into error by believing that there was an obligation on the appellant to call available witnesses.

The Court is of the view that there is no substance in this ground of appeal and that it is a ground which must fail even if there were

no Cronin considerations.

Ground No. 4

The judge erred in law in failing to make it clear to the jury that any consensual activity between the appellant and complainant

after she reached the age of fifteen years was not an offence.

14. The appellant has focused on a particular passage which was as follows:-

“So what a jury have to do, when they are adjudicating on a particular offence, is decide obviously whether or not the

physical action constituted the offence took place but also you have to look at the issue of whether or not the accused

had the relevant or necessary state of mind, because both elements must be proved by the prosecution if the

prosecution is to prove the case beyond a reasonable doubt.”

15. The appellant says that it would not have been clear from this extract that consensual sexual activity between the appellant and

complainant after the complainant reached the age of fifteen years was not an offence. Once more, the Court is of the view that

even absent Cronin considerations this point is not one that would succeed. The appellant ignores the fact that the judge also

commented to the jury:-

“So, in the case of an indecent assault, obviously I, as an adult, or any one of you, could consent to being engaged in

touching of that kind, but a person under the age of 15 is incapable of giving a valid consent.”

16. The respondent says that the charge as a whole left the jury in no doubt that a person under fifteen years of age could not

consent to sexual activity but that a person over fifteen could and that in the case of a person over fifteen years of age, consensual

sexual activity which would have constituted an offence if the complainant was younger did not in fact amount to an offence. The

Court agrees with this assessment.

17. The real focus of attention in the course of the appeal has been on ground no. 1 which was couched in these terms:-

“The trial judge erred in law in failing to instruct the jury adequately or at all in relation to the issue of corroboration and

in particular erred in law and in fact in instructing them that the interviews with the appellant were capable of amounting

to corroboration without identifying which portions of the said interviews were so capable.”

18. In order to put this ground of appeal in context, it is necessary to say a little more about the background facts and the evidence

at trial.

Background

19. The appellant and complainant are uncle and niece. She was born on the 4th December, 1967, and he was born on the 23rd June,

1947. There is an age gap of approximately 20 years between them. The complainant was brought up in England, but travelled to

Ireland with her mother and siblings each summer in order to stay with her grandparents on their farm in Co. Tipperary. The appellant,

who is the brother of the complainant’s mother lived with his wife and family in another village nearby, but regularly carried out chores

on the farm.

20. The complainant’s evidence was that she was indecently assaulted by the appellant during the time that she holidayed on the

farm each summer from 1975, when she was seven years old, until 1982, when she was fourteen years old. Her evidence was that in

the summer of 1975, when she was seven or eight years of age, the appellant used to pinch her “on the outside of my clothes, what

would have been my breasts, even though I didn’t have any breasts at that stage”. She said that he also touched in that area

underneath her clothes. This happened regularly. Then, sometime later and before she was ten or eleven years old (prior to 1978 or

1979) he began to french kiss her. When she was eleven or twelve years old, the appellant started touching her on her vagina

outside her clothes (the summers of 1979 or 1980). Between the ages of twelve and thirteen (summer 1980 – 1981), he progressed

to touching her on her genital area underneath her clothes. This happened mostly on a tractor at a time when she and her siblings

were accompanying the appellant who was driving. While he was driving, he would put his hands under her top or touch her genitals

both inside and outside her clothing. On one occasion when she was either thirteen/fourteen (summer 1981/1982), the appellant got

her to touch his penis. The complainant said that the appellant also regularly touched her breast or put his hands inside her trousers

while they were in the cow shed, even though her brothers and sisters were there on some occasions. In evidence the complainant

also said that she had been raped by the appellant in the summer of 1981 or 1982.

21. During the course of the prosecution case, there was evidence from Garda Martina Kelly of arresting the appellant on the 11th

February, 2011, and interviewing him on three occasions in Borrisoleigh garda station. In the course of the first interview the appellant

denied the allegations for the most part, but admitted that he had touched the complainant’s genital area. He said that this had

occurred a few days after the death of his father. The appellant’s evidence at trial was that his father died in 1983. The date of his

father’s death was of some significance in the context of the trial.

22. The appellant told the gardaí that this incident occurred in circumstances where the complainant approached him while he was

reclaiming land and that she rubbed herself against him. He put his hand down and touched her genital area. He told the gardaí that

he had said to her that there were some 60 million people in England and asked her why was she coming on to him.

23. Evidence was given in relation to a second interview in the course of which the appellant said that he might have accidentally

touched the complainant’s breast while driving the tractor, or jokingly with his elbows. He would sometimes kiss her on the jaw. In the

course of a third interview that took place at 7.00 pm on the evening of the 11th February, the first interview had been at 10.45 am,

the appellant said that there had been a second occasion when he had touched the complainant in the genital area. This had been an

occasion when they were driving, and he had pulled in at an old creamery and put his hand on her genital area outside her clothing.

He said that he did not know how old she was at the time, and he agreed with gardaí that if the complainant said that he pushed her

underwear to the side then he had done so. He indicated that this creamery incident occurred after the first incident, the land

reclamation incident, and he said that his father was dead at the time of this second incident. He said he was attracted to the

complainant from when she was aged fourteen or fifteen and that she would often throw buckets of water at him, but other than that

there was nothing else happening. He was asked about rubbing against the complainant’s breasts in the milking parlour and said “I

would meet her face on and touch her breasts”. According to the memorandum of the interview, at that stage he demonstrated with

his hands how he did that outside her clothes.

24. The appellant said that it would happen in the evening, sometimes out in the fields where she was on her own with him, and he

would touch her under her clothes. He told the gardaí that he used to dread hearing that she and her family were coming on holidays

because he knew what was going to happen. He said that the first touching of the complainant was on the occasion when he had

made the comment about the fact that there were 60 million people in England.

25. The appellant gave evidence during the course of trial. In the course of his evidence, he said that he moved from the family farm

when he married at 26 years of age and that during the years 1976 to 1982 he was working in forestry, but would have helped out on

the family farm with certain jobs. After his father died in 1983, he sold his house and moved back to the farm. Thereafter he farmed

full time. He denied the allegations made by the complainant, but admitted touching her in the genital area once. This he said was

after his father’s death and after she approached him physically while he was doing reclamation work on the land. He rubbed his hand

along her leg and on to her vaginal area, but was disgusted with himself afterwards.

26. He admitted that there was a further and subsequent incident which was again after his father’s death, and he described driving

home with the complainant and pulling into a dilapidated creamery and rubbing her on her genital area. She said that they were going

too far and they left.

Corroboration

27. The evidence at trial closed late on a Friday afternoon. The trial judge then commented to counsel that the question arose as to

whether or not he should give a corroboration warning, and he wanted to hear first from prosecution counsel and then from defence

counsel in relation to that. Prosecution counsel responded “well, there is material in the interviews that I would suggest is – implicates

– depending on how it’s interpreted”. When the judge put further questions to the prosecution, counsel indicated that he would

welcome having the weekend to look at the issue. Defence counsel interjected “I think that’s reasonable, because I need, in fairness,

to look at the interviews to see if that’s right. It may well be right, as in it’s capable, i.e. a matter of fact”, to which the judge

responded “I think it probably is capable of being that”.

28. The judge and counsel returned to the issue on the Monday morning before speeches. The judge introduced the issue by saying

that he wanted to give both sides an opportunity to be heard because it seemed to him that obviously a number of the matters raised

in the interviews and answered by the accused were capable of constituting corroboration as the term is defined, but that the

question then was whether or not he should give a corroboration warning at all.

29. Prosecution counsel indicated that he had examined the matter and was of the view that there were matters in the interview

which had the capacity to be corroborative of the indecent assault counts, but so far as the rape count was concerned he did not

see that there was any corroboration. Prosecution counsel then brought the judge through what he saw as the relevant extracts from

the memoranda of interview. Defence counsel began by saying that obviously he agreed with his colleague in relation to the rape

count and that so far as the indecent assault counts were concerned, it seemed to him that a warning should be given in this case

and, in fairness, that it would have to be said to the jury that there were matters that were capable of being corroborative if a

certain view of certain answers given to the gardaí by his client was taken. He continued “now obviously, and it will be in my speech

and your Lordship I am sure will refer to it, the answers are capable of a different view as well”, to which the judge responded “yes,

that’s a matter for them”. The judge dealt with the issue of corroboration towards the end of his charge. Given the centrality of this

issue to the appeal, it is necessary to quote in full what he had to say. The judge told the jury:-

“Now, I told you that there were two issues of law which I was going to address in the light of that evidence. The first

pertains to the issue of corroboration. Now, I will tell you what corroboration is and I will tell you what its purpose is, if I

can read it, which I don’t know that I can. Now, corroboration has been described in our courts as evidence that confirms

– evidence that confirms: ‘a material’ – that’s a relevant part – ‘… of the witness’s evidence implicating the defendant in

the offence.’ So, what we’ve got here is, in terms of corroboration, when I say what we’ve got here, what I’ve got here

in the book as to the definition, is: ‘Evidence that confirms a material part of the witness’s evidence implicating the

defendant in the offence.’ So, in the present context, the definition, or at least the issue of corroboration, arises with

respect, obviously, to the complainant’s evidence, implicating the defendant in the offence, a material part, a relevant

part of her evidence and that’s what corroboration is. It’s, if you like, I could put it in a different way, other evidence

apart from her evidence. I suppose you could think of it, we’ll call it an extreme example, if someone was attacked, for

example, on the street and gave a version of events in the witness box, you could have an eyewitness who would be

independent of the person who was making the allegation or the complaint. That’s a pretty straightforward example. That

is what corroboration is. It’s evidence from a source other than the complainant, say in a sexual offence case,

independent, different evidence. Evidence other than her evidence, evidence that confirms a material part, a relevant

part of her evidence, implicating the defendant in the offence.

Now, what is it’s purpose? Its purpose is this, one of our judges has said: ‘There can be no doubt but that the entire

purpose of corroboration is to reassure a jury or court that potentially suspect evidence is both credible and reliable. Its

purpose is to reassure a jury or court that potentially suspect evidence is both credible and reliable’. So, you might have,

and I speak in principle, the evidence of a witness, which might be regarded as potentially suspect. Now, I don’t

necessarily, when I say potentially suspect, mean – I don’t necessarily say I mean evidence which has suspicion because

of bad faith or something like that. That might be only one reason why evidence might be potentially suspect. Another

reason would, for example, be poor memory or inaccuracy, but you might well be, or a jury might, in principle, be in a

situation, if I can put it that way to you, where the evidence might be potentially suspect in that sense and a jury would

not be satisfied beyond a reasonable doubt to accept the evidence of the – say the complainant in the sex case,

because of the potential suspicions about it. Corroboration then, if there is corroboration, it might, as it were, bring you a

further distance to a situation where a jury might be satisfied beyond a reasonable doubt. I hope that’s clear. I believe it

is.

So, I’ve told you what corroboration is. I’ve told you what its purpose is. Now, it is – any jury, even without

corroboration, is perfectly entitled to convict a person of, say, a sexual offence, on the basis of the complainant’s

evidence. That is to say, in this case, you are perfectly entitled to convict the accused if you see fit on his – on her

evidence and no more than that. However, if there is no corroboration, in deliberating on the matter, you must be

conscious that there is a danger about being convicted – about convicting. That doesn’t mean that there is a higher

standard of proof than proof beyond a reasonable doubt, it doesn’t mean that. But it means, as it were, before you could

reach that standard of proof beyond reasonable doubt, you would have to look at the evidence in the light of the danger

which arises, if there was no corroboration, alright? So, if you were to take the view that there was corroboration, then

of course that is a factor which you would take into account. But a jury, notwithstanding such danger, is entitled to

convict, but they must be aware, if you like, of that problem, because if they were not aware of that problem, a jury, in

principle, might as it were too easily or to quickly conclude that the standard of proof has been reached. So, the question

then arises whether or not there is evidence capable of being corroborative evidence in this case. A judge decides, as a

matter of law, whether particular evidence in the case is capable, as a matter of principle, of being corroborative

evidence, of being corroboration. The jury, however, decide, as a fact, whether or not there is actually evidence,

whether or not the evidence is or provides some corroboration. So, I don’t decide that. That’s a matter for you. I can

only say, as a matter of legal principle, there is evidence here which, legally speaking, you would be entitled to regard as

corroboration, but it would be a matter for you and of any jury, in given cases, to decide whether or not particular

evidence constitutes corroborative evidence, alright? Now, if there is corroborative evidence here, it arises from the

interviews and what the accused said in the interviews. Every syllable spoken in the interviews I don’t think you can say

was corroboration, obviously. An interview must be looked at as a whole. But even if you look at an interview as a whole,

there may be pieces where you could, if you like, you might disregard … for example, what is your name? I mean, no one

would suggest that that would really be relevant to an analysis of the – what was said to decide whether or not the

evidence amounted, as a fact, to corroboration, or some part of it. So, if there is, as a matter of principle, corroboration,

it lies there in what was said to the gardaí and you, by reading those documents, have to decide whether or not, and

taking all the circumstances into account, as you see fit, because what is relevant is what you think is relevant, you

decide, having focused in the context of corroboration of what is there said on that material.

Now, if you look at those, you will see that, in terms of the penetrative sex, the one charge of rape, there is nothing in

the interviews, apart from a denial of that, okay? So, as a matter of principle, legal principle, there isn’t anything capable

of being corroboration of the rape charge. If the documents which you will be reading, as a matter of principle, give rise

to corroboration, or you, as a fact, are going to conclude that they did constitute corroboration, maybe one answer

would, another mightn’t, maybe all of them, it would be a matter for you, you could only take the view that they

corroborated the indecent assaults, okay? So, there is a distinction between the two so that’s the position about

corroboration, okay?”

30. When the judge concluded his charge, there were no requisitions from either side in relation to the issue of corroboration. Indeed,

there were no requisitions from the defence side at all.

31. As stated, a notice of motion has been brought seeking leave to add further grounds of appeal on behalf of the appellant. In

particular, leave is sought to argue the following ground of appeal:-

“That the trial judge erred in law in failing to instruct the jury adequately or at all in relation to issue of corroboration and

in particular erred in law and in fact in instructing them that the interviews with the appellant were capable of amounting

to corroboration without identifying which portions of the said interviews were so capable.”

32. In the course of the appeal, it is being urged on behalf of the appellant that it is well established that a judge has an obligation to

highlight the specific items of evidence which are capable of amounting to corroboration. It is submitted that the appellant’s admission

of consensual sexual activity with the complainant when she was over the age of fifteen years was not capable in law of amounting

to corroboration of the complainant’s allegations of indecent assaults when she was younger. It is said that in these circumstances it

was particularly important that the trial judge should specify what portion of the interviews were capable of amounting to

corroboration. In the situation where the trial judge did not deal with this, there has to be a concern, it is said, that the jury may

have believed that admissions of consensual sexual activity with the complainant when she was fifteen years of age or older might

have served to corroborate allegations of earlier sexual activity. It is said that the point sought to be argued is one of fundamental

importance and that this issue at least is of such importance that the jurisprudence of the court would permit the arguments to be

made even though the issue was not raised at trial.

33. The manner in which the trial judge dealt with the issue of corroboration cannot be seen in isolation from the run of the trial.

When Mr. R. gave evidence, he was cross examined by counsel for the prosecution on the basis that he had chosen to admit to

activity which he was saying occurred at a time when the complainant was over fifteen years of age, when as a result such activity

was not criminal in character. The issue also featured in the closing speech of counsel for the prosecution. It had featured to some

extent during the course of the garda interviews, albeit that the gardaí seemed to have been operating on the basis that the

significant age was sixteen years rather than fifteen years.

34. It is clear then that when counsel were discussing with the judge the relevance of the memoranda of interviews, it was obvious

to all that the real question was whether the memorandum contained admissions of sexual activity at a time when the complainant

was under fifteen years of age.

35. When he came to deliver his closing speech to the jury, counsel for the prosecution referred to extracts from the memoranda.

When it was his turn to address the jury, counsel for the defence suggested that the remarks made by his client which were of

interest to the prosecution were in fact referring to activity that had occurred after the death of the father of the appellant and so

at a time when the complainant was over fifteen years of age.

36. Against that background it must have been apparent to all, including apparent to the jury, that the two incidents described by

the appellant in considerable detail to the gardaí, namely the reclaiming of the field/picking stones incident and the car at the

creamery incident, were both said to have occurred according to the appellant after the death of his father and so were not

significant from the perspective of the criminal law.

37. There remained limited and qualified admissions to contacts on other occasions. The prosecution contended that if the

memoranda were read as a whole, it was clear that these admissions related to an earlier point in time, a time before the complainant

was fifteen years of age. The defence were contending that the answers given were open to the interpretation that they referred to

a period in time after the complainant had turned fifteen years of age. The judge could have gone on to say that if they were

satisfied that the admissions of limited contact related to a time when the complainant was under fifteen years of age, and so related

to a period in respect of which charges had been proffered and were on the indictment, that was of evidential significance and was

capable of amounting to corroboration. If on the other hand the jury were not satisfied beyond reasonable doubt that the answers

related to the period before the complainant was fifteen years of age then the answers were not of evidential significance, were not

capable of amounting to corroboration, and so it was a case where there was no corroboration. While the judge might have said

something along those lines, and indeed it would have been preferable had he done so, nobody in court felt at the time that his failure

to do so was significant. It may be said that had the judge gone through the memoranda line by line and highlighted each occasion

when it was accepted that contact had, or might have, taken place and gone on to ask the jury to consider whether the appellant

was speaking of a time when the complainant was under fifteen or over fifteen years of age, that would not necessarily have been

helpful from the perspective of the defence.

38. The clear jurisprudence in this Court and its predecessor is that the court treats with caution situations where points are raised

on appeal which have not featured at trial. This is not because of any desire to, as it were impose a pleading discipline, but because

the fact that an issue was not raised at trial may indicate that points now said to be important were not thought to be important by

those who participated in the trial.

39. In this case the Court has been provided with an affidavit from junior counsel for the appellant, who is the counsel who took the

charge, about why he did not raise requisitions. He explains that he took the view that the judge’s charge dealt with the issue in the

manner that had been agreed between senior counsel and the trial judge. His senior counsel had dealt with the matter in his closing

speech on the basis that the answers given during the interviews were not corroborative of alleged wrongdoing because all answers

given dealt with events all of which occurred after the death of the appellant’s father and therefore after the period covered by the

indictment. However, in a situation where the principle that answers given in interview might be capable of amounting to

corroboration was accepted by the defence, in those circumstances, he had raised no requisitions on the issue.

40. The affidavit is a very measured and very responsible one, and lends support to the impression one has that the trial judge dealt

with the issue in the way envisaged, and indeed the way agreed, by all involved in the case.

41. This Court cannot conclude that the jury was confused or misled. Everything they had heard made clear to them that they were

concerned with establishing whether there had been untoward sexual activity at a time when the complainant was under fifteen years

of age. Nobody involved in the case was in any doubt about the fact that if the jury believed that Mr. R. had admitted that sexual

activity had occurred at a time when the complainant was under fifteen years of age, this offered support to the prosecution case.

Nobody who participated in this case, who heard the judge deliver his charge and who heard the evidence, including the evidence of

the accused and the closing speeches of both prosecution and defence counsel, felt that the jury might have been misled into

believing that admissions in relation to a period when the complainant was over fifteen years of age were of evidential significance or

amounted to corroboration.

42. In these circumstances, the Court is unable to conclude that the trial was unsatisfactory or that the verdict is unsafe. The Court

must therefore dismiss the appeal against conviction.