The applicant was a father of two children X and Y, the complainants in his case. The application centred largely around the trial judge’s directions to the jury, and the adequacy of these charges. In dismissing the application, the court quoted R v Reynolds [2019] EWCA Crim 2145:

Background

The applicant was convicted of four offences of rape in relation to X and one offence of sexual assault in relation to Y, which occurred when his son was between three and eight years old, and when his daughter was five years old.

Within the evidence there was reference to these events happening in various locations including the home, the cattle shed and the sheep shed, and at Granny B’s house. The child was reported to have said that it happened 70/80 times.

He was sentenced to a 14-year custodial sentence made up of seven years’ imprisonment and seven years on licence. He was also placed on the sex offenders’ register indefinitely and made the subject of a sexual offences prevention order.

The applicant denied that these events occurred. The defence case was presented in very simple terms, arguing that the mother encouraged and schooled the children to give false evidence.

Grounds of Appeal

1. That evidence given by the mother in respect of X’s behaviour and demeanour over a period of time should not have been admitted.

The argument made by the applicant in relation to this first ground of appeal related to the mother’s evidence that X was soiling himself at night before the allegations were made. The argument was that the judge should have given a clear direction to the jury that they ought not make any link between these two acts, and could not rely upon evidence of soiling in support of child X’s allegations.

The court found this to simply be background evidence unrelated to the allegations. The court was not convinced that this was prejudicial or that it would have distorted the view of the jury.

2. That the judge’s direction in relation to separate consideration of the complainants was inadequate.

It was argued that a separate specific direction was not given to the jury to warn them not to use one complainant’s evidence to support the allegations of the other. The court was more receptive to this ground, but noted that it was remarkable that collectively a non-direction now said to be so serious as to render the verdicts unsafe was missed.

The court quoted R v Adams [2019] EWCA Crim 1363 as good law, in saying that “everything depends on the facts of a particular case”. The court distinguished earlier case law in this area on multiple grounds, including the relationship of the complainants, the timeline of events, the independent medical evidence being relied on here, and that Y was a witness as well as a complainant.

The effect of any non-direction in this case was considered within the entirety of the judge’s charge. The court also noted that the jury was clearly capable of sorting one allegation from another, as they acquitted on a number of charges.

Ultimately, there was a valid legal argument to make in relation to the adequacy of the charge. However, this did not lead to any unease in terms of the safety of the conviction.

3. That there was no evidence to support the alternative count 9 in relation to child Y and the judge’s direction was inadequate in relation to that.

The court found that the judge offered proper and neutral direction and properly highlighted inconsistencies in Y’s account. Overall, the court could not see any material failing on the part of the judge.

4. That the judge’s direction was inadequate in relation to the mother’s evidence in that he did not state that that evidence is not independent.

This appeal focused on the fact that the judge directed the jury that a social worker’s evidence was not independent, but failed to raise similar points regarding the mother’s evidence.

The court found that the judge would have been better to give the same warning in relation to the independence of each source of evidence. However, the judge’s charge was neutral and there was no misdirection or risk of the jury getting a distorted view on the basis of what was put to them.

5. That there was an improper direction given by the judge to the jury regarding the standard of proof in relation to the defence medical expert.

This point focused on the charge given by the trial judge, alleging that he effectively reversed the burden in relation to the defence medical evidence by using the phrase that the jury had to be “sure.”

The court rejected this ground, although it did accept that the direction “may have been expressed clumsily”.

6. That the judge failed to give an adequate direction in relation to the dangers of contamination.

The reality in this case was that a contamination argument was never part and parcel of the defence case. Therefore, this ground of appeal was totally divorced from the reality of the case that was put before the court. There was held to be no merit in this ground of appeal.

Conclusion

Section 16 of the Criminal Appeal (Northern Ireland) Act 1980 provides that notice of application for appeal shall be given within 28 days of conviction; however, under section 16(2), the time may be extended at any time by the court. The principles governing extension of time are set out in the R v Brownlee, including where the interests of justice so require.

The court found no merit in most of the points raised, and did not have any sense of unease about the safety of this conviction. Leave to extend time was refused, and the appeal dismissed.

However, the court did warn that judges must be alive to the issues that may arise from potential cross admissibility when there are multiple complainants in sexual offence cases. If errors or omissions are apparent in the judge’s charge, counsel must exercise their right to requisition rather than wait until the end of the trial and then appeal.

This appeal “exposed a very unsatisfactory situation which we hope is not repeated given the potential effects upon the criminal justice system and upon public funds if convictions are quashed and cases have to be reconsidered years after conviction and sentence”.