Neutral Citation no. [2001] NICA 24	Ref:     	MCLF3396	
			
Judgment: approved by the Court for handing down	Delivered:	18.05.2001	
(subject to editorial corrections)			

IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

 ________ 

THE QUEEN

-v- 

JAMES GERARD O’NEILL

 ________ 

McLAUGHLIN J

	This case comes before the court by way of an application by James Gerard O’Neill (“the applicant”) for the grant of an extension of time for bringing an appeal against conviction.  He was convicted by a majority of 10:2 at Ballymena Crown Court on 31 January 1986 upon an indictment containing a single count of rape.  The learned trial judge sentenced the applicant to three years’ imprisonment.
	The alleged offence occurred on 14 February 1985 at the flat of KT (“the complainant”) in Ballymena, County Antrim.  The complainant was born on 21 November 1967 and so was just under 17 years 3 months old at the time of incident.  She lived alone in a second floor flat in a building in multiple occupation which contained as many as 12 apartments.  She was in receipt of social security benefits and had commenced occupation of the flat a short time before.  She was introduced to the applicant as a person who could supply her with furniture and estimates for furniture and carpets which she required in order to submit to the DHSS to obtain grants to furnish the flat.  He had been in her rooms on a previous occasion and had been expected to return on the day prior to the relevant events.  He had not arrived then but turned up at the flat on the day in question at about 4.30 or 5.00 pm.  When he arrived the complainant was being visited by Bernice Crowe, who had her baby with her.  After the arrival of the applicant there was a discussion for about 15 or 20 minutes about various aspects of the apartment and its furnishings.  Ms Crowe left the apartment shortly afterwards with her child in order to attend to it.  The applicant and the injured party discussed other aspects of the furnishings in the house and at some point they arrived in the bedroom and it was there that the alleged rape took place.  The precise sequence of events was not established with complete clarity, but the evidence of the injured party is that whilst in the bedroom the applicant made advances to her, began to open the buttons of her blouse and eventually held her down on to the bed where he systematically removed her clothing and raped her.  It was the injured party’s case that she struggled to resist the advances of the applicant and also screamed for help on occasions.  No one came to her assistance and the applicant left immediately afterwards.  
	The complainant stated in evidence that after these events Ms Crowe had returned to her flat and that a short time afterwards her boyfriend arrived.  He then took her to his mother so that she could explain to her what had happened.  It was a central part of the prosecution case that the injured party was a virgin at the time of the attack, had little knowledge of sexual matters and was an intensely religious person, as was her boyfriend.  She stated that they did not believe in sex before marriage.  It was for this reason presumably he took her to his mother so that she could explain the events to her.
	The applicant’s case was very different.  He was seen by the police later on the evening of the alleged rape and an interview with him commenced at 11.10 pm.  He denied that any rape or sexual intercourse had taken place but did say that in the course of his visit the complainant had put her arms around his neck and pushed herself up against him.  He denied that he had been in the bedroom of the flat at any time.  The interview was interrupted at 11.40 pm when he was seen by Dr McQuillan, the police surgeon.  The defendant indicated that he wished to speak to the doctor privately and in the course of their meeting he refused to undergo a medical examination.  The interview recommenced at 12.30 pm and he continued to deny that any intercourse had taken place.  There were no further interviews but he was seen during the course of the afternoon of 15 February to enable certain formalities to be completed and then sometime shortly afterwards when he was arrested formally.
	At the trial however the evidence of the applicant differed substantially from the account he had given to the police.  He said that he arrived at the flat by arrangement and when he entered it Bernice Crowe was present with her child.  He indicated that there was a light-hearted conversation between the complainant, Bernice and him during which he made out an estimate for a carpet.  After about half an hour Bernice left to attend to her baby saying “I’ll leave you two alone now”.  He said that he made to leave immediately and followed a few steps behind Bernice but that the complainant asked him to look at some damaged kitchen tiles before he left.  He agreed to do this but whilst in the kitchen she had ruffled his hair and then put her hand down round his neck, they kissed and ended up in the bedroom.  More kissing had taken place there and she had removed her lower clothes, loosened her bra and then lay down on the bed.  He alleged that she said she wanted him to make love to her and that he attempted to do so on three occasions, but failed to achieve penetration at any time.  He claimed that he had never removed any of his clothing simply opening the front of his trousers during these attempts.  His explanation for the failure to achieve intercourse included the suggestion “that she did not seem to be able to open her legs”.  He admitted attempting penetration on each occasion, but said that it did not take place.  Eventually he gave up and she apologised for the failure.  He then left the estimate with her and departed.  She left him to the door and was in a normal mood showing no signs of distress.  

Grounds of Appeal
	The appeal was advanced on behalf of the applicant on a broad front but the criticisms of the conviction were grounded in the main upon the contents of the charge of the learned trial judge, particularly in relation to the issue of corroboration, and of the unsatisfactory and unreliable nature of the evidence of the complainant.  There was also an attack on the veracity of one of the witnesses for the prosecution, Bernice Crowe, based on fresh evidence presented by the defence which the court gave leave to adduce.  We shall deal with this issue in due course.

The issue of corroboration
	The applicant alleges that the learned trial judge failed to give a proper direction on the need to seek corroboration and of the dangers of acting without it in a case of this kind.  It is not in dispute that at the time of the trial in 1986 the judge was required to warn the jury that it would be dangerous to convict the accused upon the uncorroborated evidence of the complainant.
	In fact the learned trial judge told the jury that whilst “it was not impossible to convict on the uncorroborated evidence of a complainant” that they should look for corroboration of her testimony.  At page 438 of the transcript it is recorded that the learned trial judge stated:
“Now the jury has to be told that whilst it is not impossible to convict on the uncorroborated evidence of a complainant that you should look for corroboration of her testimony and in this particular case it is my duty to point out to you anything that could be corroborative of the girl’s complaint in her testimony.”

	We are satisfied that what the judge was telling the jury was that they should not convict in this particular case unless they were satisfied that there was corroboration.  That direction was to the advantage of the defendant and if the judge had followed it up with a further direction that they could nevertheless convict, even if they did not find corroboration but that it would be dangerous to do so, then he would have diluted his charge to the prejudice of the accused.  The judge’s charge was not requisitioned on this point and we consider that this is further support for the fact that the trial proceeded on the basis that the judge was telling the jury that whilst it was possible to convict without corroboration that they should not do so in this case.  Had there been any uncertainty or ambiguity about what he was saying there can be little doubt that counsel for the prosecution or the defence, both of whom were senior counsel with wide experience of criminal matters, would have asked him to correct his charge by way of a requisition.
	In any event it is clear that the judge did warn of the dangers of accepting the evidence of the complainant and linked that to a reminder that false allegations were made on occasions.  He emphasised this point further by reference to the evidence of Detective Sergeant McMullan who had confirmed the existence of such a problem.  
	It was the duty of the learned trial judge also to set out for the jury what might be considered to be corroboration.  There were three main possibilities canvassed.
1.	The medical evidence.
2.	The fact that the accused told a radically different story in the witness box on oath from that which he had given to the police at the outset, ie. that he had lied to the police and/or in the witness box.
3.	The state of distress of the injured party when seen by Bernice Crowe who had been with her prior to the events and who had returned to her flat some short time after the alleged attack took place.
	The first and second of the matters which were capable of constituting corroboration could be assessed to be in favour of either the prosecution or the defence, depending on the view taken by the jury.  The third point was not advanced by the learned trial judge as being potential corroboration merely as something which they could keep in mind.  This was important because Dr McQuillan had said that her physical and emotional state at the time of his examination was consistent with her allegations and contrasted with the applicant’s assertions that she was normal when he left the flat as nothing untoward had occurred.
	The learned trial judge then proceeded to deal with other matters but at page 494 of the transcript he posed for the jury the question.
“.. Is there any corroboration of these allegations?”

He answered it by referring to the first two matters only he then reviewed the medical evidence again, he pointed out that the injuries were consistent with consensual sexual activity as well as the complainant’s account and he left the matter squarely for determination by the jury.  
	In dealing with how they should approach any alleged lies told by the accused he gave a detailed direction which was in accordance with the practice set out in R –v- Lucas [1981] QB 720.  He pointed out how it might or might not constitute corroboration when a person told lies and warned them that there were many circumstances which might induce a person to tell lies which would be consistent with innocence.  We are satisfied that the charge was beyond reproach in respect of these issues.  No criticism was made of the charge in this respect.  We are satisfied also that the charge was more favourable to the accused than the standard direction required at the time.  Ironically, had the learned trial judge given the standard direction the accused would have a less favourable summing up and the judge would not have been faced with the criticisms now made of him.

The treatment of the medical evidence
	The applicant has complained that the learned trial judge gave an unfair and misleading direction on the medical evidence in the case.  Specifically it was alleged that he directed the jury that the Crown case was that the complainant had an intact hymen before the alleged attack which was ruptured by the applicant during the attack and that Dr Catar had found her to be in that condition ten weeks later.  This appears to be a fundamental misreading of the charge of the learned trial judge.  The complaint made by the applicant as set out in the skeleton argument, relates to the contents of page 492 of the transcript and the passage in question reads as follows:
“If you are in doubt that there was penetration, if you are in doubt whether the girl’s account is correct, you would be entitled in law to bring in a verdict of attempted rape.  But I have at the same time to indicate to you, members of the jury, that on the run of this case the Crown have really been saying at all times that here was a girl who was a virgin, that here was a girl with an intact hymen, that after the event her hymen was ruptured and that she was in the condition found by Dr Catar ten weeks later and therefore there is no issue about an attempt that failed, that this was rape and nothing else.

So that technically if you accepted the accused’s evidence, namely the attempted rape, or rather the attempted intercourse I should say, but accepted the girl’s view that there was no consent then you could technically convict him of attempted rape.”

	At that point of the charge the learned trial judge was dealing with a possibility that the jury might return an alternative verdict of attempted rape.  This possibility had been canvassed in the course of the trial.  It is plain also from a reading of the charge from the final paragraph of page 490 to the end of page 492 that the passage complained of appears in the midst of the learned trial judge setting out for the jury the basic propositions relied upon by the Crown and that he had interrupted that summary in order to mention the possibility of the alternative verdict.  Dr Catar had been brought in to examine the plaintiff by the police with a view to attempting to establish whether or not she was a virgin at the time of the attack and had made it clear in the course of his evidence that he could not express an opinion about that, which is hardly surprising given the interval of time which had elapsed from the date of alleged attack.  The judge was not saying that the evidence of Dr Catar supported the proposition that she had an intact hymen ten weeks before his examination at the time of the attack.  
It was suggested further by the applicant that the learned trial judge had mistakenly identified the evidence of Dr Catar as being corroboration of the applicant’s complaint.  We are satisfied again that this is quite wrong.  The applicant relied upon passages at pages 484 and 490 of the transcript, which as indicated earlier was his summary of the Crown case.  He did not suggest that there was corroboration to be found in this evidence and merely stated that it was consistent with the propositions being advanced by the Crown.

The alleged fragility of the complainant’s evidence
	The first three grounds of appeal dealt essentially with the allegedly fragile and equivocal nature of the evidence given by the applicant and the evidence of other witnesses which might have been expected to give positive support to her case, such as the medical evidence.  Ground 1 alleged that the conviction was against the weight of the evidence as her evidence was “inconsistent and vacillating” it was alleged that her account of events which took place in the bedroom where the alleged rape was committed were incapable of belief.  Strong emphasis was laid upon the way in which the complainant described how the applicant had managed to remove her clothing which had not resulted in any damage.  She had alleged that her blouse and trousers were opened and then pulled off by the assailant, but that no damage had occurred.  She did suggest in evidence that some damage had been caused to her tights but these were never produced as she had thrown them away and in consequence there was no exhibit before the court indicating damage to clothing of any kind.  There was a demonstration carried out in court during which some of the complainant’s clothing was shown to the jury and in the course of it defence counsel damaged the zip (unintentionally) and this was relied upon as showing how easily the clothing might have been damaged if the complainant’s evidence was correct. In her evidence however she had not claimed that force had been used to remove her clothing so as to cause damage.  All of these matters were enquired into exhaustively in the course of cross-examination, this was repeated in the course of the closing speeches and the learned trial judge dealt with the subject matter of the complaints.  They were clearly matters which it fell to the jury to assess to decide how much, if any, weight to give to them.  It is difficult to imagine a clearer case where a jury was in a better position to assess all of these matters than an appellate court.  We are satisfied that these matters were ventilated in full and that the jury decided how these portions of evidence should impact upon their verdict in a fully informed manner and we reject these grounds of appeal as being without substance.
	It was further submitted that far from supporting the case of the complainant the medical evidence went to support the applicant’s case.  Particular emphasis was placed upon the portions of the evidence of Dr McQuillan and Dr Allen which related to the likelihood of bleeding occurring from the rupture of the hymen of a virgin.  Dr Allen was cross-examined at length about this and agreed in the event that it was ‘reasonably probable’ that bleeding would result from the rupture of the hymen.  It is a necessary inference from that evidence that bleeding might not occur in certain circumstances.  The evidence of Dr McQuillan was to the effect that if there was no bleeding, and he did not find any evidence of such at his examination, then it was the case that the hymen was not rupture that day (ie. of the attack).  The defence relied upon this evidence as showing that the assertion by the complainant that she was a virgin was untrue and that she had previous sexual experience.  On the other hand the evidence was not conclusive.  As indicated already the evidence of Dr Allen carried the inference that bleeding might not result in certain circumstances and the evidence of Dr McQuillan was predicated on the basis that the hymen was intact at the date of the attack.  There might have been circumstances where the hymen was not intact for reasons other than previous intercourse.  Even if there was a conflict or variation in their evidence, these witnesses were presented as being in the category of expert witnesses.  The jury was at liberty to assess their evidence and where there was a conflict or difference between the experts it could accept or reject such evidence as it thought appropriate.  It is not a reason to upset a verdict merely because the jury has preferred the evidence of one expert to that of another.  That is part and parcel of the trial process.  

The effect of the fresh evidence
	An application was made by counsel to this court to receive evidence not adduced at the trial on the grounds that it would be in the interests of justice to do so.  The application was granted.  An affidavit was filed of evidence of Mr Hugh McClelland who from 1979 until 1987 was a Director of a firm known as Associated Special Investigators.  The firm carried out security and investigative work.  In the affidavit he averred, and subsequently confirmed on oath before the court, that in 1986 about 6 or 8 weeks after the conviction of Gerard O’Neill he had been contacted by Rose Mulholland, his sister, to conduct some investigations in relation to Bernice Crowe as it was felt that she had given false evidence on behalf of the complainant.  He went with Rose Mulholland to interview Bernice Crowe at her flat and the meeting lasted about 45 minutes.  The question of an appeal being brought on behalf of the applicant was discussed and he said that her response was that it didn’t matter because the 28 days for his appeal was up.  He considered that she appeared nervous and she stated at the meeting that she had told the applicant that the complainant fancied him during the time they had been together in the apartment immediately before the alleged rape.  He confirmed that she had added this had been intended as a joke, but agreed that she had not conveyed that necessarily to the applicant.  She had told them that there was a jokey, friendly atmosphere in the flat when they were all present together.  When asked about the truthfulness of her police statement she replied allegedly that she would have to think about that and would speak to her brother.  She was then asked about the claim in her original police statement that the flat “had been wrecked” (the evidence of the police officer and those first on the scene having been that the flat was tidy and appeared undisturbed.)  He alleged that Bernice replied that the complainant had told her that.  
	Bernice Crowe was made available for cross-examination on the basis of the fresh evidence.  She said that she had been unaware that Mr McClelland was a private investigator but she realised that they had come to see her about the case.  There had been no prior arrangement to meet so they had arrived without an appointment.  She was aware from the conversation that there was concern about the conviction and thought they were going to appeal.  She denied that when asked about the truthfulness of her police statement by Mr McClelland she had said that she would have to think about it and speak to her brother.  She also denied if she had been asked whether the complainant had ever told her that her flat had been wrecked and she denied this.  She did not recall a discussion with Mr McClelland about this topic.  When asked if the atmosphere was jokey or friendly she replied that it was ‘all right’.  She denied that she had told the applicant that the complainant fancied him.  And denied that the she told Mr McClelland that she had said it.  
	From the cross-examination of Mr McClelland by counsel for the Crown it became clear that he was a very experienced investigator and had provided evidence in court on many occasions during the course of his career.  No record of this meeting was ever produced, but he did indicate that he had opened a file shortly afterwards, but that all of these records were now lost since the business had closed down so long ago.  He confirmed in evidence, as he had stated in his affidavit, that he had been approached only very recently to give his recollections of the details of the meeting with Bernice Crowe.  He admitted that he had some difficulty in remembering all that was said but was quite sure that these topics were discussed and that his recollection of the responses of Bernice were accurate.  We are satisfied that Mr McClelland tried to give his very best recollection in what were clearly difficult circumstances.  The meeting which he was attempting to recollect took place some 15 years before and he was handicapped by the lack of any memorandum or note of the meeting.  Even if we take his evidence at its height, we fail to see how it could have had any material bearing on the outcome of the deliberations of the jury.  That Bernice might have told the applicant that the complainant fancied him in the course of a light-hearted or jokey conversation did not mean that the complainant did so, or that if she did that she behaved in a seductive manner towards the applicant.  To have said that she wanted to discuss with her brother what she had said in her police statement should not be surprising given that the sister of the complainant and an unknown man had arrived unannounced at her door and had begun to quiz her about what she had said at the trial.  Finally, the suggestion that the complainant had said that her flat “had been wrecked” is a bizarre one.  If she had said that to Bernice it would have made little sense.  Bernice was the first person to meet the complainant after the alleged rape and did so within a very short time after it was supposed to have occurred.  he was the first to enter the flat and the complainants own boyfriend arrived soon afterwards.  When the police arrived the flat was found to be in an orderly condition.  Having regard to the elapse of some 15 years between the date of the conversation and giving evidence we reject the suggestion that Bernice Crowe had then stated the complainant had made this remark.  
	In all the circumstances we conclude that the fresh evidence, if heard at the trial, would have had no material effect on the outcome.  

Lurking doubt
	The applicant submitted that we should consider that there was a lurking doubt in this case and, in reliance upon the principles set out in the case of R –v- Cooper (1969) 53 Crim App Rep 82, that we should quash the decision as being unsafe.  The argument on this point was in essence a repetition of the matters set out in the skeleton argument a substantial portion of which refers to the complaints as to the supposed unsatisfactory nature of the charge in respect of corroboration.  It was said also that Bernice Crowe had lied and that the fresh evidence introduced further doubts about the extent to which the jury may have relied upon her word erroneously.  We are satisfied that the trial judge set out fully and effectively the issues which were relevant to the determination of this matter by the jury and whilst the case may have revealed inconsistencies of one type or another in the prosecution case these were not matters which were impossible of resolution or which must be taken to have created doubt so as to vitiate the verdict of the jury.  It is the function of the jury to decide the facts and to resolve factual conflicts which may not be simple or clear.  The jury appears to have given extensive consideration to the issues before it, even to the point of returning to court to seek further clarification from the judge of the extent of penetration required to constitute rape.  We are content that the verdict of the jury should be left undisturbed and express ourselves free of any lurking doubt and are satisfied that the verdict is safe in all the circumstances.
	Accordingly we refuse the application for the grant of an extension of time for bringing an appeal against the conviction of the applicant.
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND

 ________ 

THE QUEEN

-v- 

JAMES GERARD O’NEILL

 ________ 

J U D G M E N T
O F
McLAUGHLIN J
 ________