Jersey Unreported Judgments

Appeal against conviction.

[2016]JCA168

Court of Appeal

23 September 2016

Before     :

Jonathan Crow, Q.C., President; Sir Richard Collas., Bailiff of Guernsey and; David Perry., Q.C.

F

-v-

The Attorney General

Advocate M. L. Preston for the Appellant.

S. C. Thomas, Crown Advocate for the Attorney General

JUDGMENT

perry ja:

This is the judgment of the Court.

1.        On 27 April 2016, following a trial in the Royal Court, before Commissioner J.A. Clyde-Smith Esq; and a jury, the Appellant, F, was convicted of four offences of indecent assault committed against two young females who were, at the relevant time, his stepchildren. The offences were committed at some time within a period of about five years between 1996 and 2001. The complainant in the case of three offences was Complainant 1, a child aged between 3 and 7 years old in the five year period, although it seems that the offences actually took place when she was aged 4 or 5. The second complainant, Complainant Two, was 13 and 14 years old at the material time. By the time of the trial the complainants were aged 22 and 29 respectively.

2.        The Appellant now appeals against his conviction and advances four grounds of appeal, each of which raises an issue concerning the credibility and reliability of the complainants. We address the grounds of appeal in more detail below. At this stage it suffices to say that the first ground raises an issue concerning the cross-admissibility of the complainant's evidence. The second and third ground are directed at the admissibility of expert opinion concerning the first complainant's credibility. The final ground claims that the Jury's decision to convict was inconsistent with their decision to acquit the Appellant on a number of counts in the indictment. To put the arguments in context, it is necessary to explain the nature of the Prosecution case and the substance of the allegations made against the Appellant. 

Background

3.        The background may be summarised as follows. In around 1994 the Appellant began a relationship with Witness 4, the mother of the complainants. At this time they were both resident in Alderney. In 1995 they moved to Jersey and lived together at a residential property near St Helier.  Witness 4 had three children from previous relationships: Witness 3 born in 1985, Complainant 2 (born in 1986) and Complainant 1 (born in 1993). The Appellant had one son from a previous relationship: Witness 8 (born in 1987), and he too lived at the property. The Appellant and Witness 4 were married in May 2001.

4.        The Prosecution case at trial was that the Appellant had sexually abused Complainant 1 and Complainant 2 during the time they lived together as a family at the residential property. While Complainant 1 was the principal subject of the sexual abuse, Complainant 2 was the target on a number of occasions. Both Witness 3 and Complainant 2 were also alleged to have been the victim of indecent touching by the Appellant on the occasion of visits to England. For jurisdictional reasons the incidents in England could not give rise to any charges in Jersey, but the evidence of these events was both relevant and admissible in support of the Prosecution allegations: it supported the Prosecution case that the Appellant had demonstrated a sexual interest in his step-daughters.

5.        The original indictment contained a total of thirteen counts including an allegation of attempted rape (originally indicted as Count 5) and an allegation of indecent assault (originally indicted as Count 6), both offences arising from a single incident involving Complainant1. At the beginning of the trial, in the absence of the jury, the Prosecution successfully applied to sever these counts, with the result that they formed a separate indictment to be dealt with at the conclusion of the proceedings. As a result of various other amendments, the trial indictment contained a total of twelve counts, of which the Appellant was convicted of four. These twelve counts and the Prosecution case in respect of each of them were as follows.

6.        Counts 1 to 3 were allegations of indecent assault committed against Complainant 1. Counts 1 and 2 were sample counts, that is, they were intended to reflect a number of instances of indecent conduct. The indecency in question involved digital penetration of the first complainant's vagina. Her evidence was to the effect that at a time when she was around 4 or 5, the Appellant began to visit her in her bedroom. This was at a time when she was alone in bed. He would lie on top of her and put his fingers inside her vagina telling her to pretend it was a medical examination and that she was being measured. She found the experience painful, but remembered being disappointed if she could not do as the Appellant asked. On one occasion (reflected in Count 3), the Appellant put two fingers in her vagina and, as a result, she felt 'proud and happy'. The Appellant was convicted of these three counts.

7.        Count 4 was an allegation of indecent assault and Count 5 an allegation of inciting an act of gross indecency. These counts arose from an incident involving Complainant 1. She recalled an occasion when she was in bed, asleep. She was awoken by the Appellant who came into her bedroom and climbed on top of her. He was wearing blue jeans and a belt. He rolled to one side and started playing with his penis. He asked Complainant 1 to help him and she did so. The Appellant was acquitted of these offences.

8.        Count 6 was an allegation of procuring Complainant 1 to commit an act of gross indecency. This arose from an occasion when she was in the bathroom of the premises and the Appellant said that he would show her how to 'pee'. She stood next to him and, while urinating, he held her hand on his penis. The Appellant was acquitted of this offence.

9.        Count 7 was an allegation of indecent assault, again involving Complainant 1. This arose from an occasion when she and the Appellant were in the bathroom and the Appellant urinated on her. The Appellant was acquitted of this offence.

10.      Count 8 was another allegation of indecent assault allegedly committed against Complainant 1. This arose from an incident in which she claimed the Appellant had kissed her using his tongue. In fact, when giving evidence at the trial, Complainant 1 did not give evidence sufficient to substantiate this allegation, and, at the close of the Prosecution case, the Learned Commissioner found that there was no case to answer.

11.      Count 9 was another allegation of indecent assault. Complainant 1 gave evidence that there were occasions when the Appellant would hold her vagina, although she was unable to say how many times this had occurred. The Appellant was acquitted of this count.

12.      Count 10 was another allegation of indecent assault committed against Complainant 1. Her evidence was that on one occasion the Appellant put her to bed and proceeded to lie on top of her saying that one day she would have "big boobs". When doing so he touched her chest area with his hand. She said that she was happy to hear that she would have large breasts as she had not yet gone through puberty and it was exciting for her to consider how her body might develop.  The Appellant was acquitted of this offence.

13.      The remaining two counts, Counts 11 and 12, were allegations of indecent assault committed against Complainant 2. This was at a time when she was aged 13 or 14.

14.      The first (Count 11) arose from an incident in around 2000 or 2001, when the Appellant entered the bedroom where Complainant 2 slept with Witness 3. The Appellant approached the bed, climbed onto his step-daughter and started to kiss her on the cheek, then her neck, and put his chest next to hers. The evidence was that the Appellant was in the process of removing the bedcovers and moving the girl's leg when his conduct was interrupted by Witness 4 the girl's mother who pulled the Appellant away. This was followed by an argument in which the Appellant went on the offensive calling Witness 4 a "pervert" and referring to her "fucked up life". Complainant 2 in fact made a complaint to the police about this incident in 2002 and although the Appellant was arrested and interviewed, no charge was brought against him at that time. The Appellant was convicted of this Count.

15.      The final count, Count 12, arose from an incident in May 2001 when the family were together in Royal Square, St. Helier and Complainant 2 was standing next to the Appellant. The Appellant put his hand onto the small of her back and ran his hand over her bottom. The Appellant was acquitted of this count.

16.      The Prosecution case was that the evidence of the Appellant's behaviour was indicative of a sexual interest in his step-daughters: girls in respect of whom he occupied a position of trust and over whom he exercised a degree of control. In support of this contention, evidence was adduced of events that took place on occasions other than those which formed the subject matter of the indictment. Complainant 2 gave evidence of an occasion when the Appellant exposed his penis to her in a public swimming pool. She also gave evidence of two incidents, in around 1999, during a family visit to England. The first occurred in the house of a relative when the Appellant reached out and touched Complainant 2's breasts as they passed each other on the stairs. The second occurred when Complainant 2 was alone in the kitchen of the house. The Appellant entered the kitchen and began rubbing his hands around Complainant 2's bottom and lower back. The Prosecution also adduced evidence from Witness 3 who stated that the Appellant had run his hands over her back and bottom at a New Years' Eve party in England. Witness 3 would have been around 15 at the time of this incident.

The Complaints and Investigations

17.      Given the issues at trial, it is necessary to say something about how the Appellant came to be charged with the offences so long after the events giving rise to them had taken place. The position was explained to the Jury in a series of formally admitted facts. These facts showed that in the early part of 2002 Witness 4 made certain allegations against the Appellant in a States of Jersey police statement. This gave rise to a police investigation. In the course of that investigation Complainant 2 made an allegation of indecent assault. This was in a recorded interview with the police held on 4 February 2002, and the allegation concerned the events which later gave rise to Count 11 of the trial indictment (that is the bedroom incident). The Appellant was arrested on 11 March 2002 and interviewed under caution. He denied any untoward behaviour towards Complainant 2 and, so far as the bedroom incident was concerned, he said that he had gone into the bedroom to check that Complainant 2 was asleep and that he had kissed her gently on the forehead. It was at that stage that Witness 4 confronted him and said words to the effect of:-"What are you doing in there?" Following the interview, the case was sent to the Law Officers' Department for review and a decision was taken not to prosecute the Appellant in respect of the allegations made by Witness 4 and Complainant 2.

18.      Between October 2005 and March 2006 Complainant 1 had counselling sessions. This was at a time when she was attending school in England. At no time during these sessions did Complainant 1 say she had been sexually abused.

19.      On 16 July 2008, Witness 4, who was at that stage living in England, contacted West Mercia Police to report that Complainant1 had made allegations that the Appellant had exposed himself to her and had mentioned the fact that the Appellant had a tattoo on his penis.

20.      On 17 July 2008, Complainant 1 was seen by a police officer at her home address. She was described as "nervous and withdrawn". Complainant 1 told the police officer that she could not remember how many times the Appellant had exposed himself and went on to say that she had seen his penis and a tattoo of "Popeye" on it. She also said that the Appellant had never asked her to do anything to him and had never behaved in a sexual way towards her. An investigation was commenced but this did not result in the arrest of the Appellant or any charges being brought.

21.      In the autumn of 2008, Complainant 1 told one of her schoolteachers that she had been abused by her stepfather. She gave no further details. There was also evidence of a complaint of sexual abuse made to a school friend during a visit to Scotland in around 2008.

22.      On 9 December 2008, Witness 4 again contacted West Mercia Police to say that Complainant 1 had made a further disclosure to the effect that the Appellant had made her masturbate him from the age of 6. On 11 December 2008, Complainant 1 was seen by a police officer. She stated that when she was younger, the Appellant made her help him go to the toilet. She was unable to give any specific detail as she claimed to have blocked out her childhood. At around this time, professional counselling was being arranged to assist her in remembering certain facts as her memories were scanty and fragmented.

23.      On 25 November 2009, Witness 4 again contacted West Mercia Police by telephone and stated that Complainant 1 had disclosed information on the previous day to the effect that she recalled F entering her bedroom and getting on top of her over the bed clothes. He then thrust himself backwards and forwards over the clothing. Witness 4 said that Complainant 1 had made no complaint of any penetration. The contemporaneous documentation of Witness 4's call recorded that she stated that Complainant 1 at first thought that it might have been a dream, but she had now come to realise that it might be real. Despite this realisation, it was recorded that Complainant 1 was not yet ready to speak to the police and could not be specific about what happened to her.

24.      On 21 December 2001, Witness 4 again made contact with West Mercia Police to report further disclosures made by Complainant 1.

25.      On 10 January 2012, Complainant 1 took part in an "ABE" (achieving best evidence) interview conducted by officers of the West Mercia Police in which she made allegations against the Appellant. On the basis of what Complainant 1 said in this interview the matter was referred to the States of Jersey Police.

26.      On 3 August 2012, Complainant 1 attended a further ABE interview. In the course of this interview, she stated that the Appellant had attempted to put his penis in her vagina. This allegation gave rise to Count 5 on the original indictment; that is the allegation of attempted rape. As noted above, this allegation was severed from the indictment and not proceeded with by the Prosecution at the trial.

27.      On 18 August 2012, Complainant 2 participated in an ABE interview conducted by police officers in England at the request of the States of Jersey Police. In the course of this interview she made allegations of indecent assault against the Appellant.

28.      On 3 April 2013, Complainant 1 signed a States of Jersey Police witness statement which reflected the allegation made in the ABE interviews. On the following day, 4 April 2013, Complainant 2 signed a States of Jersey Police witness statement. This too reflected the allegations she had made in the earlier ABE interview.

29.      On 12 April 2013, the Appellant was arrested at his home address and, having been cautioned, he said: "This has all been dealt with". The Appellant was interviewed under caution in the presence of his legal representative and in the course of a series of interviews he denied each of the allegations. It is not necessary for the purposes of this judgment to go into the interviews in any detail, it is, however, relevant to note that the Appellant confirmed that he and Witness 4 had separated in 2001 and since that time he had had no contact with her or her daughters. He could not think of any reason why Complainant 1 would choose to make allegations against him, other than perhaps under the influence of her mother. When asked about the Popeye tattoo, he admitted that he had a tattoo of the cartoon character with legs either side of his penis. He said that he had never shown Complainant 1 the tattoo and denied that she had ever seen it. He denied the allegations made by Complainant 2 and in relation to the bedroom incident (Count 11), he said that he had barely entered the room before Witness 4 challenged him. This was somewhat different from the account he had given when questioned in 2002: on that occasion he said that he had gone into the room and kissed Complainant 2 on her forehead.

30.      Following the interviews, the case was sent to the Law Officers' Department for review.  Subsequently, on 21 July 2015, the Appellant was charged with the offences contained in the indictment and his case was later committed for trial in the Royal Court. 

The Defence case at trial

31.      The defence case at the trial involved a denial of any sexual impropriety towards either Complainant 1, Complainant 2 or Witness 3. The Appellant's case was that the incidents had either not taken place, or had been misinterpreted by the girls under the malign influence of their mother, a woman who was motivated by her strong dislike of the Appellant. While he himself did not give evidence, the Appellant called a number of witnesses to give evidence in support of his case. The witnesses were his father, his son and his brother. His father's evidence was largely directed at the Appellant's relationship with Witness 4 and so too was the evidence given by his brother. The Appellant's son gave evidence to the effect that he had never witnessed any abuse while living with the complainants and went so far as to say that his father never went into the girls' rooms to say goodnight or to check they were all right.  He described the complainants and their mother as "evil".

32.      The Appellant had a number of convictions for minor summary offences, none of which involved sexual misconduct and, for the purposes of the trial, he was treated as a man of good character. A reference, written on his behalf, by a character witness was read to the Jury.

The Grounds of Appeal

33.      The four grounds of appeal on which the Appellant relies may be summarised as follows:-

(i)        The Learned Commissioner wrongly allowed the Jury to use evidence of purported similarities in the evidence of one complainant in support of the evidence of the other complainant.

(ii)       The Learned Commissioner wrongly refused to allow the Defence to lead evidence from a Prosecution expert that Complainant 1's allegation of attempted rape was unreliable.

(iii)      The Learned Commissioner wrongly refused to allow the Defence to lead expert evidence from psychologist, Dr David La Rooy, whose evidence would have assisted the Jury's assessment of Complainant 1's credibility.

(iv)      The Prosecution relied on the uncorroborated evidence of the two complainants and the Jury's verdicts were inconsistent.

34.      The fourth ground of appeal involves an issue of mixed facts and law and, as such, requires leave from this Court to be pursued. We grant leave to appeal.

The First Ground of Appeal

35.      In the course of his summing-up the Learned Commissioner gave the conventional direction to the effect that the Jury were required to consider the case for and against the Appellant on each count separately. He then went on to give directions on the cross-admissibility of the complainants' evidence and said this:

"Although these incidents are separate and you must reach separate decisions about each of them, the evidence of one complainant is capable of supporting the Prosecution case on the other, but only in circumstances or in the manner in which I will explain.

As you know, the Defendant denies any sexual impropriety towards either [Complainant 1] or [Complainant 2] or indeed towards [Witness 3]. I refer for these purposes to all three as "the complainants". His case is that these things either never took place or have been misinterpreted under the malign influence of the mother. The Prosecution has pointed out, on the other hand, that there are similarities in the Defendant's behaviour as described by [Complainant 1] and [Complainant 2] namely that the Defendant came into their bedrooms alone at night and placed his body over them in [Complainant 1's] case, she said, so that she could feel his full body weight and could not breathe properly and, in [Complainant 2's] case, she said that he was heavy and restricting.

The Prosecution also say that there are similarities in the Defendant's behaviour, as described by [Complainant 2] (that is Count 12) and [Witness 3] namely that they were both approached opportunistically by the Defendant who ran his hand down their backs to their bottoms.

Now, the Defence say that there are no such similarities in the Defendant's behaviour. The complainants are at a quite different age, around 5 and 14 respectively and the circumstances were quite different. For example, when the Defendant came into [Complainant 2's] room [Witness 3] was asleep beside her.

The Prosecution suggest to you that the similarities that they have pointed out are no coincidence: the fact that the girls have made similar but otherwise unconnected complaints about the Defendant's behaviour makes it more likely that each of those complaints is true. In that sense the evidence of each of the complainants is capable of lending support to the other."

36.      The Learned Commissioner then went on to direct the Jury on how the evidence should be approached:-

"Are the complaints independent of one another? First, the Prosecution's points only have force if the complaints made are truly independent of one another. If one witness has influenced another, either deliberately or unconsciously, to make complaints about the Defendant, or if both have been influenced by their mother and manipulated into making similar complaints, then it would not be surprising that they went on to make those complaints. In that event, not only would the Prosecution argument fall away, but it also casts doubt upon the reliability of the accusations that they make as a whole.

The Defence say that these complaints are not independent. They say that the complainants have been influenced by their mother who hates the Defendant, and who has manipulated them into believing that they have been the victims of this alleged abuse.

As against that, the Prosecution say that there is no evidence of collusion as between the complainants themselves - indeed, it was not suggested to them by the Defence that they had colluded together - and it is fanciful to suggest that so long after the relationship between the mother and the Defendant had ended she could manipulate her now grown-up daughters, one of whom, [Complainant 2], is herself a mother, into making false allegations.

Now you must consider all of the evidence and the extent to which it supports the contentions of both the Prosecution and Defence, which I have briefly summarised and make your own decision. If you are sure that there is [no] realistic possibility of influence, conscious or unconscious, by each girl of the other, or manipulation by the mother has been excluded, then you can treat the evidence of each complainant as supportive of the other in the sense I have described.

[The transcript suggests that the Learned Commissioner said 'a realistic possibility' but this must have been an error and the sense is clear.  In fact no point was taken by the Appellant in relation to this.]

Now, to what extent may the witnesses support each other? You need to assess the value of the evidence. If you have decided that they are independent, it follows that the closer the similarities between the complaints, the less likely it is that they can be explained away as coincidence. It is for you to decide the degree to which the evidence of one girl assists you to assess the evidence of the other. It may lend powerful support or it may not, but you must make that judgment. Subject to that, each set of allegations in respect of one complainant cannot be treated as part of the allegations against the other complainant."

37.      The Learned Commissioner returned to this point later in his summing-up and he directed the Jury as follows:-

"...the prosecution say that [Complainant 1's] evidence is supported by that of [Complainant 2], in that they both make similar allegations of the defendant coming into their rooms at night and placing his body over theirs. Again, bearing in mind what I have directed you as to cross-admissibility of evidence, if you are sure there has been no collusion between [Complainant 1] and [Complainant 2] (and collusion between them has not been alleged by the Defence) and no malign influence on them both by the mother and you find that there are similarities in their complaints in this respect which cannot be explained by coincidence, then you can treat [Complainant 2's] evidence in relation to Count 11, if you accept it, as supportive of [Complainant 1's] evidence in relation to Counts 1 to 4 in the manner that I have directed you in writing."

38.      The Appellant submits that the Learned Commissioner was wrong to direct the Jury as he did and contends there was nothing significant in the Complainants' evidence that was sufficient, in terms of similarity, to justify the direction on cross-admissibility. He submits that there must be something in the evidence that takes the facts of the Complainants' evidence outside of the type of similarity that could be established in every case of sexual abuse, where there is more than one complainant, and the direction created the risk of unfair prejudice, with the result that the conviction is unsafe.  In support of his argument, the Appellant submits that the Learned Commissioner gave no proper consideration to the probative force of the evidence before giving his directions to the Jury. 

39.      We begin our consideration of this ground of appeal by noting that the rules relating to the cross-admissibility of evidence have undergone significant development since the decision of the Privy Council in Makin v Attorney-General for New South Wales [1894] AC 57. At first, following that decision, attention centred on the possible purpose for which the evidence was tendered and the various purposes were put into categories, for example to prove a particular state of mind or system, or to rebut a defence of accident; and evidence which fitted into one of the categories tended to be more readily admitted. This approach was rejected by the House of Lords in R v Boardman [1975] AC 421, where it was held that it was the degree of relevance which made evidence given by one complainant admissible to support the evidence given by another. To be admissible the evidence must have some relevance other than showing the defendant's propensity to commit the type of crime charged and must have strong probative force. However, the way in which these principles were applied, particularly in cases of sexual abuse, led to courts requiring some feature of similarity beyond what was described as a sexual abusers 'stock in trade' before one victim's evidence could properly be admitted in support of another. In Director of Public Prosecutions v P [1991] 2 AC 449, the Court of Appeal reluctantly allowed the appeal of the defendant P on two counts of rape and eight counts of incest, the victims being his daughters B and J. The court held that the evidence of B was inadmissible on the counts relating to J and vice versa. In giving judgment of the Court of Appeal Lord Lane C.J. said this:-

"We see force in the suggestion...that where the father has allegedly shown himself to be someone prepared to abuse sexually girls who are no more than children, in this case under the age of 13, girls who are, moreover, his own children, and to use his position of power over them in their own home to achieve those ends, this might provide a sufficient hallmark to render the evidence of one girl admissible in the case of the other where the danger of collusion can be discounted."

40.      The House of Lords allowed the prosecution appeal and Lord Mackay of Clashfern LC explained that the essential feature of this type of evidence, if it is to be admitted, is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to receive the evidence, notwithstanding that it is prejudicial to the accused, because it tends to show that he is guilty of some other crime. The suggestion that the necessary probative force was to be derived from striking similarities in the evidence was rejected. Lord Mackay quoted approvingly from Hume on Crimes, 3rd Ed. (1844), Vol II, p. 384:-

"The aptitude and coherence of the several circumstances often as fully confirm the truth of the story, as if all the witnesses were deponing to the same facts".

41.      Lord Mackay went on to say (at page 460h - 461a):-

"Once the principle is recognised, that what has to be assessed is the probative force of the evidence in question, the infinite variety of circumstances in which the question arises demonstrates that there is no single manner in which this can be achieved. Whether the evidence has sufficient probative value to outweigh its prejudicial effect must in each case be a question of degree."

42.      Following the guidance given by the House of Lords in Director of Public Prosecutions v P, the question to be decided is whether there is material upon which a jury would be entitled to conclude that the evidence of one complainant about what occurred, is so related to the evidence given by another complainant, about what happened to that other complainant, that the evidence of the first complainant provides strong enough support for the evidence of the second complainant to make it just to admit it, notwithstanding its potential prejudicial effect.

43.      In the Appellant's case there was ample material to support the Learned Commissioner's direction to the jury on cross-admissibility; that is for the testimonies of each of the three girls to be capable of providing support for the testimony of the other. The Appellant was the girls' stepfather. The evidence demonstrated that the Appellant used his position within the family to take advantage of opportunities for sexual contact with his stepdaughters, each of whom was a child. The evidence was capable of demonstrating that in the period during which he lived with the children he displayed a sexual interest in each of the girls and abused his position of trust by subjecting them to indecent touching. In the case of Complainant 1 and Complainant 2 there was in addition the fact that some of the indecency took place at a time when they were in bed and the Appellant lay on top of them. In the case of Witness 3 and Complainant 2 the indecent touching was of an opportunistic nature and involved, among other things, touching their bottoms. There were additional similarities concerning the Appellant's exposure of his penis to Complainant 1 and to Complainant 2.

44.      In our view the Learned Commissioner's careful and balanced direction was entirely correct. The evidence given by the complainants had the necessary degree of probative force to support the direction on cross-admissibility and the Jury were directed in clear terms that they could only rely on the evidence if they excluded collusion, the influence of their mother and coincidence.

45.      In the course of his oral submissions Advocate Preston, on behalf of the Appellant, accepted that the Learned Commissioner's direction could not properly be criticised (assuming that the evidence given by Complainant 1 and Complainant 2 had the necessary probative force).  He argued, however, that the Commissioner had failed to consider the issue of admissibility and, had he done so, he would have concluded that the evidence did not have the necessary degree of probative force.  We do not accept this submission as it does not, as we see it, adequately reflect what took place at the trial.  The case was opened to the Jury by the Prosecution on 18 April 2016.  In the course of the opening, Prosecution counsel referred to the "clear similarities" between the Appellant's behaviour towards Complainant 1 and his behaviour towards Complainant 2.  No objection was taken to the opening and no point was raised by the Defendant at that time in relation to cross-admissibility.  On 26 April 2016, after the conclusion of the evidence and before closing speeches, the Learned Commissioner provided counsel with a written draft of his proposed directions to the Jury including his proposed direction on cross-admissibility.  It was at this point that objection was first raised to the cross-admissibility of evidence.  It is apparent from the transcript that the Learned Commissioner must have been satisfied that the evidence of each of the complainants was capable of providing strong enough support for the evidence of the other to make it just to admit it, notwithstanding its prejudicial effect.  The Learned Commissioner indicated that there were grounds upon which the Prosecution could properly argue that were similarities and that it was, ultimately, for the Jury to evaluate the evidence. 

46.      In any event, in our view, the evidence clearly had the necessary degree of probative force having regard to the factors we have identified and the Learned Commissioner was right to direct the Jury as he did.

47.      Although the Appellant referred us to a number of authorities, W-v-AG [2015] (1) JLR 29; R-v-O'Brien [2000] WL 191258; R-v-Allen [2002] EWCA Crim 2886; R-v-Cowie [2003] EWCA Crim 3522, the issue is in each case one of degree.  Of most assistance is the decision of this Court in H-v-AG [2013] (1) JLR 210, where the Appellant was convicted of sexual offences committed against three young girls involving touching their breasts at a time when he was in a position of trust in respect of all three.  An appeal against conviction was dismissed.  The Court stated:-

"Once the appellate courts in England and Wales had got rid of the so-called "striking similarities" requirement posited in some of the earlier cases, this class of case was clearly eligible for trial in one indictment and for directions on cross-admissibility and the possibility of collusion or contamination between the complainants."

These observations apply with equal force to the Appellant's case. 

48.      Before leaving this ground of appeal we should add that we have considered the danger that the evidence given by the complainants may have been the result of collaboration or collusion. In R v H (A) [1995] 2 AC 596, the House of Lords decided that questions of collusion (whether deliberate or through unconscious influence) are not usually relevant at the stage when the judge is deciding on the admissibility of evidence and in cases such as the present (where there was no apparent evidence of collusion), the judge must draw the importance of the issue of possible collusion to the attention of the jury. It is then for the jury to decide whether the evidence is in fact free from collusion. This is how the Learned Commissioner directed the jury in this case. It is to be noted, moreover, that the complainants were not cross-examined on the basis that they had colluded at the time they provided their statements to the police, and the evidence concerning the investigation, and how the complaints came to light, over a protracted period of time and with some hesitancy, was wholly inconsistent with a case of collusion, or for that matter, with the complainants acting under the influence of their mother to secure the Appellant's conviction.

49.      In summary, the directions to the jury were correct.  No unfairness was occasioned to the Appellant and we see no merit in this ground of appeal. 

The Second Ground of Appeal

50.      The Appellant's second ground of appeal is that the Learned Commissioner wrongly refused to allow the defence to lead evidence from a prosecution expert, Dr Bryan Tully, a registered clinical and forensic psychologist, to the effect that Complainant 1's allegation of attempted rape was unreliable. In order to address this ground of appeal it is necessary to explain how it was the allegation of attempted rape came to light and how it was dealt with by the Prosecution.

51.      Complainant 1's complaint of attempted rape first came to light when she was interviewed on 3 August 2012. Some time later the Prosecution sought and obtained from Dr Tully a psychological report, dated 26 June 2014.

52.      Dr Tully had been asked to review the case papers including the interviews with Complainant 1 and Complainant 2 and the relevant healthcare and counselling notes, to provide "an opinion as to whether there are issues which could be raised in a psychological/psychiatric report solicited by the Defence and whether those issues might be insurmountable". In brief terms, Dr Tully was being invited to express his opinion on the reliability of Complainant 1 and Complainant 2.

53.      Dr Tully's report contains a summary of the case materials and he concluded, based on these materials, that there was no reason to doubt Complainant 2's reliability. He also concluded that Complainant 1's account of events, save in one respect, was consistent and understandable enough to be accepted by a Jury. The exception to his overall conclusion was in relation to the allegation of attempted rape. Dr Tully's reasoning is set out in the final two paragraphs of his report which, so far as material, were as follows:-

"When it comes to what happens between the two ABE interviews of January and August 2002 things become more troubling. Even during the first interview [Complainant 1] expresses a feeling that she hasn't produced all the memories there are. In spite of whatever she was doing marshalling her memories with [a] counsellor and reciting much of what she had told often before, she seems pretty certain there is more. Such harbinger or precursor feelings often precede what will turn out to be so called 'recovered memories', genuinely novel and produced for the first time ever in association with effort and expectation and therapy which is more facilitative of "memory work" than it should be. In one of the last sessions with [a counsellor on 9 March 2012] it is noted that [Complainant 1] had "used" the session to recall memory. It is noted that she now reports a memory of [the Appellant] trying to part her vagina to allow (penile) penetration. This does seem to be from all the records a completely new and novel memory. In a sense we can get the clearest sense of progress by tracking email exchanges between [the police], rape support service and counsellors which entail everyone, including the witness more working closely together than is wise or impartial.

...By March 2012 [Complainant 1] having finished with [a counsellor] wants more counselling...The memories start not specific and not clear. Then they improve. There is a sense of unease about "additional statements" weakening the case, but it is left to a counsellor to advise the "right time" for the second ABE interviews. [Complainant 1] is keen to assist the investigation and avoid being told there is not enough evidence. She owes family and others her "best shot". She pauses the ABE for 4 more counselling sessions which may "release" her memories. It is not said how exactly, [Complainant 1] wants to know the law and specific penalties for the alleged offences. She wants to review what she has said before so as not to muddle that with what might be new and possibly horrific. There is a lot of motivation and effort invested. This rings alarm bells with me.

When it comes to the interview itself on 3 August, [Complainant 1] is noticeably anxious and hugging a cushion for comfort. The words used to describe the new memory are somewhat halting and we see a more explicit reconstructive effort to form narrative out of what might or must have happened...I can only say that with this multiplicity of features suggestive of possible false memory/confabulation, I would feel this is especially risky material to assume (sic) is authentic long term memory, good enough to reach the appropriate criminal standard."

54.      As a result of Dr Tully's report, the Prosecution decided not to proceed with the allegation of attempted rape and no evidence in relation to it was adduced from Complainant 1 during her examination-in-chief. In the course of cross-examination, however, Complainant 1 was questioned about the allegation in an effort to undermine both her credibility and reliability. After Complainant 1 had concluded her evidence, an application was made on the Appellant's behalf for the prosecution to tender Dr Tully for cross-examination. Alternatively, it was submitted that the Appellant should himself be permitted to call Dr Tully to give his opinion on Complainant 1's credibility. The Learned Commissioner refused both applications.

55.      The basis of the Learned Commissioner's decision was that the evidence given by Dr Tully was inadmissible. We agree with the Learned Commissioner's decision, for the following reasons.

56.      We begin with the decision of the English Court of Appeal in R v Turner [1975] 60 Cr. App R 834. In that case the defendant was charged with murdering his girlfriend who admitted to sleeping with other men and to being pregnant by another man. In support of his defence of provocation, the defendant sought to admit psychiatric evidence to the effect that he had had a deep emotional relationship with his girlfriend and that her admissions of infidelity were likely to have caused in him a blind explosion of rage. He was not however suffering from mental illness. The Court of Appeal held that the trial Judge had been right to exclude the psychiatric evidence on the basis that "jurors do not need psychiatrists to tell them how ordinary folk who are not suffering from a mental illness are likely to react to the stresses and strains of life." In the course of giving the Court's judgment, Lawton L.J. explained the basis upon which an expert witness is entitled to give evidence:-

"An expert's opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help, the opinion of an expert is unnecessary."

57.      It is well-established that in certain, highly exceptional, circumstances expert evidence may be called to show that a witness through disease or defect or abnormality of mind is not capable of giving true or reliable evidence: see Toohey v Metropolitan Police Commissioner [1965] 595, Lord Pearce, at 609. It is also well-established that as a general rule it is not permissible for the prosecution to call a psychiatrist or psychologist to give evidence as to why a witness's evidence should be accepted as reliable: R v Robinson [1994] 98 Cr App. R. 370.

58.      There are in addition several decisions in which the English Court of Appeal has considered the admissibility of expert evidence in cases of sexual abuse and child cruelty. 

59.      In R v X (Childhood Amnesia) [2006] 1 Cr App R 10, the appellant had been convicted of a number of offences of indecent assault and rape committed against his daughter when she was aged four or five. Her witness statement, made when she was 19, gave a detailed narrative account of the incident including a description of her own emotional reaction of what had occurred. The English Court of Appeal agreed to hear evidence from Professor Martin Conway, a psychologist and expert in the field of memory formation and development. The gist of the evidence was that memories of early childhood were qualitatively different from memories of later life events; that adults could not usually remember events of early childhood so as to be able to give a coherent narrative account, the only recall being one which was fragmentary disjointed and idiosyncratic; and that this "period of childhood amnesia" lasted until the age of about seven. Therefore, highly detailed evidence of an event said to have occurred at an early age might well be unreliable, yet apparently credible. The evidence of Professor Conway was admitted by the Court of Appeal as expert evidence which provided information likely to be outside "the knowledge and experience of the jury". Nevertheless, where he expressed the view that some parts of the complainant's "evidence was "unreliable", the evidence was held to be inadmissible on the basis that it usurped the responsibilities of the jury. The appeal was allowed and a retrial ordered. The Court of Appeal concluded its judgment with this note of caution (at paragraphs 47 and 48):-

"It will only be in the most unusual of circumstances that such evidence will be relevant and admissible at the trial of allegations of child abuse. The evidence would be relevant only in those rare cases in which the complainant provides a description of very early events which appears to contain an unrealistic amount of detail. That, in the experience of this court, does not happen often.

The principles set out in R v Turner...should be kept firmly in mind, Expert evidence is only admissible when it is likely to assist the jury on a topic which falls outside its ordinary experience. A witness's ability to remember events will, absent the special considerations arising from the period of early childhood amnesia, ordinarily be well within the experience of jurors. We would not wish it to be thought that the introduction of evidence such as that heard from [the expert in this case] will be helpful in any but the most exceptional case."

60.      The exceptional nature of admitting such evidence was emphasised by the English Court of Appeal in R v Jonathan CWS [2006] EWCA Crim 1404, where it was stated that it was confined to those cases in which an adult claimed to have a very detailed memory of events said to have taken place when the adult was very young. In that case, the Court of Appeal declined to admit Professor Conway's evidence in relation to the contents of witness statements made by adult witnesses based on events experienced before they were seven years old. Professor Conway had raised concerns as to the reliability of the complainants even though he had made no assessment of the character or demeanour of the witnesses: as a memory researcher and psychologist he claimed that he would be influenced in "unconscious ways" if he encountered the individuals giving evidence. However, as the President of the Queen's Bench Division (Sir Igor Judge) noted (at paragraph 22), when giving the Judgment of the court:-

"Effectively of course, this is the antithesis of the decision making process in court to which the demeanour and character of the witness is integral. The trial process is intended to enable the accuracy or fallibility of the witnesses particularly when they purport to speak directly from their own experience, to be tested and assessed. Their evidence is subject to close scrutiny and after such scrutiny, evaluation by the jury."

61.      The President went on to say (at paragraph 29):-

"In our judgment, however, it is difficult to see how this expert evidence can properly be tendered to establish a justifiable criticism of an adult witness who says that she suffered abuse throughout her childhood, which must have begun at too early an age for her to remember the first occasion. Second, the concerns in this case are the opposite of the concerns which troubled the court in [R v X], that is the presence of highly specific details of abuse at such an early age. It was this area of expertise which was regarded as admissible, not as suggested here, the contrary. Finally, this issue was addressed at trial. In the submissions advanced to the jury by counsel for the applicant, he suggested that the jury should consider their own experiences, searching their recollections for their earliest memories and analyse what they could actually remember and how far back their memories went. The judge too, carefully addressed the issue of delay in all its relevant manifestations...[the jury] did not require and would not have been assisted by the evidence of an expert."

62.      In R v E [2009] EWCA Crim 1370, the English Court of Appeal considered the evidence of two young complainants (aged 14 and 12) where there was no suggestion of mental disability or learning difficulties. The Court held that it was not a matter for expert opinion to say how much detail might be expected from children of that age when recounting events that had happened to them some years before. Giving the judgment of the Court, Hallet J. stated (at paragraph 43):-

"In our judgment, absent exceptional circumstances, the question of the plausibility of a child's account and the extent of the detail he or she provides are all matters for a jury. Experts should not be used so as to usurp the function of a jury. A jury will decide where the truth lies subject to the overriding safeguard hat the prosecution must make the jury sure of the guilt before they can convict."

63.      More recently in R v Stephen H [2014] EWCA Crim 1555, the English Court of Appeal again rejected an argument that the trial judge should have admitted evidence from a psychiatrist and psychotherapist who stated that the complainant, who claimed she had been sexually abused by her father over a period of more than two years from when she was 10 years old, might have recovered her memory during counselling or psychotherapy sessions. The Court of Appeal emphasised that a defendant is not permitted to call an expert to examine the detail of a complainant's statement or evidence and other relevant evidence such as medical or counselling notes, and then pass judgment or advance comment on whether the witness is credible or reliable. To do so would be to usurp the function of the jury. In reaching its conclusions, the Court followed two earlier decisions: R v Richard W [2003] EWCA Crim 3490 and R v Bernard V [2003] EWCA Crim 3917. In the former case, Judge LJ said that much of what was contained in the expert report amounted to "no more than common sense comment on the facts". 

64.      In our opinion, Dr Tully's report falls into the same category. It amounted to no more than his own commentary on the facts of the case and Complainant 1's credibility. It was not for him to inform the Jury whether Complainant 1 was or was not to be believed. The issue of a witness's credibility is a matter solely for the jury and this is what the Learned Commissioner decided. When he came to direct the Jury, the Learned Commissioner gave careful directions on how the evidence should be approached, having regard to the manner in which the allegations had come to light and the delay between the events giving rise to the charges and the trial proceedings. In our view, there is no merit in the second ground of appeal. The Learned Commissioner was right to rule that the evidence was inadmissible and it follows that the Appellant was not entitled either to require the evidence to be adduced by the Prosecution or to call Dr Tully as a witness for the defence. In truth, Dr Tully's opinion on Complainant 1's credibility was no more than an expression of the obvious caution necessary in approaching what she had to say in light of the manner in which her account of events had come to light. We say nothing about the wisdom of the course adopted by the Prosecution in commissioning Dr Tully's report, or its decision not to proceed with the allegation of attempted rape.

The Third Ground of Appeal

65.      The third ground of appeal is that the Learned Commissioner wrongly refused the Defence permission to lead evidence from an expert psychologist, Dr David La Rooy.

66.      Dr La Rooy had initially produced a report, dated 16 March 2016, based on what Complainant 1 had said in her two ABE interviews with the police. He addressed the reliability of memory under a number of headings: False Memory, The Reliability of Episodic Memory, Recall Delay, Adult Memories of Childhood Experiences, Repressed and Recovered Memory, and expressed his conclusion in the following terms:-

"Considering the information provided by the key witness [Complainant 1] I am of the opinion that the manner and context in which the allegations have been made suggests that they are unreliable. As a consequence, there is a risk that the allegations in this case are untrue and considerable caution should be exercised in the absence of corroborating evidence. The reasons that caution should be exercised stem from my expertise regarding important psychological factors about the reliability/unreliability of memory in relation to this case. As such, fact finders should be provided with adequate knowledge about relevant psychological matters before forming a view as to the credibility of the allegations."

67.      In the course of his report, Dr La Rooy made a distinction between what he referred to as 'reliability' on the one hand and 'credibility' on the other. In his view, the former relates to the accuracy of information reported, whereas the latter is concerned with whether people appear to be truthful or not. The latter he said was for the Jury to decide, but only where they have been made aware of the psychological factors necessary to assess the evidence they are considering. 

68.      In a preliminary judgment on admissibility dated 7 April 2016, the Learned Commissioner recommended that Dr La Rooy, and the Prosecution expert Dr Tully, should attend the trial and that further consideration would be given to the question of whether the expert opinion was admissible after Complainant 1 had given her evidence.

69.      On 22 April 2016, after Complainant 1 had given evidence, and following further argument, the Learned Commissioner refused the Defence application to adduce the evidence of Dr La Rooy (save in one limited respect which we address below) and provided a careful and helpful written judgment.

70.      In the course of his judgment, the Learned Commissioner noted that the Prosecution expert, Dr Tully, was of the view that there is professional agreement that there is no infallible way of discriminating possibly true recovered memories from false memories and that the science in this field is "controversial".

71.      The Learned Commissioner's reasons for excluding the evidence were clearly explained. He said this:-

"Whilst I accepted that there is scientific learning on the issue of so called repressed or recovered memory, I was conscious of the warning given by the English Court of Appeal in R v X about the admission of expert evidence of this kind in cases such as this. This was not one of those rare cases in which the complainant provides a description of very early events which appear to contain an unrealistic amount of detail.

I agree with [Counsel for the Prosecution] that in essence the central message from Dr La Rooy as per his reports would be for the jury to exercise caution, but it would be inevitable that in examination and cross-examination of both him and Dr Tully (assuming that out of fairness leave was also given to the prosecution to call Dr Tully) their opinions as to reliability of the memories of the complainants in this case would be before the jury. It was not realistic or helpful in my view to try and restrict their evidence in what is controversial science to the general; [Defence Counsel's] fall-back position.

It seemed to me that the effect of time on memory, the fact that memories surfaced in [Complainant 1's] teenage years, the inconsistencies in her account, her initial denial of abuse to the police in 2008, the four years that went by during which she had counselling (about which process there was no evidence) and her comments on the way her memory worked were all matters which the jury could assess and form their own opinion (R v Turner [1974] QB 834). There may be a need to warn the jury to exercise caution, to be discussed with counsel in the usual way".

72.      The limited exception to his ruling was explained by the Learned Commissioner in the following way:-

"In her evidence before the jury, [Complainant 1] claimed to have a good long-term memory and by way of example, she recounted un-traumatic unconnected events that she remembered when she was 1 and 2. The jury might deduce from this, if they accept it, that she had an unusually good long-term memory, which might in turn serve to enhance the reliability of her evidence as to what she remembered happening when she was 4 or 5. There appeared to be scientific consensus that such un-traumatic memories from that age would be most likely, if not impossible, as a consequence of what is known as infantile amnesia. It seemed to me that the jury would be assisted by an explanation of infantile amnesia which could be undertaken in writing and consensually through its experts."

73.      The argument now advanced on behalf of the Appellant before this Court is more limited in scope than the argument advanced before the trial court. The Appellant now argues that he should have been permitted to adduce two categories of evidence which would have assisted the Jury's evaluation of Complainant 1's evidence.

74.      The first category relates to evidence concerning guidance issued by the British Psychological Society contained in Guidelines on Memory and the Law: Recommendations from the Scientific Study of Human Memory (revised April 2010). These guidelines contain the following recommendations:-

"Detailed and well-organised memories dating to events that occurred between 7 to 5 years of age should be viewed with caution"

"Detailed and well-organised memories between 5 to 3 years of age should be viewed with considerable caution."

"All memories dating to the age of 3 years old and below should be viewed with great caution and should not be accepted."

75.      So far as this last recommendation is concerned, it formed the basis of the Learned Commissioner's ruling in relation to admissibility and the point was made to the Jury by way of a formal admission.

76.      In relation to the first two recommendations, the Appellant submits that it was the age group 3 to 7 which was of importance in connection with the evidence given by Complainant 1. He argues that the Jury were deprived of information which would have assisted them in their assessment of Complainant 1's evidence and the absence of guidance for those age groups may have given the jury comfort that memories from that time were credible without the need for caution. 

77.      The second category of evidence relates to so called "recovered" memory. Both complainants stated that they had recovered memories from their past and the Appellant argues that Dr La Rooy should have been allowed to give the following explanation of recovered memories (without commenting on the evidence in the case):-

"In general there is professional agreement that there is no infallible way of discriminating possibly true recovered memories from false memories.

Questionable 'recovered memories' arising in the process of recalling increasing volumes of memory often reach further and further back in time, sometimes reaching and going into the period of infantile amnesia during the first 2 years of life. Although there is no universally agreed cut-off, detailed reports of events from before the age of four would be considered unusual. There is no research showing adults can with veracity recall their own specific thinking when they were 5 years old or so.

Adults have virtually no episodic memories of our very early years of life, and the few episodic memories we do have tend to date from the age at which we learned to use language. This is a phenomenon referred to as the paradox of infantile amnesia. It is paradoxical because as adults we cannot remember our very early experiences, whereas young children nevertheless can and do remember their experiences. For example, a 3 year-old can recount details of an experience that occurred months earlier, but will be completely unable to remember the experience in adulthood."

78.      The Appellant submits that the admission of this evidence would not have usurped the function of the Jury, as Dr La Rooy would not have been commenting on the reliability of Complainant 1's evidence: rather he would have simply provided a framework for the Jury's discussions.

79.      In our view the Learned Commissioner was entirely correct to rule that the evidence of Dr La Rooy was inadmissible, and the Appellant's more limited attempt to place reliance on the evidence before this Court makes no difference to the position.

80.      So far as the first category of evidence is concerned, the first point to note is that they refer to "detailed and well-organised memories". Whether memories are detailed and well-organised is likely to be a matter of degree and possibly the subject of dispute. Whatever the precise meaning of that concept, it can have no relevance to the evidence given by Complainant 1. Her evidence of the abuse was neither detailed nor well-organised, and on several occasions during the course of giving evidence she was hesitant and imprecise. To put the recommendations before the Jury (other than the one concerning memories dating to the age of 3 years and below) would have been to introduce an irrelevant distraction. It was nothing more than an attempt to undermine the credibility of the witness. This is impermissible (at least by the use of expert evidence in the circumstances of this case) and the issue of credibility was quintessentially for the Jury to determine having received appropriate instruction from the Commissioner. The Learned Commissioner's summing-up was fair and well-balanced. It highlighted the need for care when assessing the evidence and the Jury clearly followed his instructions, as is amply demonstrated by the fact that the Appellant was acquitted of eight of the twelve counts.

81.      So far as the second category of evidence is concerned, the admission of this evidence also involves an attempt to undermine the credibility of Complainant 1. It follows that the Learned Commissioner was right to rule as he did. We would wish to emphasise that the primacy of the jury on issues of credibility has to be maintained and evidence which amounts to no more than comment, direct or indirect, on credibility must be excluded.

82.      For these reasons we see no merit in the third ground of appeal.

The Fourth Ground of Appeal

83.      The fourth ground of appeal involves a submission that the verdicts of the Jury were inconsistent. It is argued that the Prosecution relied on the uncorroborated evidence of the complainants and the acquittals on certain counts render the convictions unsafe. In particular, it is submitted that the Jury rejected the allegations made by Complainant 1 which involved the Appellant exposing his penis [(Counts 6 and 7)] and that, logically, this must have been upon the basis that the Jury accepted that Complainant 1 was given the description of the Appellant's penis, and the Popeye tattoo, by her mother. On this basis, it is suggested that this provides support for the contention that the mother was the source of the allegations and that the Appellant's conviction was otherwise inconsistent with such a finding. 

84.      The proper approach to appeals based on inconsistent verdicts was recently the subject of detailed consideration by the English Court of Appeal in R v Fanning [2016] EWCA Crim 550; [2016] 2 Cr App R 19. In conjoined appeals and applications, the Court of Appeal conducted a comprehensive analysis of the law. In particular, the Court examined the manner in which the seminal judgment of Devlin J. in R v Stone [1955] Crim LR 120 had been adopted and endorsed in subsequent case law. Lord Thomas C.J., speaking for the Court of Appeal, explained that the test in Stone, as adopted in R v Durante [1972] 1 WLR 1612, provided a clear test in all cases where inconsistency between verdicts is advanced as a ground of appeal, namely that the defendant has the burden of satisfying the appeal court that the verdicts were not merely inconsistent, but were so inconsistent as to demand interference by an appellate court. This test is to be applied without further elaboration.  In our view, this approach, which gives proper recognition to the constitutional position of the jury, should be followed in Jersey and Counsel did not suggest otherwise. 

85.      In this case, the Learned Commissioner gave the standard direction that the Jury were required to consider the evidence separately and give separate verdicts on each count. It was not submitted on the Appellant's behalf that he could only safely be convicted if guilt was established on all counts. It is not surprising why such a submission was not made: it would have been rejected out of hand. 

86.      It was for the Jury to decide what they made of Complainant 1 and Complainant 2 as witnesses. They were not bound to accept the evidence and convict on each count, equally they were entitled to find some counts proved beyond reasonable doubt and to give the Appellant the benefit of any doubt on others. In the case of certain counts the Jury accepted the evidence of the complainants and in the case of other counts the Prosecution failed to prove guilt. This was the trial process operating as it is intended so to do and there is no possible cause for complaint.

87.      For these reasons we see no merit in this ground of appeal.

88.      It follows from what we have said that the appeal against conviction is dismissed. Before leaving this case we ought to note our concern about the expert evidence. It is apparent that both experts felt it appropriate to offer an opinion on the credibility of at least one of the complainants, Complainant 1. This went far beyond what was appropriate. In Dr La Rooy's case he forcefully advocated a position that carried the risk of usurping the function of the Jury and it was wholly right for the Commissioner to exclude his opinion. We would wish to make it clear that the task of an expert is to inform the Judge or Jury of experience of a scientific and medical kind of which they might be unaware, and which they ought to take into account when they assess the evidence in the case. Care should be taken to avoid the sort of comments advanced by the experts in this case on the reliability of a particular witness. These comments went beyond what was permissible on the facts and created difficulties for the Commissioner. That said, we wish to pay tribute to the manner in which he presided over this difficult case and the care with which he formulated his rulings and directions to the Jury.

89.      We wish also to express our gratitude to Advocate Thomas and Advocate Preston for the helpful submissions to the Court both written and oral. 

Authorities

Makin v Attorney-General for New South Wales [1894] AC 57.

R v Boardman [1975] AC 421.

Director of Public Prosecutions v P [1991] 2 AC 449.

Hume on Crimes, 3rd Ed.

R v H (A) [1995] 2 AC 596.

R v Turner [1975] 60 Cr. App R 834.

Toohey v Metropolitan Police Commissioner [1965] 595.

R v Robinson [1994] 98 Cr App. R. 370.

R v X (Childhood Amnesia) [2006] 1 Cr App R 10.

R v Jonathan CWS [2006] EWCA Crim 1404.

R v E [2009] EWCA Crim 1370.

R v Stephen H [2014] EWCA Crim 1555.

R v Richard W [2003] EWCA Crim 3490.

R v Bernard V [2003] EWCA Crim 3917.

R v Fanning [2016] EWCA Crim 550.

R-v-Fanning [2016] 2 Cr App R 19.

R v Stone [1955] Crim LR 120.

R v Durante [1972] 1 WLR 1612.

W-v-AG [2015] (1) JLR 29.

R-v-O'Brien [2000] WL 191258.

R-v-Allen [2002] EWCA Crim 2886.

R-v-Cowie [2003] EWCA Crim 3522.

H-v-AG [2013] (1) JLR 210.