Neutral Citation:  NICA 19
Judgment: approved by the Court for handing down
(subject to editorial corrections)*
IN HER MAJESTY’S COURT OF APPEAL IN NORTHERN IRELAND
MICHAEL HUGH DECLAN GRIMES
Before: Gillen LJ, Weir LJ and McBride J
GILLEN LJ (giving the judgment of the Court)
 This is an appeal against conviction by a jury on one count of sexual assault against a female. The trial occurred between 24 and 29 April 2016 before Her Honour Judge McColgan QC. A further count of sexual assault by penetration was left on the books as the jury were unable to return a verdict. The appellant was sentenced to three months imprisonment.
 Mr O’Donoghue QC appeared on behalf of the appellant with Mr Turkington. Mr McClean appeared on behalf of the prosecution.
 The complainant in this matter is entitled to automatic lifetime anonymity in respect of these matters by virtue of Section 1 of The Sexual Offences (Amendment) Act 1992 as amended.
 The complainant (“X”) alleged that she was at a bar and nightclub on 4/5 May 2014 with some friends. At or around midnight she and the appellant (at that point a stranger to her) occupied an available space at the nightclub bar in what were crowded premises. X alleged that she was standing diagonally at the bar with her right elbow on the bar and the appellant had the left side of his body against the bar and pushed her up against her friend.
 This led to an exchange between X and the appellant in which she claims to have said “Excuse me, do you mind?” He replied “Why, is your ass bigger than mine?” She replied “No, but I was here before you”. She then alleges that Grimes appeared to move and from behind her she then felt what she believed was Grimes’ left hand go straight up her skirt and in between her legs. She said that she felt his fingers pass her underwear on one side and he then pulled his hand upwards.
 The complainant alleged that when she turned around at that stage and threw her back against the bar, he appeared to be backing off, laughing to himself.
 The complainant alleged she was shocked and upset by what had happened but she then engaged him in conversation and obtained his name. There were further exchanges when he called her “funny girl” and he pointed out to her the CCTV cameras on the premises.
 X alleged that one of her two friends to whom she had relayed what had happened then approached the doormen who were apparently acquainted with the appellant as he had worked there in the past as a doorman. One of them escorted the appellant out of the nightclub area. He apparently relocated to the bar area downstairs for a period.
 X then took her drink and moved to the smoking area of the bar where she remained until she spoke to the police outside the bar at 0105. Her friend had telephoned her mother who was a police officer who in turn telephoned the police on the ground reporting the allegation.
 X was taken to the police station for examination.
 Police confirmed that the appellant had no previous convictions and that multiple swabs were taken from X as well as her clothing with no forensic evidence being found incriminating the appellant. In addition the appellant’s fingernails scrapings were forensically analysed with negative results. The examination of X did not find any injuries or marks around her vaginal area.
 The appellant’s account at police interviews was that he had consumed up to 10 drinks over the course of the day which made him drunk but not “legless”. He stated he could not remember speaking to the complainant at the bar. He denied touching her sexually or inappropriately. He stated that he recalled being asked to leave the nightclub but thereupon went downstairs where he continued to socialise until he left, arriving home about 0300.
 The appellant gave evidence at the trial. He accepted from the CCTV evidence made available that he had been speaking to X at the bar. He indicated that at the point at which the prosecution alleged contact had taken place between him and X, namely 00.30.03, he might have been leaning towards the complainant to speak to her. It was his case that the assault could not have happened at 00.30.03 as the frame on the CCTV shows the complainant and her friends all facing the appellant whereas each of them had alleged in the course of their statements and evidence that they had their backs to the alleged perpetrator when the touching took place.
 During the course of the trial the learned trial Judge refused the defence permission to call three character witnesses.
 Evidence was given from a police constable, in the face of defence objections, that the owner and two employees of the bar (“the three witnesses”) had not made statements when requested.
 CCTV evidence was given to the jury for a 10 minute period of events in the bar and, having requested to do so, the jury members were permitted to view the CCTV in the jury room as well as seeing it in open court.
 The appellant was cross-examined by Crown counsel on the contents of the CCTV evidence.
The Grounds of Appeal
 There were seven grounds of appeal advanced by the appellant as follows:
(i) The learned trial Judge (“LTJ”) erred in preventing the defence calling good character evidence.
(ii) The LTJ erred in allowing the prosecution to inaccurately put the prosecution case to the accused so that it might fit with the CCTV footage.
(iii) The LTJ erred in allowing the prosecution to adduce evidence from Constable McGrath that three witnesses who were identified declined and refused to make statements in the case. This allegedly constituted hearsay and no hearsay application was ever made.
(iv) The LTJ failed to warn the jury of the danger that CCTV evidence can leave a misleading impression.
(v) The LTJ erred in refusing an application of no case to answer. She did not provide any or adequate reasoning for her decision.
(vi) The LTJ did not sum up the evidence in such a way as to sufficiently emphasise the circumstantial evidence in the case which was inconsistent with the guilt of the accused.
(vii) The LTJ allowed the CCTV evidence to be sent to the jury room along with the IT equipment to view it. The jury asked to see the footage again during deliberations. This was properly allowed in open court but the LTJ should not have permitted the jury to bring the footage into the jury room.
The Single Judge
 Leave to appeal was granted by Burgess J on the basis of two issues of concern:
(a) The admission of the fact that three employees in the bar known to the appellant had not made statements (and in one case he had actually declined to make one) with no further mention by the LTJ of the dangers of speculation about the reasons for this; and
(b) The absence both of any direction by the LTJ on the proper approach to be adopted when considering the CCTV footage on which the jury were clearly concentrating and as to care to be exercised in the context of the burden and standard of proof.
Ground 1 of the Appeal – Good character evidence.
The Appellant’s case
 The appellant’s case can be summarised as follows:
The Prosecution case
 The case for the prosecution can be summarised as follows:
The approach of the Judge
 The reasons why the LTJ refused permission to call this evidence can be summarised as follows:
 The leading authority on this matter has traditionally been based on the old authority of Rowton  LE and CA 520. In that case defence witnesses had testified that Rowton was a man of good character and the evidence to the contrary of a prosecution witness was rejected because it was the opinion of only one person and not of general reputation.
 Lord Cockburn CJ in the course of his judgment determined that witnesses as to character should testify to the reputation of the accused, and not to specific good acts or individuals’ opinions.
 The true object of the inquiry was in fact the disposition of the accused, but that it was not the practice to inquire into this directly but to arrive at it by “giving evidence of his general character founded on his general reputation in the neighbourhood in which he lives”.
 Although Rowton speaks of the accused’s reputation within a particular neighbourhood, the concept has long been adapted to allow character witnesses to come from the same workplace as the accused, or the same church or social organisation (see Blackstone’s Criminal Practice 2017 at F14.30).
 May on “Criminal Evidence” 6th Edition at 7-10 sets out five reasons for limiting evidence as to reputation, namely that such evidence:
(a) is easy to fabricate;
(b) is often irrelevant (for example, the fact that a man is capable of acts of personal generosity is usually irrelevant when he is charged with armed robbery);
(c) may lead to the investigation of side issues of little relevance to the case;
(d) amounts frequently to evidence of opinion which is generally excluded; and
(e) may create a risk that the function of the jury will be usurped. That is by a witness, who in saying that the accused is not of such a character as to commit the offence charged, says in effect that he is not guilty: the opinion of the witness may then become a substitute for the verdict of the jury.
 In R v Redgrave  74 Cr App R 10, the defendant sought to produce evidence of his heterosexual relationships to rebut a charge of importuning men for immoral purposes. It was held that production of letters and cards and photographs in order to establish his heterosexuality amounted to evidence of particular facts, i.e. conduct, not of reputation, and so was inadmissible. As regards his character, all that he could do was call witnesses to testify about his general reputation as a heterosexual albeit he would have been able to testify as to his heterosexual relationship with his wife or girlfriend.
 The leading textbooks however make it clear that the rule in Rowton is “more honoured in the breach than in the observance”. (See Blackstone’s Criminal Practice 2017 at F14.30 and May at 7.10). Representative of this approach is the outline of the practice set out in the Court of Appeal in R v Del-valle  EWCA Crim 1013. In that case an army officer gave evidence based on positive conduct reports about the accused, a serving soldier, with a view to demonstrating that there were no black marks against his character. The judge at first instance was held to be correct in preventing the defence counsel from eliciting evidence of the accused’s reputation by questioning the character witness, who had no personal knowledge of the accused’s reputation. If evidence of reputation is called, the Rowton principle requires that the witness must be aware from his own knowledge of the accused’s general reputation and must share in the positive opinion held by the relevant community.
 However, in the course of the judgment in the Court of Appeal in Del-valle Zucker J, giving the judgment of the court, said at paragraph 11:
“The point about Rowton is that the evidence of opinion or particular acts or examples of conduct should, as a matter of law be excluded. In many respects the law has moved well beyond Rowton and evidence of particular opinions and acts are routinely admitted, as is evidence of good character based on the absence of convictions. Indeed it is rare for evidence of general character founded on general reputation to be adduced in a modern criminal trial. If, however, it is sought to do so, both on principle and following Rowton, the witness personally must have a good opinion of the defendant in question. In our judgment, it follows that he must be aware from his own knowledge of the defendant’s general reputation.”
 We have concluded that in the instant case the LTJ was in error in refusing to admit the evidence of the three character witnesses.
 It was clear from the transcript that defence counsel asserted the right to call these witnesses on the basis that they would give evidence at least on general reputation. Rowton makes it absolutely clear that witnesses as to character can testify to the general reputation of the accused. The LTJ failed to ascertain adequately or at all the nature of the general reputation that was to be given before refusing the application on the grounds that the evidence was not relevant and in any event that there was no need for such evidence since she intended to give a good character direction in the course of her charge to the jury.
 It seems to us inescapable that the LTJ erred in arriving at this determination in both respects. Firstly because evidence of general reputation is relevant particularly in a case such as this where the credibility of the appellant was crucial to his defence.
 Secondly because, irrespective of the obligation on a judge to give a good character charge in appropriate cases to the jury, the right remains to call witnesses as to character testifying to the general reputation of the accused. All the promptings of reason and good sense persuade us that in a case such as this, where the credibility of this 51 year old man with no previous convictions was central, the evidence of reputation to be given personally by the three respected witnesses could have had an important impact on the jury. Their very presence could conceivably carry more weight than the direction given by the judge.
 That in itself is sufficient to sustain this ground of appeal. It is unnecessary for us to go further but we observe that there is much merit in the judgment in the Court of Appeal Criminal Division in England in Del-Valle to the effect that the law has moved beyond Rowton and that evidence of particular opinions and acts are routinely admitted. The alchemy of the success of such a practice is that it combines potential common sense and fairness with the restraining hand of the judge. The LTJ appeared to be unaware of this practice and thus did not explore with counsel what other evidence of opinion or acts might have been permitted by her in line with the current practice.
 We underline however that in areas such as this it is vital that counsel be prepared in advance to give assistance to the trial Judge and that the appropriate authorities and practice be opened during submissions. This did not occur in this instance to the extent that was necessary.
Ground 2 - Use of the CCTV footage.
The Appellant’s case
 Mr O’Donoghue advanced the following matters on this ground of appeal:
The Prosecution case
 The prosecution countered this case with the following points:
 We have listened carefully to the competing arguments by counsel in detail together with observing the CCTV footage on a number of occasions. We are satisfied that arguments can be made either way and this was uniquely a suitable matter for a jury to determine. This jury had the opportunity to view the CCTV and requested that it be put before them once more after the evidence had been completed. Indeed the CCTV footage was taken by them into their jury room. We are satisfied that a jury, collectively viewing this footage, were in the best position to form a view about its contents in light of the evidence given by both the complainant and the appellant.
 It may well be that upon reflection the LTJ could have invested more time in pointing up the conflicting cases made by both prosecution and defence as to just how consistent the footage was with the cases being made by the appellant and the complainant. However both counsel had the opportunity to address the jury at length on the competing narratives. Judges cannot be expected in the charge to the jury to cover in detail every aspect of the trial. Having considered the overall approach which the LTJ adopted in which she clearly outlined the appellant’s case to the jury, we were not satisfied that there was substance in this ground of appeal.
Ground 3 - Adducing evidence that identified witnesses had declined and refused to make statements in the case.
 Constable McGrath gave evidence that he had approached John McGirr to make a second statement but he had not done so, that he had approached Steven Curran to make a statement but he declined to do so and that he had approached Mark Breslin to make a statement and he had not done so either.
The Appellant’s case
 Mr O’Donoghue submitted:
The Prosecution case
 Mr McClean submitted:
The approach of the Judge
 The LTJ acceded to the Crown submissions on this point. During the course of her charge to the jury on speculation the LTJ had said:
“You decide the case on the evidence you have heard and only the evidence that you have heard and you apply to that evidence your common sense and judgement. Now, in closing the case Mr Turkington mentioned that you have not heard any eyewitness DNA evidence or medical evidence. Well, you don’t speculate on evidence that you have not heard, ladies and gentlemen. You decide the case on the evidence that you have heard and that means evidence from the witness box, CCTV evidence, and I will explain to you about circumstantial evidence also in a moment”.
 We have come to the conclusion that the LTJ may well have fallen into error in admitting this evidence. It is difficult to see what purpose was served or probative value added by eliciting it. It would of course have been a wholly different matter if a case had been made by the defence that the police had inadequately investigated this matter or had directly challenged the fact that there was no evidence from bar staff brought forward. That clearly did not happen in this instance and it was not part of the defence case. Hence the calling of this evidence served no probative purpose and raised the spectre of speculation by the jury in circumstances where these were fellow employees with the accused in the nightclub in question.
 By itself, this would have been insufficient to overturn this appeal given the indication by the LTJ in the course of her charge to the jury that they must not speculate on evidence that they have not heard. However the fact that at least one of these witnesses, Curran, was said to have declined to make a statement has marginally contributed to the overall concern we have that this conviction was not safe.
Ground 4 – Failing to warn the jury as to the danger that CCTV evidence can leave a misleading impression.
 In the circumstances of this appeal we need do no more than indicate our view that the LTJ had adverted to the quality of the CCTV evidence which was in any event perfectly clear to a jury who had looked at it in some detail. It must have been clear to everyone that the quality of the CCTV was poor and any omission on the part of the LTJ to specifically draw this to the attention of the jury was unlikely to be material. We find no substance in this ground of appeal.
Ground 5 – Refusal of a direction.
The Appellant’s case
 Mr O’Donoghue advanced the following contentions:
· Even accepting the entirety of the complainant’s case a jury properly directed could not exclude the possibility that someone other than the appellant had improperly touched the complainant within a packed bar.
· The complainant accepted that she thought there was another man close by whom she “did not think” would have done this.
· The circumstantial evidence did not and could not establish the appellant’s guilt to the requisite standard.
The Prosecution case
 Mr McClean contended:
 Mr O’Donoghue properly cited G, F and R  EWCA Crim 1756 where Aiken LJ outlined the approach to be taken at the direction stage in cases where essentially the matter is one of circumstantial evidence:
“We think that the legal position can be summarised as follows:
(i) In all cases where a judge is asked to consider a submission of no case to answer, the judge should apply the classic or traditional test set out by Lord Lane CJ in Galbraith.
(ii) Where a key issue in a submission of no case to answer is whether there is sufficient evidence on which a reasonable jury could be entitled to draw an adverse inference against the defendant from a combination of factual circumstances based upon evidence adduced by the prosecution, the exercise of deciding that there is a case to answer does involve the rejection of all realistic possibilities consistent with innocence.
(iii) However, most importantly, the question is whether a reasonable jury, not all reasonable juries, could, on one possible view of the evidence, be entitled to reach that adverse inference. If a judge concludes that a reasonable jury could be entitled to do so (properly directed) on the evidence, putting the prosecution case at its highest, then the case must continue; if not it must be withdrawn from the evidence”.
 We are satisfied that looking at all the evidence in the round at the direction stage, there was clearly sufficient evidence given by the complainant, coupled with the CCTV footage, to have allowed this case to go before the jury. We therefore reject this ground of appeal.
Ground 6 – The warning in relation to circumstantial evidence.
The Appellant’s case
 Mr O’Donoghue contended as follows:
The Prosecution case
 Mr McClean contended as follows:
 There is no rule that where the prosecution case is based on circumstantial evidence the judge must, as a matter of law, give a further direction that the jury must not convict an accused unless they are satisfied that the facts proved are not only consistent with the guilt of the accused, but also such as to be inconsistent with any other reasonable conclusion.
 The leading authority on this matter is found in McGreevy v Director of Public Prosecutions  1 All ER 503. Lord Morris of Borth-Y-Gest outlined all that needs to be said on this matter at page 510g et seq:
“In my view the basic necessity before guilt of a criminal charge can be pronounced is that the jury are satisfied of guilt beyond all reasonable doubt. This is a conception that a jury can readily understand and by clear exposition can readily be made to understand. So also can a jury readily understand from one piece of evidence which they accept various inferences might be drawn. It requires no more than ordinary common sense for a jury to understand that if one suggested inference from an accepted piece of evidence leads to a conclusion of guilt and another suggested inference to a conclusion of innocence a jury could not on that piece of evidence alone be satisfied of guilt beyond all reasonable doubt unless they wholly reject it and exclude the latter suggestion. Furthermore a jury can fully understand that if the facts which they accept are consistent with guilt but also consistent with innocence they could not say that they were satisfied of guilt beyond all reasonable doubt. Equally a jury can fully understand that if a fact which they accept is inconsistent with guilt or may be so they could not say they were satisfied of guilt beyond all reasonable doubt.
In my view, it would be undesirable to lay down as a rule which would bind judges that a direction to a jury in cases where circumstantial evidence is the basis of the prosecution case must be given in some special form provided always that in suitable terms it is made plain to a jury that they must not convict unless they are satisfied of guilt beyond all reasonable doubt ….
To introduce a rule as suggested by learned counsel for the appellant would .. not only be unnecessary but would be undesirable. In very many criminal cases it becomes necessary to draw conclusions from some accepted evidence. The mental element in a crime can rarely be proved by direct evidence. I see no advantage in seeking for the purpose of summing up to classify evidence into direct or circumstantial with the result that if the case for the prosecution depends (as to the commission of the act) entirely on circumstantial evidence (a term which would need to be defined) the judge becomes under an obligation to comply when summing up with a special requirement.”
 We conclude that there is no merit in this ground of appeal. We are satisfied that the LTJ was aware of the circumstantial aspect of this case and gave a clear and unequivocal direction on the burden and standard of proof.
 Moreover, in the course of her charge the LTJ said:
“There may be circumstances which assist the prosecution, but there also may be circumstances which are neutral in character, or indeed there may be circumstances which are inconsistent with a conclusion of guilt, and I will deal with some of those in due course. But, for example, the fact that the defendant remains in the bar after the alleged incident, the fact that he gives his name or something close to his name and the fact that he points out the cameras you may think that those are circumstances which are inconsistent with guilt, but that is a matter for your determination”.
 We are satisfied that the LTJ in this case clearly pointed out those pieces of evidence which arguably were inconsistent with guilt and were consistent with innocence if the jury so determined. As Crown counsel has pointed out, she did advert to the five main circumstantial points in this category.
Ground 7 – CCTV evidence sent to the jury room.
 Although this ground of appeal was listed in the skeleton argument, counsel did not pursue it before us in the course of oral submissions and accordingly we find it unnecessary to deal with it.
 Ultimately the question for this court is whether the conviction of the appellant was unsafe. The Court of Appeal in R v Pollock  NICA 34 set out the approach in the following terms:
“(i) The Court of Appeal should concentrate on the single and simple question ‘does it think that the verdict is unsafe’.
(ii) This exercise does not involve trying the case again. Rather it requires the court, where a conviction has followed trial and no fresh evidence has been introduced on the appeal, to examine the evidence given at trial and to gauge the safety of the verdict against that background.
(iii) The court should eschew speculation as to what may have influenced the jury to its verdict.
(iv) The Court of Appeal must be persuaded that the verdict is unsafe but if, having considered the evidence, the court has a significant sense of unease about the correctness of the verdict based on a recent analysis of the evidence, it should allow the appeal.”
 In the circumstances of this case, and in particular the failure to permit the calling of character witnesses, we do entertain a significant sense of unease about the correctness of the verdict given the real risk that the jury have been deprived of evidence which would have been relevant to their deliberations. Accordingly we have concluded that we should quash this conviction.
 Since this appellant has already served the period of imprisonment imposed on him, we do not order a retrial but leave this to the discretion of the Public Prosecution Service. They should make a decision on that matter within 7 days.
R v Grimes (Michael Hugh Declan)  NICA 19 (16 Mar 2017)