Court of Appeal in Northern Ireland Decisions

Thirdly there were difficulties that the Defence would face in presenting their case. They would have problems in conducting cross-examination of complainants and could be placed in an unfair position in that they might be forced to introduce evidence which had been ruled out in order to discredit the allegations of complainants. He gave as an example evidence relating to WA which the defence might wish to use in order to discredit other complainants.

Finally he adverted to the publicity given to the trial and verdicts of the jury and to the appeal and the difficulties which a new trial judge would face in deciding whether the appellants could have a fair trial. These arguments might have little weight in other circumstances. But in the circumstances of this particular appeal they presented to the court what must fairly be described as unique problems, scarcely likely to occur again. In the normal course of events the Crown would be seeking a re-trial. In this case, for the reasons which he gave, it was not. It was a matter for the court.

His evidence against Miss Hewitt was similar to the evidence of others. The case for the Crown had been that the witnesses had no opportunity to collude with one another. Having received fresh evidence in the Court of Appeal it had been shown that there was an opportunity for complainants to discuss the allegations which they would make. DA was amongst those who had an opportunity to concoct a story, he contended.

He submitted that in so far as the evidence of EJ was concerned as against Anderson, the jury acquitted him of a number of allegations of rape made by her. In respect of one of her allegations of rape, she admitted in cross-examination that she had not been raped but said that she had been sexually abused. "Sexual abuse to me is rape" she said. Her evidence in cross-examination about these allegations was, to say the least, unsatisfactory and it was not surprising that Anderson was acquitted of these charges. He contended that the difficulty which this court had involved the verdict of the jury of rape at the holiday home at Ballylough, for which there was no supporting evidence. It was, therefore, on a par with the charges of rape in respect of which the jury found Anderson 'Not Guilty'. Moreover she claimed to be present at Ballylough when SK was allegedly raped by Anderson. But contemporary records produced by independent members of the staff indicate that she was not at Ballylough at that time. The allegations made by her related to incidents which had occurred more than 20 years previously. It happened by chance that at the trial contemporary records of these events made by the staff became available. These contradicted her version of events. She had made a series of allegations against another member of staff which were not proceeded with, as a result of a direction by the DPP not to prosecute. But this was only discovered after the trial. The allegations were on a par with her allegations against Anderson.

Mr Creaney further pointed out that the jury acquitted Anderson of allegations of rape made by SK in respect of incidents at the children's home at Macedon. She made an allegation that she was raped by him at Ballylough, the holiday home for children from Barnardos to which reference has already been made. She described in some detail how she was raped by Anderson on a night which could be identified. When he had stopped raping her, she said, she put on a duffle coat and went outside onto the public road screaming and shouting. He was trying to shut her up by hitting her. She went, she said, to a public phone box. Again she was recounting an incident which had occurred more than twenty years previously. The jury convicted him of this rape although they acquitted him in respect of her other allegations of rape.

Mr Creaney reminded the court of the evidence of independent members of staff. One of them, Mrs Elizabeth McNamara was tendered by the Crown for cross-examination. In fact her evidence was inconsistent with the evidence of SK. But for the fact that she was dealing with events which occurred more than 20 years earlier and could not remember the incident without referring to her own contemporary records she would have been giving evidence for the Crown, answering questions from Crown counsel. Her evidence was established by way of cross-examination and to that extent its force must have been diminished. She had made a report about the incident on the night that SK described as a "rape". In the course of the report she described how SK ate very little tea that evening; she went to take her to the pictures; SK got into a minibus to go to the pictures, shouted: "I hate him" referring to Anderson, subsequently got out of the minibus, then went to the pictures, walking on her own and sitting by herself. When the group arrived back from the pictures Mrs McNamara prepared supper, went to SKs' room to get her to come down for supper, stayed talking to her. SK said "You all talk rubbish, no-one ever sees my point of view". After sitting for about an hour with her, SK ran out. Mrs McNamara went after her walking down the road shouting for her, but she did not appear. Subsequently she was found in a public phone box, refused to come out of it and later returned to her bedroom at 12.30 am. She started shouting that she was going to Belfast. She had a real outburst, yelling at the top of her voice. Mr Anderson then arrived. SK shut the door in his face. He shouted at her to be quiet as she had wakened the younger children who were sleeping nearby. She yelled and yelled at him, then pushed past him. Another member of staff, Mrs Craig, gave evidence, based on a report made by her at the time that she was terrified of SK that night, that she was "off her head", that she was volatile and that there had been other occasions when she was as bad as that. Mrs Mateer, another independent member of staff, recorded in a contemporaneous report that SK had claimed that Anderson had previously called her "a big cow" and that being jealous of him and another girl and desirous for revenge she had exploded on the night in question.

He submitted that it was apparent from this brief summary that Mrs McNamara's evidence contradicts SK's. The latter alleged that she was raped by Anderson, then ran out onto the public road. The former stated in a contemporary report that she was sitting talking to SK in her bedroom when she ran out of the bedroom and out of the front door of the building onto the public road. The discrepancies were plain. The motive for making the allegation, if the staff were right, was that SK believed Anderson had made a disparaging remark about her and was jealous. In these circumstances a conviction for rape on re-trial would be highly unlikely and would not be safe.

C also had made complaints about Anderson of indecent assault. R had given evidence before the Court of Appeal and volunteered that he reminded his sister about some incidents. It must, therefore, be a matter for concern, he contended, as to the extent to which any of her evidence was unprompted. Anderson had spent nine and half months in custody between the end of the trial and the completion of this appeal, the equivalent of a sentence of nineteen months.

The principles to be applied

Conclusions