Court of Appeal in Northern Ireland Decisions

Neutral Citation No. [2012] NICA 20	Ref:	GIR8506
Judgment: approved by the Court for handing down	Delivered:	15/06/12
(subject to editorial corrections)*


 


IN HER MAJESTY'S COURT OF APPEAL IN NORTHERN IRELAND ________ THE QUEEN -v- MARK HARBINSON ________ Before: Higgins LJ, Girvan LJ and Gillen J ________

GIRVAN LJ (delivering the judgment of the court)

Introduction

[1] The applicant Mark Harbinson seeks leave to appeal convictions on two counts of sexual activity involving penetration by an adult with a child between 13 and 16 years contrary to Article 16(2) of the Sexual Offences (Northern Ireland) Order 2008 and one count of causing or inciting a child between 13 and 16 years to engage in sexual activity contrary to Article 17(1) of the Sexual Offences (Northern Ireland) Order 2008. These offences comprise counts 6, 7 and 8 of the indictment. It is in respect of the convictions on those counts that the applicant seeks leave to appeal. On 8 June 2011, Higgins LJ extended time within which to seek leave to appeal. On 30 November 2011 Stephens J refused leave to appeal.

[2] The applicant was committed for trial in Craigavon Crown Court on 7 September 2010. On 8 October 2010, he was arraigned and pleaded not guilty to the 13 counts listed in the table below. The trial before His Honour Judge Marrinan and a jury took place between 24 January 2011 and 28 February 2011. The table below sets out the details of the offences charged, the verdicts given and the sentences imposed.

Count	Charge	Verdict & Sentence	Maximum sentence
1	Sexual activity by adult with a child between 13 and 16 years contrary to Article 16(1) of the Sexual Offences (NI) Order 2008 on a date unknown between 28 February 2009 and 1 April 2009.	Left on books.	14 years (pursuant to Article 16(3) of the Sexual Offences (NI) Order 2008).
2	Sexual activity by adult with a child between 13 and 16 years contrary to Article 16(1) of the Sexual Offences (NI) Order 2008 on a date unknown between 28 February 2009 and 1 April 2009.	Left on books.	14 years (pursuant to Article 16(3) of the Sexual Offences (NI) Order 2008).
3	Sexual activity involving penetration by adult with a child between 13 and 16 years contrary to Article 16(2) of the Sexual Offences (NI) Order 2008 on 18 July 2009.	Left on books.	14 years (pursuant to Article 16(2) of the Sexual Offences (NI) Order 2008).
4	Sexual activity involving penetration by adult with a child between 13 and 16 years contrary to Article 16(2) of the Sexual Offences (NI) Order 2008 on a date unknown between 18 July 2009 and 1 September 2009.	Acquitted.	14 years (pursuant to Article 16(2) of the Sexual Offences (NI) Order 2008).
5	Adult causing or inciting a child between 13 and 16 to engage in sexual activity contrary to Article 17(1) of the Sexual Offences (NI) Order 2008 on a date unknown between 18 July 2009 and 1 September 2009.	Acquitted.	14 years (pursuant to Article 17(3) of the Sexual Offences (NI) Order 2008).
6	Sexual activity involving penetration by adult with a child between 13 and 16 years contrary to Article 16(2) of the Sexual Offences (NI) Order 2008 on a date unknown between 30 June 2009 and 31 August 2009.	Convicted. Sentence of 7 years (3 years 6 months in custody and 3 years 6 months on licence). (See end of table for orders.)	14 years (pursuant to Article 16(2) of the Sexual Offences (NI) Order 2008).
7	Adult causing or inciting a child between 13 and 16 to engage in sexual activity contrary to Article 17(1) of the Sexual Offences (NI) Order 2008 on a date unknown between 30 June 2009 and 31 August 2009.	Convicted. Sentence of 7 years (3 years 6 months in custody and 3 years 6 months on licence) concurrent with count 6. (See end of table for orders.)	14 years (pursuant to Article 17(3) of the Sexual Offences (NI) Order 2008).
8	Sexual activity involving penetration by adult with a child between 13 and 16 years contrary to Article 16(2) of the Sexual Offences (NI) Order 2008 on a date unknown between 30 June 2009 and 31 August 2009.	Convicted. Sentence of 7 years (3 years 6 months in custody and 3 years 6 months on licence) concurrent with count 6. (See end of table for orders.)	14 years (pursuant to Article 16(2) of the Sexual Offences (NI) Order 2008).
9	Sexual activity by adult with a child between 13 and 16 years contrary to Article 16(1) of the Sexual Offences (NI) Order 2008 on 8 August 2009.	Left on books.	14 years (pursuant to Article 16(3) of the Sexual Offences (NI) Order 2008).
10	Possessing an indecent photograph or pseudo-photograph of a child contrary to Article 15 of the Criminal Justice (Evidence etc.) (NI) Order 1988 on 23 October 2009.	Convicted. Custodial period of 9 months concurrent with count 6. (See end of table for orders).	5 years or a fine (pursuant to Article 15(2A) of the Criminal Justice (Evidence etc.) (NI) Order 1988 on 23 October 2009.
11	Possessing an indecent photograph or pseudo-photograph of a child contrary to Article 15 of the Criminal Justice (Evidence etc.) (NI) Order 1988 on 23 October 2009.	Possessing an indecent photograph or pseudo-photograph of a child contrary to Article 15 of the Criminal Justice (Evidence etc.) (NI) Order 1988 on 23 October 2009.	Possessing an indecent photograph or pseudo-photograph of a child contrary to Article 15 of the Criminal Justice (Evidence etc.) (NI) Order 1988 on 23 October 2009.
12	Indecent assault on a female contrary to section 52 of the Offences against the Person Act 1861 on a date unknown between 31 January 2007 and 1 March 2007.	Left on books.	10 years
13	Indecent assault on a male contrary to Article 21(1) of the Criminal Justice (NI) Order 2003 on a date unknown between 31 January 2007 and 1 March 2007.	Acquitted.	10 years
In respect of counts 6 to 8 and 11 and 12: sex offenders registration (for an indefinite period) was required, the defendant having been convicted in respect of sexual offences covered by Part 2 of the Sexual Offences Act 2003; and a sexual offences prevention order until 20 May 2017 was made and it was ordered that he defendant be subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 for this period. In respect of counts 6 to 8, the court ordered: that Article 26 of the Criminal Justice (NI) Order 1996 shall apply and a licence condition was imposed requiring the defendant to participate in a community sex offenders' group work programme during the probation period; and that the defendant be disqualified from working with children under the Protection of Children and Vulnerable Adults (NI) Order 2003. The Court also advised the defendant that the Independent Safeguarding Authority will include him in the Children's barred list as required under the Safeguarding Vulnerable Groups (NI) Order 2007.	In respect of counts 6 to 8 and 11 and 12: sex offenders registration (for an indefinite period) was required, the defendant having been convicted in respect of sexual offences covered by Part 2 of the Sexual Offences Act 2003; and a sexual offences prevention order until 20 May 2017 was made and it was ordered that he defendant be subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 for this period. In respect of counts 6 to 8, the court ordered: that Article 26 of the Criminal Justice (NI) Order 1996 shall apply and a licence condition was imposed requiring the defendant to participate in a community sex offenders' group work programme during the probation period; and that the defendant be disqualified from working with children under the Protection of Children and Vulnerable Adults (NI) Order 2003. The Court also advised the defendant that the Independent Safeguarding Authority will include him in the Children's barred list as required under the Safeguarding Vulnerable Groups (NI) Order 2007.	In respect of counts 6 to 8 and 11 and 12: sex offenders registration (for an indefinite period) was required, the defendant having been convicted in respect of sexual offences covered by Part 2 of the Sexual Offences Act 2003; and a sexual offences prevention order until 20 May 2017 was made and it was ordered that he defendant be subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 for this period. In respect of counts 6 to 8, the court ordered: that Article 26 of the Criminal Justice (NI) Order 1996 shall apply and a licence condition was imposed requiring the defendant to participate in a community sex offenders' group work programme during the probation period; and that the defendant be disqualified from working with children under the Protection of Children and Vulnerable Adults (NI) Order 2003. The Court also advised the defendant that the Independent Safeguarding Authority will include him in the Children's barred list as required under the Safeguarding Vulnerable Groups (NI) Order 2007.	In respect of counts 6 to 8 and 11 and 12: sex offenders registration (for an indefinite period) was required, the defendant having been convicted in respect of sexual offences covered by Part 2 of the Sexual Offences Act 2003; and a sexual offences prevention order until 20 May 2017 was made and it was ordered that he defendant be subject to the notification requirements of Part 2 of the Sexual Offences Act 2003 for this period. In respect of counts 6 to 8, the court ordered: that Article 26 of the Criminal Justice (NI) Order 1996 shall apply and a licence condition was imposed requiring the defendant to participate in a community sex offenders' group work programme during the probation period; and that the defendant be disqualified from working with children under the Protection of Children and Vulnerable Adults (NI) Order 2003. The Court also advised the defendant that the Independent Safeguarding Authority will include him in the Children's barred list as required under the Safeguarding Vulnerable Groups (NI) Order 2007.

[3] On 25 February 2011 the applicant was convicted on counts 10 and 11 in respect of the possession of indecent photographs sent to him by the complainant and retained by him on his mobile phone. He does not seek to challenge the verdicts on those counts. On 28 February 2011 the applicant was convicted on counts 6, 7 and 8 the subject of the application for leave. The applicant was found not guilty of counts 4, 5 and 13 on 25 February 2011. The jury could not agree on verdicts in respect of the other counts.

[4] The convictions under appeal relate to sexual acts alleged to have been committed against the same child N, a girl who was aged 13 at the time the alleged offences were committed. In total three separate complainants appeared on the bill of indictment, being N in respect of counts 1 to 9, a second complainant in respect of count 12 and a third in respect of count 13.

Factual background

[5] In or about December 2008/January 2009 N, who lived with her parents and an older sister in Maghaberry, joined a local social group. At that time the applicant, who lived in Stoneyford, was a long-standing and a senior member of the group. The child remained a member of the group until August 2009. The applicant became acquainted with her. There ensued between them an intensive and extensive mobile telephone textual relationship. Between March and October 2009 there passed between them 1,743 text messages, 686 emanating from the applicant to N and 1,057 messages from N to the applicant. During this intense period of texting which occurred many times a day and often into the early hours of the morning, two indecent photographs, each showing N's bare breasts, were sent by N to the appellant on the 9 August and the 18 October 2009. After receipt he saved those photographs in the "my folders" section of his mobile phone. It is in relation to his possession of those photographs that he was convicted on counts 10 and 11.

[6] It was the Crown case that on the evening of the 14 August 2009 the applicant, having picked up N in his car near her home, brought her to a local community hall, the premises in which the group met. They were alone in the hall. There he kissed N on the lips using his tongue, and he took her to a storage room in the hall. He put her on a table in that room, pulled her trousers down, put his head down and kissed her vagina. He pulled her top and bra up and felt and kissed her breasts. He took out his penis and put her hand on it and moved it up and down. He put his penis against N's skin just above the area of her vagina. He put her mouth to his penis and put his penis into her mouth. He then went away to arrange some chairs in the hall and when he came back he took her trousers down again and fingered digitally penetrating and kissing her vagina. He left the hall with her and he dropped her off from his car.

[7] On the evening of 23 October, the police searched the appellant's home and removed therefrom inter alia the mobile phone containing the indecent images of N. Immediately after that search the applicant called N by telephone and he spoke to her for about fourteen minutes. On 26 October 2009 the police stopped a car in Trummery Lane, Maghaberry. The applicant was the driver of the car and N was in the front passenger seat. In the car also were two new mobile phones purchased that morning by the applicant. He was arrested. The police spoke to N and in consequence of information which she gave the applicant was prosecuted for the offences alleged on the relevant counts.

[8] The applicant and N are not related and there is no connection or friendship between their families. The contact between the two parties was solely in the context of social activity associated with the local community hall.

[9] It was the Crown case that grooming events occurred during the months of 2009 and that the applicant flattered N by terming their association as an affair behind his wife's back. The applicant described the relationship to police as professional and one of friendship, claiming that there were no private meetings between them, other than in association with the social activities in the community hall, until 26 October 2009.

[10] In addition to the allegations relating to indecent photographs, the allegations concerning N focused on sexual activity that took place on 7 March 2009, on 18 July 2009 (described as the first Aghalee incident), on an unspecified date (described as the second Aghalee incident), and on 14 August 2009 (at the community hall). Counts 6, 7 and 8 all relate to the last of these incidents. When the police stopped the applicant's car on 26 October 2009, N was taken directly for interview in accordance with the Achieving Best Evidence procedure.

The grounds of appeal

[11] The applicant seeks to ground his application on three matters. Firstly it is alleged that the conviction on Counts 6, 7 and 8 are unsafe on the basis that no reasonable jury properly directed could have reached the verdicts which they did on the evidence. Secondly the convictions were unsafe as they were inconsistent with the jury's acquittal of the applicant on Counts 4 and 5. Thirdly new evidence that came to light subsequent to the trial calls into question the safety of the convictions. The applicant seeks to rely on the evidence of Dr Paterson who completed victim impact reports after conviction on 4 March 2011. Dr Paterson was told by N that the applicant had sexually abused and raped her and that the offences took place in the Maghaberry area in the applicant's car and in the community hall. The applicant submits that inconsistencies between N's evidence and her account to Dr Paterson go to her credibility as a witness and were relevant matters that would or could have affected the jury's assessment of the case.

The unsafety of the convictions on the evidence

[12] Mr Irvine QC in a carefully presented argument and after a meticulous analysis of the transcript of the evidence sought to persuade the court that there were such inconsistences in the evidence of the complainant surrounding the circumstances of the alleged events in the community hall when she claimed to have been abused that the verdicts should be treated as unsafe. He pointed out that the complainant said she thought the incident took place in July 2009 whereas later she said it was August. She was unable to remember at what time the applicant allegedly dropped her off at Maghaberry. In cross-examination she was unable to remember if he picked her up at 7.00 pm despite telling that to the police. She was unable to describe the route the car took to the community hall. She could not remember in which direction the applicant was supposed to have parked the car outside the community hall. It was suggested that the applicant parked directly outside the community hall which would have been incredibly indiscreet in the circumstances and his parents lived close by where he could have parked more discreetly. She claimed that he had made contact with her by text but could not remember when he had sent the text but it was supposed to have been a couple of days before. She claimed not to know why she met him that evening. She said that following his initial sexual acts in the community hall he had gone to put out chairs in the hall for an engagement party the next day relating to A. Whereas A's evidence was that the party took place on 29 August and gave evidence that she had told her sister by phone that evening that she was at home. That eventually she said that she was at a particular graveyard and changed her story to her sister that she was with friends to say that she was with a boy. She could not remember saying she had named a certain boy. In her evidence she said that the applicant gave her a drink but accepted that she never told the police about that during interview. She stated that after returning to Maghaberry she went out with friends and was not upset about what had allegedly happened in the community hall. She said that what happened had not upset her but had scared her. She described the keys which the applicant gave her to open the front door as being a big bunch of keys and the key for the front door where she firstly described as being a normal front door key. She then described the key as having a square or rectangular end and was not like an ordinary front door key. She said that the key shown to her in a photograph of the keys used to open the hall was not the same type of key she used. Counsel also referred to evidence from N's mother that N's sister had told her that N had failed to feed the dogs, was out, had told her she was out with a boy in the village and that N had been in an old mobile close to an area called Finlays and that N smelt of vodka.

[13] Counsel further relied on the applicant's evidence which completely denied N's allegations relating to sexual abuse either at the community hall or in any of the other alleged incidents. He gave evidence that there was only one key which opened the hall and it was an ordinary house door key. He subsequently stated that there were 5 or 6 sets of keys none with a square or rectangular head. His reference to the fact that there was only one key, counsel contended, was not a lie. He was simply saying that there was one type of key for the lock in the front door. The defendant had in police interviews stated that there were 5 or 6 sets of keys.

[14] Both defence and Crown counsel paid tribute to the trial judge's fair and meticulous charge to the jury in which each piece of material evidence was properly put to the jury. The defence accepted that the trial judge fairly presented the defence case in a balanced way. Mr Irvine QC also accepted that the jury deliberated on the issues over a lengthy period. There was no suggestion that the jury was pressurised into reaching verdicts. In meeting the defence application Mr Hunter QC on behalf of the Crown pointed to the fairness of the trial process, to the balance and proper way in which the trial judge had charged the jury, to the length of the jury's deliberations, the obvious care with which the jury carried out its task and to the fact that the jury had an ample opportunity to hear and assess the witnesses and their demeanour during what was a lengthy trial. Mr Hunter stressed the fact that the jury was fully entitled to take a very adverse view of the applicant's evidence in the light of the nature and quantity of the texting and telephone communication between a very mature adult man and a vulnerable girl aged 13. The jury had convicted the defendant in respect of the charges in relation to indecent photographs which demonstrated a very clear sexual and improper interest by the applicant in this young girl. They had rejected his entirely implausible defence that he had retained the photographs on his mobile phone accidentally or in order to take advice from a third party.

[15] In any case involving allegations of sexual abuse of a young person there is the real likelihood of dispute about details surrounding the alleged offence. It is the jury, properly directed and alert to the dangers of convicting a defendant in such a case which is best placed to reach a conclusion on the question whether it is satisfied beyond reasonable doubt that the complainant's allegations are correct. This court can and will intervene to allow an appeal if it is persuaded that the verdict reached is unsafe, applying the tests set out in R v Pollock [2004] NICA 34. In considering the safety of a properly directed jury's verdict it must remind itself that it does not have the advantage which the jury had of seeing and hearing the witnesses and it must pay a proper regard to the judgment reached by the jury which had that advantage.

[16] Where as here so much turned on the jury's assessment of the credibility of the witnesses whom they saw and heard the applicant bears a significant burden in persuading this court that the verdict was unsafe. While the complainant's evidence on some of the details surrounding the events of the night in question may have been unsatisfactory we are wholly unpersuaded that the jury reached an unsafe verdict on the core allegations. Clearly the jury were satisfied that they believed the complainant's version of events in relation to what happened in the community hall and in reaching their conclusion they had an opportunity to take account not merely of the complainant's evidence and demeanour but that of the applicant himself and the other witnesses.

The safety of the convictions on the ground of inconsistency

[17] Blackstone 2012 at D26.22 states that the Court of Appeal will quash a conviction based on apparently inconsistent verdicts only if those verdicts are such that no reasonable jury applying its mind to the evidence could have reached the conclusions it did (Durante (1972) 1 WLR 1612). The current edition of Archbold identifies the relevant principles at paragraph 7.70. The applicant bears the burden of showing not merely that the verdicts were inconsistent but were so inconsistent as to call for interference by an Appellate Court. The court will interfere if it is satisfied that no reasonable jury who had applied its mind properly to the facts could have arrived at the conclusion reached. There is no shortage of authority to support the proposition that logical inconsistency does not make the verdict unsafe unless the only explanation of the inconsistency must or might be that the jury was confused or adopted the wrong approach. The Court of Appeal has said that there is much to be said for the view that once logical inconsistency is established the onus should be on the prosecution to show that the verdicts had not resulted from confusion or a wrong approach by the jury (R v Cova Products Limited [2005] Crim. LR 667).

[18] Mr Irvine argued that in respect of the two incidents, the one in respect of Counts 4 and 5 and the other in respect of Counts 6, 7 and 8, the former known as the second Aghalee incident and the second the community hall incident, there were many striking similarities. He referred to the fact that both allegedly occurred as a result of text messages arranging a meeting and both involved the applicant picking the complainant up in his car close to the complainant's house. Both incidents allegedly involved the complainant being driven to a location where sexual activity took place. The complainant was unable to specify a date when this occurred but in the community hall incident she had got her dates wrong. The evidence in relation to each incident effectively hinged on an assessment as to credibility and truthfulness of the complainant. In neither incident could the complainant give a reason why she allowed herself to be picked up. In respect of both incidents she indicated that she did not consent to the activity in question and the activity was similar in nature (although he accepted that there was no oral penetration in the Aghalee incident). He submitted that there was a logical inconsistency in the verdicts returned by the jury acquitting on Counts 4 and 5 and convicting on Counts 5, 6 and 7. There was no discernible explanation for the differing verdicts and as such the court would be entitled to conclude the jury must have been confused or adopted the wrong approach with a consequence that the conviction on Counts 6, 7 and 8 should be quashed.

[19] Mr Hunter on behalf of the Crown refuted the assertion that there was an inconsistency between the material verdicts. He contended that the nature of the verdicts and the manner in which they were given demonstrated clearly the careful and full attention of a conscientious and properly directed jury which considered separately each of the material incidents and the weight and reliability of the evidence pertaining to each of the incidents. The Crown recognised that the evidence in respect of the second Aghalee incident could have been considered by the jury to be as the defence alleged and as the judge pointed out vague and impenetrable. She had not mentioned the incident when initially interviewed by the police. She could not give a date or time for it or relate it to any given event. There was not much detail of the surrounding circumstances to test the evidence. We accept the Crown's argument on this issue.

[20] As has been repeatedly said in appellate decisions a finding of guilt on an allegation of sexual abuse by a defendant of a complainant is not necessarily inconsistent with an acquittal on the same indictment in respect of another alleged act of abuse by the same defendant against the same complainant. As King LJ stated in R v VV [2004] EWCA Crim. 355:

"It is well established that the test to be applied in such situations where a jury acquits on some counts but convicts on others is whether the conclusion reached by the jury is one at which no reasonable jury properly applying their minds to the facts could have arrived: see R Durante (1972) 56 Criminal Appeal Reports 708. It is therefore a heavy burden which an appellant has to discharge. Moreover, the proposition that where a complainant's credibility is in issue and her evidence is uncorroborated guilty verdicts must be regarded as unsafe because the jury also returned not guilty verdicts on other counts that have been regularly rejected by this court: see R v Cilgram (1994) Criminal Law Reports 861 and R v Bell (15.5.97) (1997) 6 Archbold News 2. In that latter case the court said that such a conclusion would be contrary to the proposition that juries should normally be directed to give separate consideration to each count on the indictment."

[21] As was said in R v G (1998) Crim L R 483 by Buxton LJ neither credibility nor reliability is a seamless robe. The jury is entitled to accept part of the complainant's evidence whilst rejecting or more accurately not being sure about, other parts. He then went on to point out that:

"Generally, therefore, in sex cases where it is alleged that different sexual incidents occurred on separate occasions, verdicts will not be inconsistent simply because a jury convicts on some counts and acquits on others, because there is likely to be an obvious legitimate chain of reasoning to explain the verdicts. The jury may be sure that a witness has reliably recalled one incident but remained unsure about another or they may consider that some incidents are exaggerated or fabricated but not all. There had been numerous cases of this nature where challenges on the basis of inconsistent verdicts have unsurprisingly failed."

[22] For our part we are unpersuaded by the applicant's argument that the verdicts were logically inconsistent or that the difference in outcome between the two sets of counts calls into question the safety of the convictions.

[23] Where an accused is charged on a number of separate counts alleging differing acts of sexual misconduct involving the same or different complainants the jury must be directed on the need to give separate consideration to each count and to return separate verdicts in relation to each. We were informed by counsel that juries often bring in separate verdicts at different times during their deliberations. This occurred in this case. Although a jury must give separate consideration to and return a separate verdict on the counts the overall evidence in the case may be such that views, for example on credibility, on one count may affect the jury's view on credibility on other counts. Returning to court and entering a verdict on one or more counts before concluding consideration of the other counts creates a risk that a jury which wishes to revisit its conclusions in respect of earlier counts in light of its later conclusions would be precluded from doing so. Once it has announced its verdicts on some counts, whether it be by way of acquittal or conviction, it will not be open to the jury to change its mind on their earlier determination even if they wished to do so. For this reason trial judges should take care as to the risks of returning separate verdicts at different stages and invite the jury not to return their verdicts until they have concluded their deliberations on all counts. Clearly if the jury reach conclusions on some counts but recognise that they will be unable to reach agreement on the remaining counts it would be proper for them to return their verdicts on all the counts on which they are agreed and to announce their inability to reach agreement on the outstanding counts.

Fresh Evidence

[24] At the outset of this appeal we acceded to an application by Mr Irvine to introduce fresh evidence pursuant to Section 25 of the Criminal Appeal (Northern Ireland) Act 1980. The fresh evidence was contained in two victim impact reports prepared by Dr Michael Paterson, Consultant Clinical Psychologist, dated 4 March 2001 together with an addendum report by him dated 20 April 2011.These reports had been prepared by Dr Paterson following visits to the victim and her mother approximately 4 days after the termination of the trial and on foot of a direction from the trial judge that such reports be prepared.

[25] In the course of the report on the victim, N, Dr Paterson recorded as follows:-

"2.1 N is a 15 year old girl who lives with her family at . . . She was sexually abused and raped by Mark Harbinson when she was 13. I understand the offences took place in the Maghaberry area in Mr Harbinson's car and also in a local [community hall].

. . .

3.2 When I asked N about how she feels the experiences she had with Mark Harbinson have affected her everyday life, she told me that she had thoughts of killing herself. When I asked her had she planned how she would do it, she was quite clear that she would have sliced her wrists. I understand that she did not proceed with this because her sister found out and told their mother. Her parents were then able to explain to her that Mark Harbinson was an adult and he was responsible for the abuse and rape.

. . .

9.5 Affect (sic) and mood: This young woman reports getting upset on occasion and having disturbing thoughts about the incidents where she was sexually abused and raped by Mark Harbinson."

The report on the victim's mother makes similar references to N being "sexually abused and raped" by Mark Harbinson.

[26] Following concerns expressed by the trial judge that the report had referred to the serious allegation of rape which had not been the subject of the trial, Dr Paterson prepared an addendum report in which he recorded as follows:-

"I have had the opportunity to read a factual matrix in relation to the case of R v. Mark Harbinson, prepared by David Hunter QC and dated 15 April 2011. I am aware from the factual matrix that rape of N did not take place but had been informed this was the case when I met with [N] and her mother previously.

My report has been based on the factual information regarding clinical symptoms provided by N and her mother. My clinical opinion has not been influenced by the fact that they informed me that N had been raped."

[27] On the basis that this evidence from Dr Paterson was likely to be credible, that it would have been admissible at trial, that there was a self-evident explanation as to why it had not been adduced at trial and that it was directly in issue as to the credibility of N, we permitted the evidence to be called.

[28] Dr Paterson gave evidence before us that N had given him this information when her mother was not present (he had seen her alone) and that she had used the word "rape" in describing what had happened to her. He, however, did not explore what she had meant by this and he did not have with him the notes that he had taken at the time. His primary purpose was to assess her psychological state.

Principles governing fresh evidence

[29] The principles governing the court's approach to fresh evidence have been most recently adumbrated in R v Ahmed [2010] EWCA Crim 2899. In that case Hughes LJ at [24] emphasised that the responsibility for deciding whether fresh material renders a conviction unsafe is laid inescapably on the court which must make up its own mind. It must consider the nature of the issue before the jury and such information as it can gather as to the reasoning process through which the jury will have been passing. Whilst the court is likely to ask itself by way of check what impact the fresh material might have had on the jury, the test is not what effect the fresh evidence would have had on the jury but on the court itself. See also R v Pendleton [2001] UK HL 66, R v Dial [2005] 1WLR 660 and R v Buridge [2010] EWCA 2847. In a cautionary observation at [25], Hughes LJ said in Ahmed that in most cases of fresh evidence, it will be impossible to be 100% sure that it might not possibly have had some impact on the jury's deliberations since ex hypothesi the jury have not seen the fresh material. The question which matters, however, is whether the fresh material causes the court to doubt the safety of the verdict of guilty.

Discussion

[30] Mr Irvine on behalf of the appellant contended that presence of the fresh evidence should render the convictions unsafe on counts 6, 7 and 8 for the following reasons:-

•    Such evidence would have been discoverable and admissible had it emerged prior to the trial. The same principles should apply to evidence produced after the trial. Hence without its presence in the trial process the verdicts were unsafe.

•    It presented a wholly different allegation from that previously put forward by the victim.

•    It lent weight to the appellant's case that the victim had exaggerated and lied about his conduct.

•    It vitally affected the credibility of the victim.

[31] Mr Hunter on behalf of the prosecution contended that:-

•    The context in which these revelations were made had to be considered given that the victim was a child who had been traumatised and suffered from a chronic adjustment disorder.

•    The purpose to the reports had been to ascertain her state of mind. Thus no exploration of exactly what she intended to convey was instigated by Dr Paterson. It was therefore a wholly different context from the trial scenario.

•    The jury had ample opportunity to assess N's credibility and this further information was of no moment.

Conclusions

[32] For the reasons we set out below we have concluded that this fresh material does not cause this court to doubt the safety of the verdicts on these counts.

[33] It is important to bear in mind the context in which this child spoke to Dr Paterson. At this stage she had not only gone through the trauma of abuse by the appellant over a prolonged period but had very recently endured the doubtlessly traumatic experience of a lengthy trial in which she had been subjected to fair but robust cross examination over a number of days and been accused of mendacity and invention by the appellant. Since the trial had ended this child who was suffering from an adjustment disorder had been in all probability party to discussions within the family about the nature of what had been done to her. In such circumstances it cannot be expected that she would speak in lawyerly terms about the perpetrator or her experiences. It is highly likely that she will have given vent to her innermost feelings of disgust and despair. We are satisfied that a discerning ear should not be surprised by the looseness of language of a child in this context outside the discipline of a court or police interview setting.

[34] Her case has consistently been that she did not consent to any of these acts of sexual impropriety including the penetration of her mouth by the appellant with his penis. The Sexual Offences (NI) Order 2008 has amended the offence of rape to include the intentional penetration of the mouth in circumstances which are non-consensual. This legislation was an instance where the law had belatedly caught up with a view long held by victims of rape and recognises the violation involved in oral penetration. Whilst it may well be that she had not previously described this behaviour as rape and indeed the accused was not charged with rape this court has no difficulty understanding why this child used the term rape in the context of her description of what she had suffered. There is therefore nothing about her use of the term in her description of events to Dr Patterson which causes us to doubt the safety of the verdicts. Given the compelling evidence adduced before the jury and the opportunity they had to consider it we are satisfied that the impact of N's use of the word on the jury would have been minimal.

[35] As we have already stated the evidence on these charges was compelling. The reasoning of the jury must have been influenced by the lengthy and voluminous history of text traffic between the appellant and this child. Moreover on the day that these offences were committed there was a record of 33 text exchanges between 11.30 am and 4.54 pm with a break until a further 3 texts exchanged commencing just before 7pm. This gap coincided with the period during which the victim alleged the accused had abused her in the community hall.

[36] The reasoning process of the jury must also have taken into account the clarity with which she detailed the events of that day. The vagaries exposed in cross examination were, as indicated earlier in this judgment, peripheral to the main thrust of her evidence which remained undiminished throughout the entirety of her cross examination. The jury had an opportunity to observe this child over a period of 5 days during which she was subjected to searching cross examination by skilled counsel and had the opportunity to compare that with the credibility of the appellant who was similarly cross examined over a lengthy period.

[37] In all the circumstances therefore we do not consider that this fresh material causes us to doubt the safety of the verdicts of guilty on these counts.