"Now, the other way round, that is charge 5, you may feel, again the recollection of the evidence is a matter for you, that there was some or may have been some corroboration directly of [S]'s account of an incident that happened to her and you will recall there is the going into her mother's room and you heard about the potential conflict of the evidence between whether she stayed in the room and so on but that could be corroboration if you accepted that evidence from the mother and you have heard the evidence from [S] (it was accepted that this was a slip of the tongue and a mistake for L), I think about the smell, of sexual conduct going on and the question of the dog barking and so on. Those are independent pieces of evidence which, if you accepted them and accepted that they pointed in favour of [S]'s story, could be regarded as corroboration."

"At [that passage] I directed the jury that on charge 5 the evidence of [S] could be corroborated by that of her mother, [EM]. It seemed to me that the account given by [S] was one of an incident which only finished when she went in tears to her parents' room and said that her uncle had hurt her. It was properly to be regarded as part of the res gestae. Her mother's evidence corroborated part of it. Separately, it also provided additional support for the corroboration provided by [L], who described the event from the time she was aware that sex was taking place through to her sister leaving the room and complaining to her mother that her uncle had hurt her."

"Now, the crime of rape is committed where a man has sexual intercourse with a woman without her consent, where he has no genuine belief that she was consenting. For a rape to be proved there must be corroborated evidence that satisfies you beyond reasonable doubt that first, that sexual intercourse took place and by that I mean that there was penetration of the vagina ... and that penetration was by the accused's penis."

It was true that the jury had found charge 3, which was a charge alleging rape of L, not proven but it did not follow from that that the jury had rejected the evidence that L gave as to rape of herself, still less that they had rejected her evidence corroborating S's evidence of rape. The Advocate Depute submitted that there was ample corroboration here for charge 5 to be found in L's evidence and that therefore there was no miscarriage of justice.

"She said that she heard the appellant doing things to [S]. She said that she could smell it as well, 'the smell that goes with sex'. My notes read: 'He was having sex with her. I never said or did anything. I never let on I was awake. I didn't think of telling mum or dad then.'"