W M, R v.

Factual and Procedural Background

The Appellant was convicted on 11 counts out of a 15 count indictment alleging sexual abuse of his stepdaughter ("the complainant"). The indictment spanned a period from January 1993 to April 1995. The Appellant and the complainant's mother married in September 1993 but separated by the end of that year. Despite separation, there were occasions of cohabitation during 1994. The complainant alleged multiple instances of sexual abuse occurring at various residences associated with the Appellant over the indictment period. The Appellant denied all allegations, asserting that the complainant fabricated the accusations with her mother's encouragement. The prosecution presented evidence including testimony from relatives describing an unusual relationship between the Appellant and the complainant. The jury convicted the Appellant on specific counts and returned no verdict on others. The Appellant appealed against the convictions, raising several grounds challenging the trial's conduct and verdicts.

Legal Issues Presented

1. Whether the use of sample counts spanning a long period without linking specific incidents to particular counts was procedurally correct and fair.
2. Whether the trial judge erred in failing to direct the jury to consider the issue of consent in relation to certain periods where the complainant displayed affectionate behavior towards the Appellant.
3. Whether the jury was properly directed on the requirement of unanimity regarding the incidents underlying the sample counts.
4. Whether the convictions were safe given alleged inconsistencies and the manner in which evidence was presented.
5. Whether the sentences imposed were excessive and wrong in principle.

Arguments of the Parties

Appellant's Arguments

• The Appellant contended that sample counts covering a continuous course of conduct over a long period were inappropriate where incidents varied substantially in nature and context.
• The trial judge should have directed the jury that the Appellant had no case to answer on rape allegations related to later periods where the complainant was affectionate towards him.
• The jury should have been instructed to agree unanimously on the same specific incidents for each sample count.
• The judge failed to properly direct the jury on the issue of consent, particularly given the complainant’s affectionate conduct during part of the relevant period.
• The judge misdirected the jury by treating certain counts as alternative blocks without clarifying that convictions could be entered on some counts in each block.
• The Appellant argued that inconsistencies in the complainant’s evidence and prior statements warranted a no case to answer submission.
• The sentences imposed were argued to be manifestly excessive and incorrect in principle.

Prosecution's Arguments

• The prosecution relied on the complainant’s detailed and consistent account of abuse over the relevant period, supported by corroborative witness testimony indicating an unusual relationship.
• Sample counts were appropriate to illustrate a continuous course of conduct, and the totality of the evidence allowed the jury to assess the allegations as a whole.
• The prosecution contended that the issue of consent was properly addressed by the judge’s directions, including reference to the complainant's affectionate behavior as relevant to credibility.
• The prosecution argued that the defence’s failure to request particularisation or specific linking of incidents to counts meant no prejudice arose from the manner of indictment.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Farrugia (The Times 18.1.88)	Requirement for jury to be directed on specific incidents linked to specimen counts in sexual abuse cases.	Distinguished on facts; failure to link incidents to counts was an error in Farrugia but not directly applicable here due to absence of particularisation requests.
R v Robert Shore (1989) 89 Cr App 32	Directions on corroboration and evidence linking to individual counts in multiple indecent assault charges.	Confirmed that where general evidence forms a pattern, separate corroboration directions for each count may be unnecessary.
R v M (1995) CLR 720	Use and direction regarding specimen counts in cases of repeated offences within a marriage.	Illustrated that specimen counts can be used to reflect a course of conduct; jury must avoid convicting solely on general allegations.
R v Rackman (1997) CLR 592	Need for indictment particularity so defendant knows charges and jury knows what is proved.	Held that indictments should be as precise as possible; failure to particularise may render conviction unsafe.
R v Reynolds	Directions on specimen counts and jury unanimity.	Confirmed that identification of specific incidents in specimen counts is preferable but omission is not fatal if jury directed properly.
R v Kachikwu (1965) 52 Cr. App. R. 538	Trial judge's duty to direct jury on possible defences even if not relied upon by defence.	Emphasised judge must consider and direct on possible defences that arise on evidence to ensure just verdicts.
R v Taylor (1984) 80 Cr. App. R. 327	When a direction on mistaken belief as to consent is required.	Held that such direction depends on evidence; no direction necessary if no room for honest mistake on consent.
R v Taylor [1998] NIJB 88	Duty of judge to leave issues of mistaken belief to jury if supported by evidence, even if not raised by defence.	Confirmed that directions on mistaken belief should be given where evidence might support it.

Court's Reasoning and Analysis

The court acknowledged that it was an error not to identify specific incidents in the indictment given the complainant’s maturity and the relatively short period of alleged offences. However, it found no prejudice to the Appellant as the defence was able to cross-examine the complainant on detailed specific occasions, and inconsistencies were explored. The court emphasized that in cases of persistent sexual abuse, specimen counts illustrating a course of conduct are appropriate to allow the jury to consider the totality of evidence.

Regarding the issue of consent, the court recognized the duty of the trial judge to direct the jury on any defence arising in evidence, even if not raised by the defence. Although the complainant showed affectionate behaviour towards the Appellant during part of the period, the judge's directions sufficiently addressed this as a matter affecting credibility rather than consent. The court held that no special direction on consent or mistaken belief was necessary for the earlier acts when the complainant was very young, nor for the later acts given the nature of the defence and charges.

The court further noted that the jury was properly directed on the need to be satisfied beyond reasonable doubt that the complainant did not consent to the acts of intercourse. It emphasized that the factual conclusions concerning consent and the incidents were for the jury, and the judge was not required to present every possible interpretation of the evidence, especially those not urged by the parties.

In summary, the court found no irregularity, misdirection, or failure to direct the jury on relevant issues that would render the convictions unsafe.

Holding and Implications

The court DISMISSED the appeal against conviction.

The direct effect of this decision is to uphold the convictions of the Appellant on the sexual abuse charges. The court clarified the appropriate use of specimen counts in cases of persistent sexual abuse and confirmed the trial judge’s discretion in directing the jury on issues of consent and mistaken belief based on the evidence. No new precedent was established beyond reaffirming existing principles concerning specimen counts and jury directions in sexual offence trials.