BJ, R. v

Factual and Procedural Background

The Applicant was convicted on 29 May 2019 at Belfast Crown Court, following a jury trial before the Recorder, His Honour Judge McFarland. The Applicant was found guilty by majority verdicts of multiple sexual offences committed against his stepdaughter between 1982 and 1991, when she was under seventeen years old, including rape, indecent assault, and common assault. He was acquitted by unanimous verdicts on additional counts relating to alleged offences after the complainant turned seventeen. The Applicant was refused leave to appeal by a Single Judge and has renewed his application before the Court of Appeal.

The procedural context includes the Applicant’s failure to serve notice of appeal within the statutory 28-day period in the prescribed manner, having sent the notice electronically within time but serving hard copies after the deadline. An extension of time was sought but refused by the Single Judge. The Applicant’s renewed application for extension was heard along with the substantive appeal.

The background facts reveal a complex family dynamic involving the Applicant, the complainant, and her mother, with a history of familial disputes and social services involvement. The complainant alleged longstanding sexual abuse beginning in childhood, continuing into adulthood, and the Applicant denied guilt while admitting to a consensual adult relationship. The trial involved contested issues regarding the timing of the mother’s night shift work, which was relevant to the opportunity for abuse, and the credibility of the complainant’s evidence.

The trial proceeded with the Applicant pleading not guilty to all counts. The jury acquitted on all counts involving the complainant over seventeen years old but convicted on all counts involving the complainant under seventeen. The Applicant now appeals against the convictions and the refusal to extend time for lodging the appeal.

Legal Issues Presented

1. Whether an extension of time should be granted for the late service of the notice of appeal.
2. Whether the jury’s verdicts on the sexual offences were unsafe, particularly considering:
1. The evidence regarding the complainant’s mother’s night shift employment and its impact on the opportunity for abuse;
2. Whether the trial judge erred by failing to give a Makanjuola warning concerning inconsistencies and lies in the complainant’s evidence;
3. Whether the trial judge erred by refusing leave to cross-examine the complainant on her sexual behaviour and to adduce fresh evidence relating to a conversation with her half-sister;
4. Whether inappropriate comments in the Crown’s closing speech rendered the verdict unsafe;
5. Whether the trial judge erred in managing the jury’s deliberations, leading to undue pressure on the jury.
3. Whether fresh evidence in the form of HMRC employment records and an affidavit from the complainant’s mother should be admitted on appeal.

Arguments of the Parties

Appellant's Arguments

• The Applicant argued that the jury’s verdicts were unsafe due to unchallenged evidence that the complainant’s mother only commenced night shifts at the care home in 1994, undermining the prosecution’s timeline of abuse occurring when the mother was absent at night.
• The Applicant contended that the trial judge should have given a Makanjuola warning regarding the complainant’s inconsistencies and lies to caution the jury on the reliability of her evidence.
• He argued that leave should have been granted to cross-examine the complainant on her sexual behaviour based on a conversation with her half-sister, which contradicted the complainant’s account of her first sexual intercourse.
• The Applicant sought to admit fresh evidence on appeal, specifically employment records and an affidavit from the complainant’s mother, to support the night shift argument.
• The Applicant claimed the Crown’s closing speech contained inappropriate remarks that could have prejudiced the jury.
• He argued that the jury was subjected to undue pressure due to the length of deliberations and the trial judge’s management thereof.
• The Applicant sought an extension of time for lodging the notice of appeal, given that electronic service was attempted within the deadline.

Respondent's Arguments

• The Respondent maintained that the night shift evidence was not categorical and that the jury could properly accept the complainant’s account of her mother’s absence during abuse.
• It was submitted that the trial judge’s discretion not to give a Makanjuola warning was not unreasonable, especially given the extensive cross-examination and judicial directions on inconsistencies.
• The Respondent opposed the admission of fresh evidence, highlighting the absence of reasonable explanation for its late production and the potential to subvert the jury trial system.
• The Respondent argued that the refusal to allow cross-examination on sexual behaviour was in accordance with statutory requirements and that no sufficient explanation was given for the late application.
• The Crown’s closing speech ground was abandoned by the Applicant.
• The Respondent contended that the jury was properly managed, and no undue pressure was exerted during deliberations.
• The Respondent submitted that the statutory rules required service by post or hand delivery and that electronic service did not satisfy the rules for notice of appeal.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Guinness [2017] NICA 47	Principle of finality and time limits for appeals	Supported the interpretation of statutory time limits for lodging notice of appeal.
R v Smith [2013] EWCA Crim 2388	Principle of finality and procedural requirements for appeals	Referenced regarding service requirements and finality of convictions.
R v Doyle [2017] NICA 35	Principle of finality and time limits for appeals	Supported the court’s approach to statutory time limits and service.
R v Brownlee [2015] NICA 39	Principles governing extension of time for appeals	Applied in considering whether extension of time should be granted.
R v Harbinson [2012] NICA 20	Procedure for taking jury verdicts	Referenced regarding procedure for taking majority and unanimous verdicts.
R v A [2014] NICA 2	Procedure for taking jury verdicts	Referenced regarding procedure for taking majority and unanimous verdicts.
R v S and C [2015] NICA 51	Procedure for taking jury verdicts	Referenced regarding procedure for taking majority and unanimous verdicts.
R v Smyth [2018] NICA 10	Procedure for taking jury verdicts	Referenced regarding procedure for taking majority and unanimous verdicts.
R v Criminal Cases Review Commission, ex parte Pearson [1999] 3 All ER 498	Admissibility of fresh evidence on appeal	Guided the court’s discretion on receiving fresh evidence, emphasizing interests of justice and impact on jury trial system.
R v Pollock [2004] NICA 34	Test for safety of conviction on appeal	Set out principles for appellate court’s approach to safety of verdicts, including avoiding speculation and focusing on whether verdict is unsafe.
R v Makanjuola [1995] 2 Cr. App. R 469	Discretionary warning (Makanjuola warning) on unreliable or uncorroborated complainant evidence	Outlined principles for when a special warning to the jury is appropriate regarding complainant’s unreliability or lies.
R v Gerard Judge [2017] NICA 22	Considerations in historic sexual offence cases	Noted difficulty of defending historic sexual offences without independent evidence, informing discretion on warnings.
Associated Provincial Picture Houses v. Wednesbury Corpn. [1948] 1 KB 223	Standard of unreasonableness for judicial discretion	Applied in assessing whether trial judge’s discretion not to give a Makanjuola warning was unreasonable.

Court's Reasoning and Analysis

The Court carefully analysed the statutory requirements for service of notice of appeal and concluded that electronic service alone does not satisfy the prescribed manner under the Criminal Appeal (Northern Ireland) Rules 1968. The Applicant’s electronic submission within the 28-day limit was insufficient, and the subsequent hard copy service was late. The Court declined to extend time as the grounds of appeal lacked merit.

Regarding the night shift employment evidence, the Court found that the evidence that the complainant’s mother only started night shifts at the care home in 1994 was not categorical and that the jury was entitled to accept the complainant’s evidence that her mother was absent at night during the alleged abuse. The Court dismissed this ground of appeal.

On the Makanjuola warning, the Court acknowledged the presence of multiple inconsistencies and lies in the complainant’s evidence. While the Court would have given a cautionary warning in the judge’s place, it held that the trial judge’s decision not to do so was not unreasonable in the Wednesbury sense. The inconsistencies were thoroughly explored in cross-examination and addressed in jury directions, so the verdicts were not unsafe on this ground.

The Court held that leave should have been granted to cross-examine the complainant on her sexual behaviour and to admit evidence from the half-sister concerning the complainant’s first sexual intercourse. However, the Court found that the failure to present this evidence earlier significantly undermined its potential impact. Coupled with the Applicant’s proven lies about intercourse with the complainant, the Court did not find a significant sense of unease about the verdicts and dismissed this ground.

The Applicant abandoned the ground regarding the Crown’s closing speech, which the Court thus did not consider further.

Regarding jury pressure, the Court found that the trial judge carefully managed the jury’s deliberations over multiple days with appropriate breaks and directions, and no undue pressure was exerted. This ground was dismissed.

On the application to admit fresh evidence, the Court distinguished between the HMRC employment records and the affidavit of the complainant’s mother. Both pieces of evidence appeared credible and potentially relevant but were not obtained or presented for good reason before trial. The Court declined to admit the fresh evidence, emphasizing the importance of finality and the integrity of the jury trial system.

Overall, the Court applied the test from R v Pollock, focusing on whether the verdicts were unsafe. Having considered the evidence and the grounds of appeal, the Court was not persuaded that the convictions were unsafe or that there was a significant sense of unease warranting interference.

Holding and Implications

The Court DISMISSED the appeal against conviction and refused to extend the time for lodging the notice of appeal.

The direct effect of this decision is the affirmation of the Applicant’s convictions and the procedural ruling on the appeal timeframe. The Court did not set any new precedent but reaffirmed established principles regarding the service of appeal notices, the discretion in giving Makanjuola warnings, the admission of fresh evidence on appeal, and the approach to assessing the safety of jury verdicts in historic sexual offence cases.