The Supreme Court has dismissed M.S.’s appeal against his conviction on six counts of rape, holding that there was no breach of the Browne v Dunn principle and that the trial judge’s comments to the jury did not make the trial unfair.
In a judgment dated 28 January 2025, Ms Justice Donnelly said the principle concerns fairness to a witness, the opposing party and the jury. It does not require an accused person to cross-examine a witness. Its application in a criminal trial must respect the accused’s right to a fair trial and the rights of witnesses, including vulnerable witnesses, she said.
The case arose from a trial in the Central Criminal Court. M.S. had pleaded guilty to sexual assault counts involving two of his three granddaughters. He denied six rape charges concerning a third granddaughter, who was a child at the time of the alleged offences. A jury convicted him on all six counts. The Court of Appeal dismissed his appeal, and he appealed to the Supreme Court.
The appeal focused on defence counsel’s closing argument about aspects of the complainant’s account, including her references to soreness in her hands and the absence of a reference to M.S.’s weight. The trial judge told the jury these matters had not been put to the complainant and that the jury should decide what significance to attach to all the evidence.
Justice Donnelly concluded that the defence was entitled to refer to the complainant’s answer about soreness when inviting the jury to consider whether the prosecution had proved its case beyond reasonable doubt. The comment about weight was a matter for the jury to assess. The accused had denied the rapes, and the defence had not introduced factual evidence about the alleged omissions that had not been put to the complainant. The Court found no breach of the fairness principle.
The Supreme Court said it would have been preferable for the trial judge not to comment on the defence speech when there had been no breach. However, considering the charge as a whole, the judge’s comment was neutral: it did not criticise counsel, direct the jury towards a verdict or tell them to give the evidence less weight. The jury retained responsibility for deciding what weight and significance to attach to it. The comment therefore did not render the charge or trial unfair.
The appeal was dismissed. The Supreme Court’s decision concerned the fairness of the trial and the jury direction; it did not alter the convictions.