R v Webb
[2020] SADC 16
•17 February 2020
District Court of South Australia
(Criminal)
R v WEBB
[2020] SADC 16
Reasons for Decision of His Honour Judge Slattery (ex tempore)
17 February 2020
JURY
CRIMINAL LAW - EVIDENCE - COMPLAINTS
1. It is a jury question whether a complaint or a failure to complain displays any degree (and if so what degree), of consistency or inconsistency of the conduct of a complainant.
2. In reaching a conclusion about the question of consistency of conduct, the jury may have regard to the whole of the evidence before it in the circumstances of the case.
3. When making submissions about consistency of conduct and the plausibility or implausibility of the account of a complainant, defence counsel are permitted to cross examine upon and to make submissions on at least the following topics:
a. That the facts surrounding the making of any complaint in the context of the whole of the circumstances of the case, including the conduct of the accused and the complainant, may be taken into account in assessing the plausibility or implausibility of the complainant’s evidence including about the failure to complain or the delay in complaining;
b. The opportunity that the complainant may have had to complain but did not complain when the opportunity presented, notwithstanding the prohibition upon the defendant submitting that delay, of itself, is probative of the credibility of the complainant; and
c. Whether the alleged conduct of the accused left open the opportunity for a complainant to complain about the alleged offending.
4. When submissions are made on the question of the plausibility or implausibility of a defendant’s account, including in the context of complaint evidence or a failure to make a complaint, the trial judge must direct the jury on the use to be made of all of the relevant evidence. This will involve directions on the alleged consistency or inconsistency of conduct and their assessment of the plausibility or implausibility submissions made by counsel.
5. It is a matter for the jury to determine the significance of that evidence in the circumstances of that case.
Criminal Law Consolidation Act 1935 s 48 ; Evidence Act 1929 s 34M, referred to.
R v H, T (2010) 108 SASR 86; R v Botten [2017] SASCFC 73; R v Van Wyk [2018] SASCFC 138; (2018-2019) 132 SASR 46; R v Dhir [2019] SASCFC 55, discussed.
R v WEBB
[2020] SADC 16
The accused is charged on Information for arraignment dated 20 July 2015 with two counts of Rape. The Information provides as follows:
INFORMATION
First Count
Statement of Offence
Rape. (Section 48 of the Criminal Law Consolidation Act, 1935)
Particulars of Offence
Adam Webb between the 14th day of January 2004 and the 16th day of January 2004 at Wynn Vale, had sexual intercourse with Heidi Cormack by inserting his penis into her vagina without her consent, knowing that she was not consenting, or being recklessly indifferent as to whether she was not consenting.
Second Count
Statement of Offence
Rape. (Ibid).
Particulars of Offence
Adam Webb between the 15th day of January 2004 and the 17th day of January 2004 at Wynn Vale, had sexual intercourse with Heidi Cormack by inserting his penis into her vagina without her consent, knowing that she was not consenting, or being recklessly indifferent as to whether she was not consenting.
The complainant and the accused were married at the time of the alleged offences. They had married in 2002 and separated in early July 2004.
The complainant suffered long standing gynaecological conditions of such severity that by early 2003, her gynaecologist and obstetrician advised her that she should undergo a hysterectomy. She underwent this surgery and after spending 3 full days in hospital, she was discharged on 15 January 2004. On discharge, she was given advice about the avoidance of activity for 10 days, to remain home bound and to avoid activity such as lifting for 3 to 4 weeks. She was also told to refrain from sexual intercourse for 4 weeks.
The complainant alleges that on the night of 15 and 16 January 2004 the accused had penile vaginal intercourse with her without her consent. The evidence of the complainant on that day was that she was in extreme pain, that she still had a discharge of blood vaginally and that she went to bed between 10.30 and 11 p.m. Soon after they both went to bed, the accused allegedly forced himself upon her despite her protestations and refusals and without her consent he allegedly had penile-vaginal sexual intercourse with her. The complainant’s evidence is that the same thing happened on the evening of 16 January 2004.
The complainant first made a complaint to the police about these events in 2014 and the accused was charged in 2015. The complainant can only recall making a complaint about these events to her mother (now deceased) some 5 or so years after the event. She did not recall whether she had spoken to her cousin on 16 January 2004 at her home. The complainant’s cousin has such a memory but she is not now able to recall the precise words that the complainant used to her on that day and whether there was an actual assertion of rape. The evidence of the complainant’s cousin that I describe below, in turn, raises the need for directions to the jury under s 34M of the Evidence Act 1929.
The evidence of the complainant’s cousin is that she visited the home of the complainant on 16 January 2004. She said that during the visit, the complainant spoke separately to her and said something like: “…[the accused] hurt me”; “[the accused] raped me” or “[the accused] forced himself upon me…” She cannot now recall specifically what was said by the complainant. She was not asked about this conversation until 2017, some 13 years after it occurred. The complainant had no memory of this visit or the conversation.
The issue for my consideration here arises out of the operation of the subsections s 34M(2) and (4) of the Evidence Act and what may be said by counsel for the accused about the implausibility of the complainant’s account, about this complaint evidence and the failure to complain about the second alleged rape incident in the light of other evidence before the jury.
The contention of the prosecution is that if in the submissions of the accused (or in my directions to the jury), any case is to be made (or any direction given) about the failure of the complainant to make a complaint about the alleged events on later occasions when she had opportunities to complain to others of his alleged conduct, then the prohibition within s 34M(2) of the Evidence Act would be contravened. The accused submits to the contrary and contends that he is entitled to cross examine on and make submissions about the implausibility of the version given by the complainant in light of complaint evidence and of other evidence. This includes the implausibility of the complainant’s explanation for her failure to complain on at least four occasions, which occurred very soon after the alleged events when it may have been reasonable to expect the complainant to raise a complaint about the accused’s conduct.
On 22 January 2004, within a week of the alleged rapes, the complainant attended for a conferral with her gynaecologist for the removal of abdominal stitches. Nothing was said to the specialist about the alleged rapes.
A further consultation occurred with the same specialist on 3 February 2004 as a final post discharge check on her condition. Nothing was said of the accused’s alleged conduct and in particular that contrary to advice, she had sexual intercourse, though forced upon her.
The complainant left the matrimonial home in May 2004. On 27 May 2004, the complainant alleged that her car was forced off the road by the accused as a result of a dangerous manoeuvre by him in his car. He then got out of the car and started smashing his hands and arms on her car. She was able to manoeuvre her car away and drove to her parents’ home. The accused followed her and approached that house and began smashing his hands and arms upon the front doors and windows of the home.
As a result, a complaint was made to the police and the complainant gave a statement to the police of these events. The accused was charged with driving without due care and assault on a family member, based upon the information given to them by the complainant. Following him being charged, the accused was given police bail. One condition of the bail is that the accused was prohibited from being in the vicinity of the complainant. He later breached that condition of bail by being at a hotel at which the complainant was present.
On 2 February 2005, the accused pled guilty to driving without due care and assault on a family member committed on 27 May 2004. Following the breach of the bail condition and a further complaint to the police by the complainant, and based upon the information she gave police, on 2 February 2005 a court made an order restraining the accused from approaching or contacting the complainant for a period of 2 years and 6 months. The full terms of the order are as follows:
1. That the defendant is restrained for a period of 2 years 6 months.
2. From being on any premises at which Heidi Webb may from time to time reside, work or frequent.
3. Not to contact or communicate directly or indirectly in person, telephone or writing or otherwise with Heidi Webb or to allow another person to contact or communicate directly or indirectly by telephone, writing or otherwise. Contact permitted via a Solicitor.
4. Not to assault, intimidate, threaten or harass Heidi Webb or cause or allow another person to assault harass threaten or intimidate Heidi Webb.
5. That any firearm in the defendants possession be confiscated and disposed of by the Registrar of Firearms in the following manner. Destruction.
6. In the event that the defendant is required to have a firearm as a result of a requirement of his employer there will be an exemption of his holding a firearm, being in possession of a firearm or holding a firearms licence.
Very soon after these events, the complainant instructed solicitors and on 2 March 2005, the solicitors sent the following letter to the accused:
The contention of the accused is that in assessing the complainant’s account of the alleged events, it is implausible that the complainant would have made a complaint to her cousin in the manner alleged but not have then raised those allegations in some form or another with her treating specialist, in January and February 2004, with the police on two occasions when she made complaints and statement to them about the violent actions of the accused and his breach of bail terms leading to the Intervention Order. Similarly, nothing was mentioned in the solicitor’s letter of the alleged rapes despite allegations made therein that she “… was the victim of considerable domestic violence …”.
In her evidence, the complainant has given some explanations about why no complaints were made to the medical specialist. The issue of sexual intercourse was not a topic for that consultation. The complaints to the police were concerned with specific events: the trauma of the “road rage” event and the fear arising from the breach of bail. The complainant could not really recall the consultation with the solicitor.
All of this evidence is before the jury and it will always be their task as the triers of the fact to make their own assessment of its credibility and reliability in the context of their determinations as a jury.
For the reasons which follow I accept the submissions of the accused. I am unable to accept the contention of the prosecution that any submissions or directions made about the failure to make complaints to others of the alleged rape when she may have reasonably been expected to do so in the background of the facts of this matter, breaches the legislative requirements of s 34M(2) of the Act. That is so even if those submissions are made in the context of the implausibility of the account of the complainant, the content of her complaint or about her failure to raise the conduct of the accused after the events.
Section 34M of the Evidence Act 1929 provides as follows:
34M—Evidence relating to complaint in sexual cases
(1) This section abolishes the common law relating to recent complaint in sexual cases.
(2)In a trial of a charge of a sexual offence, no suggestion or statement may be made to the jury that a failure to make, or a delay in making, a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct.
(3)Despite any other rule of law or practice, evidence related to the making of an initial complaint of an alleged sexual offence is admissible in a trial of a charge of the sexual offence.
Examples—
Evidence may be given by any person about—
• when the complaint was made and to whom;
• the content of the complaint;
• how the complaint was solicited;
•why the complaint was made to a particular person at a particular time;
• why the alleged victim did not make the complaint at an earlier time.
(4)If evidence referred to in subsection (3) is admitted in a trial, the judge must direct the jury that—
(a) it is admitted—
(i) to inform the jury as to how the allegation first came to light; and
(ii) as evidence of the degree of consistency of conduct of the alleged victim; and
(b) it is not admitted as evidence of the truth of what was alleged; and
(c) there may be varied reasons why the alleged victim of a sexual offence has made a complaint of the offence at a particular time or to a particular person,
but that, otherwise, it is a matter for the jury to determine the significance (if any) of the evidence in the circumstances of the particular case.
(5)It is not necessary that a particular form of words be used in giving the direction under subsection (4).
(6) In this section—
complaint, in relation to a sexual offence, includes a report or any other disclosure (whether to a police officer or otherwise);
initial complaint, in relation to a sexual offence, includes information provided by way of elaboration of the initial complaint (whether provided at the time of the initial complaint or at a later time).
Under s 34M(2), no suggestion or statement may be made by either counsel to a jury that a failure to make or a delay in making a complaint of a sexual offence is of itself of probative value in relation to the alleged victim's credibility or consistency of conduct. Under s 34M(4), I am required to direct the jury about how complaint evidence may be used but otherwise, I am to direct the jury that it is a matter for them to determine the significance, if any, of the complaint evidence in the circumstance of the particular case. Under the operation of s 34M(2), this will also include directions about the evidence of a failure to make a complaint when it may be expected that she would do so.
As I have recounted above, the complainant allegedly made a complaint to her cousin sometime on 16 January 2004 about the events that had allegedly occurred in the evening of 15 January 2004, the day upon which she came from the Burnside Hospital having undergone a hysterectomy procedure.
The accused submits that during the discussions with the gynaecologist, the two attendances upon the police, in the solicitor's letter implicitly sent on her instructions and the letter of separation no complaint made or any suggestion raised of an event of rape alleged by the complainant. The prosecution submits that notwithstanding a complaint has been made and evidence has been given by the person who received the complaint, a submission by the accused about these facts on this failure that is connected in any way to the alleged failures to make complaints of alleged sexual offences still contravenes the prohibition under s 34M(2).
It becomes necessary for me as the trial judge to resolve this question in light of the fact that we have now reached the stage of addresses to jury at the end of evidence. My approach will therefore be guided by the relevant authorities on the topic in so far as they are relevant.
In this case, there are two alleged sexual offences. The evidence of complaint before the jury relates to a conversation between the complainant and her cousin during 16 January 2004. The complainant has no memory of this conversation. There is no evidence before the court of a complaint about the second alleged rape on the night of 16 January 2004.
It follows that on the evidence there has been no identifiable delay in the making of a complaint concerning the first alleged event. There was a failure to make a complaint about the second alleged rape. However, the defence intends to make submissions on the implausibility of the complainant’s account despite a complaint being made but where nothing was said later, as I have recounted.
An obvious difficulty arises in this case where permission is given to make the submissions as sought by the accused. On one view, they may only relate to the failure and they must be quarantined from the submissions on the first count on the information. That is because any submissions suggesting a delay or failure of a complaint on the first count would be incorrect factually. On this view, the defendant must be confined to submissions about the failure to make a complaint.
The alternative view is that where any submissions are made on this topic and where there is a complaint to be considered about the first event and the failure to complain on the second event, the same considerations will arise for the jury about the plausibility or implausibility of the evidence of the complainant about the four or five events that occurred after the acts under the two counts and the absence of any mention about the two alleged rapes. The operation of s 34M(4) requires that the jury determine the significance of the complaint evidence, if any, in the circumstance of the particular case. In considering the question of plausibility or implausibility, the jury may take into account the whole of the evidence when determining its significance.
I agree with the submission of the prosecution that in relation to the four aspects of the evidence to which the accused's counsel has made reference, a failure to make a complaint is not, of itself, of probative value in relation to the alleged victim's credibility or consistency. However, I accept the submission of defence counsel that having regard to the relevant authorities, those failures are matters that may be taken into account by the jury under s 34M(4).
In R v H, T,[1] the court was concerned with allegations of indecent assault and unlawful sexual intercourse with a person under the age of 12 years. The offences were alleged to have been committed by the child's brother-in-law who at the time had the sole care of the complainant in his home. The allegations were not made until some 28 years after the events alleged. The accused denied the offences and gave evidence that he had no recollection of the complainant ever staying overnight in his home or at least in the absence of his wife.
[1] (2010) 108 SASR 86.
On appeal, the DPP conceded the trial judge's directions with respect to the complaint were wrong in law and the appeal was allowed on that ground. Gray J held that delay in making an initial complaint does not per se render it inadmissible. Further, if the complaint is to be admitted at trial, then it is the responsibility of the trial judge to direct the jury about the purpose and use for which the evidence is to be put. Gray J agreed with Kourakis J (as his Honour then was) that a jury’s consideration of consistency of conduct will include considerations of inconsistency of conduct as being relevant to the assessment by the jury of the credibility of the complainant. If the evidence is not capable of demonstrating consistency or inconsistency of conduct, then it is not relevant or admissible for that purpose.
In a separate judgment, Kourakis J found that evidence of a complaint must be admitted without exception and that the assessment of the weight of the evidence is to be left for the jury. At [95], Kourakis J emphasised that disputed questions of fact are for the jury to determine with the assistance primarily of counsel. At [105], [106] and [107], his Honour said as follows:
[105]It is convenient now to deal with the supposed difficulty with the direction that the complaint is admitted as evidence of the consistency of the complainant’s conduct. It is contended that a complaint made decades after an alleged offence can not in any material sense be consistent conduct. In my view, that difficulty dissolves once it is understood that the use of the complaint referred to in the direction described in s 34M(4)(a)(ii) is “as evidence of the [degree of] consistency of conduct of the alleged victim”. No violence is done to the meaning of the phrase by inserting the words in square brackets. Plainly, the degree of consistency will vary from case to case. There is no one measure of consistency. To read in the words “degree of” is also consistent with the final direction which the Judge must give the jury that it is for the jury to determine the significance if any of the evidence.
[106]The construction I propose requires a direction to the jury that the making of a complaint in itself demonstrates some degree of consistency, even though that degree may be minimal. In my view for the reasons that I have given, that is Parliament’s intention and the ineluctable result of the language it has used. Moreover it is my view that a complaint however late is consistent with the allegation of an assault it makes. The likelihood that a person who has complained of a sexual assault, even after a very long time, was in fact sexually assaulted is greater than the likelihood that a person who has never complained was sexually assaulted. For that reason a complaint, however late, is consistent with the fact of a sexual assault and supports an inference, however weak of its occurrence. That is perhaps even more obvious when the recognition of the psychological and social factors to which I have earlier referred is taken into account. In any event, it is not open, given the terms of s 34M(2) of the Act to ever regard delay in itself as being inconsistent.
[107]Finally, it must be remembered that the prohibition in s 34M(2) is against a statement suggesting that the delay of itself is probative of the credibility of the complainant. If the explanation for the delay is proved to be false or is inherently unbelievable there is no reason why counsel and the judge may not make comment on that aspect of the evidence. Furthermore, the falsity or inherent improbability of the explanation will be one of the “circumstances” of the particular case against which the jury is to determine the significance, if any, of the fact of complaint.
The comments made by Kourakis J at [107] contemplate the possibility of submissions being made about the plausibility or implausibility of reasons why, for example, a complaint was not made. It would then also fall to me as the trial judge to give appropriate directions to the jury. His Honour found that the falsity or inherent improbability of the explanation will be one of the circumstances of the case which may be used by the jury to determine the significance, if any, of the fact of the complaint (see s 34M(4)).
In R v Botten,[2] the accused was found guilty of a number of counts of indecent assault and unlawful sexual intercourse. He was found not guilty on other counts. The decision of the court was written by Kelly J and her Honour took up a discussion about s 34M(2) under ground 6 of the grounds of appeal commencing at [46]. Her Honour discussed s 34M(4) and emphasised at [49] that s 34M prohibits an attack upon the credibility of an alleged victim of a sexual offence by reason of a delayed complaint but does not prohibit any attack upon the explanation of the reason or reasons. This would include an attack upon any explanation of the reason or reasons proffered by the complainant about why he or she did not make a complaint to a particular person, or at a particular time, when common experience might tend to suggest that he or she would have.
[2] [2017] SASCFC 73.
Her Honour emphasised at [50] that the burden falls upon the trial judge to explain that there may be a number of reasons why in a particular case that a complainant might delay or fail to complain. Even so, Parliament has not prohibited the ability of either party to proffer the actual reason or reasons as to why a complainant failed to or delayed in making a complaint. Her Honour said at paras [51], [52] and [53] as follows:
[51]In other words, the section does not prohibit cross-examination as to the truth of any explanation which might be proffered for the failure to complain or the delay in complaining. What is not permitted is any comment on the actual delay.
[52] This point was made by Kourakis J (as he then was) in R v H, T:[3]
Finally, it must be remembered that the prohibition in s 34M(2) is against a statement suggesting that the delay of itself is probative of the credibility of the complainant. If the explanation for the delay is proved to be false or is inherently unbelievable there is no reason why counsel and the judge may not make comment on that aspect of the evidence. Furthermore, the falsity or inherent improbability of the explanation will be one of the “circumstances” of the particular case against which the jury is to determine the significance, if any, of the fact of complaint.
[53]Here the complainant was led in examination-in-chief on the topic of whether she had complained to anyone and why she had not complained to her mother or her sister, with whom she was living at the time.
[3] (2010) 108 SASR 86 at [107].
Her Honour emphasised that what is not permitted is any comment on the actual delay. As I read her Honour's comments, particularly at [49], her Honour was dealing in a general sense about opportunities that might have been available over periods of time to make complaints to different people. There were questions asked in cross examination about why there had been no complaints to the mother or the sister of the complainant with whom she was living at the time. I refer in particular to [52] of her Honour's decision where she quotes with approval the decision of Kourakis J in R v H,T at [107], which I have set out above.
In R v Van Wyk,[4] a five member bench of the Court of Criminal Appeal at [27] referred with approval to the decision of Kourakis J in R v H, T. In particular, their Honours referred with approval to paras [105]-[107] of his Honour's judgment, which I have set out above.
[4] [2018] SASCFC 138; (2018-2019) 132 SASR 46.
At [28] the court referred to the difference between s 34M(4)(a)(ii) of the Evidence Act as it applied in the decision in Van Wyk. The text of the sub-paragraph had been amended to include the words ‘degree of’ which Kourakis J had assumed in his Honour’s judgment in R v H, T as I have explained above. Their Honours referred with approval to the approach taken by Kourakis J in his explanation in R v H, T that:
The making of a complaint, where ever late, is consistent with the happening of the alleged assault, particularly having regard to contemporary understanding of the psychosocial sequelae of such assaults.
In his decision, Kourakis J acknowledged that the making of a complaint may only be weakly supportive of a complainant's credibility but that it was never inconsistent with it.
Most recently in R v Dhir,[5] the Court of Criminal Appeal again considered the operation of s 34M(2) and confirmed that, for example, a submission may be made that in scrutinising the plausibility of a complainant's account, a jury is entitled to have regard to the riskiness of the behaviour alleged against an accused and of the opportunity that a complainant had to immediately make a complaint about an accused's behaviour, irrespective of whether the complaint was made or not made.
[5] [2019] SASCFC 55.
As a result of the directions given by the learned trial judge, that opportunity was removed from the jury. The court accepted the accused's contention that the defence submission was concerned with plausibility of the version given by the complainant, because, on the facts of that matter, it would have been a brazen and unlikely account for the accused to have digitally raped a child at a suburban train station and then left her by herself. The Court of Criminal Appeal accepted that the accused’s immediate absence would have presented the opportunity for the child to have reported the incident. That was not a submission that the failure to immediately report the incident undermined the account. Their Honours explained the position at [51] as follows:
Although counsel for Mr Dhir at trial conceded that his submission contravened s 34M(2) of the Evidence Act 1929 (SA) (the Evidence Act), I doubt that it did. Be that as it may, s 34M(2) does not prohibit the making of a submission that, in scrutinising the plausibility of a complainant’s account, a jury is entitled to have regard to the riskiness of the behaviour or the opportunity that the complainant would have had to immediately complain of an accused’s behaviour, irrespective of whether a complaint was or was not made. By directing the jury to ignore what counsel had said the Judge withdrew that legitimate, and indeed, compelling factual submission from the jury. While the direction might, in its literal or express terms, have been confined to withdrawing consideration of S’s failure to take the opportunity to complain from the jury’s consideration, its practical effect was not so confined. As the opportunity to complain was an integral part of defence counsel’s broader implausibility submission, it is likely the jury would have understood the Judge’s direction as withdrawing this submission in its entirety from their consideration.
I refer in particular to their Honours finding that s 34M(2) does not prohibit the making of a submission that, in scrutinising the plausibility of a complainant's account, a jury is entitled to have regard to the riskiness of the behaviour or the opportunity that a complainant would have had to immediately complain of an accused's behaviour, irrespective of whether a complaint was made or not.
Those were the matters pertinent to the resolution of that case but such an approach is not confined to the facts of that case.
The following principles may be drawn from these authorities:
1It is a jury question whether a complaint or a failure to complain displays any degree (and if so what degree), of consistency or inconsistency of the conduct of a complainant.
2In reaching a conclusion about the question of consistency of conduct, the jury may have regard to the whole of the evidence before it in the circumstances of the case.
3When making submissions about consistency of conduct and the plausibility or implausibility of the account of a complainant, defence counsel are permitted to cross examine upon and to make submissions on at least the following topics:
a.That the facts surrounding the making of any complaint in the context of the whole of the circumstances of the case, including the conduct of the accused and the complainant, may be taken into account in assessing the plausibility or implausibility of the complainant’s evidence including about the failure to complain or the delay in complaining;
b.The opportunity that the complainant may have had to complain but did not complain when the opportunity presented, notwithstanding the prohibition upon the defendant submitting that the delay, of itself, is probative of the credibility of the complainant; and
c.Whether the alleged conduct of the accused left open the opportunity for a complaint to complain about the alleged offending.
4When submissions are made on the question of the plausibility or implausibility of a defendant’s account, including in the context of complaint evidence or a failure to make a complaint, the trial judge must direct the jury on the use to be made of all of the relevant evidence. This will involve directions on the alleged consistency or inconsistency of conduct and their assessment of the plausibility or implausibility submissions made by counsel.
5It is a matter for the jury to determine the significance of that evidence in the circumstances of that case.
In those circumstances I find that, within the bounds as I have decided, the submissions of the accused are correct.
In his submissions, counsel for the accused is bound by the prohibition under s 34M(2). However, he is not precluded from making a broad implausibility submission based upon the failure to complain when the opportunity presented. This does not cut across the directions that I will give about the complaint evidence given by the complainant’s cousin. Similarly, in the context of the whole of the evidence, the accused is not precluded from making submissions on the implausibility of the actual complaint evidence for the same reasons.
I therefore accept the contention of the accused on this topic and I will direct the jury accordingly. It will then be a matter for the jury to assess the whole of the evidence and to make its determination in accordance with the directions that I will give on the operation of s 34M(2) and s 34M(4).
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