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[5] At an early stage in her charge the learned trial judge gave the jury a direction on the ingredients of each of the offences.
[8] In her charge on the issue of consent the learned trial judge dealt with the issue of capacity.
[10] In our view that is quite different to this case. The evidence plainly raised the issue of capacity in relation to the second count of rape and unlike Shehu the prosecution relied upon the incapacity in relation to the question of consent. We do not consider that there was any basis for criticism of the learned trial judge's direction on this issue.
[12] This court reviewed the law in this area in R v Croome [2011] NICA 3 in the following terms:
"[19] The leading authority on the duty of the court to leave alternative verdicts is R v Coutts [2006] 1 WLR 2154 . That was a case in which the appellant was charged with murder. His defence was that the death was a tragic accident. The trial judge did not leave the alternative of manslaughter and the appellant was convicted. The House of Lords allowed the appeal. Lord Bingham, with whom the other Law Lords agreed, set out the relevant principles.
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