Where the prosecution abandons a ground for lack of consent (such as cognitive capacity) after the trial judge has directed on it, the jury must be informed of the abandonment; failure to do so gives rise to a material risk of the jury reaching a verdict on an issue neither party has addressed. Prosecutors in child sexual abuse cases must be particularly vigilant not to appeal to the prejudice or sympathy of the jury, and trial judges must intervene to correct improper prosecutorial conduct; failure of defence counsel to object is not fatal to an appeal ground where there is a serious possibility the conduct influenced the verdict.
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