Sex Offence Trials
Cases
The People v W.M.
[1995] 1 IR 226
Carney J.
1st February 1995
The accused has pleaded guilty to certain offences under the Punishment of Incest Act, 1908, and is awaiting sentence. Evidence in relation to the facts of the case has already been taken following which Mr. MacEntee asked that the matter be put back for the purpose of his obtaining and placing before the court some testimonials.
In accordance with the practice which has operated up to the present, the press published details of the first day’s evidence without giving the name of the accused or his victim so as to protect the identity of the innocent victim. I need not concern myself here with the controversy as to whether some of the detail published was capable of identifying the injured party.
When the matter came back to me for sentence I questioned whether the press had any right to attend or advert to the proceedings at all, having regard to the provisions of s. 5 of the Punishment of Incest Act, 1908, which is in the following terms:
“All proceedings under this Act are to be held in camera.”
This contrasts with the provision made for other sexual offences by s. 11 of the Criminal Law (Rape) (Amendment) Act, 1990, in the following terms:
“11. The following section shall be substituted for section 6 of the Principal Act:
6.(1) Subject to subsections (2), (3) and (4), in any proceedings for a rape offence or the offence of aggravated sexual assault or attempted aggravated sexual assault or of aiding, abetting, counselling or procuring the offence of aggravated sexual assault or attempted aggravated sexual assault or of incitement to the offence of aggravated sexual assault or conspiracy to commit any of the foregoing offences, the judge, the justice or the court, as the case may be, shall exclude from the Court during the hearing all persons except officers of the court, persons directly concerned in the proceedings, bona fide representatives of the Press and such other persons (if any) as the judge, the justice or the court, as the case may be, may in his or its discretion permit to remain.
(2) Subject to subsection (3), during the hearing of an application under section 3 (including that section as applied by section (5 or under section 4 (2)), the judge, the justice or the court, as the case may be, shall exclude from the court all persons except officers of the court and persons directly concerned in the proceedings.
(3) Subsections (1) and (2) are without prejudice to the right of a parent, relative or friend of the complainant or, where the accused is not of full age, of the accused to remain in court.
(4) In any proceedings to which subsection (1) applies the verdict or decision and the sentence (if any) shall be announced in public.”
I said in my preliminary ruling in this case:
Now the provisions of the Acts of 1981 and 1990 govern rape offences but they do not capture incest. It would appear to me that the position under statute law I emphasise statute law as it stands is that an incest case must be heard in total privacy and secrecy with the admission of no persons, other than the immediate parties, including the press. If the statute law were followed an incest case would be heard in total secrecy with the community at large not being entitled to know even of the happening of the case let alone any sentence which might be imposed. It seems to me on consideration of the matter that first of all such a situation would be unacceptable to the community at large. It seems to me also that it would not be in conformity with the constitutional scheme for the administration of justice.”
I decided that I would seek submissions on the validity of s. 5 of the Act of 1908 from the Attorney General, the Director of Public Prosecutions, the media and counsel for the accused. I received very helpful submissions from all of these parties, the media being represented by National Newspapers of Ireland and R.T.E.
The constitutional imperative that justice be administered in public was considered in In re R. Ltd. [1989] I.R. 126. At p. 134, Walsh J. said:
“The issue before this Court touches a fundamental principle of the administration of justice in a democratic state, namely the administration of justice in public. Article 34 of the Constitution provides that justice shall be administered in courts established by law and shall be administered in public save in such special and limited cases as may be prescribed by law. The actual presence of the public is never necessary but the administration of justice in public does require that the doors of the courts must be open so that members of the general public may come and see for themselves that justice is done. It is in no way necessary that the members of the public to whom the courts are open should themselves have any particular interest in the cases or that they should have had any business in the courts. Justice is administered in public on behalf of all the inhabitants of the State.
Prior to the enactment of the Constitution the question of whether or not particular matters should be heard in public was a matter for the discretion of the judges subject of course always to particular statutory provisions which dealt with the subject. However it was always quite clear that the judges had no discretion to prevent the public from attending hearings unless they were satisfied that either total privacy for the whole or part of any case was absolutely necessary to enable justice to be done. The primary object of the courts is to see that justice is done and it was only when the presence of the public or public knowledge of the proceedings would defeat that object that the judges had any discretion to hear cases other than in public. It had to be shown that a public hearing was likely to lead to a denial of justice before the discretion could be exercised to hear a case or part of a case other than in public.
This fundamental principle in the administration of justice was made part of the fundamental law of the State by Article 34 of the Constitution in 1937. More than a decade later the same fundamental principle was incorporated in certain international instruments dealing with human rights. Article 10 of the Universal Declaration of Human Rights, 1948, and article 26 of the American Declaration of the Rights and Duties of Man, also of 1948, had each required public hearings for the administration of justice. They were followed by several internationa
conventions incorporating the same principle, among which are article 6, sub-art. 1 of the European Convention of Human Rights, 1950, and article 14, sub-art. 1 of the International Covenant on Civil and Political Rights, 1966. It is also to be noted that one of the rights guaranteed by the Sixth Amendment to the Constitution of the United States is the right to a public trial in criminal matters.
The Courts (Supplemental Provisions) Act, 1961, by s. 45, sub-s. 1 permits the administration of justice otherwise than in public in applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction, matrimonial causes and matters, lunacy and minor matters and proceedings involving the disclosure of a secret manufacturing process. The section went on to say that the cases so prescribed should be in addition to any other cases prescribed by any Act of the Oireachtas. These specified exceptions were in fact matters in respect of which the judges had a discretion prior to the enactment of the Constitution. This discretion would appear to have survived Article 64 of the Constitution of Saorstát Éireann , which required the administration of justice ‘in the public Courts . . .’ but did not provide for exceptions to be permitted by statute. The Constitution of 1937 removed any judicial discretion to have proceedings heard other than in public save where expressly conferred by statute. Indeed many matters which come under the heading ‘lunacy and minor matters’ probably do not constitute the administration of justice but simply the administration of the estates and affairs of the wards of court.
It is already well established in our constitutional jurisprudence that a phrase such as ‘save in such special and limited cases as may be prescribed by law’ which appears in Article 34, s. 1 of the Constitution is to be construed as a law enacted, or re-enacted, or applied by a law enacted by the Oireachtas subsequent to the coming into force of the Constitution. In this case it is unnecessary for me to offer any view on the interpretation to be given to sub-s. 3 of s. 45 of the Courts (Supplemental Provisions) Act, 1961. Sub-section 2 of s. 45 refers to ‘any other cases prescribed in any Act of the Oireachtas’ which of course must necessarily mean any Act of the Oireachtas established by the Constitution. There have been many such provisions including the one in question in this case. What is to be noted in s. 45 of the Act of 1961 is that the cases set out in sub-s. 1 do not impose any requirement for hearing otherwise than in a public court but leave it to the discretion of the judge in question, but naturally the discretion must be conditioned by the necessary qualification that the doing of justice remains the paramount consideration. Some of the legislative provisions enacted after the coming into force of the Constitution purported to require mandatory privacy, and in others it remains a discretionary matter. These statutory provisions also display a varied and unexplained choice of words to describe hearings other than in public, such words as ‘in camera’, ‘in private’ and ‘in chambers’. Examples of the discretionary power of the court are to be found in the Married Women’s Status Act, 1957, (s. 12, sub-s. 4), the Marriages Act, 1972 (s. 1, sub-s. 3), and the Companies Act, 1963 (s. 205, sub-s. 7) and the provisions of s. 14, sub-s. 2 of the Family Law (Protection of Spouses and Children) Act, 1981. This latter provision which relates to proceedings in the Circuit Court, and in the High Court on appeal from the Circuit Court, stands in odd contrast to the provisions of sub-s. 1 of s. 14 which appears to be mandatory. There are several statutory provisions requiring hearings other than in public which are phrased in mandatory terms but it is not necessary for the purpose of this case to consider the interpretation which should be given to any such mandatory provision. If the dictum of the former Supreme Court of Justice in In re Redbreast Preserving Co. Ltd. (1956) 91 I.L.T.R. 12 at p. 23 means that the constitutional requirement that justice is to be administered in public is satisfied by the public pronouncement of a decision based on evidence taken other than in public, then where that is not expressly authorised by a post-Constitution statute it is clearly incorrect and ought not to be followed. All evidence in proceedings before a court must be taken in public save where otherwise expressly permitted in accordance with the terms of Article 34 of the Constitution.”
It follows that s. 5 of the Act of 1908 was not carried forward on the enactment of the Constitution as it was in conflict with Article 34 and was not saved as being a special and limited case prescribed by law. This remained the position until the enactment of s. 45 of the Courts (Supplemental Provisions) Act, 1961. Section 45 of the Act of 1961 provides:
“(1) Justice may be administered otherwise than in public in any of the following cases:
(a) applications of an urgent nature for relief by way of habeas corpus, bail, prohibition or injunction;
(b) matrimonial causes and matters;
(c) lunacy and minor matters;
(d) proceedings involving the disclosure of a secret manufacturing process;
(2) The cases prescribed by subsection (1) of this section shall be in addition to any other cases prescribed by any Act of the Oireachtas.
(3) Any provision contained in any statute of the Parliament of the former United Kingdom or of the Oireachtas of Saorstát Éireann which provided for the administration of justice otherwise than in public and which is not in force solely by reason of its being inconsistent with the provisions of the Constitution of Saorstát Éireann or the Constitution, as the case may be, shall have full force and effect.”
Section 45, sub-s. 3 of the Act of 1961, which enjoys a presumption of constitutionality and the validity of which is not and cannot be challenged in these proceedings, restored s. 5 of the Act of 1908 to full force and effect with the enjoyment, after its Lazarus like resurrection, of a like presumption of constitutionality.
The Act of 1908 was amended by the Oireachtas as recently as 1993, by s. 12 of the Criminal Justice Act, 1993. I must assume that the Oireachtas in examining and amending this statute, saw and adverted to the provisions of s. 5 of the Act of 1908 and was happy to leave this provision intact. Section 5 of the Act of 1908 falls into the category described by Walsh J. as “mandatory privacy”.
As s. 5 of the Act of 1908 provides that “all” proceedings under the Act are to be held in camera it is not possible, as is the case with rape offences, to have the trial conducted in private with sentence in the event of a conviction being pronounced in public.
Insofar as there was any suggestion in the course of argument that the trial judge might prepare and circulate a synopsis of the evidence given and sentence imposed, this would seem to me to be contrary to the tenor of the judgment of McCarthy J. giving the judgment of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v. Barr (Unreported, Court of Criminal Appeal, 21st July, 1992).
It seems that, pending legislative intervention, incest trials, by reason of the statute law in operation, will have to be held in total secrecy so far as the public is concerned. Anomalously, some hundreds of members of the public will be made aware of all of the essential details including the names and possibly even the address, certainly the county of residence, of both the accused and the innocent victim by being summoned to court as members of the jury panel.
The press and all others not directly concerned with the case should now withdraw.
Following delivery of the above judgment, the court received a letter from solicitors acting for the Eastern Health Board, the relevant portions of which are reproduced in the ruling, infra.
Carney J.
17th February 1995
In view of the laws as placed and maintained on the statute book by the legislature, I feel it necessary to bring a consequence of these laws to the attention of the Oireachtas and the executive.
The ruling of this court delivered on the 1st February, 1995, will have come as no surprise to the executive as it amounted essentially to an acceptance of the submissions made to the court by counsel on behalf of both the Attorney General and the Director of Public Prosecutions. (See the transcript of legal argument herein on the 11th November, 1994).
The court has received a letter from solicitors for the Eastern Health Board which must, of necessity, be edited by me in referring to it. It recites that the Eastern Health Board is charged with the responsibility for the protection of children within its catchment area. It continues:
“We have an interest in this incest case as this family have been known to the Eastern Health Board for a number of years and some of the children of the family have on occasion been in the care of the Eastern Health Board on either a voluntary basis or by court order.
It came to our attention some years ago that Mr. had left the jurisdiction while on bail in relation to charges of incest and he took with him his son,. Mr.’s wife and other children remained in this jurisdiction.
Our clients were involved in ‘s disclosures of sexual abuse at the hands of her father and were aware that efforts were being made to extradite Mr. . Our clients were concerned that Mr. had full custody of the other child when this type of allegation had been made against him and our clients had sought advice from us in relation to steps we could take to protect any child who would be in his custody if we were in a position to establish his whereabouts.
When Mr. was extradited to this country, he agreed to place in the voluntary care of the Eastern Health Board and Mrs. was also in agreement with this suggestion. Our advice to our clients in relation to the protection of any child in Mr. ‘s custody was that wardship proceedings would need to be initiated based on reports from the Sexual Assault Treatment Unit in the Rotunda and on the disclosures by in relation to the abuse of her by her father. We would also produce general information in relation to child sexual abuse and the fact that it is a compulsive disorder which will continue even if a particular child is removed from the scene. It is our clients’ belief that if a person has abused one child then other children are at risk of abuse from that person.
In those circumstances you will understand that it is very important that our clients be made aware as to whether or not Mr. has been convicted and sentenced or whether he will be released as we understand he may wish to resume care of his year old child, .
We understand that the judgment delivered in this case was in camera and has not been reported and we are unable to ascertain the current position with regard to Mr. ‘s liberty . . .”
Section 5 of the Punishment of Incest Act, 1908, provides:
“All proceedings under this Act are to be held in camera.”
In these proceedings I accepted the argument of Mr. Comyn, counsel for the Attorney General, that this section was not carried forward and ceased to be law on the enactment of the Constitution in 1937, but was re-enacted by the Oireachtas and given a presumption of constitutionality by s. 45, sub-s. 3 of the Courts (Supplemental Provisions) Act, 1961.
I am required to obey the statute law as much as anybody else and it follows from the legislative process and provision which I have described that pending legislative intervention, I am precluded from giving the Eastern Health Board the information which they seek and need. The Eastern Health Board, which is not a party to this prosecution, manifestly should have this information, but the legislature has tied my hands and precluded its disclosure by re-enacting s. 5 of the Act of 1908 with a presumption of constitutionality. It would fly in the face of the words in camera to indicate what took place to a person not present or entitled to be present in court.
Professor James Casey in his book, “Constitutional Law in Ireland”(2nd ed.) (1992), at p. 441, called attention to the fact that there was, in relation to s. 5 of the Act of 1908, a problem. The legislature, nevertheless, when amending the Act of 1908, as recently as 1993, chose to leave s. 5 in place.
Another problem should be adverted to. Were this case still ongoing, I would be required by the terms of s. 5 of the Act of 1908 to refuse the social workers of the Eastern Health Board admission to court unless they happened to be witnesses in the trial or called to give evidence as to sentence. Even then they would be precluded under the laws of contempt from subsequent discussion of the case. This is in contradistinction to the provisions of the Criminal Law (Rape) (Amendment) Act, 1990, wherein the Oireachtas has conferred on the trial judge a discretion to admit appropriate persons to court which would readily include social workers and representatives of the Eastern Health Board. It would in appropriate cases include others such as representatives of a Rape Crisis Centre. The Oireachtas, consciously or unconsciously, has failed to extend this discretion to cases of incest.
While the instant case has concluded, I would feel free to permit the registrar of this court to furnish the Eastern Health Board with the information they need, were the rigidity of s.5 of the Act of 1908 to be legislatively modified.
In the ordinary course, my rulings in this case would fall under Article 34, s. 4, sub-s. 3 of the Constitution to be tested in the Supreme Court. By s. 11 of the Criminal Procedure Act, 1993, however, the Oireachtas removed the right of appeal from the Central Criminal Court to the Supreme Court giving me in this case an immunity from appeal. I do not seek this unusual immunity from appellate review and have accordingly endeavoured to approach the issues which have arisen in this case with particular care. Were I to seek to resolve the difficulties myself, I would be legislating, which I am not entitled to do.
D.P.P.-v- Roger Ryan
[2010] IECCA 29 (20 April 2010)
Judgment of the Court delivered by Mr. Justice Geoghegan
on the 20th day of April 2010
This was originally set down as an application for leave to appeal against conviction and sentence in a rape trial. On paper there were ten formal grounds of appeal. Shortly in advance of the hearing of this application, eight of the grounds were abandoned leaving the remaining two which were 7 and 8 still standing. Not only was it then accepted by Mr. Anthony Sammon, S.C., counsel for the applicant, that the two grounds were effectively the same, but he further refined them and indeed reduced them in a manner which I will explain.
The two grounds as contained in the formal grounds of appeal read as follows:
“7. That the learned trial judge erred in principle in failing and/or refusing to give a corroboration warning in respect of the evidence of the complainant as provided for by section 7(1) of the Criminal Law (Rape) (Amendment) Act 1990, and providing no explanation for the said refusal.
8. That the learned trial judge erred in principle in exercising his discretion and refusing to give the jury a warning of the dangers of convicting the appellant in the absence of any corroboration.”
At the oral hearing of this application, Mr. Sammon, confined his complaint to the “refusal” by the learned trial judge (Carney J.) to give an explanation for his unwillingness to give the said warning which “refusal” in the submission of counsel was unlawful. Counsel in his argument relied on a judgment of this court in DPP v. Dolan (unreported judgment [2007] IECCA 30 delivered by Kearns J.). The quotation marks on either side of the word “refusal” in this connection are deliberate because the court is of the view that in the particular context of what happened at the hearing, the word “refusal” is somewhat misleading.
Before explaining that context, it is necessary to summarise the facts of the case. The applicant was convicted of a rape committed in the complainant’s own house and in rather unusual circumstances. The complainant had met a man while she was on holidays in another county. They decided to keep contact and after the complainant went home she contacted that man again and arranged a meeting place. He arrived with a friend of his and the three of them congregated on the evening of the alleged offence in a public house. They then later that night went back to the complainant’s house and drank beers in a front sitting-room. Though there was some inconsistent evidence about this, the main thrust of the evidence was that for about twenty minutes or so the complainant talked out the window to some friends while the two men sat and drank. She then closed up the window and invited the friend she had met on the holiday up to her bedroom. The other man remained below drinking. That man made it perfectly clear in his evidence that he had sex that night with the complainant and using a condom. In the complainant’s various statements to the gardaí she vacillated between admitting that that man slept with her but denying she had sex with him and saying that she did not remember whether she had sex with him to in the end more or less admitting she did have sex with him. A thong which she was wearing and a condom were found on the floor the following morning. The evidence suggests there would have been a substantial amount of drink taken. That could have led to confusion of memory. During the course of the night there was noise downstairs and it then emerged that the applicant had broken into the house by the downstairs window with the aid of a screwdriver. The complainant’s new friend went downstairs to sort out what was happening. Shortly after that, aggressive threats were issued to him and his companion by the applicant with the result that they left the house for their own protection.
The complainant’s evidence (and there was no inconsistency in her testimony about this) was that she woke up from sleep in the bed. Expecting to find the man she had already brought up to the bedroom in the bed with her she found instead the applicant. She gave clear evidence that she had not wanted to have sexual intercourse with the applicant but her evidence was that the applicant forced himself on to her, using the screwdriver as a threatening weapon. The complainant, in some, but not all statements, claimed that the applicant had worn a condom when having sex with her. In the context of forcible rape, this seems surprising and she was heavily cross-examined by counsel for the applicant, Mr. Nix, S.C. in that connection. On one view of the evidence at least, there might have been an element of assumption in this regard on her part because although aware of the condom, she was, at times, in denial and, at times, in doubt as to whether she ever had sex with the man she had originally brought up to the bedroom. It was not in dispute that only one condom was found on the floor.
It was clear from the evidence that the complainant already knew the applicant before these events and furthermore that she had had sex with him. She claimed she had sex with him only once. In his first statement to the gardaí he said he had sexual intercourse only once but that he had sex in the form of a “blow job” on another occasion. In a later statement, however, he said he had had sex with her “loads of times”.
In summary, it can be said that both the complainant and the applicant made various statements to the gardaí which in matters of detail were not always consistent. The outline of facts so far given is merely a summary of the relevant evidence but is sufficient for the purpose of determining this application.
I now turn to the context in which the corroboration issue raised its head. In the absence of the jury and immediately before the closing speeches, Mr. Nix raised two matters with the court. He, first of all, indicated that he would not be going into evidence. He then said the following:
“The second matter is this, My Lord, I wonder, considering the question of corroboration, My Lord, I would submit that there is no evidence of any corroboration in this matter, to the material fact of rape and in those circumstances I would ask you, I wonder if Your Lordship would intend giving the warning that there is no corroboration.”
Mr. Coffey, S.C., counsel for the Director of Public Prosecutions spoke as follows:
“There is evidence of her distress within an hour and a half of the event, which is capable of constituting evidence of, albeit weak evidence of, corroboration, should the jury accept that evidence. Otherwise I am in agreement with my friend.”
By that last sentence, Mr. Coffey, was clearly conveying that he agreed there was in fact no corroboration except possibly the“weak evidence” he referred to. The learned trial judge then said the following: “Its not my intention to give a corroboration warning.” Mr. Nix responded “Very good, My Lord.” In accordance with the judge’s intention, there was, of course, no warning then given in the judge’s charge and there was no requisition made in relation to such failure.
That last observation is made merely with a view to setting out a summary of the relevant facts. The court is expressing no view as to whether it would ever be appropriate to make such a requisition after a judge’s charge where the judge had previously clearly stated that he would not be exercising his discretion in favour of giving the warning. Such an issue does not arise in this case as there was in fact no requisition. What is of importance, however, is the dialogue between counsel and the trial judge immediately before the speeches. First of all, it is not at all clear that Mr. Nix was in any way either pressing for a warning about corroboration or making any submission to the judge as to why he should exercise his discretion in favour of such a warning. From the wording used, the court sees no reason not to interpret Mr. Nix’s question according to its natural meaning, that is to say, a query as to the judge’s intention and nothing more. There was no attempt either before or after the response of the judge to put forward any reasons why it might have been appropriate for the judge to exercise his discretion in favour of giving the warning. After all, the concept of the warning was not abolished by section 7 of the Criminal Law (Rape) (Amendment) Act, 1990 but as a consequence of that section, the warning no longer became mandatory. It was left to the discretion of the trial judge. Normally, an appellate court would not interfere with that discretion but, as in the case of all discretionary orders, an appellate court may interfere if, on the facts of any particular case, a failure to give the warning was manifestly a wrong exercise of the discretion. It would normally be helpful to counsel for the defence to know in advance of his or her closing speech whether the judge had an intention to give the warning or not. There could be quite substantial additions to the speech if the warning was being given. Corroboration in the broad sense would obviously be dealt with in such a speech irrespective of whether the warning was going to be given or not but the wording would be different. In more recent case law, the principle, laid down in the early days of the Court of Criminal Appeal though not always adhered to, has been strongly reiterated, that is to say that in the absence of special circumstances, the court will not accept a ground of appeal based on the judge’s charge if no requisition has been raised by counsel. As already mentioned, the issue of the warning or absence of warning is somewhat different. It should more appropriately be dealt with before the speeches. If counsel for the defence, however, has not pressed for the warning then its absence should not be entertained as a ground of appeal apart, as always, from exceptional circumstances. It has been pointed out by this court in other judgments that in relation to requisitions, for instance, counsel for the defence may, in some cases, make a tactical decision not to raise it if otherwise satisfied with the judge’s charge. By the same token, counsel for the defence might not always want a warning to be given as to corroboration where that would entail a much more detailed review of the evidence by the judge to the perceived detriment of the defence. In this particular case, the learned trial judge could not have been clearer. He said that it was not his intention to give a corroboration warning. There were no arguments put up to him in this connection. The court, therefore, has no hesitation in refusing the application for leave to appeal. The court, however, reserved its judgment because of the wide proposition put forward by Mr. Sammon that a trial judge who refuses to give the warning must always set out his reasons for such refusal. It is appreciated that anything which the court says on this matter might be technically regarded as obiter dicta given that the court, for the reasons indicated, does not consider there was an actual request backed by submissions leading to a refusal in this case.
The argument that reasons must always be given is based on what the court considers, to be an over literal interpretation of the judgment of this court in DPP v. Dolan cited above. In that particular case, there was an express request by counsel for the defence to the learned trial judge for the warning to be given. The judge gave the surprising answer “Well, Mrs. Justice McGuinness has said that the warning is demeaning of women.” Counsel, nevertheless, pressed the application, indicating to the judge that his experience was that the Court of Criminal Appeal in a case in which he had been involved had taken quite a different view from that of Mrs. Justice McGuinness (if that was her view). At that point, the judge gave another unusual answer “Well, if the Court of Criminal Appeal want to overrule the laws passed by the Oireachtas that is entirely their business.” The judge then enquired as to the composition of the particular Court of Criminal Appeal and he was told it had consisted of Mr. Justice Frank Murphy, Mr. Justice O’Donovan and Mr. Justice O’Leary. The judge, however, conceded that there was in fact no corroboration. He was again asked to exercise his discretion in favour of granting the warning. The judge’s ruling was in the following terms:
“Well I am exercising my discretion by not doing it. If the Court of Criminal Appeal wants to reverse the Oireachtas that is entirely their business.”
The judge then asked counsel for the prosecution, Mr. Comyn, if he wanted to say anything and at that point, Mr. Comyn conceded in the light of some case law which he had read “that anything that might be corroborative – it would be dangerous to accept it as being corroborative.” The following passage then appears in the judgment of the court delivered by Kearns J.:
“Before proceeding further, it must be said that the transcript record of this submission may contain some omissions or inaccuracies. Nonetheless the essential grounds upon which the learned trial judge appears to have relied in making his ruling consisted only of:-
(a) his belief that Mrs. Justice McGuinness had, in some prior judgment, indicated that to give such a warning was ‘demeaning’ of women and/or
(b) that the Court of Criminal Appeal, in some judgment delivered by it in relation to the warning issue, was seeking to ‘overrule the laws passed by the Oireachtas’.”
After Irish and English authorities were opened by the prosecution in this court including the important judgment of Denham J. in The People (DPP) v. JEM 4 I.R. 385 Kearns J. in the judgment of the court said the following:
“While a number of other authorities were referred to by counsel on both sides, both in oral and written submissions, counsel for the respondent did not quarrel with or take exception to the suggestion that no legally valid reason was given by the learned trial judge for the particular ruling which he made. Neither counsel was in a position to assist the court in relation to any prior case or judgment where Mrs. Justice McGuinness is alleged to have made the comments attributed to her by the trial judge. The members of the court are also unaware of any such utterance by the distinguished judge in question.
Equally, the remarks of the trial judge to the effect that this court in the present, or indeed in any prior case, may have sought to ‘overrule the laws passed by the Oireachtas’ can only be described as remarks which are inappropriate and without foundation, and indeed remarks which counsel for the respondent has not sought to justify in any way.
This court is therefore left in the position that, while a ruling of considerable significance was made in the course of this case, it cannot deduce from anything in the ruling of the learned trial judge that there was a reasoned basis for his decision not to give the warning. The court would stress that during the course of a trial it cannot be expected that the trial judge will give an elaborate judgment on every legal issue which arises for his ruling, but every important ruling must at least disclose a decision judicially made, that is to say, one which is reasoned and based on legal principles. Regrettably, the ruling in the present case cannot be seen as meeting either requirements. Furthermore, the ruling was one of considerable significance in the context of the trial as a whole, given that the verdict of the jury was to convict the applicant of anal rape but to acquit him of the other rape charges. As counsel for the applicant pointed out, if it was the view of counsel on both sides and of the judge himself that there was no corroboration in this case (and the court is expressing no view of its own on this point), the charge to the jury should have made this clear. Failure in that regard gave rise to an apprehension that the jury treated the evidence of bleeding has providing corroboration sufficient to convict.
In the circumstances, this court cannot regard the conviction as safe…”.
The court does not believe that that judgment was laying down a universal rule that if the judge is asked to give the warning, he must always give a reasoned ruling. In most instances, the arguments for and against a warning will be obvious to all concerned. In those instances, it should be acknowledged that it is a matter for the discretion of the judge and no further probing would be necessary. But in the Dolan case, a ruling of sorts had in fact been made by the trial judge with two express reasons given, one of which was no legal reason at all and the other leading to a natural and wholly wrong inference that discussion about the appropriateness of how the judge should exercise his discretion as to warning constituted an overruling of “the laws passed by the Oireachtas”. Furthermore, as the judgment went on to point out there were very special facts in the case which gave rise to a worry as to the safety of the conviction.
Even if the trial judge in this case had been pressed to exercise his discretion in favour of the warning, the court does not consider that a reasoned ruling would have been necessary given that a valid argument could not have been made that it would have been improper to exercise the discretion in any way other than by giving the warning. It would be wrong for this court to give any theoretical examples of cases where the discretion could only be properly exercised in favour of a warning as each case depends entirely on its own particular and peculiar facts. There were so many surrounding facts in this case and, to some extent, conflicts of evidence on both sides that it was appropriate that it should be left to the unfettered judgment of the jury to decide where the truth lay. There was nothing special or peculiar in the evidence which could give rise to “the danger of convicting the person on the uncorroborated evidence of that other person.”
As already indicated, the court will refuse the application for leave to appeal against the conviction. There was also an application for leave to appeal against sentence but that was withdrawn.
People (DPP) v DD
[2018] IECA 192
JUDGMENT of the Court delivered on the 21st day of June 2018 by Mr. Justice Mahon
1. The appellant was found guilty by a jury at the Central Criminal Court on the 13th June 2016 of two counts, namely:-
• count 1: Rape contrary to s. 48 of the Offences Against The Person Act 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990, and
• count 2: Defilement of a child under the age of seventeen years, contrary to s. 3 of the Criminal Law (Sexual Offences) Act 2006.
2. The duration of the trial was eight days, and it commenced on the 25th May 2016. This judgment relates to the appellant’s appeal against his conviction.
3. The appellant has also appealed against sentence. He was sentenced on the 29th July 2016 in respect of count 1 to eight years imprisonment, to date from the 13th June 2016. The second count was taken into consideration.
4. The background facts can be briefly stated as follows. The offences were said to have taken place between the 4th and 5th October 2014 at the appellant’s home. At the time the appellant was aged twenty one and the complainant was aged fifteen. It was the defence case that the appellant had initiated sexual activity with the appellant while she was wearing only her underwear. He maintained that all sexual activity that occurred was consensual. He denied penetrative sex. Subsequent to the incident it was noted that there was evidence of bleeding from the complainant’s vagina and of a recently torn hymen, and that there was blood and the appellant’s semen on the complainant’s underwear. It was contended by the appellant that the complainant had been involved shortly before his encounter with her in sexual activity, including sexual intercourse, with another male. It was suggested that the bleeding was the result of the complainant being on the contraceptive pill. It was also suggested that the complainant had made a false allegation against the appellant in order to gain sympathy from her own father with whom she had had a somewhat fractious relationship in the period immediately preceding the incident.
5. It was the prosecution case, based on statements provided by the complainant, that the complainant had not previously been sexually active and was a virgin prior to her encounter with the appellant.
6. A number of grounds of appeal are maintained on behalf of the appellant, numbering twelve (in relation to the conviction appeal). These have been reduced to four broad grounds in the written submissions of the respondent and this judgment will address the grounds of appeal under the following headings to reflect same, namely:
(i) Restrictions on cross examination of the complainant in relation to previous sexual activity and in relation to the contraceptive pill;
(ii) The defence not put; misdirection re “motive” inferences;
(iii) The misdirection of the concept of reasonable doubt, and
(iv) The Admissibility of DNA evidence
The complainant’s previous sexual history and her reason for taking the contraceptive pill
7. The appellant sought to introduce evidence and to cross examine the complainant in relation to previous sexual history, and in particular in respect of various electronic communications on the complainant’s mobile phone which contained sexual content. This was with a view to establishing that the complainant had been sexually active and had probably engaged in sexual intercourse in the period immediately prior to the alleged rape. The appellant also sought to introduce evidence that would assist in establishing that the complainant was taking the pill at least partly for contraceptive purposes in contemplation of such activity.
8. Section 3 of the Criminal Law (Rape) Act 1991 (as amended) deals with the issue of the cross examination of a complainant as to previous sexual activity. It provides as follows:-
3.(1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience of a complainant with a person other than that accused.
(2) (a) The judge shall not give leave in pursuance of subsection (1) for any evidence or question except on an application made to him, in the absence of the jury, by or on behalf of an accused person.
(b) The judge shall give leave if, and only if, he is satisfied that it would be unfair to the accused person to refuse to allow the evidence to be adduced or the question to be asked, that is to say, if he is satisfied that, on the assumption that if the evidence or question was not allowed the jury might reasonably be satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied.
(3) If, notwithstanding that the judge has given leave in accordance with this section for any evidence to be adduced or question to be asked in cross-examination, it appears to the judge that any question asked or proposed to be asked (whether in the course of so adducing evidence or of cross-examination) in reliance on the leave which he has given is not or may not be such as may properly be asked in accordance with that leave, he may direct that the question shall not be asked or, if asked, that it shall not be answered except in accordance with his leave given on a fresh application under this section.
(4) Nothing in this section authorises evidence to be adduced or a question to be asked which cannot be adduced or asked apart from this section.”
9. At the close of the complainant’s examination in chief, Mr. Ó’Lideadha S.C., counsel for the appellant, made the following application to the learned trial judge. He said,inter alia:
“..the first matter is that we’re asking for leave in principle in the first place for permission to cross examine, to ask questions and if necessary to adduce evidence suggesting or tending to show that the complainant had engaged in sexual intercourse with another person or persons at the time that she went to the sexual assault examination unit. In circumstances where the prosecution proposes to lead evidence to the effect that the findings were consistent with recent penetration. And the position is that the complainant’s statement in the book of evidence asserts that she was a virgin at the time of the examination. And that although she had boyfriends, she was not sexually active at the time. And she repeated that assertion to the Sexual Assault Unit. So cross-examination of – we would contend is absolutely essential in those circumstances to suggest to her and to put forward evidence tending to show that she did engage in sexual intercourse…”
10. Mr. Ó’Lideadha went on to say:-
“In order to put to her various communications to suggest that these are communications which effectively involve discussing, engaging in sexual intercourse with particular persons or other sexual activity. I would also wish to suggest that she was taking the contraceptive pill at the time, at least partly to avoid becoming pregnant..there is evidence in the form of a letter from a consultant who refers to a consultation and advice and interaction with the complainant and her mother. And indeed refers to the fact that she was advised to try other methods to deal with the various difficulties that she had before taking this particular medication… And there’s also material, Judge, from psychiatric services, two persons who were dealing with herself and her mother in relation to this matter. And it appears that the mother and I believe that the complainant herself were adamant that they did not wish these psychiatric services persons to communicate with the GP, because it was being suggested by the psychiatric services that taking the pill was actually causing various difficulties that she was having, including very low mood and tendencies towards self-harm and suicide. So it appears that there was a resistance, very firm resistance to communications with the GP to try to raise the issue as to whether or not she should come off the pill. And so those are matters of particular significance, Judge.”
11. There followed a lengthy exchange of views between counsel on both sides and the learned trial judge, and further and more detailed submissions made by both sides in relation to the issue of the contraceptive pill and the reasons why the complainant was on that medication. Mr. Ó’Lideadha spelt out in some detail the medical evidence relating to the subject contained in a report of the HSE. Mr. Ó’Lideadha sought to persuade the learned trial judge to permit the issues relating to the contraceptive pill to be raised in the course of the trial on the basis that it would be done in a sensitive manner. He submitted:-
“..It would not be the intention of the defence to distort the context or to be unfair in relation to it. It would be the intention of the defence to accept that there were real concerns grounding the process leading to the possibility of taking the pill. All of that would be fairly and properly acknowledged. But it would also be suggested that there was another way of dealing with matters, which involved a change in diet. And it was then the subject of consideration by the psychiatric services that the issue should be reconsidered. And a decision was made to dissuade attempts to communicate with the GP on the subject. And in my respectful submission, it would be again grossly unfair – it’s not really about unfairness really, it’s about actually whether or not this could make a difference. And if you have a jury that’s sitting there saying to themselves, well all we know is that she was told to go on the pill because of a separate medical problem, that’s all we know and we can’t have any speculation that there might have been any other factors at play. That the mother or that the complainant herself might have had in the back of their minds, I know this will help with the dizzy spells and all the rest of it, but also because I’m sexually active or because I’m liable to be sexually active, it is actually worth it to be on the pill for that purpose as well. If I’m not allowed to elucidate the truth as to the circumstances, then important considerations in that regard would not be open to the jury. And I’m telling the Court that I’ve no intention of distorting the situation. I would fully acknowledge the proper circumstances and it would be for this witness who might, I don’t know, who might acknowledge that this actually was a factor. And if she doesn’t acknowledge it was a factor, I should be entitled to say to the jury, look, you see the evidence, you see what she was advised and you see the choices she made and it’s up to you to make up your mind as to whether or not a factor in this was the knowledge that she was liable to engage in sexual intercourse. And these are absolutely matters of absolute fundamental importance in this case. I’ve put all my cards on the table in terms of this aspect of the case and I’m assuring the Court that I would do my utmost to fairly and honourably deal with these matters.”
12. Mr. Ó’Lideadha relied extensively on the decision inDPP v. GK[2007] 2 IR 92 in support of his application.
13. There then followed an exchange between Mr. Ó’Lideadha and the learned trial judge as to the nature of the questioning that would follow in the event that his application was successful. He explained that he wished to establish that the complainant was not a virgin at the time she visited the appellant in his home on the night of the incident. He said he wished to establish that the complainant had been communicating with a number of young men regarding engaging in sexual activity with each other, including sexual intercourse, in the days immediately prior to the alleged offences. He said he wanted to cross examine the complainant about her sexual history and her previous sexual activity. He said he also wished to question her about her reasons for taking the contraception pill so as to establish that it was taken at least partly as a contraceptive.
14. Mr. Ó’Lideadha submitted that the jury might reasonably and rationally conclude that the complainant had engaged in sexual intercourse with a person or persons other than the appellant and within the period shortly prior to her encounter with the appellant from the nature and vocabulary used in such communications. While the phone messaging in question was of a highly explicit sexual nature it was accepted nonetheless that none of the communications in themselves proved that any particular sexual activity had been engaged in by the complainant.
15. Having heard submissions from both sides, the learned trial judge decided to conduct avoir direin which he heard evidence on the specific matters that Mr. Ó’Lideadha wished to put to the complainant, particularly relating to her mobile phone text messages.
16. Ultimately, on Day 3 of the trial, the learned trial judge ruled on Mr. Ó’Lideadha’a application in the following terms:-
“..Well, now the position is this matter is before me at this juncture for leave to cross examine the complainant in respect of certain aspects of what it is broadly speaking are contended to be prior sexual experience. The material effectively can be summarised as follow, firstly certain communications which I might describe as electronic communications which in -which carry, I think it’s fair to say sexual innuendo, and which indeed extend to what might be described as slang or explicit reference to sexual conduct. The material includes at least one representation, I think a direct photographic representation of a male penis, for example. It is contended that this evidence tends to show that when the complainant says that she was not sexually active, in particular, was a virgin at the time of the alleged sexual intercourse with the accused, this was not true. And it is contended that this is relevant on the basis not only that an issue of credibility arises, but also because the medical report concludes that there – that this lady had engaged in sexual intercourse or that there had been sexual intercourse, penetrative sex obviously by definition. And in circumstances where the accused denied that that occurred, it must follow that this had been something which had occurred as a result of some form of sexual conduct with somebody else. If there is a rational basis for it, that is the rational basis.
Now, it seems to me that the texts or electronic communications could not rationally say extend to, or go to, or be relevant to that proposition. It seems to me that it would be degrading to the complainant were they to be cross examined upon. It would be quite different if the -if it was clear from them that they constituted for example admissions expressed or implied of having close sexual relations, perhaps not even amounting on the electronic communications to – to intercourse. But they don’t stretch to that at all, some of them seem to be in the form of jokes, others seem to be rather squalid, but it appears to me that the morals of individuals, perhaps of teenagers are perhaps outside the common experience of certainly judges. And – but it seems to me from my experience in this court that we are not looking at anything particularly unusual, whether one deprecates that or not, it’s none of my business to make any comment upon it and truly I do not. So I believe that there is – that to be permitted to cross examine in respect of that material doesn’t reach the threshold, so to speak, contemplated by the Act.
Now, in relation to the medical material, what is the thrust and tenor and substance of that material? One can probe and particular and dare I say it nit pick and try and build some form of substantive edifice on an observation here or there. An example would be the strong view of the complainant’s mother that she did not wish there to be any communication with the doctor who was the treating doctor. But it seems to me that this is to enter into a realm of gross speculation. What is the material before me? It is purely and simply at bottom, as a matter of substance, that this child was on medical – on contraceptive medication for medical reasons, quite unrelated to the purpose of inhibiting contraception. I will refer to the material in question less there be any doubt as to why I think it could have no relevance. Before I do that I think we should pause, what is the – what implication is it sought to raise? How is it conceived that this might be relevant? It is conceived, it can only be relevant to the proposition that well she might have been sexually active, or may well have been sexually active to the extent of penetrative sex, because she was on the pill. That is the bald proposition in this case. It might be one thing to make it if one had no medical evidence as to why she was on it. But there is unambiguous medical evidence.
Now, what Mr Ó Lideadha has tried to do first of all is to parse and analyse the form of words used in the medical report from the paediatrician. He has first of all sought to say that the medical report as it were, qualified the necessity for immediate prescription of – of contraceptive medication. That it gave rise to the implication that further consideration should be given to not doing so. It’s perfectly plain that it was not rushed into. It’s perfectly plain that it took some six weeks to do so. And it raised effectively an issue for consideration, that is all. People are entitled to consider whether or not they go on particular medication, children in particular no doubt with the assistance of their mothers and a decision was made to do that. Now, at a later stage, the nurses raised in issue with, as a result of their consultations, with the family, including the complainant. They took the view that there should be a re-visitation of this in the light of what they understood to be the symptoms. The mother and the – certainly, if not both of them were against this. They’re perfectly entitled to make that decision. The implication being, oh well they were a bit reluctant to make that decision, it may well be that she was taking advantage of the fact that she was on it for other nefarious purposes. I hesitate to use the phrase, I hope it is accepted that I don’t use this in a derogatory sense of counsel or the accused. But Mr Condon does character it correctly when he says, what we’re dealing here with is, we’ll call it a nod and the wink where it is suggested that as it were, fortuitously, this girl was on this medication and therefore of course, that increased the implication or gave rise to an implication that she might have been engaged in sexual activity. There’s no evidence whatsoever, good, bad or indifferent of any kind or description to support that proposition.
…Yes, well, I said I’d give a summary of the matter and I believe this is an adequate summary, we’re not going into the realm of speculation, there isn’t an evidential basis for this. It’s perfectly plain why the medication was being taken and anyway, I mean people can take contraceptive medication for medical reasons without any implication that it has a bearing on their sexual activity. And this is the very mischief which the Act is devoted to excluding. So, very good.”
17. The defence was however permitted to suggest to the complainant that she had previously had sexual intercourse. The defence was also permitted to refer to the fact that the complainant was on the contraceptive pill and that that fact might explain why her underwear was blood-stained.
18. The issue concerning the contraceptive pill again raised its head at the close of the prosecution evidence. Leave was sought by the defence to refer in its closing speech to the jury that there had at an earlier stage in the trial been a ruling from the learned trial judge that evidence relating to communications on the complainant’s mobile phone regarding sexual activity in the form of words and pictures would not be raised before the jury. In support of this application it was pointed out that the jury were aware from the evidence that the defence had had access to the contents of the complainant’s phone. Not unsurprisingly having regard to his earlier ruling the learned trial judge ruled against this application.
19. In the course of his closing speech to the jury, the prosecution counsel referred to the complainant taking the pill for pre menstrual symptoms and did so in terms that would have left the jury in no doubt that she was taking the pill for medical reasons only. Mr. Ó’Lideadha made the following submission to the learned trial judge:-
“Now, what I want to say is that the evidence is that it was not prescribed for contraceptive purposes, but Mr Condon went further than that in his closing speech and made an assertion that it wasn’t being – that it was being used for medical purposes and clearly imply that it was not being used for contraceptive purposes. That is a separate matter. There’s no evidence on that one way or the other. We clearly accept that as far as the medical personnel were concerned they were prescribing it for non contraceptive purposes. As to why it was being used, that is a separate matter and we don’t have evidence on that.”
20. The learned trial judge ruled against Mr. Ó’Lideadha and refused his application to discharge the jury.
Discussion and conclusion
21. Issues raised on behalf of the appellant in the course of the trial related to, essentially, three different subjects, namely the application to question the complainant in relation to her previous sexual activity in the context of the messaging on her mobile phone, the application for leave to cross examine in relation to the reasons why the complainant was on the contraceptive pill and, finally, the application to pursue the theory that the complainant had complained of being raped in order to win the affection of her father. These were difficult and complex issues for the learned trial judge in seeking to strike a balance between protecting the appellant’s right to a fair trial and excluding evidence that was irrelevant and prejudicial. That observation is borne out by the extensive submissions made in relation to them and the length of time devoted to their consideration, as well as the detailed rulings in relation thereto. It is undoubtedly the case that the learned trial judge afforded these matters very thorough consideration and analysis.
22. The facts of the instant case are not dissimilar to those in the case ofDPP v. Keogh[2017] IECA 232. One of the issues in that appeal concerned a refusal by the trial judge for leave to cross examine the complainant pursuant to s. 3 of the Criminal Law (Rape) Act 1991, and more specifically in relation to a series of images of a sexually explicit nature which had been saved on a media card on the complainant’s mobile phone. In this court’s judgment delivered by Birmingham J., as he then was, the following is stated:-
“…The statute provides that the judge should give leave if and only if he is satisfied that it would be unfair to the accused person to refuse to allow the evidence to be adduced or the question to be asked but significantly it then goes on to say as follows:-
“That is to say, if he is satisfied that, on the assumption that if the evidence or question was not allowed the jury might reasonably be satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied.”
The Court does not see how the images would ever come close to meeting the statutory threshold. Indeed, even if the statutory considerations are completely put to one side the issue would not cross the basic threshold of relevance. Simply because a person makes a complaint that they have been a victim of crime does not mean that they abandon their right to privacy or that they lose that right. Someone wishing to question an individual about private or intimate matters must establish that the proposed line of enquiry has a relevance…”
23. In the instant appeal the court does not find fault with the learned trial judge’s rulings in relation to the issue of the complainant’s previous sexual history and the evidence relating to her mobile phone, nor indeed the issue concerning the possible desire on the part of the complainant to win back her father’s affection by complaining she had been raped.
24. The court does however have a concern in relation to the learned trial judge’s ruling effectively preventing any questions being raised as to the reasons why the complainant was on the contraceptive pill or remained on it despite some adverse medical reaction to the medication. There was, at least, a possibility that the jury might be persuaded that a secondary, or indeed a primary, motivation for the taking of the pill or remaining on it, was to fulfil sexual intercourse and that such sexual activity that occurred in the course of her confrontation with the appellant was not the first occasion on which she had engaged in sexual intercourse. It was an important credibility issue. That issue, in the court’s view, ought to have remained open to greater clarification aided by cross examination. It is a matter which ought properly to have been left to the jury for its consideration. Accordingly, the court will allow this particular ground of appeal.
25. Having so found in the appellant’s favour in relation to the foregoing and which was in reality the primary ground of appeal, it is unnecessary for the court to make determinations in relation to the remaining grounds save to observe that they appear to the court, in general terms, to lack merit.
26. In these circumstances, the court will allow the appeal and set aside the conviction. In the event that the respondent seeks a re-trial, that issue will be considered in due course.
People (DPP) v KM
[2018] IECA 261
Birmingham P.
July 26, 2018
JUDGMENT
1. In February/March 2017, the appellant stood trial in the Central Criminal Court on an indictment that contained multiple counts of sexual assault and rape, as well as two counts of attempted rape.
2. On 20th March 2017, the appellant was convicted by a unanimous jury on ninety-one counts. In respect of the first count on the indictment, an offence of sexual assault, he was convicted by a majority of 11:1. One count, a count of attempted rape, resulted in a verdict of not guilty by direction of the trial judge. Subsequent to his conviction, he was sentenced to a term of twelve years imprisonment with the final two years suspended. He has now appealed against both conviction and severity of sentence. This judgment deals with the conviction aspect only.
3. By way of background, it should be explained that the complainant was the stepdaughter of the appellant. The complainant gave evidence that the appellant had begun to sexually abuse her when she was approximately eight years old. The abuse in question normally took place in his bedroom, a room which he shared with the complainant’s mother. Initially, it took the form of the appellant taking the complainant’s hand and using it in conjunction with his own hand to masturbate himself. The complainant gave evidence that, in or around 2010 or 2011, when she was approximately eleven years old, the abuse escalated to attempted rape and rape. The last offence, she stated, occurred on 13th November 2015, being the day before she first disclosed the offending behaviour to Gardaí. Contact with Gardaí came about in a situation where the complainant had left her home and made her way to the home of an aunt of hers. There, she spoke first to a cousin and then to her aunt. The complainant’s mother and other family members made their way to the aunt’s house and then the complainant, along with her mother and her aunt, went to the local Garda station.
4. Much of the focus at trial was on the last alleged offence. The complainant said that on this occasion, the appellant had raped her in his bedroom. During the course of the incident, he had licked her breast and had ejaculated onto her stomach. When the complainant went to the Gardaí, she was brought to the Sexual Assault Treatment Unit (SATU) in the local hospital. There, swabs were taken in the usual way. Semen was identified on swabs taken from the complainant’s stomach.
5. Subsequently, a DNA profile was created and that profile matched that of a blood sample taken from the appellant while in Garda custody. A test for saliva was carried out on swabs taken from her left breast and though they appeared to indicate the presence of saliva, no DNA profile could be extracted therefrom. When the underwear the complainant had been wearing on the day of the alleged offence was analysed, semen, an analysis of which matched the appellant’s DNA, was found on the inside of the front panel and waistband.
6. When initially arrested and detained, the appellant had denied all the allegations. Upon the results of the forensic analysis becoming available, he was rearrested in accordance with the statutory provisions and was questioned in relation to the results of the forensic analysis. He offered, as a possible explanation for the presence of the semen on the body of the complainant, the fact that he had sexual intercourse with his wife, the complainant’s mother, in their bed on the evening of 13th November 2015, and that the complainant had been lying in the same bed for some period during the afternoon of the following day. Some support for aspects of this narrative were provided by the complainant and her mother. Later testing revealed trace amounts of semen on the duvet cover and sheet of the appellant’s bed.
7. The prosecution case was that the semen on the complainant’s stomach and on her underwear was as a result of the untoward sexual activity on the part of her stepfather that she had described. The now appellant’s case was that there had been no untoward sexual activity involving his stepdaughter and that the presence of the semen on her stomach and her underwear could be attributed to the fact that she was lying on a bed where he had previously engaged in sexual intercourse.
8. The significance of the forensic evidence was addressed by Dr. Charlotte Murphy of the Forensic Science Laboratory, a prosecution witness. Her evidence was to the effect that the forensic evidence in the case provided “very strong support” for the proposition that the appellant had indeed had sexual intercourse with the complainant in the manner described by her. Dr. Murphy was cross-examined in relation to her conclusions at great length; the cross-examination spread over three days.
9. Against that background, the following Grounds of Appeal have been formulated:
i. That the trial judge erred in permitting the prosecution to ask questions of the complainant during re-examination when such questions were not appropriate for a re-examination and ought to have been disallowed.
ii. That the judge erred in incorrectly admitting evidence of recent complaint when this ought to have been excluded.
iii. That the trial judge’s charge to the jury was inadequate in that she failed to marshal the evidence to the issues in the case, this in circumstances where it was particularly necessary that she should have done so, having regard to the challenge of the scientific evidence.
iv. That the trial judge dealt with the cross-examination of Dr. Charlotte Murphy, a key prosecution witness, in a manner fundamentally different to the rest of the evidence in the case and in a manner which unfairly detracted from the effectiveness of the appellant’s right to challenge the evidence of that witness.
v. That the judge charged the jury on a majority verdict at a time when they had not had a sufficient opportunity to deliberate, having regard to the nature and complexity of the case.
vi. That the trial judge mischaracterised the evidence in the case and this was to the detriment of the appellant when charging the jury.
vii. That the trial judge, when charging the jury, mischaracterised the appellant’s case and, in general, failed to put the appellant’s case fully and fairly to the jury.
viii. The trial judge erred in law and in fact in refusing to give a corroboration warning.
ix. That the trial judge erred in referring to the issue of corroboration in the course of her charge in a manner which was to the prejudice of the appellant.
x. That the trial judge erred in refusing to give a delay warning when one would have been appropriate.
xi. That the trial judge, when charging the jury on the issue of sample counts, did so in a manner which was apt to suggest that the appellant may have been suspected of further alleged offending, which was not the case.
It will be appreciated that while eleven grounds of appeal have been formulated, in some cases, the same complaint has been couched in slightly different terms, and in other cases, grounds are so closely connected or overlapped that they may be dealt with conveniently together. In opening the case,, Senior Counsel on behalf of the appellant, Mr. Ronan Munro SC, makes the point that the appeal is all about due process. He acknowledges that there is significant evidence available to the prosecution in the case, but says that the case is all about fair trial rights. He says that, notwithstanding that the trial judge was a very experienced lawyer in the area of criminal law that the conduct of the trial fell below the very high standards demanded by the Irish criminal justice system.
Ground 1: The trial judge erred in permitting the prosecution to ask questions of the complainant during re-examination when such questions were not appropriate for a re-examination and ought to have been disallowed
10. The background to this ground is that the complainant, in direct evidence, had said that on the day after the last rape, she was on the bed and did not get in under the covers [emphasis added]. It was suggested to her in cross-examination that when providing a statement to Gardaí, she had said “I got into my Mam and K’s bed” [emphasis again added] and that she had specifically told Gardaí “I was under the duvet while I was eating my sweets and watching TV”. Senior Counsel for the defence’s cross-examination concluded as follows:
“Q. And now, giving evidence to the jury on oath in a criminal trial, when you know how important this could be, you have falsely told them that you were not under the duvet and you were on top of the bed: isn’t that right?
A. Yes.
Q. Thank you. I have no further questions.”
11. Counsel for the prosecution sought to re-examine on the issue. The transcript of the re-examination includes the following exchange:
“Q. (from prosecution counsel): When the Guards asked you about that day (the day she went to the Gardaí), subsequently, you said about being in that bed ‘I didn’t take my clothes off while I was in my Mam and K’s bed’. Is that correct?
A. Yeah.
Q. Did you deliberately tell any lies in relation to 14th November 2013 because –?
A. No.
Q. Okay. Well, Mr. Guerin said to you this morning that you did falsely state –
Mr. Guerin (Senior Counsel for the defence): Sorry, and the witness accepted that and my friend is now trying to cross-examine the witness. She is trying to cross-examine her own witness on this issue. The witness gave an answer and she is trying to undermine it, that’s not right. Judge, you can ask her why she said that.
Ms. Farrelly (Senior Counsel for the prosecution): The answer is non-committal.
Mr. Guerin: No, no, it wasn’t non-committal, the answer was ‘yes’.
Ms. Farrelly: I’m going to ask the witness what she was saying ‘yes’ to, because I have ‘yes, yes, yes’s’ compound questions.
Mr. Guerin: I have an issue here. This is quite improper, in my submission, Judge.
Judge: A short break for you, Ladies and Gentlemen please, thank you.”
12. It is the situation that at the time the complainant was giving evidence she was seventeen years of age and was describing events that she said had occurred approximately twenty months earlier. One must not lose sight of that fact. It is also the case that many people, not just children, when a proposition is put to them, particularly a complex or compounded proposition, have a tendency to answer ‘yes’. Sometimes it is not clear whether that ‘yes’ is an indication of complete agreement with each and every element of the proposition put or merely an acceptance that a proposition has been put and formulated. Undoubtedly, the cross-examination of the complainant was an effective one, and undoubtedly, from the defence perspective, it finished on a high. An examination of the transcript would suggest that thereafter, the defence was anxious to curb the prosecution’s ability to re-examine. However, the Court can see no basis for any suggestion that the prosecution should be precluded from re-examining, as would ordinarily be their right.
13. In this case, once the jury withdrew, in the course of the debate that followed, the judge observed:
“[a]s I say, I have a concern of the level of understanding of this witness of various matters and it appears that the defence made considerable headway in the cross-examination on that issue, but I would not – I think an unfairness may be done to the witness if she is not allowed to, at least if she is not given the opportunity, to clarify that.”
The cross-examination of the complainant was conducted over two days of the trial. On both days, the judge expressed some anxieties about the extent to which the complainant appeared to understand some of the questions that were being put to her.
14. The judge has had the advantage, which we have not had, of viewing the cross-examination of the complainant. However, if a trial judge as experienced at this one has a concern about whether a vulnerable witness fully understood the questions she was being asked, then it seems to us that it would be inconceivable that there would not be efforts to clarify what the situation was and inconceivable that the prosecution should be refused an opportunity to re-examine. It seems to us that the prosecution was entitled to clarify whether the complainant was accepting unequivocally that she had told a deliberate untruth, in the sense of a deliberate falsehood, or whether she was, for whatever reason, acquiescing and not challenging propositions put to her. The very experienced trial judge who observed the cross-examination had concerns. As we have already pointed out, we have not had the same advantage that the trial judge had, but a perusal of the transcript does give rise to some degree of concern on our part. Overall, we are satisfied that the judge was acting correctly in permitting the re-examination. Certainly, we do not see any basis for suggesting that the fact that re-examination was permitted renders the trial unsatisfactory or the verdict unsafe.
15. Accordingly, we reject this ground of appeal.
Ground 2: The judge erred in incorrectly admitting evidence of recent complaint when this ought to have been excluded
16. This ground of appeal has a relevance to the evidence of two witnesses: ML, a friend of the complainant, and SR, a cousin of the complainant. The appellant says that the complaints that were allegedly made to Ms. L and Ms. R were not sufficiently consistent with the evidence given by the complainant herself to come within the doctrine of recent complaint. Ms. L gives the following account of an encounter with the complainant which occurred in or around Halloween night 2014:
“[s]he started breathing heavily. I asked her if she was okay. I thought she was having a panic attack, then she started crying. I asked her again if she was okay. I gave her time to calm down and T (the complainant) said to me that K had molested her. She was really upset. I asked her if she was serious, she looked me in the eye and she said she was. I told T to tell her Mam about it. But T said she couldn’t and asked me to keep it to myself and made me promise not to say anything.”
Ms. L describes a second report emerging in June 2015. In relation to that, she said:
“[i]t was June because it was around the time of my Mam’s anniversary. T had been grounded for a week and I was concerned. I asked her why she was grounded, she told me she hadn’t done her study. I knew she was lying because she had her lying face. I know when T is lying because she blinks twice. I asked her again why she was grounded and she said ‘he done it again’. I asked her what T had done and she said ‘K molested me’. I was shocked again because she hadn’t told me in so long. We were standing at the door of my house. It was on holidays from school and it was about 2.30pm in the day. I remember T was wearing a dress.”
17. The appellant says that what is reported by ML at its height amounts to an allegation that the appellant had molested the complainant. However, the appellant says what must be borne in mind is that at the time of both disclosures, on the plaintiff’s account, the appellant’s activity had escalated from sexual assault to rape. The appellant says that molesting equates to inappropriate touching and is far removed from actual rape. Accordingly, it is said that the account given to ML was fundamentally inconsistent with the account given by the complainant in evidence.
18. The respondent says that there is no question of the complaints lacking consistency. They draw attention to Professor O’Malley’s work ‘Sexual Offences’ 2nd Ed. Thompson Reuters 2013 at para. 2109 where it is stated:
“[l]ike all evidence, that relating to recent complaint must pass the test of relevancy. Since the sole purpose is to show consistency, evidence of a complaint, the terms of which were entirely inconsistent with the complainant’s testimony in Court, would be therefore inadmissible. Problems may occur where there is some inconsistency between the two accounts, but the general consensus seems to be that the evidence of the complainant should not be rendered inadmissible unless it is completely inconsistent with the complainant’s evidence.”
19. A case where the view was taken that there was such inconsistency was the case of DPP v. Gavin [2000] 4 IR 537. In that case, at trial, the complainant gave evidence that he accompanied a friend and fellow wedding guest to his hotel bedroom. His evidence was that he removed his jacket, shoes and socks, went to bed and fell asleep. He woke up at in or about 5.30am to find the appellant in bed behind him and pushing up against him. The appellant was wearing a pair of underpants together with the complainant’s shoes and socks, but no other clothing. His underpants were pushed down his thighs somewhat. The complaint made to Gardaí, which at trial was admitted, was that the complainant was in bed and awoke to find a man in the bed and the man had a hand on his groin. In the course of giving the reasons of the Court of Criminal Appeal for quashing the conviction, McGuinness J. had commented as follows:
“[i]f the complaint is admissible at all, its terms are also admissible. But here, the complaint does not meet the primary criterion of being consistent with the complainant’s evidence at trial. We do not accept the contention of the prosecution that it is sufficiently consistent because both descriptions are of sexual assault. The description of a hand on the groin is crucially different from the account given by the witness at trial. If the complainant evidence did not meet the primary criterion of demonstrating consistency, should it have been admitted at all? I think not.”
20. This Court would observe that it could imagine that there might have been other courts that would have taken a different view as to whether the degree of inconsistency and divergence was such as to preclude the evidence of the complaint. However, even taking the view of the Court of Criminal Appeal in that case at face value, the divergence there was altogether on a different scale than what is in issue here. There, there were two specific and reasonably detailed accounts; one of waking to find a man with his hand on the complainant’s groin and the other of being awoken to find the appellant in bed behind him and pushing up against him dressed in the particular fashion described.
21. Here, there is no inconsistency in the accounts. What has occurred is that on one occasion, an elaborate and detailed account is given. First, over several days when providing a statement to the Gardaí, and then in the witness box during examination, cross-examination and re-examination, whereas on the other hand, the account given to Ms. L was really lacking in all detail. However, in the Court’s view, that is what is in issue: the distinction between an account where detail was not provided and an account where considerable detail was provided. Viewed in that light, there are no real inconsistencies. The Court does not believe that the reference to “molesting” can be interpreted as an account involving but limited to and not going beyond inappropriate touching. It is the nature of things that individuals who have been the subject of sexual abuse, in particular, perhaps, child sexual abuse, when they first bring themselves to speak of it, that they are likely to be very reticent and to provide few details. This is a factor that trial judges are entitled to have regard to when deciding whether to admit evidence of recent complaint that is offered. In this case, so far as the evidence is concerned, the Court is satisfied that the trial judge was well within her rights to admit it.
22. As far as SR is concerned, Ms. R was the first person whom the complainant met after she had left the appellant’s house on the day after the final alleged incident of rape and had made her way to the home of her aunt. SR gave the following account:
“T looked upset to me. I asked her what was wrong, she started crying and she told me that K, her stepfather, had been raping her since she had moved up to C [precise location]. I asked her will I call my Mam, she said do. I went into the kitchen to get my mother. I told my mother that T was here and that she told me that K had been raping her. Before I went into my mother, T also told me that K used to rape her when her mother was gone to work. I was upset when I told my Mam and started to cry. My Mam went out to T and I remained in the kitchen. I’d also like to say that when I was speaking to T in the hall, she also mentioned that when K was raping her that he came over her and that it went all over her bellybutton and her belly. T also said to me in the hall that when she ran away from home that day, she intended on going to her Nan’s house in L [location] but changed her mind and came to our house. She also said that when she was going to tell what K was doing, but K said that she wouldn’t be able to see any of the other family any more. She said she didn’t tell anyone because she was too young. She was afraid she would be taken away. I didn’t speak to TA any more while she was at my house.”
The appellant focuses on the phrase “since moving to C” and says that this suggests that rapes had occurred from the point in time when the move occurred up to the time when disclosure was being made, but that account was quite different to the complainant’s account which involved an incremental escalation. Again, attention is drawn to the phrase “he used to rape me when my mother was at work”. It is said that the continuous past tense is used and clearly connotes an ongoing state of affairs. While the final incident described by the complainant might be said to have occurred when her mother had gone to work, this was not true of earlier incidents.
23. The Court feels that it is possible to over-parse and analyse a conversation between two children especially when one of them is in a distressed state. The reliance on the fact that the continuous past tense was used is over-analytical. Again, the reference to rapes “since moving to C” is capable of bearing the interpretation contended for by the appellant that rapes started at move time and continued thereafter, but it is equally open to the interpretation that rapes occurred from a period in time that was subsequent to the move to C.
24. The Court is quite satisfied that such matters as the defence is in a position to point to would not have required the exclusion of the evidence of Ms. SR. Indeed, in terms of the overall consistency of the complainant, what Ms. SR had to say about the fact that she was told by her cousin, the complainant, that K came all over her and it went all over her bellybutton and her belly, certainly indicates a high degree of consistency by the complainant on a key issue.
Ground 3: The trial judge’s charge to the jury was inadequate in that she failed to marshal the evidence to the issues in the case, this in circumstances where it was particularly necessary that she should have done so, having regard to the challenge of the scientific evidence
25. The trial judge is criticised for having adopted the approach of reading from the transcript, witness by witness, in chronological order. It is said that in the light of the complexity of the issues and the length of the trial, it was incumbent on her to actively engage with the evidence and connect it to the specific matters which had to be resolved. The point was made that that was of particular relevance to the scientific evidence and the challenge to it which was mounted by the defence.
26. The enormous efforts that the defence went to, to prepare for the cross-examination of Dr. Charlotte Murphy, is highly commendable, as is the manner in which they deployed the results of their investigations during the course of a lengthy and extremely detailed cross-examination. However, one must be careful to avoid a situation of failing to see the wood for the trees. A young girl says that she was raped on 13th November 2015. She describes that during the course of the incident, her breast was licked and that the appellant ejaculated onto her stomach. The following day, semen was recovered from swabs taken from the complainant’s stomach. There was also semen identified on the underwear the complainant was wearing on the day of the alleged offence, on the inside of the front panel and waistband. What appeared to be saliva was also found on the appellant’s left breast. The forensic scientist expressed a clear view that, as between the two competing theories, these being that they resulted from the untoward sexual activity that had occurred, and the alternative theory, that the results were explicable because the complainant lay in a bed where sexual intercourse had previously occurred, that the evidence provided very strong support for the proposition that there had been sexual intercourse with the complainant in the way described. In truth, the findings of the forensic scientist were really just self-evident common sense. The jury sat through the direct evidence and the extremely lengthy cross-examination; were addressed on the significance of the evidence from the forensic scientist by counsel and had the benefit of the judge’s charge. The jury can have been in absolutely no doubt about the import of the witness’s evidence and about the challenge to that evidence that was mounted by the defence.
Ground 4: The trial judge dealt with the cross-examination of Dr. Charlotte Murphy, a key prosecution witness, in a manner fundamentally different to the rest of the evidence in the case and in a manner which unfairly detracted from the effectiveness of the appellant’s right to challenge the evidence of that witness
27. Summarising a cross-examination can often prove difficult for a judge delivering his or her charge. It is for that reason that some trial judges have made the point to juries that the task of summarising a cross-examination is fundamentally different to that of summarising a direct examination. In this case, the cross-examination was very lengthy, spread over three days, and dealing with it would have proved a challenge for any trial judge. However, despite the diligence of defence counsel, and despite the conspicuous ability with which it was conducted, in truth, the cross-examination met with only very limited success. Unsurprisingly, the forensic scientist never resiled from her view that the forensic evidence provided very strong support, and that for reasons that she explained clearly to the jury, she preferred the theory that the evidence was explained by the untoward sexual activity over the alternative theory which was being canvassed.
28. Some extracts from her evidence merit quotation. These quotations are taken from the re-examination of Dr. Murphy which occurred on Day 10 of the trial:
“[w]hen I consider the results that I got in this case, when it came to the amount of semen in this case, I considered a number of things. I considered that the stain would have been dried, I considered that there was more semen on [the complainant’s] underwear and bellybutton than there was on the bed sheets. I considered that the inside front [of the complainant’s underwear] gave a positive reaction to a screen so I knew we were talking about something like a body fluid going into the fabric, soaking in. It was not a fleck of something dry that was sitting on top of the item. And I considered that our own experience is when it comes with dry semen that we do not expect it to transfer, so it was all of that information that was all feeding into the evaluation.”
A little later that day, she commented:
“[w]hat I considered in this case was that the results either happened as was alleged by [the complainant] or that the results in this case happened because she got into the bed. So when I looked at the results, I looked at two things. I looked, firstly, at the amount of semen, that there was more semen on the complainant than there was on the bed, and if I consider those results, that it was a result of a transfer, that would be highly unusual, be a very rare event. Then I considered the location of the semen, that if transfer occurred, where would I expect to find the semen and I did not find any semen on the outside of her clothes, nor on her back, or on the seat area of her pyjamas or anywhere on the pyjamas or on the vest top and the only place I found the semen was on the inside of her underwear so, again, if transfer occurred, in order for it only to be on the inside front of the underwear and not on the outside of the clothes, that would be another very, very rare or unexpected result. So for those two unexpected results to happen in combination, that is where I came to the conclusion that the results in this case would provide very strong support that sexual intercourse occurred rather than that the semen was there as a result of transfer.”
29. The Court does not feel that the criticisms of the trial judge’s handling of Dr. Murphy’s evidence in the course of her charge are justified. The judge sought to put before the jury the flavour of the approach that had been taken by the defence. She is criticised because on a number of occasions, she introduced topics by saying “Mr. Guerin said” or “Mr. Guerin put it” or “Mr. Guerin asked her”. The Court feels these criticisms are quite misplaced, and that as is often the case in cross-examination, the interest of the defence was, as much in the questions being asked and the propositions put as in the responses being received because the forensic scientist was not resiling from her conclusions.
Ground 5: The judge charged the jury on a majority verdict at a time when they had not had a sufficient opportunity to deliberate, having regard to the nature and complexity of the case
30. This ground does not take into account the fact that it was not the judge who took the initiative in raising the issue of majority verdicts, but that it was, in effect, the jury. Prior to a point when the judge was about to embark on a recharge in respect of the evidence of Charlotte Murphy, the jury asked a question of the trial judge which was to the effect: what would occur should they be unable to reach a unanimous verdict in respect of a single count? If it is a situation that a jury is able to come to a verdict on a number of counts and brings that to the attention of the trial judge and the Court, then some response to that is required. A trial judge cannot be expected to ignore what the jury is communicating and leave the jury to their own devices.
31. The appellant has suggested that it would have been appropriate for the jury to have been asked not to commence their deliberations until the judge had dealt with the requisitions that were raised and, if relevant, had recharged the jury. This has not been the traditional approach. It might be that there may be some cases in the future where a request to the judge to follow that procedure will be made. However, there was no such request here and the usual practice was followed. We do not believe that the judge can be criticised for doing so. We would point out that this was not a case where the requisitions were focused on what was suggested to have been a significant misstatement of the law: rather, to use the language of the late Carney J, this was a case where one side was anxious that favourite bits of the transcript should be read to the jury.
Ground 6: The trial judge mischaracterised the evidence in the case to the detriment of the appellant in her charge to the jury
Ground 7: The trial judge mischaracterised the appellant’s case in her charge to the jury and generally failed to put the appellant’s case fully and fairly to the jury to the detriment of the appellant
32. These grounds overlap with Ground 4, and again, the focus of attention is the testimony of Dr. Murphy, and in particular, the cross-examination of that witness. Again, the words of Carney J. about the parties to a trial wanting their favourite bits of the evidence contained in the transcript to be read come to mind. The Court would simply observe that the arguments do not fully reflect the fact that the judge was, of course, charging a jury who had heard the evidence being given from the witness box, and in particular, had heard the forensic scientist being cross-examined. The jury cannot have been unaware, having sat through the cross-examination in their jury box, that the defence case was that there were other possibilities that could not be excluded. There is absolutely no doubt that the judge’s handling of these issues was more than adequate notwithstanding the vigour displayed during cross-examination. Attention has focused on two aspects: the saliva on the left breast and a comment by the trial judge about the semen passing through the clothing.
33. In relation to the indications for the presence of saliva on the left breast, the defence focused in its cross-examination on the concept of false positives. Certainly, the defence established that false positives can occur, though how likely that would be when the indicative presence of saliva was on the left breast and the suggestion was that false positives could be linked to the presence of urine and sweat was unclear.
34. The Court is quite satisfied, as it has already indicated, that the judge’s handling of the scientific evidence was more than adequate.
35. The issue relating to the transfer through clothing arises in the following circumstances. At the close of the section of her charge dealing with the issue of the semen evidence, the trial judge commented:
“[s]o, those are what the defence is inviting you to consider, whether in this case it is reasonably possible that the semen resulted from the fact that Mr. M and his wife, MM, had sex transferred from their bed through her clothes onto her stomach and onto the inside of her underpants. So, they are saying to, you might that, having regard to the fact that there is transfer, could that be reasonably possible? And those are the questions that the defence are seeking to raise by their cross-examination of Dr. Murphy and that is really a matter for you.” [Emphasis added by defence]
36. The defence say that it was never part of their case that the semen must have passed “through the complainant’s clothes”. At the requisition stage, junior counsel for the defence posited the fact that pyjamas are loose-fitting articles which fit together in a particular way, consisting of a top and bottom half. It was asserted that as a matter of common sense, garments of such a kind can move as a person is wearing them, can ride up on a person’s waist or torso or equally down on their hips or legs. Again, the defence case proceeded on the basis that it would be reasonable to assume that a person who was in a bed for a period of time, as the complainant had been, would likely move around and shift their position. These efforts were undoubtedly valiant, but with all respect to counsel, references to clutching at straws come to mind. The appellant was referred to the case of DPP v. Rattigan in the course of written submissions. However, in the Court’s view, the cases are not remotely comparable. In that case, the trial judge concluded his charge in a manner which the Supreme Court felt unbalanced and otherwise appropriate charge.
37. In this case, the most that can be said was that the phrase “through the clothes” was an infelicitous one. Any jury considering the matter would have to have been conscious that if this had been a case of innocent transfer, the transfer was not onto the outer garments of the person lying on the bed sheet, but rather the semen had avoided contact with the outer garments and made its way onto the bellybutton area and the inner panel of the front of the underwear.
38. The Court does not believe that the criticisms that have been formulated of the judge’s charge give rise to any concern about this fairness of the trial or the safety of the verdict.
39. The Court rejects these grounds of appeal.
Ground 8: The trial judge erred in law and in fact in refusing to give a corroboration warning as part of her charge to the jury
40. After all the evidence had closed and after both sides had made their final speeches, counsel on behalf of the appellant applied for a corroboration warning. This was a departure from the normal procedure which is that the application is made before closing speeches so that counsel can tailor their speeches in the knowledge of what the judge will be saying. The Court cannot but believe that the fact that there was not an application at the usual time must have been influenced by a belief that this was not a case for a warning. However, even belatedly a number of grounds were advanced as to why a warning should have been given. There is no doubt, indeed, it is specifically accepted by the appellant that the giving of a warning is, and has been since the enactment of the Criminal Law Rape Amendment Act 1990, a matter for the judge’s discretion. The circumstances in which a warning might have been given was the subject of discussion in the Court of Criminal Appeal in the case of DPP v. JEM where the approach of Lord Chief Justice Taylor in Makunjola was broadly approved.
41. This Court has made clear that it is very conscious that the decision is, in the first instance, a matter for the discretion of the trial judge. Moreover an appellate Court should be slow to intervene or interfere with the exercise of that discretion. There have, however, been a number of cases where this Court has quashed a conviction.
42. This Court is in no doubt that whatever arguments could have been advanced and are advanced in favour of a warning that this was far from a situation where the discretion could be exercised only one way. The trial court took the view that the forensic evidence, in terms of semen on the bellybutton and inside the underwear, was potentially corroborative but only in respect of the last count on the indictment. In the absence of argument addressed to the issue specifically, the Court will express no view on whether the trial judge was correct in taking the view that the forensic evidence went only to the last count on the indictment or whether it was of wider application.
43. However, in a situation where the complainant’s case was that there had been protracted untoward sexual activity, and the case put on behalf of the accused was that there had never been any such, the forensic evidence was obviously relevant to assessing the complainant’s credibility and obviously relevant to the question of whether it could be said that this was a case where it would be dangerous to convict in the absence of corroboration. The Court is quite clear that this was a case for the unfettered discretion of the trial judge, that it was not a case where it could conceivably be said that she was coerced to exercise her discretion one way.
44. The Court rejects this ground of appeal.
45. To the extent this is in issue, the appellant points out that the judge delivered her charge without giving a reasoned ruling on the issue of whether to give or not give a corroboration warning. This was in circumstances where the issue was canvassed; the judge left it over until the following day, but then the following day, she began her charge, and so next dealt with the issue of corroboration warning at the requisition stage. The Court has already explained that the procedure followed in seeking a corroboration warning represented a departure from that normally followed. This, undoubtedly, shaped the nature of the judge’s response.
46. In all the circumstances, the Court has no hesitation in dismissing this ground of appeal.
Ground 9: The trial judge referred to the issue of corroboration in the course of her charge in a manner which was prejudicial to the appellant
47. This ground has been formulated in circumstances where the trial judge did make a reference to corroboration, it is in the nature of a passing reference while dealing with the question of recent complaint:
“[a]n exception is made in sexual offences, and I say the reason is for hundreds of years and right up until the 1980s, our courts treated the evidence of women and children, particularly in sexual matters, as somehow suspect and unreliable. So, in the case, if there was a case before the courts, we’ll say up until the 1980s, where the only evidence of the sexual offending was the evidence of a woman or a child, then the courts routinely gave a warning to juries that it was unsafe to convict on the uncorroborated, in other words, without independent evidence, uncorroborated evidence of a woman or a child, but that a jury, notwithstanding the warning, if they were convinced it happened, they could convict. So, the evidence of women and children was treated as somehow lesser or suspect.”
48. The appellant says that the remarks appear to have been made in the context of saying that the law has evolved and moved away from outdated and perhaps offensive attitudes regarding the manner in which certain classes of witnesses were viewed. It is submitted that by referring to corroboration in such terms, the trial judge may have given the impression that corroboration warnings and the requirement to give them were relics of a distant past which were generally insulting to and demeaning of females and child witnesses. The appellant says that this in turn could only have had the effect of suggesting to the jury that there was no need for corroboration in cases such as this, and that even doing so might be commensurate with adopting an unjust and unfair approach to complainants. It is said that the effect of this was that a jury might be more ready to convict in the absence of corroboration rather than feeling any unease about doing so by reason of the absence of corroboration.
49. The Court does not believe that there is any reality to this criticism. The trial judge is entitled to comment, and by no stretch of the imagination can this be seen as straying beyond the bounds of proper comment.
Ground 10: The trial judge erred in fact and in law in refusing to give a delay warning
50. Prior to commencing her charge, the judge was requested by the appellant to give a delay warning. The reasoning advanced related to the lack of specificity and detail surrounding the vast bulk of the counts. It was pointed out that there were only four specific accounts given by the complainant as regards identifiable incidences of offending charged. The judge refused to give the warning, pointing out that the allegations concerned ongoing conduct which subsisted up until 2015 and that no specific prejudice had been advanced on behalf of the appellant. The judge did, however, indicate that she would inform the jury that as there was no specific date alleged in respect of all but the final count on the indictment, this could create difficulties for the appellant.
51. Ultimately, the judge dealt with the issue as follows:
“[n]ow, one – it is a fact because of the nature of child sexual abuse, that dates are not specified within the particular month. And that can pose a difficulty for an accused person because if, for example, the date, the May one was 15th May and Mr. M was able to say ‘oh, I was down in the South Infirmary getting an injection for a neck pain that day and they kept me overnight’, if you had that – it can – the lack of specificity makes it slightly more difficult. However, there has been no prejudice, particular prejudice alleged by Mr. M in this case. And it seems to me that, in relation to the evidence, there is no dispute that the parties were living in C from 2007 up until the time that TAR complained in November 2015. It does not seem to be disputed that Mr. M was at home, having been injured at work throughout that period. It does not appear to be disputed that on occasions, yes, TAR was up in her mother and Mr. M’s bedroom watching movies. It does not appear to be disputed that, on occasions, they were there and the door was locked. So, no particular has been alleged in this case, but you should bear in mind when looking at it, nonetheless, that the absence of a specific date can potentially – should make you more careful about coming to your decision if your decision is to convict.”
52. It is said that the reference to specific prejudice was inappropriate and appears to have arisen from confusion on the part of the trial judge between the criteria applied in the context of pre-trial applications to prohibit a prosecution and the test as to whether a warning should be given.
53. The timetable of alleged offending in this case was an unusual one. Many cases involving allegations of child sexual abuse date back years or indeed decades. In this case, unusually, the abuse alleged continued up to the eve of the complaint to Gardaí, and even more unusually, the prosecution was in a position to produce forensic evidence.
54. In those circumstances, the trial judge was correct in taking the view that this was not a case for a classic delay warning. However, the remarks that she did make, and in particular, her reference to what the situation would be if someone was in a position to establish that they were hospitalised on a date when a particular offence was alleged, echoed the language of the traditional or classic warning. The judge’s remarks about the absence of specific or particular prejudice would seem to have been made in a situation where she was calling to mind some of the older cases where there had been controversy as to whether it could be established that the complainant and accused had or had not overlapped at a particular location at a particular time, as well as cases where there was controversy about whether it was possible or not possible to lock a particular room. The situation that the judge, and indeed the jury, was facing was an unusual one, with allegations of abuse over a period of seven or eight years and the abuse commencing a number of years ago, but continuing right up to the eve of the making of the complaint. While the judge could have made her point without reference to the lack of complaint about prejudice, the Court has not been persuaded that the trial judge’s charge has been rendered an unsatisfactory one by reason of the remarks.
55. Accordingly, this ground of appeal fails.
Ground 11: The judge charged the jury on the issue of sample counts in a manner which was apt to suggest to them that the appellant may have been suspected of further alleged offending behaviour which was not the case
56. The Court can say immediately that it regards this complaint as entirely without substance. It is advanced in a situation when the judge, in the course of her charge, had commented as follows:
“[n]ow, when phenomenon of child sexual abuse began to emerge in this society, with frightening regularity, in the 1980s and 1990s, the sheer volume of complaint from individual victims about the level of offending against them posed a problem: how are these offences to be charged in an indictment? Take an example away from the case, say a young boy who had been to an industrial school for ten years made a complaint that he had been abused twice a week by a particular Brother in the school for ten years. Since each count on an indictment could only charge one offence, the indictment in that case would have to contain, by my reckoning, 1,040 counts, being 104 a year by ten years. Now, such an indictment would be totally unwieldy and would be overloaded, and unfairly loaded, against an accused. So, a balance had to be struck which would allow a complainant to give evidence of all the sexual offending that had occurred, but which was not over-unwieldy and unfairly prejudicial to an accused.”
57. The complaint is made that the judge’s remarks about abuse in the context of an industrial school and then her subsequent remarks about the approach to drafting indictments by reference to the Supreme Court decision in the case of DPP v. EF might have led jurors to speculate that there were additional alleged incidents of abuse which had not been charged.
58. We have already seen examples where the judge was keen to explain rules of law or practice to the jury and to provide some historical context by way of explanation. The Court is absolutely satisfied that these remarks were entirely innocuous and has no hesitation in dismissing this ground of appeal.
59. In summary, then, the Court rejects each of the individual grounds that have been argued. However, that is not the end of the matter because counsel for the appellant was prepared to acknowledge that he had no knockout point, instead he said that the cumulative effect of a number of these points gives rise to a sense of unease and a concern that the trial was not fair or satisfactory. The Court agrees that it is appropriate to step back and look at the overall fairness of the trial. In that context, we call to mind remarks of a number of Canadian jurists to which we have referred in the course of earlier decisions. La Forest J. in R. v. Lyons [1987] had commented:
“[i]t seems to me that section 7 of the Charter entitles the appellant to a fair hearing: it does not entitle him to the most favourable procedures that could possibly be imagined.”
The same judge, in R. v. Harrer [1995] had commented:
“[a] fair trial must not be confused with the most advantageous trial possible from the accused’s point of view . . . nor must it be conflated with the perfect trial: in the real trial, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness to the accused.”
60. Former Chief Justice McLachlan, when sitting in the British Colombia Court of Appeal, had commented:
“[t]he Charter guarantees, not the fairest of all possible trials, but rather a trail which is fundamentally fair: what the law demands is not perfect justice, but fundamentally fair justice.”
61. In this case, the Court has had the advantage of written and oral submissions. The written submissions are among the very longest that the Court has received since its foundation. The focus on the individual grounds that have been formulated might serve to detract from the fact that the Court is in no doubt that Mr. M. was properly and safely convicted after a fair trial. Recent decades have seen many cases of child sexual abuse come before the courts. In very few, if any cases, has the prosecution had available to it evidence of the quality that it was able to mount in the present case. No doubts have been raised in our minds about the fairness of the trial or the safety of the verdict.
62. Accordingly, the Court dismisses the appeal.
DC v DPP
[2005] I.E.S.C. 77
JUDGMENT delivered the 21st day of November, 2005 by Denham J.
1. The applicant in this case seeks to prohibit a trial in which he is the defendant. Such an application may only succeed in exceptional circumstances. The Constitution and the State, through legislation, have given to the Director of Public Prosecutions an independent role in determining whether or not a prosecution should be brought on behalf of the People of Ireland. The Director having taken such a decision the courts are slow to intervene. Under the Constitution it is for a jury of twelve peers of the applicant to determine whether he is guilty or innocent. However, bearing in mind the duty of the courts to protect the constitutional rights of all persons, in exceptional circumstances the court will intervene and prohibit a trial.
In general such a step is not necessary as the trial judge maintains at all times the duty to ensure due process and a fair trial. The basic assumption to apply in relation to all pending trials is that they will be conducted fairly, under the presiding judge. However, in circumstances where there is a real or serious risk of an unfair trial the courts will intervene so that a defendant may not be exposed to the commencement of the process, it being the assumption that should such a trial commence it will be stopped by the direction of the trial judge because of the real or serious risk of an unfair trial.
It is this exceptional jurisdiction which the applicant wishes to invoke. Such a jurisdiction to intervene does not apply where the applicant has minutely parsed and analysed the proposed evidence and sought to identify an area merely of difficulty or complexity. The test for this Court is whether there is a real risk that by reason of the particular circumstances that the applicant could not obtain a fair trial. This was described in Z. v. Director of Public Prosecutions [1994] 2 I.L.R.M. 481 at p. 498 by Finlay C.J. in the following terms:
“The principles of law applicable
This Court in the recent case of D. v. Director of Public Prosecutions [1994] 1 ILRM 435 unanimously laid down the general principle that the onus of proof which is on an accused person who seeks an order prohibiting his trial on the ground that circumstances have occurred which would render it unfair is that he should establish that there is a real risk that by reason of those circumstances (which in that case also was pre-trial publicity) he could not obtain a fair trial.
This was the standard of proof accepted as an onus by counsel on behalf of the applicant in this appeal. It was also accepted, as I understood his submission, by counsel on behalf of the respondent though the latter did draw to our attention certain decisions arrived at in other common law countries and in particular in Australia in which much emphasis was laid upon the balancing between the public requirement of the trial and conviction of guilty persons committing criminal offences and the requirement to try and ensure in some instance as expressed in those decisions ‘as far as practicable’ a fair trial. The three main decisions relied upon in this context were R. v. Glennon (1992) 173 CLR 592, Barton v. R. (1980) 147 CLR 75 and Jago v. District Court of New South Wales (1989) 168 CLR 23.
Even apart from what appears to be the submission of both sides in this case that we should follow our own judgments in the case of D. v. Director of Public Prosecutions I see no reason, on reconsidering the judgments and statements of principle which are unanimous in that case, to depart from them. Furthermore, insofar as the question of balance between the public right and interest to see the proper trial and conviction of persons guilty of criminal offences and the right of an individual to a fair trial under our constitutional provisions, I am satisfied that no mere statement about balancing would be correct. I would prefer to follow the statement contained in the judgment of Denham J in D. v. Director of Public Prosecutions where at p. 443, she stated as follows:
‘The applicant’s right to a fair trial is one of the most fundamental constitutional rights afforded to persons. On a hierarchy of constitutional rights it is a superior right.
A court must give some consideration to the community’s right to have this alleged crime prosecuted in the usual way. However, on the hierarchy of constitutional rights there is no doubt that the applicant’s right to fair procedures is superior to the community’s right to prosecute.
If there was a real risk that the accused would not receive a fair trial then there would be no question of the accused’s right to a fair trial being balanced detrimentally against the community’s right to have alleged crimes prosecuted.’
With regard to the general principles of law I would only add to the principles which I have already outlined the obvious fact to be implied from the decision of this Court in the case of D. v. Director of Public Prosecutions that where one speaks of an onus to establish a real risk of an unfair trial it necessarily and inevitably means an unfair trial which cannot be avoided by appropriate rulings and directions on the part of the trial judge. The risk is a real one but the unfairness of trial must be an unavoidable unfairness of trial.” (Emphasis added)
It is this law which falls to be applied to the application of the applicant.
2. This is an appeal by D.C., the applicant/appellant, hereafter referred to as the applicant, from the judgment and order of the High Court (Ó Caoimh J.) delivered on the 18th day of May 2004 wherein the applicant was refused leave to apply for judicial review. The Director of Pubic Prosecutions, the respondent, is referred to as the respondent.
3. The applicant sought leave to apply for a number of reliefs including:
(i) An Order of Prohibition restraining the respondent from pursuing the prosecution entitled: “The People at the suit of the Director of Public Prosecutions v. D. C. ” in respect of charges of sexually assaulting one L. H. on the 1st day of November, 2002, and further raping said L. H. on the 1st of November, 2002, as set out in Indictment Bill Number CC0026/03 presently pending before the Central Criminal Court.
(ii) An Injunction restraining the first named respondent from taking any further steps in the Central Criminal Court proceedings, the subject matter of the within judicial review proceedings.
(iii) A Declaration that the respondent acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures with the result that the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights.
(iv) A Declaration by way of Judicial Review that the applicant was entitled to be informed of the names of two persons known to the complainant and of very material consequence to the defence and that the said parties be made available to the applicant for the purpose of cross examination.
(v) A Declaration by way of Judicial Review that the said unidentified parties are material to the proper preparation of the applicant’s defence to the charges contained upon the indictment on Bill Number CC0026/03 and that without such material information the applicant’s defence will be prejudiced.
(vi) A Declaration that the failure and or inability to ascertain the identity of the said individuals amounts to an inability to seek out and preserve all material evidence relevant to the investigation of the alleged offences.
(vii) An Order staying the said prosecution pending the determination of the proceedings herein.
4. The grounds for such application in relation to the Order of Prohibition, Injunction, and Declaration sought at (i), (ii) and (iii) were:
“That in conducting the prosecution the respondent acted otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures in failing to seek out and make available witness statements or seeking to ascertain the identity of two specific parties and make same available to the defence with a probable bearing on the guilt or innocence of the applicant without delay or at all. As a result the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights.”
Grounds for the application for a declaration sought at (iv) and (v) were:
“The decision of the respondent to proceed with the prosecution of the above mentioned case notwithstanding the fact the applicant’s legal representatives had specifically requested certain relevant and vital information by way of written request dated the 19th of January 2004 of the complainant in relation to the matter of two parties known and referred to by her but unidentified in the book of evidence was otherwise than in accordance with the principles of natural and constitutional justice and otherwise than in accordance with law and otherwise than in accordance with fair procedures and further by reason of the failure on the part of the relevant investigative authorities to seek out and/or to take statements from parties known to the complainant and with a probable bearing on the issue of the guilt or innocence of -the applicant. As a result the applicant is precluded from receiving a trial in accordance with Article 38.1 of the Constitution of Ireland and Article 6 of the European Convention of Human Rights.”
Grounds for the Declaration at (d)(vi) were:
(iii) The decision of the respondent to accept the refusal of the complainant to identify the two individuals without comment is inconsistent with the duties of An Garda Siochana and of the respondent herein to seek out and ascertain all material and evidence relevant to the investigation. In the premises the proposed trial is no longer a trial in due course of law.
5. On 18th May 2004 the High Court refused to grant the applicant leave on the basis that he had neither satisfied the threshold for the grant of leave set out in G. v. Director of Public Prosecutions [1994] 1 I.R. 374, nor any higher threshold which might be required of the applicant in circumstances where the application for leave was made on notice to the respondent.
6. The law in Ireland in relation to the standard of proof to be applied on an ex parte application for leave to grant judicial review has been well settled. In G. v. Director of Public Prosecutions [1994] 1 I.R. 374 Finlay C.J. stated at p. 377 – 378:
“It is, I am satisfied, desirable before considering the specific issues in this case to set out in short form what appears to be the necessary ingredients which an applicant must satisfy in order to obtain liberty of the court to issue judicial review proceedings. An applicant must satisfy the court in a prima facie manner by the facts set out in his affidavit and submissions made in support of his application of the following matters:-
(a) That he has a sufficient interest in the matter to which the application relates to comply with rule 20 (4).
(b) That the facts averred in the affidavit would be sufficient, if proved, to support a stateable ground for the form of relief sought by way of judicial review.
(c) That on those facts an arguable case in law can be made that the applicant is entitled to the relief which he seeks.
(d) That the application has been made promptly and in any event within the three months or six months time limits provided for in O. 84, r. 21 (1), or that the Court is satisfied that there is a good reason for extending the time limit. The Court, in my view, in considering this particular aspect of an application for liberty to institute proceedings by way of judicial review should, if possible, on the ex parte application, satisfy itself as to whether the requirement of promptness and of the time limit have been complied with, and if they have not been complied with, unless it is satisfied that it should extend the time, should refuse the application. If, however, an order refusing the application would not be appropriate unless the facts relied on to prove compliance with r. 21 (1) were subsequently not established, the Court should grant liberty to institute the proceedings if all other conditions are complied with, but should leave as a specific issue to the hearing, upon notice to the respondent, the question of compliance with the requirements of promptness and of the time limits.
(e) That the only effective remedy, on the facts established by the applicant, which the applicant could obtain would be an order by way of judicial review or, if there be an alternative remedy, that the application by way of judicial review is, on all the facts of the case, a more appropriate method of procedure.
These conditions or proofs are not intended to be exclusive and the court has a general discretion, since judicial review in many instances is an entirely discretionary remedy which may well include, amongst other things, consideration of whether the matter concerned is one of importance or of triviality and also as to whether the applicant has shown good faith in the making of an ex parte application.”
In the same case I described the process, at p. 381-2, as follows:
“The burden of proof on an applicant to obtain liberty to apply for judicial review under the Rules of the Superior Courts O. 84, r. 20 is light. The applicant is required to establish that he has made out a stateable case, an arguable case in law. The application is made ex parte to a judge of the High Court as a judicial screening process, a preliminary hearing to determine if the applicant has such a stateable case.
This preliminary process of leave to apply for judicial review is similar to the prior procedure of seeking conditional orders of the prerogative writs. The aim is similar – to effect a screening process of litigation against public authorities and officers. It is to prevent an abuse of the process, trivial or unstateable cases proceeding, and thus impeding public authorities unnecessarily.
Even though the ambit of judicial review has widened in recent years the kernel of the reason for this filtering process remains the same.
On the affidavit and statement filed in this case in this preliminary procedure it is clear that such a case has been established to meet this initial burden of proof.
This initial process was described by Lord Diplock in R. v. Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd. [1982] AC 617 at pp. 643 and 644 where he stated:-
‘The whole purpose of requiring that leave should first be obtained to make the application for judicial review would be defeated if the court were to go into the matter in any depth at that stage. If, on a quick perusal of the material then available, the court thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for that relief. The discretion that the court is exercising at this stage is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application.’
I am satisfied that a like burden of proof applies in this jurisdiction, at the initial ex parte stage, as stated by Lord Diplock It is a preliminary filtering process for which the applicant is required to establish a prima facie case.”
This is the burden of proof which lies upon the applicant in the instant case.
Reference was made in the High Court to a different standard of proof in cases where the respondent is on notice of the application. However, I do not apply such an approach in this appeal. It appears to me that there is a real danger of developing a multiplicity of different approaches, that of G. v. Director of Public Prosecutions, the test applied in specific statutory schemes, and that governing the position where a respondent is on notice in a particular area of litigation. Not only may there be legal difficulties in identifying and applying each different standard, but such an approach would also take up further valuable court time. In voicing this opinion I note that in both Gorman v. Minister for the Environment [2001] 1 IR 306 and other cases cited reliance was placed on English case law. However, it appears to me that the appropriate law is that which has been well established in this jurisdiction based on G. v. The Director of Public Prosecutions. It is that standard which I apply to this application.
7. The applicant is the defendant in a Bill of Indictment pending in the Central Criminal Court. He is charged with the offences of sexual assault and rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990 and was returned for trial to the Central Criminal Court on 21st January, 2003. The matter was listed on the 10th April 2003, and a date was fixed for his trial on the 29th March, 2004. It was subsequently adjourned pending the completion of this application. A date has been fixed for trial for 5th December, 2005. The defendant indicates that he intends to plead not guilty at the trial.
8. At the core of the matters at issue is the applicant’s request for information about an alleged occasion of possible intimacy, not disclosed by the complainant, but referred to by a friend of hers, prosecution witness Ms. R. It is alleged that this took place between the complainant and an unidentified party from whom no statement has been sought or taken. The applicant submits that as a result of the refusal of the complainant to furnish the Garda Síochána and the prosecution, or the applicant and his legal representatives, with the requested information, he is significantly prejudiced in his ability to fully and properly instruct his legal representatives and it is contended that they cannot adequately or properly prepare his defence to the charges.
9. The information in issue arose from statements in the book of evidence. The facts appear to be that the complainant and her friend were going for a night out on Hallowe’en night 2002. Preparations started at the complainant’s home and as they got ready they drank a naggin of vodka with 7up. The complainant also had some Carlsberg beer. After midnight she and her companion Ms. R, left in a taxi and went to town. There they went to a pub and on to a night club. The complainant drank more beer. It is stated that it is unclear what they drank in the club. There they met two men, who were either doctors or medical students. They accepted an invitation to go back to an apartment owned by the two men. The first statement of the complainant describes the visit to the apartment as follows:
“At the apartment the four drank vodka mixed with fizzy water and honey. It was all they had. It wasn’t a full bottle but I think I had more to drink than the rest, I don’t know how much. I don’t remember the names of these two guys. I was very drunk at this stage. We stayed up drinking and dancing and I think it was about 8.00am – I can’t be too sure, it was getting bright anyway.”
Ms. R, a friend of the complainant, describes the visit in her statement as follows:
“. . . and arrived out there with them sometime around 4.00 a.m. to 4.30 a.m. There were just the four of us. We had a few drinks. We all drank vodka. Both of us drank a fair bit but we were not mad drunk. [L.] went to a bedroom separately with John for a while. I don’t know what happened between them. I remained in the sitting room with K. We snuggled but we did not sleep together. We watched the TV and talked and (L.) came in and out to us in the sitting room. Anytime I saw her in the sitting room she was fully clothed so I don’t think anything went on between them. She did not tell me anything about sleeping with him. I don’t think she did.”
10. On behalf of the applicant it was contended that the identity of the men in the flat is relevant for a number of reasons:
(i) There is a strong suggestion that the complainant may have been intimate with one of the individuals. If so this might support a suggestion that in drink the complainant has a tendency towards such intimacy. That is relevant to what occurred later at the green area in a public place where it is alleged the assault occurred.
(ii) Moreover if such intimacy did take place it raises other issues which go to the credibility of the complainant. The suggestion that she did not have underwear going out that night might not be true. The suggestion that she did not remember the names of the individuals also has a different connotation (particularly in light of recent events detailed below). The omission to say that she had gone to the bedroom with the young man may not have been a simple matter of recollection. The reason for her refusal to be examined genitally is another factor which merits consideration. If such omissions or conduct were deliberate and strategic then these are factors which go to credibility.
(iii) Further it is undoubtedly the case that these men would be in a position to offer useful material to piece together the events of the night, material which in one way or another, might reasonably have a bearing on the complainant’s credibility.
11. On 18th December, 2003, an application was made to the Hon. Mr. Justice Carney to have the complainant deposed for the specific purpose of exploring the issues raised above. The application was resisted by the State which said that it was open to the applicant to write to them requesting the gardaí to interview the complainant in respect of the matter. The learned judge refused the application.
12. On the 19th January, 2004, a letter was written to the State requesting that the information be obtained. Ultimately members of the Garda Síochána interviewed the complainant and a statement was taken. In this later statement the complainant stated that she knows the identity of the two individuals. This appears to be at variance with her earlier statement. The complainant refuses to divulge any details of the individuals on the grounds that she does not believe this to be of any relevance.
13. The High Court held:
“I consider that it would have been an unwarranted intrusion on the part of the gardai to have asked the complainant about her prior sexual history or whether she had been intimate with anyone else on the night before the alleged incident concerning the applicant. I do not consider that the applicant has advanced even an arguable case in support of the contention that the gardai should have asked the complainant about what occurred with other men on the previous night and questioned her in relation to her prior sexual, history including what may have occurred the previous night.
The obligation on the gardai to seek out evidence was stated by Hardiman J. in Dunne v. Director of Public Prosecutions [2002] 2 LR 305 not to extend to any remote, theoretical or fanciful possibility. I believe that the applicant’s case is based on such a remote, theoretical or fanciful possibility. As stated by McCracken J in McKeown v. Judge of the Dublin Circuit Court (Unreported, Supreme Court, 9th April, 2003) at p. 9 “[t]here obviously are limits to the lengths to which the gardaí must go in either seeking out or preserving evidence.” I believe that what has been suggested in the instant case goes beyond those limits.
I am particularly conscious of the provisions of s. 3 of the Criminal Law (Rape) Act, 1981 which provides, inter alia, as follows:-
‘(1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience of a complainant with a person other than the accused’.”
14. Appeal
The applicant has appealed to this Court on the grounds that the learned trial judge erred in law in failing to grant leave to apply for judicial review, in finding that it would be an unwarranted intrusion on the part of the Garda Síochána to have asked the complainant about her previous sexual history or whether she was intimate with anyone else before the alleged incident, in relying on s. 3 of the Criminal Law (Rape) Act, 1981 and in finding that the mischief the applicant complains of is something that can be adequately dealt with at the trial.
15. Ms. Isobel Kennedy S.C., counsel on behalf of the applicant, and Mr. Anthony Collins S.C., counsel on behalf of the respondent, presented written and oral submissions to the Court which were most helpful. Counsel agreed that the issue of consent is at the core of the case. On the facts it is contended that the credibility of the parties will be in issue also. Counsel for the applicant referred the Court to and relied upon Braddish v. The Director of Public Prosecutions and His Honour Judge Haugh [2001] 3 IR 127 and Dunne v. The Director of Public Prosecutions [2002] 2 ILRM 241.
16. The basic concepts in Braddish and Dunne have long been principles in the common law. In Murphy v. The Director of Public Prosecutions [1989] I.L.R.M. 71 at p. 74 Lynch J. referred to and relied on Dillon v. O’Brien and Davies [1887] 20 L.R. I.R. 3000 where Palles CB stated at p. 317:
“But the interest of the State in the person charged being brought to trial in due course necessarily extends as well to the preservation of material evidence of his guilt or innocence as to his custody for the purpose of the trial.”
In Murphy v. Director of Public Prosecutions Lynch J. held that evidence relevant to guilt or innocence must, so far as is necessary and practicable, be kept until the conclusion of the trial; which principle also applies to the preservation of articles which may give rise to the reasonable possibility of securing relevant evidence. Further, an accused must be afforded every reasonable opportunity to inspect all material evidence which is under the control and power of the prosecuting authority in order adequately to prepare his defence.
In Dunne v. Director of Public Prosecutions [2002] 2 ILRM 241 the applicant was charged with robbery of a petrol station. Part of the petrol station was covered by a video camera surveillance. On other occasions when robberies had occurred, relevant video tapes had been obtained by the Gardaí in previous investigations. In this case no video tapes of the robbery were given to or obtained by the investigating gardaí. The applicant sought an order of prohibition of his trial. McGuinness J. at p. 245, stated:
Where a court would be asked to prohibit a trial on the grounds that there was an alleged failure to seek out evidence, it would have to be shown that any such evidence would be clearly relevant, that there was at least a strong probability that the evidence was available, and that it would in reality have a bearing on the guilt or innocence of the accused person. It would also be necessary to demonstrate that its absence created a real risk of an unfair trial.”
I would adopt and apply this statement. It appears to me that this line of case law does not apply to the issue raised by the applicant. It is not a case of the Garda Síochána or the Director of Public Prosecutions losing an article or document. It is not a case of preserving an article or document.
In fact, at the applicant’s request the Garda Síochána sought a further statement of the complainant and the names of the two men. The complainant refused to identify the men. In such circumstances it may be enquired as to what further steps the Gardaí could have taken to compel the complainant to name the men. I cannot conceive of any. Thus the State has neither hindered nor refused assistance.
It is in this context that the applicant seeks a permanent prohibition of his trial. The applicant seeks a prohibition of the trial in relation to evidence over which the Director of Public Prosecutions has no control or power. While that would not be a determining factor if the evidence was material to the guilt or innocence of the accused, it is a factor in this case.
Further, the application is being made in a situation where the issue remains hypothetical in a number of ways referred to herein.
17. The alleged facts of the case are relevant. The prior events in the apartment of the two men were described in the statements of the complainant and the witness
Ms. R as set out above. After that visit they went to town to an early house and had some more drinks, vodka and Carlsberg beer. This was in the Chancery Inn on Inns Quay. When they went outside the complainant said that the fresh air hit her and she was really drunk. Her friend rang the complainant’s boyfriend and the two girls had an argument. It appears that they were both severely drunk. They went down a laneway and were joined by a man who it is alleged is the applicant. After the argument Ms. R left her friend in the company of the man. The complainant went to another public house and had a drink there with this man and another individual. They then went to two more public houses but were refused service. They went to another two licensed premises where they were served. Her next recollection is of waking in a room which it appears was in the home of the applicant. They were ordered out of the house. They left the house. They arrived on a green area in a public place. The complainant described what allegedly followed in the following terms:
“He got forceful then. I remember him pinning me down. I screamed as hard as I could, ‘Help me help me, somebody help me’. I didn’t see anyone else around. He pulled my trousers. I don’t know how but my trousers were down around my knees. I was on my back. He had one hand pulling my hair and my left shoulder and arm pinned me down. I was struggling. I had a scarf on, a long pink woollen scarf around my neck, and I remember him pulling at it pinning me down. I wasn’t wearing underwear under my trousers. I hadn’t any on leaving my house Thursday night. I struggled to break free and get up but he had me pinned down. He said if I didn’t shut up he was going to crush my skull. I think he mentioned using a rock. I shut up cos I knew he meant it. I was in total fear. He ripped my trousers down, there’s a button and zip on them. I was really frightened he said he was going to fuck me or something along those lines. I knew that he was going to do anyway coz he ripped my trousers. His trousers were open. I knew he was going to penetrate me or kill me. I tried to calm him down . . . I said to him ‘Why would you want to do that. We had such a nice day. You save (sic) my life and I love you for that. Please. Please’. I was trying this to calm him down, just to make him stop. I said he saved my life cost (sic) earlier walking down to C.P.’s I said I was going to jump into the river. I was upset and very drunk and he talked me out of it. I wasn’t being serious about jumping just very drunk. I think talking to him must have calmed him. He was like a madman, crazy. He was still on top of me, pinning me down. He stopped and looked at me I said ‘I love you, it going to be o.k.’ I think I said something like letting me satisfy him. I wanted to get up from under him so I just said this to let him think he could trust me. He must have (sic) lying on his back then. He still had a hold of my head, by my hair. I remember his trousers and underpants were down around the top of his thighs. I remember his penis was erect. I was still scared of him. I was moaning as if I was enjoying it, it was only to try and get him relaxed cos he still had a hold of my hair. I remember his penis in (sic) mouth. I cant understand or how it happened but I realised he hadn’t a hold of me and I jumped up and ran. He didn’t ejaculate.”
She then ran away. Witnesses said that while running she fell. She ran, on her own account, through a river and was met by a man called P.D. who is a witness in the case.
The alleged incident and its aftermath were witnessed by a number of people who have given statements and who may be witnesses in the case. Thus this is an unusual case in a category of cases where there are seldom witnesses to the event. Often in such cases it is just the word of one person against another. Further, the type of event described giving rise to the charges is entirely different to the visit by the complainant and Ms. R. to the flat, described earlier.
18. The policy of the law in relation to the sexual experience of a complainant is clear. If an accused, such as the applicant, pleads not guilty to a charge of rape then, except with the leave of the judge, no evidence may be adduced or no question asked in cross examination about any sexual experience of a complainant. Section 3 of the Criminal Law (Rape) Act, 1981 is clear and it states:
“(1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience of a complainant with a person other than that accused.
(2) ( a ) The judge shall not give leave in pursuance of subsection (1) for any evidence or question except on an application made to him, in the absence of the jury, by or on behalf of an accused person.
( b ) The judge shall give leave if, and only if, he is satisfied that it would be unfair to the accused person to refuse to allow the evidence to be adduced or the question to be asked, that is to say, if he is satisfied that, on the assumption that if the evidence or question was not allowed the jury might reasonably be satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied.
(3) If, notwithstanding that the judge has given leave in accordance with this section for any evidence to be adduced or question to be asked in cross-examination, it appears to the judge that any question asked or proposed to be asked (whether in the course of so adducing evidence or of cross-examination) in reliance on the leave which he has given is not or may not be such as may properly be asked in accordance with that leave, he may direct that the question shall not be asked or, if asked, that it shall not be answered except in accordance with his leave given on a fresh application under this section.
(4) Nothing in this section authorises evidence to be adduced or a question to be asked which cannot be adduced or asked apart from this section.”
Whether there is sufficient material for an application to be made to the trial judge pursuant to s. 3 of the Criminal Law (Rape) Act, 1981 is for the trial judge to decide.
19. Decision
In considering an application for prohibition a review court should not merely pick out an element and conclude that arising from it there is a possibility of an unfair trial. That is not the test. The test is, as stated in Z. V. Director of Public Prosecutions [1994] 2 I.L.R.M. 481, that of a serious risk of an unfair trial. The applicant here is applying on the basis of a hypothesis which might or might not happen. The alleged facts of the two events are dissimilar in circumstances and time. Whether any further basis for such an application pursuant to s. 3(1) (5) can be established is within the realm of the trial judge, in the context of the evidence adduced at trial, the cross examination, and the defence raised on behalf of the applicant. The applicant in this case has not raised an arguable case that there is a serious risk of an unfair trial.
The refusal of leave to apply for judicial review to the applicant will return the case to a position in which it is assumed that the trial judge will ensure a fair trial. An arguable case has not been established that that there is a serious risk that the applicant will not receive a fair trial.
The issues raised are matters for the trial judge. In particular issues going to consent, credibility, and the presence or absence of a witness, for example Ms. R, who is presently outside the jurisdiction and who has apparently indicated that she will neither attend the trial nor give evidence by video link, are matters for the trial judge.
In effect the applicant seeks to force the complainant, in advance of the trial, to name persons with whom she may or may not have been intimate at a time considerably prior to the actual events which are the subject-matter of the prosecution of the applicant by the Director of Public Prosecutions. To do this would be to introduce a back door to evade the policy laid down in statute, especially s. 3 of the Criminal Law (Rape) Act 1981.
The entire trial will be under the control of the trial judge, who has the duty to conduct a fair trial and who is able to make orders and directions in relation to all relevant matters as they arise. The fact that an application such as this has been brought prior to trial does not preclude the trial judge from dealing with any issues which may arise as the trial proceeds.
Consequently, I would affirm the decision of the High Court and dismiss the appeal of the applicant.
The People v Brophy
[1992] ILRM 709
O’Flaherty J
Robert Brophy was on 11 December 1990, after a two day trial held before His Honour Judge Devally and a jury at the Dublin Circuit Criminal Court, convicted of indecent assault on a fourteen year old schoolgirl on 28 December 1989. The verdict reached by the jury was a majority one. The accused was sentenced to five years’ imprisonment in relation to the conviction.
He applied for leave to appeal against conviction and sentence which was refused by the learned trial judge and he then applied to this Court. On 9 December 1991, this Court decided that he had made out an arguable case and that leave to appeal should be granted but that the court would reserve its judgment to a later date. On 20 December next, when the matter was in for mention, the court indicated that the court had come to the conclusion that both the conviction and sentence imposed should be quashed; that the appellant had served all that he could be expected to serve even if the conviction had been well-founded and, therefore, in those circumstances the court would not propose ordering a retrial.
The court now gives its reasons for this decision.
Background facts
The accused was a stamp dealer who had a small shop in a shopping centre in Rathmines, Dublin. He did a great deal of his business by post and the shop, which was a small one, did not attract too many customers. He had, however, some constant customers and, in particular, a Mr O’Connor, who had a very keen interest in stamps, who was a member of the staff of a bank and was someone who was in almost daily contact with him by phone or otherwise. The accused was also interested in collecting stones; these were not precious stones at all but industrial-type stones. He could make what were described as ‘pendulums’ with these stones which would often include a person’s birthstone.
The complainant, with a schoolgirl companion, called to the accused’s shop on Thursday, 21 December 1989, where there were held conversations between the accused and the two girls. According to the accused, corroborated by the complainant’s companion, it was at that stage that the accused offered to make two of these pendulums for the girls. According to the complainant, she had arranged with her friend to come back the next day, 22 December but, according to the accused, the question of making the pendulums was discussed at the meeting of 21 December and his shop was closed from and including 22 until 28 December. The complainant said that she came to his shop on the 22nd when this discussion about the pendulums took place. In any event she came on 28 December with the object of collecting the pendulum that he had promised to make for her. She said, at first, that she had stayed with her father in Lucan the night before and, therefore, had journeyed in from Lucan (about 9 miles) and arrived at the shop at 1.00 pm. (Her father and mother were separated; her mother lived in Templeogue, Dublin.) According to the accused, the complainant was at his premises at about 11.30 am and told him that she had been there much earlier. According to the complainant, he did not have the pendulum ready and said that he would require to go to his dwellinghouse to get the materials for it. His account was different. He said that he had collected his post earlier on and found an important order for stamps that he should fill. His custom was to deal with orders as expeditiously as possible. He kept most of his stamp stock at his dwellinghouse where he had proper storage and where the stamps could be properly preserved. In addition, he swore that he had an alarm system guarding the house and, further, with regard to the very precious items, these would be kept in a bank. He said that he offered the complainant the option of going home but he was not prepared to leave her alone in the shop. The making of the pendulum was something that had slipped his memory.
It was agreed that they set out in the accused’s car to his house which was a comparatively short distance away — about a ten or fifteen minute drive. Again, it is more or less agreed that they spent about one hour in the house. The complainant alleged that several acts of molestation took place while they were in his sittingroom. This involved touching the complainant’s breasts outside her shirt and underneath her shirt on a number of occasions. The accused’s version of events was that he was engaged in fulfilling the order; that the complainant engaged in cordial conversation with him; was interested in examining his large collection of videotapes as well as other curios, including his large collection of the stones, to which reference has already been made. Further, that there was no question of any interference at all with the complainant and that at about 1.15 pm he got a phone call on his mobile phone from Mr O’Connor, the bank official, with whom he had arranged a meeting at 1 o’clock and Mr O’Connor was understandably angry that he was not keeping that appointment because Mr O’Connor, who had journeyed from College Street, Dublin, was anxious to make the 2 o’clock first race at Leopardstown racecourse.
A word should be said about this mobile phone. It was the only type of phone that the accused had and he brought it everywhere with him. When he was in the shop it was there and it is agreed that he brought the phone to his house. However, the complainant said that she did not hear the phone ring at all; the accused’s version was that she must have heard the phone ring because she was right alongside the phone when it rang and must have heard the conversation that he had with Mr O’Connor.
Sometime between 1.15 and 1.30 pm it seems clear that the accused drove the complainant back to the shopping centre, gave her some money (it may have been £4 or £5) and this, it was said, was to pay her bus fare to and from Lucan and, in the presence of a security man at the shopping centre, she alighted from the car and did not show any sign of distress; in fact, according to the security man she said to the accused; ‘I’ll see you tomorrow’. Thereafter, the complainant made the journey to her mother’s house in Templeogue, where she stayed for some time and to whom she did not complain of any assault. Neither did she complain to others to whom she might have complained before meeting her mother. She then met up with some three girl companions before meeting with her father who had come in from Lucan with the intention of meeting her at about 3.00 pm and with the intention that she would stay with him for some time. The complainant was in a distressed condition when she met her three companions as when she met her father. Further reference will be made to the significance of this later in the judgment.
In due course, the gardaí came to investigate the matter and the accused was asked for a statement which he furnished on 11 January 1990, having consulted with his solicitor, Mr Bill Jolley. What he said in the course of his statement was the subject of a line of cross-examination which, in due course, was conceded to be ill-directed and, therefore, it is important to point out that the accused said that the advice his solicitor gave him was to tell of the essential matters that took place between the complainant and himself. He was adamant, in the course of that statement as well as in his evidence at the trial, that he never touched the complainant, not to speak of indecently assaulting her.
There was no corroboration of the complainant’s account.
Inconsistencies in complainant’s testimony
There were serious inconsistencies in the complainant’s testimony, which have remained unresolved. Mr Hardiman SC said that, of course, he placed these before the jury but we are entitled to have regard to them, too, in a case in which the evidence against the accused was at such a minimal level. These inconsistencies were:
1. The complainant at first said that she had stayed on the night of 27 December with her father in Lucan. That involved her giving an account of staying in her father’s house that night, getting up the next morning and taking a journey into the city. This was contradicted by her father and was clearly wrong.
2. She said that she arrived at 1.00 pm at the accused’s shop on 28 December but, in the course of cross-examination, agreed that this could clearly not be right and would not tie in with the passage of time that took place from when she first arrived at the shop, through to her visit to the accused’s home and her further visit to her mother’s home.
3. She said that she had never been in the accused’s shop prior to 12 December 1989 but this account does not tally with that of her companion.
4. She said that she went there on the Friday, 22 December and that it was on that occasion that the making of the pendulums was discussed but that account does not tally with her companion’s account and, further, the accused swore that his shop was closed on that date and the prosecution made no attempt to rebut this testimony so, it seems to the court, this account must be accepted that she cannot possibly have visited the shop on 22 December.
5. This concerns the mobile phone. It is clear beyond all doubt that Mr O’Connor rang to the mobile phone at about 1.15 pm. The complainant agrees that she saw the mobile phone in the accused’s house but says that she did not hear it ring. A possibility put forward by the prosecution was that the phone call came through on the mobile phone while the accused was in his motor car at a time when the complainant had departed and when he told Mr O’Connor that he was ‘on his way’. While this is a possibility the court thinks that it is extremely unlikely to have happened in that way. Mr O’Connor was clear on his times and his priority at that stage was to get out to Leopardstown races for 2 o’clock, if at all possible. He was agitated through not meeting the accused at the appointed time of 1.00 pm and, at that stage, every moment was precious to him. He said that about ten or 15 minutes passed from the time that he made the telephone call to the time that he met the accused and that would seem consistent with the accused’s version of events.
In response, counsel for the prosecution points to the fact that the complainant was consistent throughout in her account of the actual assault that she alleged took place at the accused’s house.
Grounds of appeal
The four grounds of appeal in relation to the conviction that were pursued before us were as follows:
1. That the learned trial judge erred in law in refusing an application to have the jury discharged following the giving of inadmissible evidence of complaint.
2. That allegations were put to the accused in cross-examination which were factually incorrect.
3. That the admission by the prosecution of the incorrect factual basis for the said allegations was presented as evidence of the complainant’s veracity.
4. That the learned trial judge’s directions with regard to, and the taking of, a majority verdict were unsafe, unsatisfactory and contrary to the provisions of the Criminal Justice Act 1984.
Ground No. 1
It will be recalled that the complainant had an opportunity to complain to several persons and, certainly, she had an opportunity of complaining to her mother and it appears that she was in her mother’s house for some appreciable length of time and did not complain. She did, however, complain to three of her companions and she also complained, separately, to her father. However, the prosecution took the view that since the complaint had not been made at the first opportunity after the offence which reasonably offered itself they should not give the terms of the complaints but felt free to give evidence of the fact of the making of complaints. It appears that there was a measure of agreement reached between counsel for the prosecution and defence in advance of the hearing. It appears, too, that a misunderstanding arose as to the extent of the agreement between counsel. We do not have to resolve this issue because what we have to decide is whether evidence of the fact of the making of a complaint was admissible in circumstances where, it is conceded, the complaint was not made at the first opportunity which reasonably presented itself.
The history of the admissibility of complaints in sexual cases is recounted in Cross on Evidence (seventh edition) at p. 282:
In the Middle Ages it was essential that the victim should have raised the hue and cry if an appeal of rape were to succeed. By the beginning of the eighteenth century, when the modern law of evidence was beginning to take shape, the absence of complaint was no longer an absolute bar to success, but Hawkins still referred to the strong presumption against a prosecutrix in a case of rape if she made no complaint within a reasonable time of the alleged offence. If the absence of such complaint could tell against a prosecutrix it seemed to follow that the fact of having made a complaint ought to tell in her favour, and if failure to complain could be proved by the defence then the fact of making a complaint should be capable of proof by the prosecution. Such proof does however raise problems since it grates against the rule excluding previous consistent statements, the hearsay rule and the rule against self-corroboration.
In the old law it was only the fact of complaint that was admissible and it was not until R. v Lillyman [1896] 2 QB 167 that the Court for Crown Cases Reserved extended admissibility of a complaint to its terms. It seems to the court, therefore, that either evidence of a complaint having been made is admissible or it is not. If it is admissible, then, subject to the discretion of the trial judge to prevent unnecessary prejudicial repetition, the terms of the complaint are also admissible. It is for the trial judge to rule on the matter in the first instance. In this case, the trial judge’s ruling was not sought in advance. The evidence given by the complainant was as follows, having recounted the visit to her mother and her meeting with three girlfriends she was asked in examination-in-chief what she did when she met them. She replied:
I burst out crying and told them the story.
Do you remember seeing your father?
Yes. My friends told me that I should tell somebody. So, my father came down with the car and I got in the car and said goodbye to my mother, and on the way home I told my father in the car and burst out crying. He brought me back to my mother’s house and asked my mother to ring the police.
Mr Hardiman SC on behalf of the accused made an application, in short, to have the jury discharged on the basis that this evidence was inadmissible. Mr Marrinan, for the prosecution, said that there had been agreement that the fact of the complaint could be tendered in evidence but not its terms. As we have held already there seems no room for half measures in regard to this; either the fact of a complaint is admissible or it is not.
Indeed, in the case of Lillyman which established the entitlement of the prosecution to introduce details of the complaint as well as the fact of the complaint it was made clear that the admissibility of evidence of the fact that the complaint was made was subject to the condition that it was made ‘as speedily after the acts complained of as could reasonably be expected’ (at p. 171 of the report). The prosecution conceded that the complaint was not made as speedily as possible. Since the prosecution were clearly of the view that the terms of the complaint were not admissible, then the fact of the complaint should not have been admitted either.
The judge ruled that he would not discharge the jury and, in the ordinary way, the discharging of a jury in any trial must be a very extreme remedy but we are of the opinion that in this case, where the prosecution depended on the uncorroborated evidence of the complainant, the requirement that a balance had to be kept to preserve fairness in the trial — since the evidence was so minimal — required that the jury should have been discharged when this evidence got in.
Everyone, thereafter, was very careful not to advert to this evidence of complaint at all and, indeed, the three girl companions were not even called as witnesses though the father did give evidence of the fact of a complaint and of the distressed condition in which the complainant was at the time that he met her. But the point of this evidence was not explained to the jury.
In the circumstances, it might be useful if we recapitulated the law on this topic of admissibility of complaints. It is as follows:
(a) Complaints may only be proved in criminal prosecutions for a sexual offence.
(b) The complaint must have been made as speedily as could reasonably be expected and in a voluntary fashion, not as a result of any inducements or exhortations. Once evidence of the making of a complaint is admissible then particulars of the complaint may also be proved.
(c) It should always be made clear to the jury that such evidence is not evidence of the facts on which the complaint is based but to show that the victim’s conduct in so complaining was consistent with her testimony.
(d) While there is mention in one of the older cases, R. v Osborne [1905] 1 KB 551, of a complaint being ‘corroborative of the complainant’s credibility’ this does not mean that such a complaint amounts to corroboration of her testimony in the legal sense of that term but as pointing to the consistency of her testimony. Corroboration in the strict sense involves independent evidence, that is evidence other than the complainant’s evidence.
(e) The law on complaints should not be confused with what takes place once the police institute their inquiries.
That is a separate matter. A complaint made to the police may, as such, be admissible or not under the guidelines set out above but just because a complaint is not made at the first opportunity to the police does not, of course, inhibit their inquiries. Indeed, a complaint to the police may be made by someone other than the injured party.
Ground Nos. 2 and 3
This arose in this way. In the course of her evidence, the complainant said that a sofa which could be made into a bed was, in fact, pulled out while she was in the house and that she was asked to lie on it and that one of the acts of molestation took place when she was on this sofa bed. In the course of his evidence, the accused said that when the complainant first went into the house she remarked on the particular couch or sofa being, in fact, a sofa bed. He was cross-examined on this to the effect that the complainant did not say any such thing — which carried the inference that the only way that she could have known that the article of furniture was a sofa bed was because it was pulled out and made such while she was there. In particular, he was cross-examined very strongly as to why he did not mention in his statement her knowledge of the sofa bed in the course of his statement to the gardaí. However, before the speeches to the jury at the conclusion of the evidence Mr Marrinan had learned that in fact the complainant did know on entering the accused’s dwelling that the particular couch was a sofa bed and that she had said as much when she went to the house.
It appears to have been agreed by counsel, after discussion with the trial judge, that the best way to deal with this was for Mr Marrinan in the course of his closing speech to point out the error that had occurred. If matters had been left to lie thus, that might have cured this particular mishap but, unfortunately, the trial judge, in dealing with it, pointed it out as an example of the complainant’s veracity. In a case where that was the crucial matter in issue it provided little comfort to the accused to have the correction made in a situation which was to bring additional credit to the complainant. And, of course, the complainant had not given evidence on this topic at all. This is tied in with something else that the judge said because, while it is accepted on both sides that the learned trial judge’s charge to the jury was favourable to the accused, nonetheless, he did propound a theory at one point in his charge where he put before them the possibility that the complainant was a truthful person but might have ‘imagined’ the whole thing. He said:
In the circumstances you will have to consider whether [the complainant] who was and is at an impressionable age, whether her emotions and her young imagination might have been heightened to some extent and might have caused a perception which didn’t truly reflect the reality. She is not on trial. She is a good girl and she is, obviously, very articulate. But I think you have got to look at that aspect of it because how much of it might have been retrospective implication — she didn’t run away, she stayed for the full time. I have gone over this ground before. She didn’t run away when she got out in the air, lunch-time and daylight, her mother, the bus journey. She had time to compose herself. She didn’t say anything to her mother. I would have thought that it is possible that something might have occurred that caused her to think what she was thinking.
And later:
It is not a question of whether she is telling the truth or not. In my opinion you have to look at the age groups of people, their stage of development, their sensitivity, their imaginations, their home pressures, or whatever — if you look at the totality and the possibility that perhaps something, a brushing against or something of that nature, might have happened to heighten a perception which may not have been heightened until considerably afterwards. I don’t know. I can’t put my viewpoint any further than that but I have to give you my viewpoint, because my viewpoint has something to do with the corroborative aspect.
There may be cases where a trial judge is entitled to put a possible view of the evidence which has not been canvassed by either the prosecution or the defence. However, it appears to the court that this is not such a case. The complainant’s veracity was well and truly in issue and there does not seem to this Court to have been any halfway stage between the jury being in a position to accept her evidence as credible or having to reject it. In particular, there does not seem any possibility at all for the jury to conclude that she was imagining the whole thing because once they rejected that, it was correctly submitted, the only other hypothesis left was that she was telling the truth which was at the core of what the jury had to resolve.
The court is of the opinion that the cross-examination of the accused in relation to the sofa bed was in all the circumstances unsatisfactory and was not suitably corrected by what the learned trial judge had to say; we emphasize, once again, that we make these points in a case where the matter was so evenly balanced as to require the most minute attention to the details of what evidence was properly admissible as well as what fair procedures required in the circumstances of this particular case.
Ground No. 4
We set the scene for this by referring to s. 25 of the Criminal Justice Act 1984, which provides as follows:
(1) The verdict of a jury in criminal proceedings need not be unanimous in a case where there are not fewer than eleven jurors if ten of them agree on the verdict.
(2) The court shall not accept a verdict of guilty unless the foreman of the jury has stated in open court whether the verdict is unanimous or is by a majority in accordance with subs. (1) and, in the latter event, the number of jurors who agreed to the verdict.
(3) The court shall not accept a verdict by virtue of subs. (1) unless it appears to the court that the jury have had such period of time for deliberation as the court thinks reasonable having regard to the nature and complexity of the case; and the court shall not in any event accept such a verdict unless it appears to the court that the jury have had at least two hours for deliberation.
(4) The court shall cause the verdict of the jury to be taken in such a way that, where the verdict is one of not guilty, it shall not be indicated whether the verdict was unanimous or by a majority.
(5) This section shall not affect the trial of any offence for which the court is required, upon the conviction of the accused, to sentence him to death or any trial commenced before the commencement of this section.
The court cannot accept a majority verdict unless the jury have at least two hours for deliberation. Here a longer time-scale was not proposed. The time came when the jury had about half an hour to go before the two hours was up. There was an indication of a degree of uncertainty as regards whether they could reach a verdict. It was agreed by counsel that what was sometimes done when there is no prospect of the jury reaching a unanimous verdict or having at least ten of them agreeing: in other words, as it was put, when they are split down the middle that there is no point in prolonging the matter until the two hours is up but that they could be free to come into court and announce their disagreement. So when the jury returned to court and said that they had not reached a verdict upon which they were all agreed the learned trial judge addressed them as follows:
Perhaps I should have told you that in coming back at a comparatively early stage, the court normally looks for a unanimous verdict, either guilty or not guilty. On the other hand, if you clearly are disagreeing and there is no prospect of either agreeing or getting a 10-2 or 11-1 — split verdict, we’ll call it — that way, I think you can come back. That 10-2 or 11-1 verdict could only happen now, after you have deliberated further until twenty five to eight. That is the time allotted, all things considered. But if you go back and deliberate in your room for a little while, and if you decide that there is no prospect of agreeing, that you are just split — not in the 10-2 or 11-1 fashion for which you would have to wait until twenty to eight, that you are split down the middle, so to speak — you can come back and tell the court that, and then there would be an end to the day’s work here. You would then be discharged. So, would you like to go back and deliberate.
FOREMAN: Can I ask what time it is?
JUDGE: It is now five past seven. And if you feel that you might reach a 10-2 or an 11-1 verdict by twenty five to eight — that’s half an hour or thereabouts — I think you should sit on and do so; but if you think that there is no point and that it’s unreasonable to expect that you will and that you are entrenched in situations, then you can come back and register a disagreement. That can be done at any time. Would you like to go back to your room, deliberate on that and let us know if there is anything further.
JUDGE: Gentlemen, are you happy with that?
MR MARRINAN: Yes, my lord.
MR HARDIMAN: Yes, my lord.
The jury retired and returned after two hours and seventeen minutes with a majority verdict, ten having agreed and two dissenting.
The submission made on this aspect of the case, as we understand it, is that it would be better for the trial judge not to mention the possibility of majority verdicts at all until at least two hours has expired or, presumably, in complicated cases longer than two hours.
The first thing to be said about that submission is that it was not a submission that was made in the course of the trial and, indeed, counsel for the accused expressly approbated the direction given by the trial judge in this regard. While no accused is to be estopped if an error is made in a substantive legal direction, nonetheless, there must be a point when on procedural matters it is right for counsel and the trial judge to agree on a course of action and, in such circumstances, it would generally be wrong for a court of appeal to interfere with such a ruling. The second matter is that nowhere in the section is it said that the jury should not be told about the possibility of reaching a majority verdict before the expiration of two hours. A correct construction requires that words should not be read into a section of an Act that are not there and what this section contains is an injunction that the court cannot receive a majority verdict until at least two hours for deliberation have passed.
This Court was concerned with the very opposite submission in the case of People (Director of Public Prosecutions) v David Glass, judgment delivered by Finlay CJ sitting with Johnson and Morris JJ on 19 March 1991. The court said:
The third heading … concerned the question of the provisions of s. 25 of the Criminal Justice Act 1984, and the first submission which was made to this Court is that there was an obligation on the learned trial judge, in his original charge to the jury, to set out to them the legal effect and terms of s. 25 of the Act of 1984, that is to say, indicating to them that after a lapse of time to be fixed by him at his discretion and to be not less than two hours, they might, if they were unable to reach unanimous verdicts, reach a majority verdict in certain circumstances. This Court is quite satisfied there is no such obligation on a trial judge at the commencement of the deliberations of a jury. It is, as has been decided in this Court, a matter for discretion of a trial judge as to whether in his original charge to the jury he will mention the eventual opportunity which they might have to reach a majority verdict, or whether he will, as was done in this case, and is favoured by a number of trial judges, merely instruct them that they must have a unanimous verdict in order to render a verdict of either guilty or not guilty.
In the decision of this Court (Griffin, O’Hanlon and Egan JJ) in People v O’Callaghan (30 July 1990) the court rejected the complaint made that the learned trial judge, before two hours had expired, had adverted to the jury’s eventual entitlement to return a majority verdict but where he had made it clear that he could not accept such a verdict until two hours had expired.
In the circumstances, and having regard to the previous decisions of the court, we conclude that this ground of appeal has not been made out.
However, on the basis of our findings in respect of the other grounds of appeal we hold that the conviction in this case is unsafe and unsatisfactory and for this reason we order that the conviction should be quashed.
Sentence
The accused was sentenced to five years’ imprisonment in respect of this offence. He was at the time of his conviction 45 years of age and had a previous conviction for murder which took place on 28 November 1969. He was convicted of the murder of his girlfriend in respect of which he gave himself up and reported the matter to the gardaí. He was sentenced to penal servitude for life. He was released on temporary release in 1975 and the condition of his temporary release is that he must report annually to the prison authorities. In the meantime he did have a relationship with another woman who had a child by him but he and the woman are now separated. It was accepted by the prosecution that the complainant in this case did not have any ill-effects from her alleged ordeal.
In his plea before the learned trial judge and before us Mr Hardiman SC has made the case that the other offence was very remote in time and different in character and that this particular offence — if one were to accept everything that was said — was at the less serious end of the scale compared with other types of indecent assault which might border on rape and for which a sentence of between five and ten years might be appropriate. In addition to having served one year’s imprisonment we were told that Mr Brophy’s business has been seriously affected and that he has gone into debt to a great extent as regards owing money to the landlord for his shop premises and so forth. So he has suffered a grievous punishment on this front as well.
We think this is not a case to exercise our discretion to order a retrial because, aside altogether from the infirmities in the evidence which we have delineated, no court would be justified in imposing any further sentence of imprisonment on Mr Brophy should he be convicted on a retrial.
Accordingly, there will not be an order for a retrial.
The People (Attorney General) v. Cradden
[1955] IR 155
Maguire C.J. 135
The judgment of the Court was read by Maguire C.J.
MAGUIRE C.J. :
20 June
The appellant was tried before Mr. Justice Murnaghan and a jury at the Central Criminal Court on an indictment charging him with indecent assault contrary to s. 6 of the Criminal Law Amendment Act of 1935 on Margaret Drew, a girl under the age of fifteen years. On a second count he was charged with common assault. He was convicted and sentenced to three months’ imprisonment. His application for a certificate giving him leave to appeal to this Court was refused. He applied to this Court for leave to appeal. The Court on the 26th May granted leave to appeal and, treating the hearing of the application for leave to appeal as the hearing of the appeal, quashed the conviction and ordered a new trial. The Court intimated that it would later give its reasons for its decision. This we now proceed to do.
The application for leave to appeal was on three grounds, The first of these grounds was that the learned Judge had wrongly refused to allow counsel for the appellant to put in the deposition of the prosecutrix and had wrongly disallowed a question put to the prosecutrix. The second is that the learned trial Judge had failed adequately to direct the jury in the law regarding corroboration and in particular had failed to inform them that evidence of new complaints by the prosecutrix did not constitute corroboration. The third ground was that the trial was unsatisfactory.
Before dealing with the facts, it should be mentioned that at an earlier trial the jury had disagreed. It is to be noted, however, that two of the witnesses who gave evidence at the trial had not been called at the first trial.
The evidence may shortly be summarised:The prosecutrix, a girl of eleven years of age, swore that on the night of the 24th October, 1954, she was sent to a shop, known as Doughty’s, to do some messages for her mother; that on the way to the shop she met the appellant whom she knew previously. She said that he came out his own gate and walked to the shop with her. On the way they met a man named Donnellan who stopped to talk to the appellant for a few minutes, the prosecutrix meanwhile standing nearby. She swore that he took her down a lane, and there assaulted her, putting his hand under her clothes, pulling down her knickers and scratching her. She says he also tore her vest. She went on to say that she got away from him and got to the top of the lane; that he came after her and caught her; that she was crying as she went towards the shop. She said that she saw the girl named Nora Carter as she reached the top of the lane. In the shop she was still crying. She saw a girl named Kathleen Doyle in the shop. When she came outside she made a complaint to her, telling her the story of what had happened to her. She told the same story to Mrs. Moore and later to her mother.
Nora Carter gave evidence bearing out the testimony of the prosecutrix that the appellant was with her at the head of the lane, that he had his arm around her and that she was crying; that he accompanied her to the shop and that the prosecutrix had made a complaint to her. Kathleen Doyle similarly bore out the story of the prosecutrix so far as it related to her. Donnellan gave evidence of meeting the appellant with the prosecutrix and that when she and her mother came to his house half an hour after the alleged assault the prosecutrix had a black mark on her mouth. The child’s mother gave evidence, as also did Dr. Mulvanny, who said he found scratches on the child’s abdomen the following morning.
The appellant denied having committed the alleged assault, denied having walked with the prosecutrix, either on the foot-path or down the lane, or that he paused at Doughty’s shop.
It will be seen that there was ample evidence which, if accepted as such by the jury, would afford corroboration of the story of the prosecutrix. Provided the conduct of the trial was otherwise unexceptionable, there was clearly evidence which, if there was a proper charge to the jury, would support the conviction.
The first ground of appeal includes two different objections, the first being that the learned Judge refused to allow counsel to put in evidence the deposition made by the prosecutrix, and the second that a question put in cross-examination by counsel was wrongly disallowed by the trial Judge.
In the course of his cross-examination, Mr. Hartnett put it to the witness that she had made a deposition in the District Court. She accepted this. Without putting in the deposition, he then asked her had she said in the course of it “that the people in Doughty’s asked me what I was crying for and I did not tell them.” She replied that she did not remember saying that. Counsel then asked:”Do you accept that you did say it?” The trial judge asked:”How can you ask that when the girl says that she does not remember?” Mr. Hartnett replied that he proposed to put the deposition in evidence. Without formally doing so, having read out the sentence again, Mr. Hartnett asked:”Is it possible you did say that?”, to which the witness replied:”Maybe I did say it.”
Mr. Hartnett’s next question was:”Maybe you did say it. Would you go any further than that and would you be prepared to say that you did say it?” The learned Judge disallowed the question on the ground that it was not fair to the witness having regard to her age. Discussion of the deposition stopped at this point. Mr. Hartnett, although he had not formally tendered the deposition, appears to have taken the Judge’s ruling as an intimation that he would not be allowed to put it in. When, at the end of the case, a certificate that the case was fit for appeal was asked for, amongst the grounds relied upon was the ground that counsel was not permitted to put the deposition in as evidence. The learned Judge appears to confirm Mr. Hartnett’s assumption that it was not allowed in, for he stated that the ground for his refusal to allow it in was that the ground had not been properly laid by counsel. The use which may be made of depositions is regulated by s. 5 of the Criminal Procedure Act, 1865. Mr. Walsh argued that a deposition may be put in even though no question of inconsistency between the evidence given at the trial and statements contained in the deposition arises.
In the opinion of the Court a deposition is only admissible if it is relevant; for instance, in circumstances such as we are considering here it may be relevant to establish an inconsistency between the evidence given at the trial and what was stated by the witness in her deposition. It cannot, as Mr. Walsh appears to contend, be admissible as evidence of the facts stated in it.
Had the witness agreed that she had made the statement put to her by Mr. Hartnett it would have been unnecessary and, in our view, not permissible to put the deposition in evidence. Had she, however, denied making the statement, the deposition could have been put in. The witness said that she did not remember saying what was put to her, and, on being pressed, had said that it may be she had said it. In our view it was perfectly proper for Mr. Hartnett to question her further with a view to getting her to adopt a firmer attitude one way or the other. The cross-examination at this stage was directed to the credibility of the witness and, in the view of this Court, was quite proper, and should have been allowed. To that extent this ground of appeal succeeds. We find some difficulty in dealing with the ground that the deposition was wrongly excluded. Mr. Hartnett appears clearly in the circumstances to have been entitled, had he laid the ground in the usual way, to put the deposition in. He did not formally tender it, although he said he intended doing so, nor does the record show that the learned Judge ruled it out although, as stated, he appears at the close of the trial to have agreed that he did. The Court contents itself with having made clear what it considers to be the rights of an accused person in regard to the putting of depositions as evidence in such circumstances as arose here.
The second ground of appeal is that the learned Judge did not adequately instruct the jury on the law regarding corroboration and in particular that he failed to instruct them that evidence of fresh complaints by the prosecutrix did not constitute corroboration.
The main part of the argument on this aspect of the case was directed to the terms of the warning given by the learned Judge.
Mr. Ryan, for the Attorney General, first of all submitted that this being a case of indecent assault, no warning was necessary and that Williams’ Case (1) and Moore’s Case (2),which are, the first a rape case and the other a carnal knowledge case, do not apply.
As pointed out by Sullivan C.J. in the first-named case, the practice in England since the Court of Criminal Appeal has been established has been to give a warning in cases of indecent assault. There appears to be no authority in this country directly on the point. It appears, however, to be the accepted practice here to give the warning in such cases. This Court is unable to see any reason why a warning should not be given in indecent assault cases. The reason why it has come now to be a rule of practice with the force of a rule of law in cases of rape and carnal knowledge that a warning should be given seems to apply with equal force to cases of indecent assault.
Two questions, however, remain for consideration: firstly, whether, in a case where there is evidence which, if accepted as such, would amount to corroboration, any warning need be given, and secondly, whether the words used by the learned Judge are adequate to convey the warning.
As regards the first point, Mr. Walsh contends that it is logical that a warning should be given even when there is corroborative evidence, because it is for the jury to decide whether the evidence tendered as such is corroborative. He cites in support of this contention the English case of Davies v. Director of Public Prosecutions (1), in which the following proposition put forward by counsel was accepted by the House of Lords as correct:”Where the judge fails to warn the jury in accordance with this rule the conviction will be quashed, even if in fact there be ample corroboration of the evidence of the accomplice, unless the appellate court can apply the proviso to section 4 (1) of the Criminal Appeal Act, 1907.”
Davies’ Case (1) does not bind this Court. Mr. Ryan further submits that it is an accomplice case and that the reasoning which led the Court to adopt the proposition cited does not apply in a sexual case. The question whether”consistently with the current of recent authority a distinction can now be drawn between corroborative evidence in cases of rape and corroborative evidence in accomplice cases” was adverted to by the Chief Justice in Williams’ Case (2). He goes on to point out that there was no corroboration in any sense of the term of the evidence of the prosecutrix in that case. His later reference to Linehan’s Case (3), when dealing with the form and manner in which the warning is to be given, shows his view to be that while the circumstances which may be looked at to measure the strength of the warning may differ in the two types of cases, a warning of the same kind is called for in both where the evidence of the accomplices or the prosecutrix stands alone. We are of opinion that in this respect no distinction can be drawn between the two types of cases.
Furthermore, although Williams’ Case (4) was one in which no corroboration of any kind existed, this Court sees no answer to the reasoning of Mr. Walsh. As the question whether evidence offered as corroborative of the story of the prosecutrix does in fact corroborate her is a matter for the jury, it would seem proper to give the warning together with the admonition that if they find corroboration in the other testimony they should ignore the warning. It may be in certain cases, that the evidence which is offered in corroboration of the prosecutrix is so clear and cogent that a reasonable jury would hold it to be so. In such a case this Court could, of course, apply the provisions of s. 5, sub-s. 1 (a), of the Courts of Justice Act, 1928.
As regards the terms in which the warning is to be given we have been referred to the well-known passage in the judgment of the Chief Justice in Williams’ Case (1), which is as follows:”I am therefore of opinion that a warning is necessary in the latter cases. I wish to make it clear that in so deciding I do not decide that the warning must be expressed in any particular terms. As was said in Attorney-General v. Linehan (2) the degree and gravity of the warning should vary according to the particular circumstances of the case. But in all cases in which there is no corroboration of the girl’s evidence, the attention of the jury should be directed to that fact, and they should be told that they should weigh her evidence with great care before they decide to convict. In many cases no further warning may be necessary; that is a matter to be determined in the first instance by the trial Judge. When an adequate warning has been given the jury should be told that they are entitled to act on the girl’s evidence if they are satisfied beyond all reasonable doubt that it is truthful.”
It is suggested that the effect of the language there used is to leave it entirely to the discretion of the trial Judge what words he will use when giving the warning.
When interpreting this passage, however, it has to be remembered that the Chief Justice when he uses the word,”warning,” is speaking of a warning of the danger of acting on uncorroborated testimony. This is clear from the earlier part of his judgment and is also clear from the fact that he refers with approval to Linehan’s Case (2). In that case the circumstances which were said to regulate the degree and gravity of the warning were the degree and gravity of the complicity. Having pointed this out the Chief Justice went on to say (at p. 23):”We are of opinion, therefore, that the rule as to uncorroborated evidence of accomplices applied to the facts and circumstances of this case, and that the jury should have been warned as to the danger of acting upon her evidence alone without corroboration.”
In our opinion, therefore, however it be phrased, the warning to be given should convey to a jury in unmistakable terms the danger of acting upon the unconfirmed testimony of a prosecutrix if that testimony stands alone.
We wish, however, to emphasise that the degree and gravity of the warning called for may vary with the degree and gravity of the risk involved in accepting the evidence which requires corroboration. It will be for the trial Judge in each case to measure the strength of the warning having regard in cases such as this to what Hale in the passage cited by the Chief Justice in Williams’ Case (1), calls”concurring circumstances which give greater probability”to the evidence of the prosecutrix.
Do the words used by the learned Judge fulfil these requirements here laid down? He speaks, firstly, of a case in which there is no other evidence than the girl’s evidence. “Clearly,” he says, “that is a case which the jury must regard with the utmost suspicion.” Even if these words were sufficient to convey the notion of the peril which the law now acknowledges of acting on such evidence, which we do not think they are, the learned Judge goes on to say:”This is not such a case.” Even though he follows this by telling the jury to regard the evidence most carefully and mentions as a real possibility “that what she says took place did take place but by someone other than the accused,” these words, in our view, were not sufficient to dispel the effect of what he had already said nor did they convey adequately the idea of danger which we consider to be the essence of the warning required.
Two further grounds remain to be mentioned, firstly, that the learned Judge had not sufficiently defined the meaning of corroboration; secondly, that he had failed to make clear that evidence of complaints by the prosecutrix did not constitute corroboration. In the opinion of the Court his direction as to the weight and value to be attached to complaint was in accordance with Lillyman’s Case (2). We are of opinion, however, that the instruction given on the meaning of corroboration did not sufficiently make clear that to afford corroboration the testimony must be independent.
It was for these reasons that the Court allowed the appeal.