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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions -v- O'Brien & anor [2015] IECA 160 (23 July 2015)
URL: http://www.bailii.org/ie/cases/IECA/2015/CA160.html
Cite as: [2015] IECA 160
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Judgment
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THE COURT OF APPEAL Birmingham J. Sheehan J. Mahon J. 35/2013
17/2013 The Director of Public Prosecutions Respondent - and - Jimmy O’Brien and Shane Folan Appellants Judgment of the Court delivered on the 23rd day of July 2015, by Mr. Justice Mahon Introduction 2. Mr. O’Brien was convicted of attempted rape contrary to common law, sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 and ‘section 4 rape’ (oral rape) contrary to section 4 of the Criminal Law (Rape)(Amendment) Act 1990, as well as the offence of the unauthorised taking of the complainant’s car, in respect of which he pleaded guilty at the outset of the trial. Mr. O’Brien was acquitted of rape by direction of the trial judge. He received sentences of ten years each on three counts, and four years on one count, all sentences to run concurrently. 3. Mr. Folan was convicted of one count of sexual assault contrary to section 2 of the Criminal Law (Rape)(Amendment) Act 1990 and one count of attempted rape contrary to common law by a unanimous jury verdict. The charge of rape was withdrawn by the learned trial judge. Mr. Folan was sentenced to ten years imprisonment in respect of the sexual assault charge, and ten years imprisonment in respect of the attempted rape charge, both sentences to run concurrently. Background 5. There was a significant amount of conflicting evidence at the trial. However it is nevertheless useful to provide, by way of general background, a brief summary of the circumstances as follows. The complainant was out socialising with a group of friends at a public house in Glanmire, Co. Cork. She had been drinking, and had become separated from her group. She somehow ended up in the back of the appellant, Mr. Folan’s, van but denies hitching a lift as she had ample money on her person at the time to pay for a taxi. There were four males in the van: the appellant, Mr. Folan, the appellant, Mr. O’Brien, fifteen-year-old BO’D and eleven-year-old PO’B. These individuals attempted various sexual relations with her while she was in the van, which had a mattress in the back. The complainant gave evidence that the first man to enter the back of the van successfully forced his penis into her mouth without her consent. She then gave evidence that this man exited the van and another entered. The second man lay on top of her and attempted unsuccessfully to penetrate her vagina with his penis. She stated that when the second male finished, the others got back into the van and it began to drive away. 6. The complainant was then dropped off close to her home, having suffered extensive bruising to her arms, legs and torso. Money was stolen from her handbag along with her car keys, and Mr. O’Brien subsequently stole her Toyota Yaris car from outside her home. The appellant Jimmy O’Brien 8. The appellant is appealing his convictions (with the exception of the unauthorised taking conviction) on six grounds, namely that:
1. Failed to direct a verdict of not guilty for the appellant in respect of all the sexual offences on the indictment, particularly in circumstances were he directed an acquittal on Count 5, the count of rape. 2. Ruled in an inconsistent or illogical fashion in agreeing to direct the jury to find the appellant not guilty of rape but refusing to so direct in relation to the other sexual offences on the indictment. 3. Directed the jury that they could find the appellant guilty of the sexual offences on the indictment both by way of joint enterprise or find that the appellant had actually committed the said sexual offences, when there was not sufficient evidence to support such directions. 4. Failed to adequately marshal the evidence (or lack of it) in respect of the sexual offences so that the jury could reach a verdict in accordance with law. 5. Failed in his charge to the jury to adequately direct the jury on the material issues in the case, in particular, the issue of joint enterprise, and further how the evidence in the case was to be approached when determining the issue of joint enterprise. 6. Failed in his charge to the jury to adequately direct them how to approach a finding of fact that the appellant was the actual perpetrator of the sexual offences. 10. In his second interview on the same day, he provided a largely similar account to that given in his first interview save for on this occasion he admitted that after Mr. Folan emerged from the van that he, Mr. O’Brien, had entered the back of the van, and asked the complainant for oral sex. She declined, and he said that he then got into the front of the van and continued the journey to the complainant’s house. In a further statement he made on the 23rd September, 2009, he maintained that he, and not Mr. Folan, was driving the van on the night in question. He said that when the van was stopped and BO’D exited from the back of the van that he, Mr. O’Brien, got into the van and had sexual intercourse with the complainant. He said that she was naked and lying on the mattress and that there was no conversation between them but that he simply lay on top of her and opened her legs. He maintained that the complainant wrapped her legs around him and pulled him towards her and that he believed he had penetrated her vagina. He denied any resistance on the part of the complainant. He said that he then got back into the front of the van and continued to drive towards the complainant’s house. 11. Written submissions on behalf of the appellant were filed on the 8th July, 2014. Further written submissions were filed on the 2nd January, 2015. In the course of the hearing of this appeal, Mr. O’Brien’s counsel elaborated on the written grounds of appeal. 12. Counsel for Mr. O’Brien submitted to this Court that it was almost impossible to be found guilty of both the Section 4 rape and the attempted rape, as occurred in the case of his client. He was critical of the learned trial judge for his failure in his charge to the jury to marshal the facts in a satisfactory manner in this regard. 13. In the course of the trial, Mr. O’Brien applied for a direction on all counts. The application was successful in relation to the count of rape, but the learned trial judge refused the application for a direction in relation to the other counts. It was argued in the course of the trial on behalf of the Mr. O’Brien that there was no evidence from which common design could be inferred, and there was no evidence of direct participation save for Mr. O’Brien’s voluntary statement that he had had sexual intercourse with the complainant. The appellant Shane Folan 15. The submissions made on behalf of the appellant can be summarised as follows:-
2. The learned trial judge erred in law in that he failed to adequately direct the jury in respect of the mens rea required for each of the offences charged on the indictment and in particular failed to explain the concept of recklessness. 3. The learned trial judge failed to direct the jury in relation to what might in law constitute “attempt” to commit an offence of rape, and he failed to charge the jury on the need to consider the appellant’s evidence that he desisted in his attempt to engage in sexual intercourse upon the complainant indicating her lack of consent to him. 4. The trial judge erred in refusing to accede to an application for a direction on the part Mr. Folan in respect of the offence of attempted rape, sexual assault and rape contrary to s.4. 5. The learned trial judge erred in that he failed to explain the meaning of corroboration to the jury in circumstances in which the prosecution had sought to rely on the existence of corroboration in the case. 6. The trial judge erred in that he failed to warn the jury adequately or at all of the dangers of convicting on the uncorroborated evidence of a witness whose evidence may be shown to be unreliable and to instruct them that they might look for corroboration in the case. 7. The verdict of the jury was against the evidence and the weight of the evidence and was accordingly perverse and unsafe. 8. The learned trial judge failed to adequately charge the jury in relation to the evidence of Mr. Folan as to what occurred after the complainant had indicated her lack of consent. 17. In a second interview on the same day, Mr. Folan gave a similar account of his movements in the earlier part of the evening, although he stated that when he picked up BO’D, PO’B, aged eleven, also got into the van. He outlined in that statement that he and his co-accused were in the front of the vehicle while PO’B was in the back at the time they picked up the complainant. He stated that when he stopped the vehicle BO’D got into the back first, and the rest of the occupants stood outside on the road. He said that after ten minutes BO’D got out and PO’B got into the back of the vehicle. After another few minutes, PO’B got out of the vehicle and he, Mr. Folan, got into the vehicle. He said he asked the complainant for sex and she declined. He said that he began to kiss her and that she was kissing him, and that he attempted to have sexual intercourse with her but that vaginal penetration did not take place. She declined to have sex with him and pushed him away. He, Mr. Folan, said that he then got back into the front of the van and continued to drive the vehicle. He said that PO’B was in the back of the vehicle as he drove to the complainant’s house. He said that later, after he dropped off the complainant and Mr. O’Brien, he learned that Mr. O’Brien had taken the complainant’s car. The learned trial judge’s charge to the jury
(ii) The learned trial judge was criticised for what was described as his failure to marshal the facts in a way that would have enabled the jury to identify more precisely any evidence which would have supported, separately, joint enterprise and individual culpability. Counsel for Mr. O’Brien submitted that the learned trial judge outlined in one line that there was also reliance by the prosecution on individual culpability and that this was simply insufficient in a case of such a complex nature. Counsel for Mr. Folan also submitted that the directions of the trial judge were then inadequate as they did not direct the jury to the evidence that implicated the appellants individually and separately in this case. (iii) The warning in relation to the cross contamination of evidence between the co-accused was insufficient 19. The learned trial judge was criticised for his failure to allow Mr. Folan’s counsel to cross-examine his co-accused, Mr. O’Brien, in relation to the issue as to who was violent towards the complainant to a point were she was left with bruising. Reference was made to a video recording of a third co-accused (who did not give evidence) and the reading out of his statement in which Mr. Folan was pointed out to have been the violent individual. In his evidence at trial, Mr. O’Brien stated that he could not recall who had been violent. Mr. Folan’s counsel was therefore denied the opportunity to highlight, in the course of his cross-examination of a co-accused, significant differences in detail in relation to the evidence as to what and when events occurred in the back of the van. Counsel for Mr. Folan submitted to this Court that there is no rational basis which should have prohibited the cross-examination of the witness in relation to a matter of such fundamental importance particularly in a case such as this where the jury clearly convicted on an individual basis. Counsel noted, what he called, a simple proposition from McGrath on Evidence, (Dublin: 2000) at p.83, that witnesses should be allowed to be cross-examined by all parties. 20. Counsel submitted that the evidence contained in the redacted portions of Mr. O’Brien’s statement was highly relevant to the appellant’s defence and formed part of a confession against interest made by a party to the proceedings. Counsel relied here on the English case of R v. Myers [1998] AC 124 (HL). In that case, the appellant had been jointly accused with another of the murder of a taxi driver on the basis of common design. While in the police station, the appellant made a number of admissions that she had been responsible for stabbing the victim. Counsel for the co-accused sought to elicit evidence of these statements through cross-examination of the police officers to whom they were made. It was held that such statements made by an appellant were admissible as they were highly relevant to the case of the co-accused. 21. Counsel for Mr Folan further submitted that the jury should have been warned that such evidence could be used to assess Mr. O’Brien’s credibility if he maintained that this prior statement was incorrect in this regard. If he accepted that the relevant portion of the statement was accurate, it could then have become fully admissible as part of his probative evidence given viva voce in court. Further, the confession was a cautioned statement by a party to proceedings in which the doctrine of common design had been specifically relied upon by the prosecution, which was admissible in any event against its maker. 22. However, counsel for the prosecution submitted that the appellant counsel’s submission was misconceived. It was contended that out-of-court statements are not admissible save where they fall into one of the exceptions. Counsel submitted that it was not permissible to put to a witness a previous statement he made about someone other than himself without laying any foundation for so doing. Counsel for BO’D asserted that counsel is not entitled to cross-examine on the basis of a redacted statement because it is not evidence against his client. What constitutes attempt to commit an offence of rape 24. In this regard, the appellant relies on the case of the Supreme Court of Ontario R v Frankland [1985] O.J. No. 242, in the absence of any clear Irish authority on the issue. That case involved a prosecution for an attempted rape whereby the complainant alleged that the accused had requested sexual intercourse with her, which she denied, and had then threatened her. She then said that she did not resist his advances due to the threat. She eventually screamed, the accused immediately desisted and drove her home. The verdict was not permitted to stand by the Court on the grounds that the defence of the accused had not been set out before the jury. In the course of his judgment Dubin J. referred to the following extract from the headnote in R v Lankford [1959] Crim.L.R. 209:-
27. However, as prosecution counsel submitted that it was clear that the trial judge did, in response to a requisition from counsel on behalf of BO’D (joined in by counsel on behalf of Mr. Folan) agree to revisit the issue of attempted rape, (see Day 8, at .pp. 28 and 47). Having done so, no further requisition was made. Discussion and conclusion Mr. O’Brien’s appeal
2. The trial judge erred in directing the jury that they could find Mr. O’Brien guilty both by way of joint enterprise or find that the appellant had actually committed the sexual offences, when they was not sufficient evidence to support such direction. 3. The trial judge failed in his charge to the jury to adequate direct the jury on the material issue in the case, in particular the issue of joint enterprise and further how the evidence in the case was to be approached when determining the issue of joint enterprise. The acquittal of the rape charge by direction of the learned trial judge was appropriate and correct in the circumstances. That direction was given on the basis that the complainant denied being penetrated at any stage by Mr. O’Brien. The count of rape could not therefore stand. The reason for the direction in relation to the count of rape is irrelevant to the other counts which were left for consideration by the jury. 4. In relation to the manner in which the learned trial judge directed the jury on the issues of joint enterprise and direct participation, the relevant portion of the learned trial judge’s charge is as follows:- “Now the prosecution in this case primarily relies on the doctrine of joint venture or common design or common enterprise. And this is a situation were they are on a enterprise together and accordingly, everybody becomes liable for the totality of what happens unless it goes beyond the common design. Now, the most … the way in which this is usually illustrated is in relation to a bank robbery. You can have a couple of men bursting in the front door with shotguns and they are clearly involved in the bank robbery. You can have a man sitting outside the door, with his foot on the accelerator in the getaway car; he is equally involved in the robbery. You can have somebody several miles away with a scanner monitoring the garda communications and being in touch by mobile phone and relaying them back. Everyone of those persons is a participant in the robbery and everyone is responsible for everything that happens in the course of that robbery.. even the man who might be several miles away.. provided it is within the scope of the joint enterprise. But supposing the gang get into the bank and they are having a quick look around the building and one of them goes into a particular room and he finds that there is a defenceless women sitting in that room and he takes it upon himself to have a spot of opportunistic rape. Well, in that situation the rest of the gang would not be responsible for the rape that has gone beyond the scope of the common design. So, in relation to what is within the scope of the common design, everybody is responsible. If something happens that goes outside or beyond the scope of the common design, the rest are not responsible for that”.
31. At the conclusion of the judge’s charge to the jury, there was no requisition on behalf of Mr. O’Brien in relation to the issues of joint enterprise, common design and responsibility on an individual basis. Requisitions were made on behalf of BO’D and Mr. Folan whereupon the learned trial judge stated the following to the jury:-
33. It is this Court’s view that the learned trial judge’s charge to the jury in relation to the aforesaid issues was fulsome, clear and fair. It provided the jury with an understanding as to joint enterprise, common design and individual participation, and it left it quite capable of distinguishing between them in the context of the evidence which they had heard in the course of the trial. The accounts given by the appellants were at times inconsistent, conflicting, contradictory and confusing, and it was a matter for the jury to decide as to whether there was joint enterprise or individual culpability. 34. There was significant evidence linking Mr. O’Brien to the offences of which he was found guilty by the jury. This evidence included very graphic and detailed forensic evidence from the complainant (including semen with DNA matching that of Mr. O’Brien was found on the complainant’s bra). There were two memoranda of interviews with the accused while in custody, and a voluntary statement made by him. The jury also heard evidence in the form of direct examination and cross examination, of both Mr. O’Brien and Mr. Folan. 35. No requisition was made on behalf of Mr. O’Brien in relation to the issues of joint enterprise or individual responsibility for individual counts. While it is the Court’s view that the charge to the jury in relation to both matters was beyond reproach, it is nevertheless useful to reiterate the well established principle that matters relating to actual or perceived deficiencies in a judge’s charge to a jury which were not the subject of application at the trial could not subsequently be the subject of an appeal, other than in exceptional circumstances. In the case of DPP v. Cronin [2003] 3 I.R. 377, Hardiman J. concurred with a passage from DPP v. Maloney [Unreported CCA 2nd March 1992) as follows:-
37. Four grounds of appeal were filed on 1st February 2013 on behalf of Mr. Folan. Five additional grounds are the subject of a motion for leave to include additional grounds of appeal. These can be summarised as follows:-
• The learned trial judge erred in law and in fact in failing to adequately direct the jury in respect of the mens rea required for each of the offences charged on the indictment, and in particular that he failed to explain the concept of recklessness. • The learned trial judge erred in failing to direct the jury adequately or at all in relation to what might in law constitute attempt to commit an offence of rape, and that he failed to address the jury adequately or at all on the need to consider the applicant’s evidence that he desisted in his attempt to engage in sexual intercourse with the complainant beyond her communicating a lack of consent to him. • The learned trial judge erred in refusing to accede to an application for a direction on the part of the appellant in respect of the offence of attempted rape, sexual assault and rape contrary to s. 4. • The learned trial judge erred in failing to explain the meaning of corroboration to the jury in circumstances in which the prosecution had sought to rely on the existence of corroboration in the case. • The learned trial judge erred in failing to warn the jury adequately of the dangers of convicting on the uncorroborated evidence of a witness whose evidence may be shown to be unreliable and to instruct them that they might look for corroboration in the case. • The verdict of the jury was against the evidence and the weight of the evidence and was accordingly perverse and unsafe. 39. The mens rea submission is rejected. In his charge to the jury at day 8, (pp. 22-45) the learned trial judge stated the following:-
42. In relation to the submission as to what constitutes an “attempt to rape”, the jury was more than adequately charged in relation thereto. On day 8, p. 28 of the transcript, the learned trial judge stated the following:-
44. In relation to the failure of the learned trial judge to explain the meaning of corroboration to the jury, this Court is satisfied to accept the submissions made on behalf of the respondent and in particular his contention that:-
The Court’s decision in relation to both appeals
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