THE COURT OF APPEAL
Appeal No. 25/2015
Birmingham J.
Sheehan J.
Edwards J.
Between
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
APPELLANT
Judgment of the Court delivered on the 30th day of May 2016 by
Mr. Justice Birmingham
1. On the 16th December, 2014, following a four day trial the appellant was convicted of sixteen counts of indecent assault and subsequently on the 12th January, 2015, was sentenced to a term of nine years imprisonment. The appellant now appeals against conviction and against severity of sentence. This judgment deals with the conviction aspect only.
2. So far as the conviction appeal is concerned, one issue is raised in the appeal relating to the decision of the trial judge not to give a corroboration warning.
3. The background to this case is that the appellant and the complainant are brother and sister. The trial related to alleged offences committed between 1983 and 1987 at a time when the complainant was aged between seven and eleven years of age and when the appellant was between the ages of 21 years and 25 years, the offending allegedly having occurred in the family home. The home comprises a small mid terrace house in which there were three bedrooms. There were four girls and four boys in the family and the complainant, Ms. MS, was the youngest. Initially she slept in a front bedroom with three of her brothers, including the appellant. There came a point when the complainant moved to the girl’s bedroom. There is some element of uncertainty as to precisely when that happened and this is a point to which the defence attach some significance, highlighting that there are differences between what the complainant has to say in that regard and what some other members of her family have to say.
4. A limited form of disclosure of abuse was made by the complainant in the year 2000 when she was 25 years of age, but it was only in 2012 that there was a formal complaint to An Garda Síochána.
5. In terms of the timing of the complaint it should be noted that the appellant’s brother M had been injured in a car accident at a young age and after a long illness finally passed away in 2009. The complainant says that in the aftermath of this she suffered considerable emotional turmoil, went for counselling and it was then that the memories of abuse came to the fore.
6. At the start of day 3 of the trial, senior counsel on behalf of the appellant sought a corroboration warning as well as a delay warning. The delay warning request was acceded to and there is now no issue in that regard. However, the judge refused to give the corroboration warning that was being sought. In those circumstances it is appropriate to look at the application for a corroboration warning in some more detail. Counsel submitted as follows:-
“The second issue, Judge [the first issue related to the delay warning/Haugh warning] is that I was going to ask the court to give the jury a corroboration warning as well in light of the fact that there is no corroboration and also in light of the fact of the actual evidence as it is played out in court. In respect of the complainant’s own evidence, there are two specific issues that have now arisen on the basis of prosecution evidence. Firstly, she has forgotten a second period of time when the accused was not present in the house. Secondly, there is a very real issue as to when in fact she moved from one bedroom to another bedroom, and there has a very real effect in terms of the length of time and when her allegations stand, Judge and I say that this is a real issue in terms of her credibility. Now all of that aside Judge the further significance, of course, is how she has come about to remember the allegations that she has made as against the accused and in fact that on her own evidence she had blocked these memories out and they were then retriggered when she attended counselling and discussed issues with persons and I say that, having regard to all of that, and evidential basis has been laid for a corroboration warning to appropriately and properly be given in this case and I say that there would be serious concern from the accused’s perspective if that in fact was not given in the case.”
7. When asked to respond, counsel for the prosecution commented:-
“It is clearly a matter for you as the trial judge in view of your discretion. I can certainly concede that there is no corroboration in the manner in the way in which the evidence has unfolded. However, you will be aware of the various cases that say that you should not just err on the side of caution and give the warning just because there is no corroboration because the statutory provisions in relation to repeal of that are important.
So in terms of the material that my friend has put before you as grounding her reasons as to why you should give the warning, I can say this in relation to the time span, that there is no difficulty in relation to the time span. The complainant has always been clear that this happened between the ages of seven and eleven. Where there may be some conflict is in relation to when she in fact moved into the back bedroom, but we are looking at the situation where the events of which complaint is made span a period some 30 years ago, and that would be covered, in any event by the Haugh warning in terms of that.
In relation to what my friend has submitted to you about how she came about remembering these matters, that they had been blocked out before, well, I think a vital piece of the evidence is that the original complaint that she made was in 2000 and that was made to members of her family, that thereafter - and she concedes this in evidence - she did put to the back of her mind and get on with her life. And then the triggering event of bringing those again to the fore, not remembering them for the first time, but bringing them to the fore was the death of her brother. So whilst I hear what my friend says, I think that there are two sides to all these matters, but is a matter ultimately for your discretion.”
8. The judge’s ruling was a succinct one. He commented:
“I generally do not give a corroboration warning. Obviously, I will be very clear to the jury that there is no corroboration and they must believe the evidence of the complainant to the necessary degree. I don’t see why I should give a corroboration warning in this case. It seems that this case - if you want to use the word - is bedevilled by the normal problems of old cases. It seems the complainant is certain that from seven to eleven she was abused on many occasions by the accused man. That is her evidence. Obviously it could be conceived as infirmities in her evidence, but that is for the jury to look at. They must look at her evidence and decide can they believe her to the necessary degree. There is no independent support for the allegations. That is accepted by everybody, and the jury must grapple with that. And I won’t give the corroboration warning. I don’t see anything exceptional in this type of case at all.”
9. The judge did touch on the question of corroboration in the course of his charge to the jury. He commented:-
“I should also say there is no corroboration in this case. Corroboration means - simply means independent support for the allegation made by the complainant. This means that basically, as I indicated its all about credibility. There is no support at all, independence support and therefore the evidence given in this case by MC [the complainant] is the vital evidence and I leave it at that.”
10. In the course of this appeal, counsel on behalf of KC repeated and indeed expanded upon the arguments that she made at trial when seeking a warning. She says that there was a factual basis for the giving of a corroboration warning. Pointing out that the abuse was alleged to have occurred over a four year period in two different bedroom locations, she summarises the complainant’s evidence as being that she was abused when sharing a room with the appellant and other brothers and then later after she had moved into the back bedroom with her sister D. However, counsel says that the evidence adduced by the prosecution demonstrates that the complainant’s sister L was also in the back bedroom and indeed had a newborn child in the room with her. She says that the complainant was contending that she was abused at night time in a small house full of people over a prolonged period and yet no one noticed anything untoward. Counsel also attaches significance to the fact that the complainant did not refer in the account she gave to the gardaí to the fact that the appellant was out of the house for a period of three months approximately during the time frame when she was alleging that she had been abused on a “constant” basis. Counsel says that the alleged abuse took place in a small and crowded house over a prolonged period and that in that situation one would have expected that if there was something untoward going on that it would have been spotted by one or more of the other occupants in the house. Counsel also says that a worrying aspect of the evidence was a revelation that the complainant had told her counsellor that she had been assaulted, including sexually assaulted by two other men one, a family member and probably a sibling but that a complaint had been made only against the appellant. Counsel says that the interaction between the complainant and the appellant in the years prior to the complaint to the gardaí was disquieting. Despite having previously made an allegation of abuse which indeed led to the appellant being ostracised by some members of his family, the complainant invited the appellant to be a groomsman at her wedding and invited him to her child’s communion and then subsequently attended the appellant’s wedding as well as the hen party beforehand.
11. Furthermore, counsel says that while this may not have been a classic restored memory case, the manner in which the complainant’s memories of the abuse that she says she suffered were triggered or retriggered should have weighed more heavily in the judge’s analysis as to whether this was an appropriate case for a warning. Finally, it was pointed out that aspects of the complainant’s evidence were in conflict with other evidence in the course of the trial. The complainant had said that following a confrontation in a licensed premises in Perrystown, between the complainant, the appellant and his wife, the appellant had admitted abusing her. However, the appellant’s wife, when called by the defence, disputed that there had been any admissions and instead claimed that he had angrily denied the abuse allegations. Another factor pointed to is that the complainant had stated at one stage that certain siblings were only prepared to give evidence at trial if they received money from a compensation payout that was available to the family following on the death of their brother. However, when called to give evidence both siblings involved denied ever having said such a thing.
12. Counsel says that by reason of the combination of the various factors identified that this was a case where a corroboration warning would have been appropriate and where such a warning was required. She says that the judge erred in failing to give such a warning but also erred in applying the wrong legal test and in particular erred by requiring a threshold of “exceptionality” to be crossed if there was to be a warning.
13. Since the enactment of the Criminal Law (Rape) (Amendment) Act 1990, judges have a discretion as to whether to give a corroboration warning and it is also the case that if a judge decides in the exercise of his or her discretion to give such a warning that it is not necessary for him or her to use any particular form of words to do so. The mandatory corroboration warning was also abolished in England and Wales. In the case of R. v. Makanjuola [1995] 1 W.L.R.1348, the Court of Appeal in a passage which has been quoted with approval in Ireland on a number of occasions observed as follows:
“Whether, as a matter of discretion, a judge should give any warning and if so its strength and terms must depend upon the content and manner of the witness’s evidence and the circumstances of the case and the issues raised. The judge will often consider that no special warning is required at all. Where, however, the witness has been shown to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting material before acting on the impugned witness’s evidence. We stress that these observations are merely illustrative of some, not all of the factors which judges may take into account in measuring where a witness stands in the scale of reliability and what response they should make at that level in their directions to the jury. We also stress that judges are not required to conform to any formula and that this Court would be slow to interfere with the exercise of discretion by a trial judge who has the advantage of assessing the manner of a witness’s evidence as well as its contents.”
14. The courts in Ireland have on a number of occasions made the point that judges should not circumvent legislative policy by giving the warning routinely where, for instance it is a case without corroboration. (See in that regard DPP v. Wallace (Unreported, Court of Criminal Appeal, 30th April, 2001); DPP v. Ferris [2008] 1 IR 1 and People v. Dolan [2007] IECCA 30).
15. In the case of Wallace, Keane C.J. commented as follows:-
“The express legislative provision for the abolition of the mandatory warning must not be circumvented by trial judges simply adopting a prudent or cautious approach of giving the warning in every case where there is no corroboration or where the evidence might not amount, in the view of the trial judge to corroboration. That would be to circumvent the clear policy of the legislature and that of course, the courts are not entitled to do.”
16. There was an observation to the same effect in Ferris, where Fennelly J. delivering the judgment in the Court of Criminal Appeal commented:-
“The question of whether the jury should be warned about the danger of convicting on the uncorroborated evidence of a complainant being, as already stated, a matter for the exercise of discretion by the trial judge, this court should not intervene unless it appears that the decision was made upon an incorrect legal basis or was clearly wrong in fact.”
17. Likewise in the case of DPP v C. [2001] 3 I.R. 345, Murray J. observed:-
“The fact that there is a conflict of evidence between witnesses or between what one witness said on one occasion or on another occasion does not mean that a trial judge was required to direct the jury on the dangers of convicting on uncorroborated evidence. This is a matter for his discretion.”
18. In the view of the Court, none of the factors pointed to as providing an evidential basis for a warning is such that taken in isolation it could be said that it mandated the judge’s discretion to be exercised in one way and one way only. In fairness to the appellant, he puts his case on the basis that it is the cumulative effect of the factors that he is able to point to which requires a warning. However, it must be said that as was submitted by counsel for the prosecution when responding to the application for a warning, there are two side to all of these matters.
19. So, the respondent says that the arguments based on the fact that the house was small and very crowded does not take on board the specific evidence of the complainant that the accused was always careful to leave the door of the bedroom open so that he could hear doors being opened downstairs and people coming up the stairs. The complainant’s evidence was that once a sound was heard that she was immediately told to get dressed. As to the suggestion that the normality of the relationship between the complainant and the accused gave rise to disquiet, the prosecution contends with some firmness that there was nothing unusual in the nature of the response and that indeed the reaction was a very natural reaction by an eleven year old child. As to the relationship between the complainant and appellant as adults, the prosecution says that the significance attached by the appellant to the fact that the accused was permitted to act as groomsman at the complainant’s wedding and to the fact that she attended his wedding is misplaced. The complainant was adamant that it was not her choice to have the complainant act as groomsman and she was supported in that regard by her husband. As to the complainant’s attendance at the wedding of the accused, this has to be seen in the context of the complainant’s evidence that her attendance at the wedding was in response to pressure from the accused’s wife and in a situation where her brother was promising that he would sit down with her and address issues after the wedding.
20. In the course of arguments to this Court but not at the trial court the appellant has placed emphasis on the fact that the complainant has made allegations against two other individuals. However, the appellant’s argument ignores the fact that the appellant makes clear that the incident involving a non family member but a neighbour was one incident only, was not of a sexual nature and was dealt with by family members going to the home of the perpetrator and raising what had occurred with his mother. So far as the family member is concerned regard has to be had to the complainant’s evidence that this activity involved someone who was a minor, was of very limited duration and was not at all of the same order of seriousness or intensity as the abuse she says was perpetrated by the appellant.
21. The prosecution says that the fact that there are areas of disputed evidence such as the conflicting accounts of the Perrystown public house meeting and the disagreement as to whether the complainant’s siblings had sought payments from the compensation fund that was available to the family could not provide a basis for requiring a warning. Perhaps most significantly, the appellant says that the complainant’s recollection on key issues has been shown to be fallible, pointing in that regard to the fact that the complainant while referring to continuing ongoing abuse had not mentioned that her brother was absent from the home at one stage for a three month period. However, the issue of potentially greatest significance relates to the timing of the complainant’s move from the girls bedroom to the boys bedroom. In the course of her direct evidence, the complainant said that she moved bedrooms when she was nine (she turned nine years in December 1984). Her evidence was she moved because two sisters L and S moved out and that she then shared with her sister D.
22. In cross examination she was asked why she had not moved bedroom when S moved out of the house in late 1983 or early 1984. Her response was that she had not moved then as her sisters L and D as well as L’s baby S who was in a cot, were still in the room. She disagreed with the suggestion that she moved straight after S left the house saying that she moved only when it was just D in the room.
23. L’s evidence was that Ms. MS moved into the girls’ bedroom after S married and moved out. She said that at that stage D moved to the top bunk, M went into the bottom bunk while she L, moved into the single bed. Her evidence was that once S moved out there was a free bed and she does not recall any major gap between S moving out and the complainant moving bedroom. It was though her recollection that M moved in while L and her daughter S were still staying in the room.
24. It is the case that a difference in recollection between the complainant and her sister L on this topic has emerged. Indeed counsel for the prosecution when responding to the application for a warning, conceded there might be some conflict in relation to when the complainant moved bedrooms.
Discussion
25. The starting point for consideration of this issue is that the decision to issue a warning or not is a matter for the trial judge’s discretion. The Court will be slow to intervene with the exercise of that discretion by a trial judge and a court will intervene only if it appears that the decision was made upon an incorrect legal basis or was clearly wrong in fact. (See DPP v Ferris).
26. Counsel for the appellant says that the decision here was made on an incorrect legal basis, that it was based on an assumption that there was an obligation on the appellant to establish “exceptionality”. Counsel says that there is no such requirement to be found in s. 7(1) of the Criminal Law (Rape) (Amendment) Act 1990 and that what the section requires is that the judge exercise his or her discretion having regard to all the evidence in the case.
27. Counsel is also critical of the adequacy of the reasons given by the trial judge for his decision. The Court has already described the reasoning as succinct. However, in considering the adequacy of the decision, it is necessary to bear in mind that the application for a warning that was made to the trial judge was less elaborately argued than has been the case before this Court.
28. In DPP v Ryan [2010] IECCA 29, Geoghegan J. had commented:-
“The Court does not believe that that judgment [DPP v. Dolan [2007] IECCA 30] 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.”
29. Similarly, in DPP v. Gillespie [2009] IECCA 157, Mackin J. had commented as follows:-
“The Court does not accept that there is, in fact, any valid grounds for suggesting that if the judge exercises the discretion by refusing to give a warning, it must be by reference to detailed, specific and analytical reasons, mentioning the evidence in the case.”
30. The dynamics of a jury trial may often make the giving of an elaborate or analytical reasoned ruling impractical, though the Court would comment that where the accused claims to have identified a factual foundation making a warning desirable or indeed mandatory that it would be desirable for the judge when ruling to engage, even if briefly, with the arguments that have been advanced. However, as Geoghegan J. pointed out the reasons will often be obvious. In the view of the Court this was such a case. Here the exchange between judge and counsel was taking place between a very experienced trial judge and very able counsel on both sides and it is clear that all concerned were proceeding, correctly, on the basis that there was a shared familiarity with the many decisions of the courts in this area.
31. In the view of the Court, the judge was indicating that while there were aspects of the evidence that gave rise to difficulty, that was not unusual and indeed to be expected in a case coming to trial after such a long delay. However, he did not feel the evidence was such that it brought the case out of the category comprising the many cases where a warning was not unnecessary. In the view of the Court, the judge in deciding not to give a warning in the way that he did was acting well within his jurisdiction. The issues that have been advanced at trial as elaborated and expanded upon before this Court were not of such a nature that there was only one way a discretion could be exercised. Again, in the view of the Court this was not a case where the complainant was shown to be unreliable, still less was it a case where the complainant was shown to have lied, or to have previously made false complaints or to bear a grudge against the accused.
32. The judge’s reference to not seeing anything exceptional in this type of case at all echoes to some extent the language used in the judge’s charge that was considered by this Court in the case of DPP v. R.A. [2016] IECA 110. In that case, the judge in refusing an application for a warning, which was first made at the requisition stage commented:-
“I think in relation to the corroboration warning, there is nothing exceptional really about this case. Cases time and again may have some inconsistencies between, say, one witness and another. The fact that there is nothing which would bring it within the authorities taking it out of what we call the - making it the exception rather than the rule and so I am against you on that.”
33. This Court observed:-
“In the nature of things”, exchanges at requisition stage are likely to be more terse and to be less discursive. While it is true that the judge spoke of “nothing exceptional” the Court is of the view that in all likelihood he was simply saying in a very brief way that warnings were not given as a matter of routine, not given in the ordinary way as it were and that before he would give a warning that there would have to be factors taking the case out of the ordinary”.
34. The language used by the trial judge in R.A. and by the judge in this Court is broadly consistent with language used by Geoghegan J. in DPP v. Ryan. There he had commented:-
“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’.”
35. While it is true that in this case the exchange between judge and counsel took place at the appropriate stage after the evidence closed, and before speeches and charge and so was not subject to the same constraints that operated in R.A. the Court is of the view that the judge was not setting a threshold that had to be crossed higher than that contemplated by the statute, but was referring in short form to the principles that emerge from cases such as R. v. Makanjuola and the Irish cases such as those referred to in the course of this judgment. To use the language of Geoghegan J. he was indicating that there was nothing special or peculiar in the evidence which would give rise to “the danger of convicting the person on the uncorroborated evidence of the other”. The Court is of the view that there was nothing in this case to take it out of the ordinary in the sense of ousting the judge’s discretion and making the giving of a warning mandatory. It has not been established that the judge acted on an incorrect legal basis or was clearly wrong in fact. The judge had a discretion to exercise and exercised it in a way that was open to him. In the circumstances the Court must dismiss the appeal.
