THE COURT OF APPEAL
Birmingham J.
Sheehan J.
Mahon J.
No. 173/2015
The People at the Suit of the Director of Public Prosecutions
Respondent
Appellant
JUDGMENT of the Court delivered on the 13th day of October 2016 by
Mr. Justice Birmingham
1. On the 17th February, 2015, following an eight day trial, the appellant was found guilty of eighteen counts of sexual assault. Subsequently on the 10th June, 2015, the appellant received what was effectively a nine year sentence. There were three complainants in the case, and the judge imposed a sentence of three years imprisonment in respect of each of the eighteen counts that were on the indictment, but made the counts in respect of each complainant consecutive to the counts of the other complainants, resulting in an overall sentence of nine years. The appellant has appealed against conviction and sentence. This judgment deals with the conviction aspect only.
2. By way of background, it should be explained that the three complainants in the case were KW, who was a niece in law of the appellant; CW, a sister of KW and accordingly also a niece in law of the appellant; and the third complainant was ML, a daughter of the accused. Counts 1 to 4 on the indictment relate to alleged offences committed against the complainant KW between the 1st July, 1997, and the 30th June, 1999. Counts 5 to 8 on the indictment are alleged to have occurred between the 1st January, 2002, and the 31st December, 2003, and relate to CW. Counts 9 to 18 on the indictment relate to ML and relate to alleged offending between the 1st November, 2008, and the 31st July, 2011.
3. The following general summary is offered to provide some context for the issues that have been raised on the appeal.
4. In terms of the background family situation, the position is that the appellant is 45 years of age. He and his wife M married in July, 1996 and they have three children, namely ML, born on the 29th August, 1997, and two younger sons. It is to be noted that M has been unable to speak or to hear throughout her life. This has meant that ML has spent much of her childhood interpreting on behalf of and communicating with her mother. M, wife of the appellant, had a sister LW who lived nearby. She and her husband, from whom she was separated, had three daughters namely KW, OW and CW as well as a son.
K.W.
5. In evidence, KW explained that she had an aunt M and an uncle in law called WL, who is the accused. When she was aged eight or nine, the accused came to her home together with his wife in order to babysit her and her two younger sisters. Usually, this was on a Saturday night while her parents were out. While the accused’s wife was babysitting the two younger children in the kitchen, the accused was in the sitting room with KW. The accused put pornographic material on the television screen. The accused explained to KW what was happening on screen, and KW asked questions. According to this complainant, this continued for a few weeks at weekends during babysitting. After that, the accused said that he would show KW what the people were doing in the pornographic films. Then, the accused kissed KW indicating that this was in order to show her how to kiss properly, saying that this was to assist her for the occasion when she had a boyfriend later in life.
6. The accused is alleged to have kissed KW when he was babysitting, and the kissing progressed to the use of tongues followed by him touching her breasts inside and outside of her pyjamas as well as touching her vagina outside of her pyjamas, all while kissing with his tongue.
7. After a few weeks of this type of activity, on a Saturday night while babysitting the accused put his hand down the pyjamas of KW and penetrated her vagina with two fingers. There was an occasion when the accused put KW’s hand into his trousers underneath his boxer shorts; her hand was resting on his erect penis, and he was squeezing her hand. KW became upset after this incident, and the accused did not ask her to touch him again. There was another occasion when the accused asked if he could look at the vagina of KW, and this caused her to be upset and to leave the room.
C.W.
8. CW gave evidence that on an occasion before her Communion, she left Tallaght Hospital where x-rays of her hip had been taken. She went home, and she was supposed to be staying in her cousin’s house. Her cousin ML is the daughter of the appellant WL. When she arrived home from hospital, the accused WL was at her home. Her mother requested WL to give CW a lift to his house in order to stay with ML. CW took the lift from the accused and while on route to the accused’s home, WL drove down the laneway to his house. He stopped the car in a gateway and said words to the effect of “let’s have a look at your hip”. The accused then proceeded to sit CW forward and pull down her pants. He put his hands on her vagina and started rubbing it. CW jumped towards the door, and the accused ceased this activity. CW then stayed the night with her cousin at the home of the accused. When CW was in bed with her cousin, the accused came in to turn off the television. About an hour later, CW heard the door handle going down. The accused leaned over ML, who was asleep, put his hand down into CW’s pyjama bottoms and rubbed her vagina. About two minutes later, he left the room.
9. CW gave further evidence that she stayed at her cousin ML’s house basically every weekend. On other occasions when she was staying in ML’s room, she would hear the door handle going down, and the accused would come into the room, put his hand down her pyjamas and rub her vagina. CW slept between her cousin ML and the wall. This happened at least four or five times.
M.L.
10. ML gave evidence of living with her mother, her two brothers and her father, who is the accused. ML gave evidence that when she was eleven years old she was put out of the house on a couple of occasions and that her father sexually abused her, in that he came into her room on a Friday night having been out drinking. He would sneak into the room and pull the blankets off her. He would then put his hands up her top, proceed to feel her breasts and put his hands into her vagina. When he was finished, he would pull her pants back up, pull the blankets over her and just leave. The activity would usually last for ten minutes, but sometimes for as long as half an hour. ML stated that her father would sometimes pack her bags and send her to live with her grandmother. On these occasions she would not be allowed home, and she would not be sexually assaulted by her father while she was living with her grandmother.
The grounds of appeal
11. A considerable number of grounds of appeal have been formulated. These might be summarised as follows. A number of grounds arising out of the trial judge’s charge to the jury. The first such ground relates to an alleged failure on the part of the judge to sum up and/or to communicate to the jury the issues in the case; the second relates to what is said to have been a failure to contextualise a corroboration warning; and the third complaint relates to an alleged failure to give a separate consideration warning. These issues were raised at the requisition stage.
12. There is a further ground relating to an alleged failure on the part of the prosecution to disclose whether the complainants, who are members of the W family, had been shown their statements. The fifth ground relates to what is alleged to have been unwarranted interference in the conduct of cross examination, and the sixth and final ground relates to a failure to withdraw the case from the jury at the close of the prosecution case.
13. Written and oral submissions have been presented in support of the grounds of appeal. The written submissions were very lengthy, running to 90 pages, and in the experience of the Court have been among the lengthiest, if not in fact the longest, relied on in any appeal since the establishment of the Court.
Ground of appeal No. 1 arising from the judge’s charge - the failure to sum up
14. This ground of appeal in full is formulated in these terms:-
“The learned trial judge failed to sum up in a manner that was clear, concise, and/or intelligible: read out to the jury all the evidence in the case in an unedited, confusing and/or incomplete manner: failed to outline the case for the prosecution and the defence: and failed to make the jury aware of the issues.”
15. On day 7 of the trial after the judge had refused a renewed application for a direction, she addressed both counsel and pointed out that they would both be making speeches and would both be outlining their evidence. She then continued:-
“Now, I am in a position to go through all the evidence, but I have to say I don’t know whether it would be helpful or not helpful, but I will put it to you and if you decide that you agree with what I am proposing, on consent it can be done. What I propose is possibly not to go through the evidence.”
16. Defence counsel interjected to query “at all judge?” to which the judge responded:
“Just to say the prosecution’s case is that this happened there are some inconsistencies and you need to look to them and be satisfied beyond a reasonable doubt.”
The judge continued addressing defence counsel:-
“You say it never happened and you have heard all the evidence from all the witnesses. In the event if you want to hear any of the evidence we can play it back for you.”
Defence counsel said “yes that’s - that is a good thing” and the judge continued:-
“But I can if you want, I will go through the evidence. It is just it will take a long time.”
17. The prosecution counsel then said that she would ask the judge to go through the evidence to which the judge responded “that answers that then”.
18. The judge did in fact then go through the evidence, witness by witness referring in each case to the examination and cross examination. However, her efforts at summarising the evidence have been roundly criticised by the appellant.
19. The appellant and his lawyers have embarked on a very detailed review of what the evidence of each witness in the case was and how the evidence of that witness was dealt with by the judge in the course of her summing up. A recurring theme is that the judge’s charge when dealing with direct evidence appeared to be fair and to accord “more or less” with the evidence, but there is a complaint that the judge failed to sum up the evidence actually given on cross examination. Seeking to sum up evidence in chief and to sum up a cross examination are very different tasks. It is for that reason that some trial judges, including one member of the present Court, have made a point of always saying to a jury that they might find the summing up of a cross examination less satisfactory, because in evidence in chief questions are put along the lines - “what happened next?” - and answered accordingly, whereas in cross examination the object is often to establish hesitancy, uncertainty or equivocation. Hence, recording the ultimate answers, even if the summarising is done accurately, may not provide a fair record of the tone of the cross examination. In this case the appellant’s lawyers have sought to illustrate the criticism of the elements of the charge that dealt with cross examination of prosecution witnesses by quoting what the judge had to say, preparing their own summaries and comparing one with the other. The Court does not find that a particularly helpful exercise. There is a world of difference between preparing a written summary based on access to a verbatim transcript with an unlimited opportunity to edit and revise, and the task facing a trial judge who has to charge at the end of a case, after the evidence has concluded and usually immediately after closing speeches from the prosecution and the defence.
20. In order to assess the significance of this ground, the Court has read the transcript of the evidence and of course the trial judge’s charge. In doing so, the Court reminds itself that the charge is not prepared in order to be available to be read at leisure at a later stage, nor is it delivered cold to individuals with no prior knowledge of the matters in issue. The jury who are hearing the portion of the charge that summarises the evidence have themselves heard that evidence, and have also heard the salient points highlighted and emphasised in the course of counsel’s closing speeches. On that basis the transcript of the charge, while not perfect and while manifesting all the uncertainties that one would expect in an oral presentation, was sufficient to bring to the jurors mind the evidence they had heard, features of which had been highlighted for them in the addresses of counsel. The purpose of the summing up in a criminal trial is to put the jury in a sufficient position to safely determine the innocence or guilt of an accused. The summing up does not have to touch upon every issue in the trial, and it may be incomplete or imperfect in some respects without the trial becoming compromised. As was stated by the Ontario Court of Appeal in R. v. Baltovich [2004] OJ No. 4880:-
“Trial judges face a difficult task in this regard, especially when it comes to explaining complicated issues of law. In R. v. Jacquard, Chief Justice Lamer observed that while ‘accused individuals are entitled to properly instructed juries’, there is ‘no requirement for perfectly instructed juries’. Those words are as true today as they were then. No one expects perfection in a jury charge. Mistakes are bound to occur.”
21. No doubt, had the trial judge access to the transcript as well as an opportunity to prepare her summary by reference to that transcript and then edit, re-edit and proof read it, she could and would have improved on her text, but that is not what is required.
22. The appellant is critical of the fact that the issues in the case were not put to the jury by the trial judge in the sense that she did not say “the issues in the case are these: the prosecution says . . . the defence says . . .” Undoubtedly, it can be of assistance to have the issues put in that very succinct fashion. However, there is no universal obligation to adopt that approach. The issues in this case could scarcely be more straightforward. Three women were saying that they had been abused as young children by the accused, now appellant, and he was saying that that had never happened. In that regard, the present case is to be contrasted with ones where the issue is, for example, whether the prosecution has proved that the accused did not honestly believe that a complainant was consenting to sexual activity, or cases raising issues as to the level of force used in a situation of suggested self defence giving rise to issues such as whether the force deployed was objectively no more than was reasonably necessary or whether if more force than was reasonable was used, it was nonetheless no more than the accused believed was appropriate in the circumstances. Such cases, and there are others, might well benefit from having the issues presented in the manner suggested. However this is not such a case. Accordingly, this ground of appeal must fail.
Ground of appeal No. 2 arising from the trial judge’s charge - the corroboration warning
23. This ground of appeal is set out in full in the course of the written submissions in these terms:-
“The learned trial judge failed to contextualise the corroboration warning adequately or at all in the circumstances of the instant case and/or placed undue and unfair emphasis on the ‘permissive’ aspect of the corroboration warning.”
24. The issue of corroboration was raised for the first time in the course of the trial on day 7, after the judge had ruled on the application for a direction and after it became clear that the case was going to be put before the jury. Counsel for the appellant, then accused, indicated that there were three legal issues that she wanted to raise: one related to corroboration and the need for a warning, and the others were the need for a delay/Judge Haugh warning and for clarification as to whether the prosecution would be contending that the evidence of one complainant could support the prosecution case in relation to another complainant. The prosecution resisted the giving of a delay/Haugh warning, but the judge ruled against them and decided to give such a warning. The prosecution then sought an opportunity to consider the issue of whether it was going to contend that one complainant could support others. After a lunch break, counsel for the prosecution confirmed that she was not contending that the evidence of one complainant corroborated the prosecution case on other counts. In relation to the corroboration warning request, prosecution counsel began her submissions by saying that she did not think that she could resist the application, at which stage the judge intervened to say that she agreed with prosecution counsel and that there would be a corroboration warning. Counsel for the prosecution then asked that the Court contextualise the warning, adding that she knew that it is the Court’s habit to use the wording that “it would be dangerous to convict”, but that she would ask the Court not to use that wording and instead use a wording such as that there was a need to be cautious or to be careful. She concluded her submissions by saying “and obviously to contextualise the warning in terms of the facts judge”.
25. The judge dealt with the issue of corroboration in these terms:-
“Now, ladies and gentlemen, in total there are eighteen counts. That is equivalent, and this is important - that’s equivalent to eighteen separate trials. You must consider each count separately and you must consider each complainant separately. Any complaint made by one complainant does not corroborate any other complaint made by any other complainant.
Now what does the word corroboration mean? It means any piece of independent testimony or material circumstances which tend to support the truth of what is alleged by the complainant. It means any evidence independent of that of the complainant which tends to prove that the crime was committed and that the accused committed it. So if you have three complainants, each complainant has to be treated separately and distinct from the other and each complainant’s complaint in no way corroborates the complaint of any other complainant. I hope you understand that, ladies and gentlemen. Now, corroboration in sexual cases - sexual assault is a crime which is by its very nature frequently committed in circumstances of extreme intimacy and/or in circumstances of extreme privacy and not infrequently, where both parties are known to each other. In these cases there is more [often] than not, no independent evidence to support the allegations. I am now going to warn you that it could be dangerous to convict an accused person in a case of sexual assault such as the one you are trying here on the uncorroborated evidence of the victim alone, and that you should weigh her evidence with great care before you decide to convict and that’s in each case, and remember you have eighteen different cases. Corroboration is any piece of independent testimony of material circumstances which tends to support the truth of what is alleged by the complainants. It means any evidence independent of that of the complainants which tends to prove that the accused committed it. By independent I mean it must come from someone other than the complainant. There is no corroboration in this case, that is, no independent evidence in this case that supports either the commission of the crime or that the accused committed it. It could be dangerous, therefore, to convict on the evidence of the complainant alone because in the experience of the Courts there have been cases of sexual assault in the past, it has occurred that allegations of sexual assault have been made which were subsequently discovered not to be true and the allegations were made for a variety of reasons. For that reason you should scrutinise the evidence of each complainant with particular care and you should bear that in mind when deciding whether or not to convict. To put it in context, KW alleges that WL sexually abused her when babysitting her and her two sisters. Her aunt M was in the other room, but her and WL were alone and M did not witness anything so it is on KW’s uncorroborated evidence you must decide the verdict beyond reasonable doubt. [CW] alleges that WL assaulted her in the lane on the way up to his house. They were there on their own, no one witnessed it and she said these events occurred before her Holy Communion day and also that - she also said that WL went into the room in which she was asleep and reached over [ML] and sexually assaulted her when [ML] was asleep. There are not witnesses to that, ladies and gentlemen, so that is also uncorroborated evidence and [ML] said that her father would sneak into her room and sexually assault her on a daily basis when no one was present. Her mum and two brothers were in their room, so there was no one to corroborate it. But ladies and gentlemen, having said that, you are entitled, having heard and examined all the evidence, to act on the evidence of the victim alone and convict the accused if you are satisfied of his guilt beyond reasonable doubt.”
26. One element of this ground of appeal is a complaint that when delivering the last sentence of this portion of the charge, the judge turned, faced the jury box and addressed the jury directly.
27. The appellant places emphasis on the decision of the Court of Criminal Appeal in DPP v. Jason Murphy [2013] IECCA 1, and in particular draws attention to para. 72 and 78 of the judgment:-
“72. Coonan & Foley, in The Judge’s Charge in Criminal Trials (Dublin, 2008) note at paras. 33-24 to 33-26 that it will generally not suffice for a judge to simply refer to the danger of convicting on uncorroborated evidence. Rather,
“The trial judge must contextualise that foundational principle with reference to the particular facts of the case. Thus, the trial judge should provide the jury with some guidance as to precisely why - in this case - it may be dangerous to act on uncorroborated evidence’
The authors go on to state that, as the danger may be due to a number of factors, it is for the trial judge to contextualise the warning by outlining those factors, including those relating to different facets of the evidence (see: People (D.P.P.) v. Gilligan (Unreported, McCracken J., 8th August, 2003)) . . .
78. . . . Secondly, the judge should have highlighted the issues surrounding the admissibility of each statement, in particular the fact that inconsistent evidence was given at trial by the makers of such statements, and otherwise should have contextualised the background circumstances. . . . (Emphasis of the appellant).
28. It is worth bearing in mind the context in which those observations were made by the Court of Criminal Appeal before proceeding to consider the adequacy of what was said by the trial judge in the instant case. That was a case where the appellant was convicted of manslaughter and related offences. The conviction rested to a significant extent on the statements of three associates of the appellant who had given statements of evidence, in circumstances that were hotly contested, indicating that the appellant had made admissions to lighting the fire that resulted in the fatality. When they resiled from their statements at trial, the prosecution sought and were permitted to put their statements before the jury pursuant to s. 16 of the Criminal Justice Act 2006.
29. The trial judge in that case addressed the jury as follows:-
“There’s no requirement that I do this but I think I should, that if you find that there is no corroboration for what is set out in the three statements that have gone before you in that form from any other source, if you find that there are none of the other matters referred to: the jacket or what was said in the police station by Mr. Murphy don’t afford any corroboration, then you’re left in a situation where there is - the evidence is uncorroborated unless of course you have found that the three statements corroborate each other. If you find that you’re only relying on one matter which is uncorroborated then just bear that in mind that you need to exercise a great deal of caution with regard to that situation.”
30. The judge was further requisitioned and asked to explain specifically what corroboration meant. He agreed to do so and went on to say:-
“I had intended to say to you what corroboration is. You probably know very well already what it is, but lest there be any doubt, what it is, is some piece of evidence which tends to bear out the veracity of another piece of evidence. In some instances you might have objective verification, perhaps somebody saying he was travelling at 35 miles per hour and then when they - at a particular point and then when the tachograph was looked at afterwards it confirmed that that was the speed that was being travelled at, usually it’s not objective like that. Usually it’s - where there is corroboration is corroboration again from another human agency, so that it is a piece of evidence which tends to bear out what is contained in another piece of evidence.”
31. Not very surprisingly, the Court of Criminal Appeal found these directions inadequate.
32. At para. 76 of the judgment, the Court of Criminal Appeal commented:-
“In the instant case it has not been submitted that the learned judge was obliged to give a warning, but that having decided to so do, it must be given correctly. This proposition is self-evident. Unfortunately however, what was articulated in purported compliance with the relevant principles was inadequate, incomplete and apt to confuse, in a number of respects.”
33. At para. 78, the Court of Criminal Appeal observed:-
“The judge’s description, given on the recharge, of what constitutes corroboration at a general level failed to convey a number of key elements involved, such as the ‘independence’ required of the evidence, and the establishment, of a significant link or connection between such evidence, the accused person and his guilt or innocence, relative to the particular crime. Secondly, the judge should have highlighted the issues surrounding the admissibility of each statement, in particular the fact that inconsistent evidence was given at trial by the makers of such statements, and otherwise should have contextualised the background circumstances. Thirdly, it was not correct to suggest that corroboration may be found ‘from any other source’ rather, the jury should have been specifically informed that on the testimony available there was in fact no other evidence capable of being corroborative save for the statements. By phrasing it as it was and in the absence of a clear statement to this effect, the jury may well have felt at large to treat any type of evidence as being corroborative. Fourthly, to limit the warning to situations where the jury decide to rely on only one uncorroborated matter was in the context not meaningful.”
34. The reference to contextualising the background circumstances in para. 78, to which the appellant attaches significance, would appear to be a reference to contextualising the background circumstances in which the statements that were subsequently admitted pursuant to s. 16 were made. These included the fact that the first two associates, and the two most significant associates, were arrested for withholding information under s. 30 of the Offences Against the State Act 1939, and were detained and interrogated for two days before release, after which allegedly they freely and voluntarily returned to the relevant garda stations and made the statements at issue, each of which implicated the accused. The third person was similarly arrested, detained and interrogated. Statements were made during his detention which did not in any way implicate the accused. He was however aware that his pregnant girlfriend had also been arrested and had then been taken from the garda station to hospital, where she was questioned by the gardaí. He was released from custody on the 2nd May, 2007, and travelled to Galway with his girlfriend, but was followed there by gardaí. Both individuals were approached, and he was invited to make a statement. It was subsequent to this that the individual went to the garda station and made the statement which implicated the appellant in that case.
35. In the view of the Court, neither the comments of the Court of Criminal Appeal nor the contents of Coonan and Foley support a suggestion that it is incumbent on a trial judge who has decided to give a corroboration warning to rehearse all the arguments relied on by the defence, or still less to make a speech for the defence.
36. In this case, the judge said that she was putting in context her general directions and then referred to the evidence in relation to each of the three complainants. The appellant says this was inadequate and that pointing out that there was no witness present when any of the acts of abuse took place adds nothing to the case since had there been a witness present, the question of corroboration would not arise. In the view of the Court, that is to understate the significance of what was said. In the case of KW, the jury was reminded that the alleged abuse occurred at a time when the complainant’s aunt was in the other room, but never witnessed anything. What the judge said to the jury made clear that what the prosecution was saying was that the accused had decided to engage in acts of repeated abuse at a time when an adult relative of the complainant was close by and might well have noticed if anything untoward was going on, this was a matter that clearly required careful consideration by the jury.
37. In the view of the Court, the warning was in all the circumstances an appropriate one. Despite the prosecution urging to the contrary, the judge twice told the jury that to convict on uncorroborated evidence in the circumstances of the case could be dangerous. It was made clear that there was no corroboration both at a general level and with specific reference to each complainant. In that sense it provided a context as to why the judge felt the giving of a warning was appropriate.
38. So far as the point about the judge turning and facing the jury directly is concerned, it is very often the case that a judge delivering a charge will for a portion of that charge read from notes or from text, and at other stages leave the script aside and address remarks to the jury directly. So, summaries of the evidence will for obvious reasons almost always be read, while judges dealing with standard issues such as the respective role of judge and jury and the like may not feel the need to read from a text.
39. Even assuming in favour of the appellant that there was a change in the style of delivery, and clearly the judge took exception to the issue being raised in the way it was, commenting that she refuted the allegation very strongly, it would not necessarily provide a basis for regarding the charge as unsatisfactory. That said, the giving of a corroboration warning should never be allowed become an exercise in going through the motions, and the jury should be left in no doubt that the advice they are being given is important and has been given for a reason. The warning as given should not be undermined. In this case the Court does not believe that the effect of the warning was undermined. The trial judge is entitled to comment, and an aspect of comment involves choosing the tone with which the comment is delivered. In this case, the judge was not only entitled to tell the jury that they were entitled to convict absent corroboration, but she was positively obliged to inform the jury that they had such an entitlement. That is an ever present aspect of the classic corroboration warning.
Ground of appeal No. 3 arising from the judge’s charge - the separate consideration warning
40. This ground is put in terms of a complaint that the learned trial judge failed to give a proper, or any, warning to the jury that they should separately consider the evidence in respect of each of the counts in respect of each of the complainants. The appellant says that given that this was a trial with multiple counts and multiple complainants that the jury had to be warned that they must not supplement the evidence in relation to one count with evidence that was material only to another count. The exception to this would be if the similar fact/system doctrine formed part of the case, which the prosecution expressly conceded was not the situation. The appellant says that what was essential was that the jury should have been told clearly that the evidence on one count was not admissible on others. The appellant complains that the trial judge confused the issue of corroboration with the necessity for a separate consideration warning, pointing to the passage quoted above at para. 25.
41. The judge did tell the jury that there were eighteen counts and that this was equivalent to eighteen separate trials, adding that that was important. She then specifically told the jury that they must consider each count separately and each complainant separately. That direction was clear and unequivocal. Its force was not in any way undermined or diminished by the subsequent reference to corroboration.
42. The judge returned to the fact that this was a multi-count/multi-complainant case on at least two further occasions. The judge told the jury:-
“Its important for you to bear in mind that if you are satisfied in relation to one of the alleged assaults that does not corroborate the other allegation. Each one is to be taken separately. Each one does not corroborate the other one. Even if you come to a decision on one, whether it be positive or negative, depending on how you look at it or whichever side you are on, that does not corroborate any of the other accounts. Each one separately - one of them does not corroborate the other bear this in mind at all times.”
Then, very close to the end of her remarks, she commented:-
“The sole question is, has the guilt of the defendant been established beyond a reasonable doubt on each of the charges with which he is charged? Because you are obliged to consider each charge separately.”
43. The jury cannot have been left in any doubt that there were eighteen counts involving three complainants and that the counts, and certainly the case relating to each complainant, required separate and distinct consideration. The references to corroboration do not detract from that core message. The ordinary meaning of the word corroboration is support. If one substitutes the word support for corroboration wherever it appears, it is very clear that the judge was telling the jury that each count and each complainant was to be considered separately, and that the evidence in one case was not to be supported by evidence drawn from another. It is clear that that was indeed the thrust of the judge’s remarks. Seen in that light, the charge is entirely acceptable, and this ground of appeal fails.
Grounds of appeal arising out of the failure to disclose to the defence material evidence in relation to the pre-reading of their statements by the W complainants and the resulting unfairness in the trial
44. The written submission elaborate on this ground as follows:-
“The trial judge refused the defence application for a statement from the investigating garda and/or access to the DAR in relation to the above and subsequently refused a direction on the point.”
45. The issues arise in the following circumstances. Both W complainants gave evidence on the second day of the trial. The question of whether they had read their statements of evidence was raised with each. Ms. KW was asked by defence counsel “and had you read your statement of evidence before you came here today, Ms. W” (emphasis added), to which the complainant responded “No”. Ms. CW was asked whether she had read the statement that she had made in relation to the case before she gave evidence, to which she said “No” adding “I’ve never seen that”. This promoted considerable controversy and an application for a direction. The question of whether the complainants had been given or been shown their statements was explored with the investigating garda. It eventually emerged through the investigating garda that some eighteen months before the trial at which they gave evidence, they had been shown their statements but not given a copy of them to take away. In the view of the Court, this issue does not have anything like the significance suggested by the defence. There is nothing at all unusual in a criminal trial in witnesses having an opportunity to read their statements before giving evidence. It will often be the case that a statement was made several years before the matter eventually comes to trial. As the issue developed, there appears to have been considerable confusion as to whether information was being sought as to whether the complainants were shown their statements or given an opportunity to read them, and if so whether they had availed of that opportunity, or whether they were provided with copies to retain in their personal possession. This confusion emerged in the probing of the issue with the complainants, and the issue was really only clarified when the trial judge, quite properly in the view of the Court, recalled the investigating garda to put the matter beyond doubt.
46. In the view of the Court, this is not an issue that could possibly ever have provided a basis for a directed verdict of not guilty.
Ground related to interference in the cross examination of witnesses
47. In written submissions, the appellant put this ground in terms of a complaint that "the learned trial judge unduly fettered or interfered with the cross examination of the complainants by restricting the questions to be put by the appellant.“ The appellant contends that there was excessive interference with the cross examination of witnesses throughout the trial. It is said that this was particularly notable during the cross examination of CW. At the outset, it should be pointed out that there was no protest from counsel that her cross examination was being unduly hampered, and if counsel had felt that she was being treated unfairly then one would certainly have expected to see such a protest. The issue now raised seems to have had its origin in an exchange between defence counsel and the trial judge, but also involving the prosecution, in relation to the evidence given about a particular night, the night that this complainant left Tallaght Hospital. Defence counsel asked:-
48. At that stage the jury were invited to go to their room. The matter was then canvassed in their absence. While the statement by CW is not entirely unambiguous, it does appear that the question asked by defence counsel was based on a false premise in that, having described misconduct in the car, the witness statement recorded “we got back there”, and it then referred to and gave details of untoward activity in the bedroom. In these circumstances, the judge was entitled to take the view that the question that had been put was not a proper one and that the matter required clarification before the jury.
49. A second intervention some pages later in the transcript was provoked by defence counsel putting to the witness that in her statement she had said that she was staying with “mother and M and their daughter”. However, it transpired that there had been a transcription error and that the actual original statement said “I was staying with WL and M and their daughter”. Once counsel made the mistake, which was a perfectly understandable one, that there would be an interruption designed to put matters right was inevitable. There was some further skirmishing between counsel on whether the complainant had said she was on the inside or outside of the bed, resulting in the trial judge asking defence counsel to put the question to which objection had been taken again and in the same format, observing that she, the trial judge, thought it was a fair question. Later, there were further exchanges when defence counsel suggested to the witness that she had been telling different accounts to different people of what happened. Once more this saw the jury retire, and again this controversy related to the inside of the bed, outside of the bed issue. Reading the transcript of the cross examination of CW in full, it appears that while there were a number of interruptions and interjections, all were for what appeared to be justifiable reasons. Certainly reading the transcript of the cross examination as a whole, one does not get any sense of a cross examination that was rendered ineffective as a result of needless or improper interruptions. That observation is even more true if regard is had to the contents of the transcript of the trial as a whole. The Court recognises that the effectiveness of cross examination can be seriously, indeed fatally, undermined if obstacles are put in the way of the cross examiner following a particular line of inquiry, or if the cross examiner is consistently denied the opportunity to put a series of questions without interruption. This Court is certainly prepared to accept that it can envisage situations where a trial could be rendered unsatisfactory by that occurring. However, having read the transcript as a whole in this case, the Court is satisfied that this did not occur here, and accordingly this ground of appeal is rejected.
Ground of appeal relating to the refusal of applications by the defence for the case to be withdrawn from the jury
50. The appellant formulated this ground in full in written submissions as "having regard to all the circumstances, and taken at its highest the prosecution case as it properly arose on all the evidence, the learned trial judge erred in failing to direct a verdict of not guilty".
51. At the trial the application was advanced on three limbs. The first was that there were inherent weaknesses or vagueness or inconsistency in the evidence such that the prosecution case, taken at its highest, was such that a jury properly directed could not properly convict. The second was on the basis of prejudice on the part of the defence in relation to information that was not disclosed, and the third related to what was alleged to have been bias or pre-judgment on the part of the investigating gardaí towards the accused.
52. In this Court, the emphasis has been on what might be described as Galbraith style grounds. The application in relation to the ten counts that related to ML, daughter of the appellant, was based on what was said to be inconsistencies in her evidence and in particular the contention that there was no clarity as to the circumstances in which the complainant had come to make fresh allegations against her father in December, 2011.
53. The appellant says that if the Galbraith test is applied, there should have been a direction as no properly charged jury could properly convict. This Court cannot agree. While undoubtedly there were aspects of the complainant’s evidence that the defence could suggest amounted to inconsistencies, they were not of such an order that could possibly justify the step of withdrawing the case from the jury. On the contrary, the Court is of the view that this part of the case was quintessentially one to be left to the jury to decide.
54. So far as the W complainants were concerned, again it was suggested that there were significant inconsistencies in the evidence, which it was said were particularly troubling given that the alleged offences went well back in time. The application for a direction in respect of the counts relating to these complainants placed particular emphasis on the controversy about whether these complainants had read their statements. These counts rested fairly and squarely on an assessment of the credibility of the complainants and an assessment as to whether they were to be regarded as truthful witnesses. It was for the jury and the jury alone to make that assessment. So, this Court cannot agree that all of the counts relating to the W complainants should have been withdrawn from the jury. However, there is an additional issue that arises in relation to certain of the counts relating to the complainant KW. Four counts on the indictment related to KW and alleged offending between the 1st July, 1997 and the 30th June 1999. However, KW and her aunt M gave evidence to the effect that ML was eighteen months old when the appellant and M began babysitting at the house. The prosecution case was that abuse occurred in the context of babysitting. In the course of her submissions, defence counsel commented that her friend, prosecuting counsel, appeared to accept that the babysitting occurred at a different time from that in the charges. Prosecution counsel interjected to say that she had to object to that as she had not accepted that was the case. She had accepted that KW had said in cross examination that ML was a year and half old when the babysitting began, but that she, the person prosecuting the case, did not accept that that was in fact the situation as otherwise she would have had to take particular instructions. She clarified that she had accepted that that was the evidence given, but that was a different thing completely from the prosecution accepting it as a fact.
55. It seems to the Court that the evidence given by KW and her aunt M does take the offending outside the time frame identified in the indictment. This was a situation that might have been remedied, but it did present a difficulty at the time the application for a direction was made. In the Court’s view, the fact that the complainant had not given evidence of abuse occurring within the greater part of the time period referred to in the indictment should have led to the charges being withdrawn from the jury. The Court fully accepts that precision as to dates at a time remove of some sixteen years is very unlikely to be achieved, but nonetheless the Court is of the view that the state of the evidence in this particular case, was such that it would have been appropriate to withdraw the three earliest counts in time that related to KW. Accordingly, the Court will allow the appeal so far as it relates to counts 1, 2 and 3.
Conclusion
56. In summary then, the Court is rejecting all of the substantial grounds of appeal that have been argued. The appellant succeeds only on the very limited ground relating to the time in which the abuse occurred in the case of KW, leading to the quashing of the convictions on three counts. However, so far as all the other counts on the indictment are concerned, the Court dismisses the appeals and affirms the convictions.
