THE COURT OF APPEAL
Record No. 260/2015
Birmingham J.
Sheehan J.
Mahon J.
Between/The Director of Public Prosecutions
Respondent
Appellant
Judgment of the Court delivered on the 9th day of December 2016 by Mr. Justice Mahon
1. The appellant was unanimously found guilty by a jury at the Central Criminal Court on 17th July 2015 of eight counts of indecent assault contrary to Common Law, and as provided for in s. 10 of the Criminal Law (Rape) Act 1981, and three counts of rape contrary to Common Law and as provided for in s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981. This is an appeal against conviction.
2. On 23rd October 2015 the appellant was sentenced to imprisonment terms of five years on seven of the eight counts of indecent assault, and six years on one count (being count number 8), and to ten years in respect of each of the three rape convictions.
3. All the offences in question were committed by the appellant on dates between May 1986 and August 1988, a period of slightly in excess of two years. The victim in all the cases was the appellant’s niece who was on the dates in question aged between seven and nine years old. The appellant was born in 1947, so at the time of the offences was aged in his mid to late forties.
4. The offences ranged from the appellant placing his hand on the complainant’s groin area, initially outside her clothing, and subsequently inside her clothing. These assaults took place as she sat beside the appellant in his bread delivery van. They were witnessed by the complainant’s older sister. The acts of rape were committed in the complainant’s home when she was just ten years old, and which caused her considerable physical pain. The victim’s impact statement outlined the enormous trauma suffered by her over her lifetime because of the offences committed by the appellant, and her brave efforts to overcome the fear and shame caused by them.
5. The complainant made a statement in relation to these incidents in September 2012.
The grounds of appeal
6. The following grounds of appeal were submitted in writing on behalf of the appellant:-
(i) The learned trial judge erred in refusing to discharge the jury following the direct evidence of the victim who gave inadmissible evidence of complaints which she had made to another many years after the events which the complainant alleged.
(ii) In refusing the application by counsel for the appellant to discharge the jury the learned trial judge erred in allowing the inadmissible evidence of the complaint to be elicited without the terms of such complaint also been elicited.
(iii) Given the testimony of the complainant that she had allowed the memories back the learned trial judge erred in law in refusing to charge the jury as to the special need for caution in cases where the issue of recovered memory arose
(iv) The learned trial judge erred in the terms of her corroboration warning to the jury wherein she repeatedly characterised evidence which she construed as being capable of corroboration as being in fact corroboration.
(v) The learned trial judge improperly charged the jury with respect to corroboration leaving the jury with the impression that once evidence capable of amounting to / or being corroboration was given by the prosecution, the prosecution had proven its case beyond a reasonable doubt.
(vi) So far as counts 1, 8, 9, 10 and 11 are concerned the learned trial judge erred in giving the jury the impression that a witness supporting the complainant’s account that the appellant was present at her home was or was capable of amounting to corroboration of the crime of rape.
(vii) The learned trial judge erred in refusing to give a character direction in respect of the credibility of the appellant’s sworn testimony.
7. The focus of the oral submissions made by counsel on behalf of the appellant were in relation to sub paragraphs (i), (ii) and (vii) above.
The inadmissible evidence
8. In the course of the direct examination of the complainant, on the first day of the trial, counsel for the prosecution sought from the complainant an explanation as to why she had delayed for many years in making a complaint concerning the appellant. She was asked:-
“I wonder if you could even briefly or broadly tell the ladies and gentlemen why it was that you said nothing for so many years?”
9. To this the complainant answered:-
“Because it was family, mainly, and first of all, I did not realise there was anything wrong. I thought it was .. this was normal. In my teenage years I remember seeing on, maybe a tv programme, that this was sexual abuse, that this wasn’t.. this didn’t happen to everybody, and that’s the first time I really realised that it was wrong, but I don’t know how to go about telling anybody. I told a friend of mine during my school years” [emphasis added]
10. The first two grounds of appeal concern, firstly, the refusal of the learned trial judge to discharge the jury following this inadmissible evidence being uttered by the complainant, and secondly, that the learned trial judge was wrong not to ensure that such evidence, having been given, was not further explored in the course of the trial.
11. Shortly after the inadmissible evidence was given by the complainant, the trial concluded for that day. Immediately on its recommencement the following day, Mr. Greene S.C. on behalf of the appellant made an application to the court in relation to the complainant’s evidence on the previous day to the effect that she had told a friend of hers of the alleged sexual abuse by the appellant during her school years. Mr. Greene categorised this evidence from the complainant as inadmissible evidence because it offended the rule against self corroboration. The person to whom the complainant had spoken to during her school years was identified as SJH. It was further stated that prior to the commencement of the trial it had been agreed between Mr. Greene and Ms. Gearty S.C. (for the prosecution) that references as to what might have been said by the appellant to Ms. H. another friend, AL, would not be disclosed in evidence because on their face such evidence was inadmissible. Mr. Greene applied to have the jury discharged and in so applying pointed out to the learned trial judge that the trial could re-commence without delay before another jury immediately available
12. In her response, Ms. Gearty accepted that the reference by the complainant complained of was indeed inadmissible evidence. She pointed out that when the complainant had uttered the words in question, she closed her down and moved on to another question and nothing more was said about that. She further submitted that what had been stated amounted to a short and small error in terms of a piece of information. She suggested that it would be sufficient if the learned trial judge would, at the conclusion of the trial, charge the jury that any comment about having told anyone is wholly irrelevant.
13. The learned trial judge refused to discharge the jury. She concluded her ruling in the following terms:-
“…I think Ms. Gearty has properly said, it’s a short but important error. And then she went on to say that you - she is suggesting that the matter could be cured by my telling the jury and she thinks that you may think that that’s a mistake. But in the circumstances I am not disposed to discharging the jury so if you want me, Mr. Greene, to say something specific in my charge I’ll do that. But you can leave that over for the moment, but I am not going to discharge the jury at this stage.”
14. Mr. Greene contemplated the possibility that if the inadmissible evidence remained on the record he would be obliged to deal with it in his cross examination of the complainant. He stated as follows:-
“Unfortunately it is now on the record in circumstances where it is not there at my behest and is now something that if it is left on the record is something I am going to have to deal with by whatever means I can identify in my cross examination of Ms. R.”
15. In her ruling declining the request to discharge the jury the learned trial judge did not deny the opportunity to cross examine the complainant in relation to the matter raised by her. In the event, the issue was not raised in any shape or form by Mr. Greene in his subsequent lengthy and detailed cross examination of the complainant. No further reference was made to the matter in the course of the trial.
16. In the course of her charge to the jury, the learned trial judge did not refer to the inadmissible evidence in question, nor was she requisitioned in relation to any lack of reference to it. The learned trial judge did give a very comprehensive corroboration warning in the course of which she clearly told the jury that the complainant could not corroborate her own evidence. She also gave a delay warning, noting in particular, “it was many years before she made a complaint..”. Reference was also made in the course of the charge to the twenty six year period elapsing between the date of the first alleged offence and the date when she made statements to the gardaí. The jury was told “so one of the matters you have to consider in this question, in this case, is the question of delay in the making of complaints.” Therefore, in the context of the complainant making complaints, there was no specific reference to the inadmissible evidence that the complainant discussed the matter with a friend while at school.
17. As a general rule, sometimes referred to as the rule against narrative or self corroboration, statements made by witnesses prior to giving evidence and which are consistent with his or her testimony are not admissible.
18. In sexual offence cases a voluntary complaint made at the first reasonable opportunity after the commission of the offence is admissible to show consistency on the part of the complainant subject to the complaint being proved by the person to whom it was made. However, this does not arise in this case because it was acknowledged that the reference by the complainant to telling a school friend was, in the circumstances, inadmissible and ought not to have been disclosed to the jury. It was also acknowledged that the inadmissible evidence was given in circumstances where it had not been expressly or intentionally invited in response to one or more questions put by prosecution counsel.
19. Essentially, the issue for determination is whether or not the evidence in question was prejudicial to the appellant and if so, were any steps taken by the learned trial judge to undo such prejudice. The option open to a trial judge in such circumstances is to discharge the jury, or direct the jury to ignore the evidence or, if appropriate, not to so direct because of concern to avoid unduly drawing the jury’s attention to the evidence, particularly (as in this case), when the charge to the jury is at a point in time long after the offending evidence is given.
20. The appropriate test is, was the evidence so prejudicial that it created “a real and substantial risk of an unfair trial”. (See judgment of Keane C.J. in Murtagh v. Ireland, unreported, Supreme Court, 5th February 2004).
21. A decision to discharge a jury should only be taken when absolutely necessary in order to ensure the right to a fair trial. In Dawson v. Irish Brokers Association [1998] IESC 39, O’Flaherty J. stated:-
“Once again, it is necessary to reiterate, as this Court is doing with increasing frequency, that the question of having a jury discharged because something is said in opening a case or some inadmissible evidence gets in should be a remedy of the very last resort and only to be accomplished in the most extreme circumstances.”
22. While greater care might have been taken by the prosecution in advance of the complainant giving evidence to emphasise to her that she should not, in the course of her evidence, make any reference to speaking to her school friends about her sexual abuse, it does appear that the inadmissible evidence could almost be said to have slipped out in passing. It was not prompted by any inappropriate questioning on the part of prosecution counsel. The evidence was no way pursued, debated or elaborated on before the jury by either side. Furthermore, and importantly, the inadmissible evidence emerged at a very early stage in the trial, long before the end of the trial and long before the learned trial judge’s charge. The charge did not explicitly refer to the inadmissible evidence and, in the circumstances, in this Court’s view, correctly so. Any prejudicial effect from the words spoken is likely to have been extremely limited in all the circumstances. Furthermore, any such prejudicial thoughts still lingering in the minds of the jury at a lengthy remove in time from when they had heard the evidence would probably have evaporated in the face of the clear corroboration warning given by the learned trial judge and, in particular, her direction to the effect that a complainant could not corroborate her own evidence.
23. These grounds of appeal are therefore rejected.
24. The remaining ground of appeal which requires determination is that the learned trial judge erred in refusing to give a character direction in respect of the credibility of the appellant’s sworn testimony.
25. Particularly, and in the context of Gda. Doherty giving evidence that the appellant had no previous convictions, the appellant seeks to rely on the decision of R v. Vye [1993] 97 Cr. App. R. 134
26. The appellant contends that the jury ought to have been specifically addressed by the learned trial judge in relation to the evidence given to them that the appellant had no previous convictions, and that this fact supported his credibility as a witness. This application was opposed by Ms. Gearty on the basis that the appellant’s character had not been put in evidence by anything said by him while in the witness box. Had it been, she stated, evidence of other complaints against him would have surfaced.
27. Mr. Greene maintained that the evidence of there being no previous convictions was evidence of good character. He stated to the learned trial judge that, “anyway the case is not going to stand or fall on your decision, in my respectful submission, with regard to this,” by way of indication that the issue was not of especially major importance.
28. In any event, the jury was recalled by the learned trial judge who addressed them in the following terms:-
“I omitted to tell you that Gda. Kelleher had said and has given evidence that Mr. C. has no previous convictions, just so that you know that, in case you would be in any doubt, that is an important thing for you to know in relation to Mr. C.”
29. The Court is satisfied that in the circumstances, the learned trial judge was not in a position to say any more than she did having recalled the jury. In so doing, there was the added benefit to the appellant in that these were almost the last words heard by the jury from the learned trial judge.
30. This ground of appeal is also rejected.
31. This appeal is therefore dismissed.
