THE COURT OF APPEAL
[270/15]
Birmingham P.
Mahon J.
Edwards J.
THE PEOPLE AT THE SUIT OF THE DPP
RESPONDENT
APPELLANT
JUDGMENT of the Court delivered on the 11th day of June 2018 by Birmingham P.
1. On 14th October 2015, the appellant was convicted in the Central Criminal Court by a unanimous jury of three counts of rape. At an earlier stage in the proceedings, he had pleaded guilty to a single count of s.3 assault, assault causing harm. Subsequently, he was sentenced to a term of 12 and a half years imprisonment in respect of the rape offences and to a term of 5 years imprisonment in respect of the s. 3 assault. He has appealed the convictions and appealed also the severity of the sentences. This judgment deals solely with the appeal against convictions.
2. The background to the trial was that the complainant and appellant had met at a party in April 2012. A relationship developed which became intimate. At one point, the appellant was staying in a house that the complainant shared with her brother at an address in Limerick. On 2nd May 2012, there was a falling out between the complainant and the appellant and between the complainant’s brother and the appellant. The trial was concerned with events that occurred two days later, on 4th May 2012. The complainant’s version of events is that at approximately 11pm, the appellant came to the house, at a time when she was alone there. According to this account, she opened the door, to be confronted by the appellant who was angry and abusive. She says that he assaulted her, knocking her back, kicking and punching her. The complainant says that she ended up on the floor in the living room and was physically assaulted again. While this was going on, the appellant was drinking from a bottle of vodka. The complainant says that matters then escalated with the appellant ripping off her clothes and raping her. The rape took place on a rug in the sitting room. The complainant alleges that the appellant did this on two occasions, dragging her upstairs after each rape and hosing her down in a shower. She says that the appellant did not ejaculate on these two occasions. The complainant says there was a third and final rape on the rug. Whether the appellant ejaculated on this occasion, or more precisely, what the complainant was saying as to whether he ejaculated or not is central to this appeal. The complainant was not brought upstairs after the third rape, rather, she says, that the appellant threatened her with a knife, proceeded to cut up the rug and then proceeded to burn it in the fireplace along with the clothing that he had ripped off her. The complainant says that the appellant said that he was doing this so as to ensure that no evidence would be found. The complainant says that the fire alarm was activated in the upstairs area of the house by smoke as a result of the objects being burnt and that she was able to escape from the building while the appellant went upstairs to deal with the alarm. The complainant escaped from the building wearing only a throw rug from the living room couch and a black towel. In this state, she approached members of the public. Gardaí were alerted and the complainant was brought to hospital for treatment. Statements of complaint were made by her to Gardaí on 5th and 8th May 2012. The appellant was arrested and detained. In the course of detention, he admitted the physical assault, but denied the acts of rape.
3. The appellant was charged with three counts of rape and one count of sexual assault. The trial came on, first, before Sheehan J. in April 2014, but the jury failed to agree a verdict, leading to a retrial before Murphy J. which resulted in the convictions which are now the subject of this appeal. That the convictions followed a retrial is a point of some significance in the context of the present appeal.
4. The grounds of appeal that have been raised are as follows:
(i) That the judge erred in refusing to warn the jury in respect of corroboration evidence;
(ii) that the verdict of the jury was perverse and should not be allowed to stand;
(iii) that the judge failed to adequately address and warn the jury of what is alleged to be serious credibility concerns raised in respect of the complainant;
(iv) that the judge erred in refusing to permit the defence to cross-examine the injured party in respect of a previous complaint of sexual assault.
5. The central issue in the appeal relates to the request at trial for a corroboration warning and the decision of the trial judge not to accede to the request. In substance, the appellant says that the circumstances of the case were such that there was only one way in which the discretion as to whether or not to give a warning could be exercised, it said that the circumstances of the case mandated the giving of a warning. The basis on which it is said that the circumstances mandated the giving of a warning related to what the complainant had said as to whether the appellant had ejaculated inside her or not. In the course of her statement to Gardaí on 5th May, she had said:
“[h]e didn’t use a condom when he raped me. I do know he ejaculated inside me. He raped me three times and the last time he ejaculated inside me. He raped me three times and the last time he ejaculated. He had his penis inside my vagina when he ejaculated.”
In the course of the statement of 8th May 2012, she said:
“[h]e didn’t take off his clothes this time either. I felt his penis in my vagina again and he came, as in ejaculated inside me. It didn’t last long, again, and he tried to pull his penis out of me before he came, but he didn’t. I could feel it inside me and he also got some on the rug which he was angry over.”
At the first trial, held in April 2014. in the course of her direct evidence while dealing with the third alleged rape, she told the jury:
“[t]his time, he ejaculated inside me and some - I’m not fully convinced whether it was inside me, but it went all over the mat and he went mad and started cutting up the mat with a knife.”
In cross-examination, the defence raised the issue of whether the witness had adopted or tailored her evidence in light of the fact that no trace of semen was found inside her vagina, nor was there any indication of the presence of the appellant’s DNA. Counsel for the defence asked her the following questions:
“Q: You are aware, aren’t you, that there was no trace of semen found in any way whatsoever in relation to any of these samples?”
A: No, I wasn’t aware of that.
Q: You weren’t aware of that?
A: No.
Q: Well, I have to suggest to you that you must have gleaned from somewhere that there was a problem in relation to your account and version of events, in that the forensic science work did not support your allegations and that’s why you came up today with this formula: I’m not fully convinced if he ejaculated inside me’?
A: I was not aware of that. Nobody - I have no reports.
Q: No reports and you say you haven’t spoken to anybody?
A: No
Q: And that nobody suggested to you that you might have gone a bit further than you ought to with ejaculation?
A: The only thing that was said to me was a letter coming from the prison from your client stating that there were no tears or lacerations. It was forwarded to my mother’s address. That’s the only contact.”
6. Later in the trial there was a request for a corroboration warning and Sheehan J. agreed to give same. He made clear that his reasoning for doing so on the basis of the inconsistency in the complainant’s evidence.
7. At the second trial, which resulted in convictions, in direct evidence, the complainant dealt with the third rape she was alleging as follows: “I seemed to feel like he ejaculated because he got very angry and went for a knife”. The issue was raised by defence counsel in the course of cross-examination. Counsel focussed on the formula of words “I seemed to feel like he ejaculated”. Her initial response when the subject was raised by defence counsel was to say “I presume he did, because that’s when he started cutting up the mat and burning it and he got very angry”. When she was questioned in relation to what it was suggested were very positive allegations of ejaculation contained in the statements of complaint of 5th and 8th May 2012, she replied “obviously, from the water and the shower, I felt like there was something inside me. It was an error on my part”. It was put to her that she was seeking to row back from her earlier definitive statements, which had alleged ejaculation by the appellant, because she knew that the forensic reports that were available did not provide support for her allegations. It was put to her that she was now tailoring her evidence to fit with the scientific findings or the lack thereof. The complainant rejected this suggestion, saying that she was not trying to deceive the jury:
“. . .because he made sure of that, he made sure to leave no evidence. I believed it to be true when I was giving my statement until the forensic evidence came back that he left no evidence inside of me. I’m not telling lies about it . . . I believe that he did. He obviously didn’t by the result of the test. That’s what I’m saying.”
When she was subsequently probed as to when she first became acquainted with the findings of the forensic scientist, she responded “before the first trial took place”. There followed an exchange:
8. At that stage, the complainant was reminded of the evidence that she had given at the original trial in April 2014 when she had firmly denied any prior knowledge of the forensic findings. Counsel asked:
9. Counsel on behalf of the appellant sought a corroboration warning. In doing so, he referred to the fact that the trial judge, at the earlier inconclusive trial, had agreed to give such a warning. He submitted that the case for a warning now was much clearer than in the first trial. Counsel noted that the complainant, in the course of the second trial, had stated that she was aware prior to the first trial that there was no forensic evidence supportive of ejaculation having occurred, something that she had denied during the course of the first trial. The application for a warning was resisted by the prosecution, which pointed to the discretionary nature of the decision required to be made. It was submitted that the Court was not bound to follow the approach of the judge at the earlier trial. It was also argued that the giving of a warning would give rise to “an unnecessary degree of technicality”. The prosecution also went on to point to aspects of the evidence, which, it is said, were capable of amounting to corroboration, while acknowledging that it would be for the jury to decide whether the identified aspects of the evidence did in fact amount to corroboration. Having heard argument, the judge ruled on the issue by declining to give a warning. In so ruling, she indicated that the giving of a warning would make “matters unnecessarily complex for the jury”. It would require her to explain to them what might or might not constitute corroboration.
10. The Court has previously, notwithstanding its belief that a significant margin of appreciation must be afforded to trial judges on this issue, quashed a conviction on the basis that the trial judge improperly exercised their discretion. DPP v. TOD [2017] IECA 160 was a case involving historic sexual abuse at a boarding school. The trial judge refused to give a corroboration warning given that the facts grounding the allegation were “secretive” and “surreptitious” in nature. He went on to elaborate that a corroboration warning would only serve to confuse the jury, would be impossible to contextualise, and bring nothing additional to the jury’s charge. The Court allowed the appeal and quashed the conviction for three reasons. First, the allegation was such that it was one person’s word against another. The very fact that the allegation was “secretive” and “surreptitious” without independent corroborating evidence placed it in a category of cases which suggested that corroboration warning would be appropriate. Secondly, the question was not whether the assault happened, but whether the appellant was the culprit [DPP v. K.M. [2005] IECCA 93]. Thirdly, it was wrong for the trial judge to suggest that a corroboration warning would only serve to confuse the jury. The Court emphasised that the concept of a corroboration warning is not overly complex for lay persons to understand in that it is simply an admonition for them to exercise care in their deliberations. Moreover, a corroboration warning where properly constructed can be of considerable benefit to a jury.
11. In this case, the reasons given by the trial judge, the avoidance of complexity and the avoidance of the necessity of addressing aspects of the evidence which might or might not amount to corroboration, could not be described as compelling. Undoubtedly, avoiding complexity is desirable and certainly the avoidance of unnecessary complexity is to be applauded. However, on the other hand, it must be recognised that for generations, judges have dealt with the issue of corroboration, and as part of that exercise have taken on the task of identifying the evidence in the case which was capable of amounting to corroboration. There is no real evidence that judges have found that task particularly difficult or that juries have had difficulty in taking the warning on board.
12. The evidential basis for a warning was very strong. The complainant, in two statements to Gardaí made soon after the incident, was unequivocal that the appellant had ejaculated inside her vagina. Ordinarily, there would be an expectation that she would give evidence at trial to the same effect. Instead, her direct evidence at the first trial, where she uses the formula “I’m not fully convinced whether it [ejaculation] was inside me” represented a retreat from that position. The defence, who of course were aware that the forensic evidence did not support the suggestion of vaginal ejaculation, were quick to probe the issue. In particular, the defence was keen to explore whether the complainant was modifying her evidence to take account of what she had learnt of the outcome of the forensic examination. Her position at that stage was that she was unaware of the state of forensic evidence. Yet, at the October 2015 trial, she accepted that she had been aware that no traces of semen had been found and had been aware well before the first trial. In those circumstances, in the court’s view, the points raised about tailoring or modifying evidence to accord with the forensics were points of substance. Indeed, the court has concluded that they were points of sufficient substance as to require, as distinct from merely warranting, a corroboration warning.
13. The Court has concluded that, in the circumstances of this case, the judge erred in not providing a warning. We cannot be convinced that this did not affect the outcome of the trial.
14. In the circumstances, we must quash the conviction. This Court will hear submissions on whether there should be a re-trial.
