harp graphic.
THE COURT OF APPEAL
Neutral Citation: [2024] IECA 324
Appeal No: 126/2023
Edwards J.
Kennedy J.
Burns J.
THE PEOPLE (AT THE SUIT OF
THE DIRECTOR OF PUBLIC PROSECUTIONS)
Respondent
V
I.I.
Appellant
JUDGMENT of the Court delivered by Mr. Justice Edwards on the 10th of October 2024
1. On the 1st of December 2022, the appellant was convicted by the unanimous decision of a jury in Central Criminal Court of twelve offences, as follows:
• four counts of rape contrary to s. 48 of the Offences Against the Person Act 1861 and s.2 of the Criminal Law (Rape) Act, 1981 as amended by s.21 of the Criminal Law (Rape) (Amendment) Act 1990 ("The Act of 1990"), being counts no's 4, 9, 11 and 15 respectively on the indictment;
• four counts of sexual assault contrary to s. 2 of the Act of 1990, as amended by s.37 of the Sex Offenders Act, 2001, being counts no's 5, 10, 12 and 14 respectively on the indictment;
• one count of making a threat to kill or cause serious harm, contrary to s. 5 of the Non-Fatal Offences Against the Person Act, 1997 ("the Act of 1997"), being count no 6 on the indictment;
• one count of attempting to commit the statutory offence of section 4 rape, contrary to common law, being count no 7 on the indictment;
• one count of false imprisonment, contrary to section 15 of the Act of 1997, being count no 8 on the indictment;
• one count of causing a child to watch sexual activity contrary to s. 6 (1)(b) of the Criminal Law (Sexual Offences) Act, 2017, being count no 13 on the indictment.
2. The complainant involved in each of these charges was a daughter of the appellant, whom for the purposes of this judgment we will refer to as "A". The indictment had also contained three further counts, being counts no's 1 to 3 inclusive, in which the complainant involved was a different daughter of the appellant, whom for the purposes of this judgment we will refer to as "B". The jury disagreed on counts no's 1 to 3 inclusive, and a nolle prosequi was subsequently entered in respect of those counts.
3. The appellant was sentenced to 15 years' imprisonment on each of the rape counts, with the final year thereof suspended on conditions, and 10 years imprisonment on each of the sexual assault counts, with the offences the subject matter of counts 6, 8 and 13 being taken into consideration. All sentences were to run concurrently and to date from the date of conviction, i.e., the 1st of December 2022.
4. The appellant has appealed against both his convictions and the said sentences. This judgment deals with his appeal against his convictions.
Grounds of Appeal
5. By a Notice of Appeal dated the 4th of May 2023 the appellant identified four grounds upon which he proposed to appeal. These are:
1. The learned trial judge erred in refusing to stop the trial at the conclusion of the prosecution case;
2. The learned trial judge failed to direct immediate disclosure of WhatsApp communications between members of the [name redacted] family (excluding the Accused) when the existence of same emerged in the course of the prosecution evidence;
3. The learned trial judge erred in refusing to allow cross-examination regarding the results of a physical examination of the Complainant;
4. The learned trial judge erred in refusing to give a corroboration warning, having regard to the circumstances of the case and the evidence relating to the disclosure of the allegation being made against the Appellant;
Background to the matter
6. On the 8th of May 2020, A presented at a Garda Station accompanied by her mother, whom we shall call "C", and an older sister whom we shall call "D". A complaint was made initially to Garda Ken Allen that A had been sexually abused by her father on a number of occasions during the period between the end of December 2019 until sometime in May of 2020 at her home in a village in rural Ireland. Arrangements were put in place to have A interviewed by specialist interviewers and on the 15th of June 2020, Garda Sheila Cunningham and Garda Aisling Colclough met with A at an interview suite in Santry. This interview was recorded on DVD and played to the jury in the normal course pursuant to the provisions of s.16 Criminal Evidence Act, 1992 as amended. The transcript of that interview was provided to the members of this Court, and we have read it.
7. A was born on a specified date in 2011 making her 8 or 9 years of age at the time of offending. She is the youngest of 6 siblings. At the time of her interview, she was 9 years of age and was 11 at the time of trial. In the course of the specialist interview, A disclosed four separate incidents of sexually abusive behaviour of her, which she attributed to the appellant.
8. The first in time related to counts 4 to 8 inclusive on the indictment, involving alleged offences of rape, sexual assault, attempted s.4 rape, a threat to kill or cause serious harm and false imprisonment. A placed this incident as occurring at a time when her mother was in hospital, having broken her ankle falling down the stairs. Her mother, C, told the jury that this had occurred on New Year's Eve of 2019 into 2020, and that she remained in hospital for two or three days following the accident. A told interviewers that on the occasion in question, she was downstairs at home watching television when the appellant, who was upstairs, summoned her to come upstairs to him. When A did so, the appellant then pulled her into his bedroom, sexually assaulted and raped her and attempted to orally rape her. A gave a detailed account in her interview of the manner in which she was so molested, but it is not necessary for the purposes of this judgment to elaborate further.
9. On A's account the appellant, throughout this incident, prevented A from being able to leave his bedroom and she described a situation of only being able to escape once she hit the appellant on his hand with a book causing him to let go of the door handle and allow her run out the room. She also described a situation where throughout, the appellant threatened to kill both her and her family if she told anyone what had happened. This informed the counts of false imprisonment and threats to kill.
10. A recalled that the next of the four incidents with the appellant occurred sometime around the 20th of March 2020, again at the family home. This informed count 9 which was an offence of rape. A recalled that her mother, who was recuperating at home following her accident and could not go upstairs, asked her to bring some clothes upstairs, including some for her father. When A knocked on his bedroom door, he again pulled her in, before proceeding to take off both his clothes and A's clothes and raping her. Again, it is unnecessary for the purposes of this judgment to go into the further particulars as to what transpired during this incident that A provided during her specialist interview.
11. The third incident in time then occurred sometime around the 20th of April 2020 when the appellant sexually assaulted A and also forced his penis into her mouth. This incident informed count 10 (sexual assault), count 11 (s.4 rape) and count 12 (sexual assault). On this occasion, A's mother, C, had asked her to get her a bottle of shampoo from upstairs. While A was upstairs for this purpose, she was pulled by the appellant into his bedroom. She outlined that the appellant began kissing her before throwing her onto the bed and orally raping her. Again, the detailed particulars of this incident as provided by A are not set out, as they are not necessary for the purposes of addressing the issues raised on this appeal.
12. The final incident described by A was said to have occurred in or around the time that her mother returned to work, which was specifically identified as being towards the end of April 2020. A described that her mother was at work and that her sister and her husband went for a walk. The appellant did not permit A to go with her sister, and while they were alone in the house, he put a pornographic movie on his phone and, in A's words, 'told me to practice'. The appellant proceeded to kiss A on her lips and to rub her in a sexual way. A also told interviewers that on this final occasion the appellant again raped her. The details of her account will once again not be set out for the reasons already stated.
13. Under cross examination, A confirmed that the appellant, who was from an east European country, came to Ireland several years before she was born, and her mother and siblings remained abroad for a time thereafter. In terms of siblings, A had a younger brother, and four older sisters, including the previously mentioned B and the eldest, also previously mentioned, D. D was herself married with two young children, while B moved abroad when she got married in 2016. The whole family were practising members of a named church. For some time, the appellant's marriage to C had effectively broken down and they slept in separate bedrooms, with the appellant sleeping in the box room at the front of the house upstairs. A slept in her mother's room. C and the appellant rowed regularly, and A told the jury that her mother did not mind her father having relationships with other people.
14. For reasons that will become apparent later in this judgment, one point of potential significance in the context of this appeal, in terms of further detail provided by A in her evidence, is that when describing one occasion on which she was abused to the specialist interviewers she spoke of noticing a green metal toolbox in the appellant's bedroom. She had opened this toolbox and saw what she believed to be knives contained within it, which she said were "really sharp and pointy". She said that she had threatened to hit the appellant with the toolbox, when he attempted to prevent her from leaving the room. Under cross-examination, A was asked what became of the toolbox, and suggested that it had either been thrown away after the appellant had left the house, or that it had been given to him to take with him at that point. She was unsure then as to which was in fact correct, but accepted that she had said to the specialist interviewers that "we threw it away".
15. The jury heard evidence that B was born on a specified date in 1998 and was older than A. She returned to Ireland from where she was living abroad in 2021 to make a statement of complaint against the appellant in relation to being sexually abused herself, in the context of her younger sister A having also made allegations of sexual offending against the appellant. B described a situation of having been subjected to unwanted touching of her legs and breast area. These offences were alleged to have occurred when the appellant collected B after school, and it was contended that he had touched her as they drove home. B also described a situation of locking her bedroom door at night to prevent the appellant from entering, and that her accessing the key to enable her to do so had led to tension within the home. B further gave evidence of her uneasy relationship with her father. The relationship with her father was said to have been "a cold one" and her evidence was that she always looked at him as a dangerous person." It was known within the family that B did not like the appellant.
16. The jury further heard evidence that the appellant was arrested on the 11th of February 2021 and was conveyed to a named Garda Station where he was detained pursuant to the provisions of s.4 Criminal Justice Act, 1984. In the course of being interviewed by Gardaí, the appellant denied the offending and further asserted that he believed the allegations to be lies concocted by C who in turn had made their daughter tell these lies to Gardaí, in an effort to get him out he house. He also denied showing pornographic movies to his daughter or watching pornography movies on his phone.
17. Both B and C gave evidence before the jury of recent complaint by A. The evidence was that A and B had always been close and regularly communicated. It was apparent from the Book of Evidence that there was communication between B and A prior to A's disclosures to her mother and to the police. It emerged under cross-examination that communications between these sisters was frequently by means of WhatsApp, in circumstances where B was living abroad after marrying.
18. The circumstances in which A had made disclosures to B were raised with B by defence counsel in cross-examination, leading to (inter alia) the following exchanges:
"Q. Mm-hmm. Do you remember speaking to your sister [A], or being in communication with [A] in 2020?
A. Yes.
Q. The early part of 2020?
A. Yes.
Q. And it seems to have been the first quarter of the year?
A. Yes.
Q. Can you remember when [A] first said something to you that made you concerned?
A. [A] never said anything to me that made me concerned. It was because I had this history with my own fears and my own anxiety and fears of what my dad could do, I always that in my head. But if he tried to do these things with me, is there a possibility that he could do it with my little sister? There was always that fear because me and [A] had a very good relationship, we still do to this day, we'd call each other every week almost.
Q. Okay?
A. Even though I live in [country specified].
Q. And how
A. So sorry.
Q. How do you communicate, is it over
A. Viber, WhatsApp.
Q. So is it face-to-face conversations you have with her?
A. Sometimes we'd video call, but most of the time, it's just phone call.
Q. Yes. And do you know when if I'm correct, you raised some issue with [A], you asked [A] a question?
A. Yes.
Q. And what question did you ask [A]?
A. I would try many times, this was maybe I started even in 2019, not necessarily just then in 2020. I would ask her on certain occasions "how is your relationship with Dad"? Something that, you know, trying to make sure she's okay because she would always open up to me even about the silliest things that happened in school. So, I knew she trusted me.
Q. Okay?
A. So I would ask her on certain occasion on many occasions, "how's your relationship with dad? Is it okay? Is he doing anything that ...?" I didn't want to raise awareness in her about that, so I would keep it just low level.
Q. Well, just do your best there, what sort of a question?
A. But yes, then, in 2020, the start if I'm not wrong, I asked her again, "how is your relationship with dad?" And I noticed I mean I know my sister, I can read her when she lies or when she tries to change the subject or she tries to laugh and, you know, say it's okay. I knew in those moments when I asked her "how is your relationship with dad" that something was wrong, because she was saying, "ah it's okay, you know, he does bother me sometimes", but it was the but in there, that bit triggered me because, usually, she'd just say, "ah, it's fine", you know, the usual things. But now she was concerned a bit.
Q. Okay?
A. She'd said the "but." So then I proceeded and asked her "is he doing anything that you're not comfortable with? You know you can trust me, I'm your sister." I was trying to keep the conversation very friendly. And she proceeded to tell me, you know, "he is touching me and trying to tickle me and touching me in places. I don't like it and it's making me feel uncomfortable". And I knew in those moments this is a it's an alarm. I have to speak up about it, I have to tell my mom.
Q. When did you first become aware that, in your own mind, that there were concerns regarding [A] and your father?
A. It was 2020. It was March or April; I remember the exact date or month because it's been quite a few years since then. But if I'm not wrong, around that time."
[name redactions by the Court]
19. B went on to say that she brought her concerns about what A had told her to her mother C. C, in turn, gave the following evidence (inter alia):
Q. Can you tell the jury about a conversation that you had with your other daughter [B] from [a specified country], in relation to the accused in this case, your ex-husband?
DEFENCE COUNSEL: This is obviously hearsay, Judge, but I'm allowing it, I'm not raising any issue with it.
JUDGE: Yes, very good.
A. The question again, please.
Q. Yes. So the question is in relation to a telephone conversation that you had with your daughter [B] from [a specified country] in reference to your ex-husband?
A. So, [B] has a very close -- they're very close to [A], they always talk about how is in school, what are you doing, how are things? And that she ask [A] who picked you up from school? How is your relationship with your dad? And at some point, she called me, that she talked to [A], a private conversation with [A] and that [A] said - [A] said to [B], that her father -- he is behaving weird.
Q. Hm mmm, and did you approach [A] about this?
A. I couldn't talk to her straight away, but sometime, short time past, because in my mind I had lot of question marks, and I was asking myself if [A], what she said is the truth. Well, I was thinking in my mind that maybe there was some games between her and her dad, and that what happened, the touching, was accidental. I couldn't react because I had a lot of question marks, I was thinking a lot and because I am a mother. And I couldn't, I didn't know how to react to the situation. I know it's even harder because I didn't know how to talk to her, because we're -- we should have talk about the touches in a sexual way. And in my mind, there was a big fight. How could I -- how could I talk to her. And I waited for her to come towards me. And then I ask her how are you? If you feel good or not. But for me it was very hard to ask her even how do you feel about your dad. It was really hard for me. How could I start the conversation? But short time later I did talk to her, I ask her in the first place if she feels okay. And I ask, what do you think of behaviour of your dad? How is he behaving towards you? But beside the things that [B] already told me about the touches; bottom, chest, innocent play, that's what [B] told me, those things. And she told me little bit more than that in the first evening, because we spoke twice. And she told me beside things that [B] told me already, she told me that she was kissed on the lips and she was touched in her private parts. She told me those things and she start crying. She was shaking. She couldn't control her words. And I panicked and we stopped the talking. We spoke for lengthy time, I was trying to calm her down so she can trust me, because I'm her mother and I'm the only person that I can help her.
I found it very hard to control the situation and I was trying to control myself not -- for her not to see me panicking. I couldn't sleep all night. And I was trying to put her to bed so she can be calm. The next day in the afternoon, into the evening, she came to me to talk to me. And she told me that she wants to talk to me a little bit more about the problem from last night. Of course, and in the second evening I took her beside me and I said -- I behaved such a way so she can trust me. I ask one question, and I ask her how did he approach you? She said that in times he caught her in the bedroom when she was changing her school uniform. And he was asking her to go over to his bedroom. And was giving her sweets, lollipops, crisps. He was making her to take her clothes off and what I'm saying now, I'm saying what she told me. After he was asking her to go into the bedroom, he was taking his clothes off and then was asking her for her to take her clothes off. And he was touching her in her private parts and he was forcing her to touch his penis.
He was going even to the worst place and switching the -- switching the video on. With the video -- there was a porn on the video and he was asking for her to do the same thing what she could see on the video. And she was saying that many times he came on her legs. But her language was different, but I speak with my language, with my words. But she spoke with her words of nine-years-old. She was saying that something came out of his penis, yellow on my legs. She was saying that he was putting his penis between her legs. And I couldn't accept the situation, I went through a huge trauma and I'm thinking about my daughter. What happen, I'm thinking about my daughter, what happened in her mind when this happened to her. And she was defending -- she was trying to defend herself and she was saying to the dad, this is not okay and God doesn't like this. And he was answering back to her and saying that the kids -- in the Bible it says that the kids should listen to their parents."
[Name redactions by the Court]
20. C then gave further evidence concerning additional detail provided to her by A concerning the occasions on which, and manner in which, she claimed to have been raped and sexually assaulted by the appellant, and it is not considered necessary to quote this for the purposes of this judgment.
21. Under cross examination, C was questioned regarding A's disclosure to her of her alleged sexual abuse by the appellant, leading to the following exchanges:
Q. Okay. When did [B] tell you something had happened with [A]?
A. I think at the end of April, but from the time that [B] told me a time passed because in my mind I had a lot of fight and a lot of thoughts. How can I talk to her? And maybe I was thinking in my head maybe [A] didn't say the right way to [B], didn't use the right words. Or the games that they had maybe she thought it was wrong. It was hard in my mind to think and decide, how could I think about the problem? And I thought, I thought it's not a joke, and I thought I'm a strong mother and I have to do something about that. And I tried to approach her, tried to talk to her about those things to try to ask her if she feel that something is not right between her, and her dad and I ask her if she wants to tell me about her dad. And I told her that she can trust me. That you can speak and tell me everything you think is not right. And she start crying, she start shaking and she was afraid. And she said she's ashamed to tell me. And she was telling me to talk to [B] because I told [B], and I tucked her beside me, and I gave her all the strength and I told her that I'm the only person that can help and I'm the friend and the mother. I tried to talk to her, I tried to I started easy so she can express herself how she feels. She didn't say anything more that first she said to [B]. And I
Q. Sorry, can I just stop you there. What did she say to you that first time that she spoke to you? What did she say had happened?
A. First time she said that when they're going to school, when he is giving her sweets, it was always touching her legs or touching her butt or touching her chest, her breasts and the game, the games that they had she wasn't comfortable playing.
Q. Yes, sorry, are we talking about [B] or [A] now?
A. We're talking about [A]. You asked about the first time?
Q. Yes, so [A] told you something about this happening at school or on the way to school?
PROSECUTING COUNSEL: That's not what she said actually.
A. When he was picking her up from school, he was touching her legs.
Q. DEFENCE COUNSEL: Okay, yes, I think I was right there. So, he collected her from school and was touching her leg?
A. She told me that that did happen. But many times, happen in his bedroom.
Q. Okay. And that he also touched her chest?
A. To play around the chest, around the abdomen and the private part.
Q. Okay?
A. The first time when she told me. And he kiss her on the lips, and this happened in the bedroom.
Q. Sorry, sorry just pause there for a second. I need to be absolutely clear about this. Is your evidence that [A] told you that when her father collected her from school he touched her leg, he touched her between the legs?
A. Yes. I explained already. It will happen that he will pick her up from school, that I've already said, that touching her legs and her private parts, I told you what happened when he was picking her from school.
Q. Yes?
A. And later on, what I added to that was in the bedroom.
Q. Yes, sorry, sorry, I haven't please, thank you.
JUDGE: Just let him finish, he said, "Later in the bedroom."
DEFENCE COUNSEL: Yes, I appreciate that, Judge, it's very difficult for the poor translator.
JUDGE: Yes but let them finish.
DEFENCE COUNSEL: Yes.
JUDGE: Just let the translator finish, thank you. Yes, Mr. [Defence counsel].
Q. DEFENCE COUNSEL: And [A] told you this and when did she tell you this?
A. When I spoke to her on the first evening.
[Name redactions by the Court]
How the case was defended.
22. The case was defended on the basis that the appellant denied any of the criminal wrongdoing that was alleged against him. Although he did not give evidence before the jury, as was his entitlement, the jury heard that he had denied the allegations to the gardaí and had asserted his opinion that the complainant had been put up to making allegations against him because of the breakdown of her parents' relationship and the disposal of property that he owned with his wife abroad. It was accepted that A's evidence disclosed the commission of the offences contained in the indictment. The case was defended, however, on the basis that A's allegations, both as to their substance and as to the alleged timeline within which they were said to have been committed, were false, and that she had likely been prompted or persuaded to make false allegations against her father.
23. The Defence also sought to challenge the allegations by focusing very much on the manner, and the timeframe, in which the allegations were divulged to the complainant's mother and other members of the family. In this regard, there was considerable focus on inter-party conversations regarding the allegations. They relied, and continue to rely, on a suggestion that the behaviour of the appellant complained of, as described by A to C, is remarkably similar to the allegations made by B. It is said that A did not make these allegations in her statement, nor did she mention them during her cross-examination.
24. A further aspect of the Defence approach was to suggest that the offending was unlikely to have occurred in the manner alleged having regard to the fact that the family occupied a modest dwelling and that a number of people were confined to the dwelling for much of the time.
25. A complaint was also made that certain items were not seized during the garda investigation and that no photographs or plans of the house were available to the jury. It was suggested that of particular importance in that regard was the failure to seize the toolbox referred to by A as having been within the appellant's bedroom, and the failure to obtain mobile phone records of the WhatsApp communications between A and B.
26. The Defence further relied on the fact that, following her disclosure, A had been brought to a sexual assault treatment unit (SATU) for examination and no findings were made that supported the allegations.
Grounds of Appeal No's 1 & 2
27. These grounds of appeal can be dealt with together, as in substance they amount to a complaint that the trial judge was incorrect in refusing an application by the Defence at trial to withdraw the case from the jury on what are colloquially called "P.O'C grounds".
28. For completeness it should be stated that there was also an application to withdraw the case on "Galbraith" grounds, reliance in that regard being placed on the second limb of Lord Lane's statements of principle in R v Galbraith (1981) 73 Cr App R 124; [1981] 1 W.L.R. 1039, although the focus for the purposes of the appeal has been on the P. O'C based argument. In addition, there was an application by the prosecution to amend the dates of alleged offending on the indictment to reflect the evidence as given.
29. The P.O'C application was based, inter alia, on the following factors which had emerged during the trial:
a) the loss of the information that would have existed if the gardaí had secured the details of any phone traffic / communications that passed between B and A to the 8th of May 2020 (the date of the report to gardaí);
b) dilatoriness on the part of the gardaí in investigating the matter, five weeks elapsing between A's initial complaint on the 8th of May 2020 and her being interviewed by specialist interviewers on the 15th of June 2020; and
c) the failure to secure similar data contained in the WhatsApp group in which the female members of the family discussed B and A's allegations.
d) the failure of the investigating gardaí to obtain items (specifically the green metal toolbox and the sharp and pointy knives said to have been contained within it, that the Defence maintain were clearly of evidential significance having regard to their place in the allegations made by A;
e) alleged vagueness on the part of "A" in providing her history to the specialist interviewers, with counsel submitting:
"Now, I know she's at the time she made the interview she was nine years of age, she was describing matters that had happened when she was eight years of age and she was doing her best. But the fact remains that as the transcript is read as a whole, it's totally unclear as to what she's actually describing and when it actually happened."
30. The application was opposed by the prosecution. The substance of prosecuting counsel's submission was to refer the trial judge to the Supreme Court's decision in The People (DPP) v C.CE [2019] IESC 94 and to say that it was a matter for her to assess the likelihood, or otherwise, that there was evidence in the WhatsApp messages at issue which would have been potentially material to the trial and reach a determination as to whether the trial was fair. He submitted that in reaching that determination as to whether the trial was fair, (a) it was for the accused to persuade the trial judge that having regard to the prosecution case and such evidence as there might be as to the likely content of any missing evidence, it had been established that the accused has by virtue of the lapse of time and in light of that missing evidence, lost the real possibility of an obviously useful line of defence; and (b) that while culpable prosecutorial failure or wrongdoing could be taken into account in assessing whether the deficiencies pointed to rendered the trial unfair, a greater degree of departure from a theoretically perfect trial needed to be demonstrated in cases where there was no such culpable activity. He submitted that the matters complained of by the defence went nowhere near that which would be required to justify stopping the trial. On the issue of alleged missing evidence, prosecuting counsel stressed that it would be open to defence counsel to point to that in his closing speech and suggest that the jury should find a reasonable doubt in consequence of it.
31. The trial judge agreed with prosecuting counsel, and refused the applications for a direction and allowed the requested amendments to the indictment, stating:
"The defence have made an application pursuant to POC in respect of what they characterise as missing evidence in terms of telephone records and the toolbox. ... In respect of counts 4, 5, 6, 7 and 8 the defence say that there is no clear evidence of what is alleged in these counts and again the timeframe as laid is incorrect. They say there is confusion about what was in fact the first time. The defence says that the only evidence in respect of the threat to kill is an apprehension on behalf of the complainant and that there's no evidence that any threats were spoken by the accused. The defence argue that these difficulties amount to such an unfairness to the accused that the case should now be withdrawn from the jury and in effect, seek a directed verdict of acquittal. The prosecution in reply, deal with the arguments, both under POC, [and] the most recent case, CCE v Galbraith (sic). The case of CCE is opened to the Court and in particular the test and argues that the defence haven't set forth sufficient for the test to be met, such that this Court would exercise its jurisdiction in this regard. In dealing with Galbraith, the prosecution brings the Court through the direct evidence of the complainant and points the Court to the relevant evidence in respect of each count on the indictment. The prosecution opens the case of DPP v Walsh in respect of the Court's jurisdiction and respective amendment of indictments and argues that the amendments sought are necessary, in light of the evidence to allow the jury address the central issues on the case.
Turning then to the Court's decision, the primary evidence in this case is the evidence of each complainant. ... In respect of [A] ..., her direct evidence was captured on DVD, and she was also cross-examined in the usual way. In her direct evidence she sets out different types of offending which she alleges against her father. She gives a descriptive narrative of sexual assault, rape, rape contrary to section 4, attempted rape contrary to section 4, false imprisonment, threats to kill and being made to view pornography. The Court was brought through the transcript of her direct evidence and pointed to the narrative in support of each count on the indictment. As the defence raised the issue of count of threat to kill separately, the Court is satisfied that she gave evidence of that threat being verbally made. In both her direct evidence and under cross-examination, she gave evidence of being, as she described it, jumbled up in respective dates and sequence but she does not resolve (sic) from her evidence at any point. The amendments now sought are to reflect the evidence as given. These amendments expand the time frame but in all other respects, reflect the allegations made by her, both in her direct evidence and under cross-examination, and do not prejudice the accused in the legal sense and come within the rubric of section 61 of the 24 Act as set out in the case of Walsh.
Considering the case of POC and the more recent test set out in CCE, the Court has to consider the evidence of the unavailable family WhatsApp messages and the toolbox. The WhatsApp messages came to light in the evidence of the complainant's mother when giving evidence of first complaint and the sister when giving evidence of assisting with translation at the Garda Station. Both of these witnesses were extensively cross-examined by the defence in front of the jury on the WhatsApp messages and the mother was also cross-examined on the missing toolbox. The Court cannot speculate as to what was in the WhatsApp messages, but the evidence suggests that these messages dealt with the initial disclosures made by [B] and [A], of which both witnesses also gave evidence. The Court is not convinced by the arguments that the test has been met, that is to say, that by virtue of the lapse of time, and in light of the missing evidence, that the accused has lost the real possibility of an obviously useful line of defence, and the Court is satisfied that the trial is fair. Galbraith was not specifically opened but it bears repeating that recent jurisprudence from the COA says that the emphasis in Galbraith is on the primacy of the jury in the criminal trial processes, the sole arbiter of issues of fact and that even if the prosecution's evidence contains inherent weaknesses or is vague or contains significant inconsistencies, it is for the jury to assess the evidence and make of it what they will, unless the state of the evidence is so infirm that no jury, properly directed, could convict upon it and say that Galbraith is concerned with fairness.
Further, that Court says that withdrawal of a case from a jury should be an exceptional measure to which resort could only be had for the purposes of avoiding a manifest risk of a wrongful conviction. This Court, of course, accepts that prosecution must satisfy the jury to the criminal standard but the Court is satisfied that the state of the evidence is not such that there's no evidence or that it is so infirm that a jury, properly directed, could not convict upon it. And while a jury could reasonably reach an alternative inference, in the Court's view, it is open to the jury to reach the inference contended for by the prosecution. Further, the Court is of the view that the prosecution evidence is such that its strength or weaknesses depends on the view taken of it by the jury which is a matter within the providence of the jury. Accordingly the Court declines the defence application."
Submissions in regard to the appeal
32. Counsel for the appellant makes a number of points relevant to grounds 1 and 2.
33. The complaint is essentially that the trial judge was wrong in her decision not to withdraw the case from the jury on grounds of fairness. It is said that the evidence of B was relevant in considering the complaints made by her younger sister, A. It was apparent from the Book of Evidence that there was communication between B and A, and this was confirmed during cross-examination. However, the means or the extent of the communication was not apparent from the documentation provided by the prosecution. The evidence suggested that the conversation between B and A in which A disclosed sexual abuse was a single conversation rather than a series of conversations. It is submitted that the gardaí interviewing A might reasonably have followed up on the extent of communication between A and B during the interview process - rather than having this information emerge for the first-time during cross-examination.
34. Of particular relevance to the Defence was the following answer given by B:
"A never said anything to me that made me concerned. It was because I had this history with my own fears and my own anxiety and fears of what my dad could do, I always that in my head. But if he tried to do these things with me, is there a possibility that he could do it with my little sister? There was always that fear because me and A had a very good relationship, we still do to this day, we'd call each other every week almost."
35. It was submitted that as the cross-examination developed from this point it was apparent that A was making no allegations of sexual misbehaviour against her father - even though it was subsequently alleged that serious offending had already occurred by this time. On the evidence, it is clear that any difficulties in the relationship between A and the appellant could reasonably be described as trivial in nature. The only noticeable change in A's behaviour was minor in nature too.
36. B gave evidence that very shortly after being informed by A that the appellant had sexually assaulted her, she brought it to the attention of C. The other evidence suggests that C was informed by A in or about the end of April. It was submitted that C's delay in bringing A's allegations to the attention of the gardaí is consistent with a view that A had not alleged the type of serious sexual abuse that was the subject of the complaint of the 8th of May.
37. While it is not clear to what extent B discussed her own allegations with A during their conversations, in view of the similarity between the allegations of B in her evidence, and the evidence of C regarding A's initial disclosure, counsel submitted that it is reasonable to infer that this is something that was spoken of between the witnesses and other family members.
38. It was said to be a matter of concern from the accused's perspective that B was taking the lead in questioning A regarding her relationship with her father, and that B initially seemed to have been working on a hunch that A was not disclosing all relevant information. This was said to be evidenced in the following answer:
"She'd said the 'but.' So then I proceeded and asked her 'is he doing anything that you're not comfortable with? You know you can trust me, I'm your sister.' I was trying to keep the conversation very friendly. And she proceeded to tell me, you know, 'he is touching me and trying to tickle me and touching me in places. I don't like it and it's making me feel uncomfortable'. And I knew in those moments this is a -- it's an alarm. I have to speak up about it, I have to tell my mom."
39. B gave further evidence showing that she had questioned A regarding their father's behaviour towards A. B confirmed that she had asked direct questions whether the appellant had sexually assaulted A. The precise nature of this questioning - and related conversations - remains unknown, and also the length of time over which A repeated her denials of wrongdoing by the appellant.
40. It is said that of further significance in this context is that B confirmed that she had never been asked for either her phone or her phone records for analysis, and she no longer had the phone that she was using for these conversations.
41. Counsel for the appellant maintains that a significant aspect of the conversation between A and B concerns the manner in which the appellant's offending came to light. The relevant transcript shows that the issue of the appellant's alleged offending was brought up by B following what counsel for the appellant characterizes in submissions as "a divine visitation" - either in her sleep or while she was praying. Under cross-examination, A described her understanding of why B had raised concerns with her. She said, "it's like God was telling her [i.e., B] in like a dream or the way she was praying, something bad had happened to [A]." There were a number of phone conversations during which this exploration of B's concerns were voiced. It is said on behalf of the appellant that it is implicit in the evidence that A had not discussed the alleged abuse with anyone prior to this conversation. There was nothing in the documentation available to the Defence at the commencement of the trial to suggest why B initially became concerned about A. Further, B did not give evidence to suggest that the basis of her initial concerns came from a visitation, and it is not clear what effect this type of information would have had on the mind of a devout 8year-old.
42. It was further submitted that the timeline for A's allegations against the appellant were all the more significant in light of the manner in which B's hunch arose.
43. It is complained on behalf of the appellant that unfortunately no record exists setting out the initial denials of A that the appellant was engaged in any offending towards her. The questioning of B was in the nature of her conducting an investigation into her suspicions. It is suggested that if the gardaí had engaged in this type of questioning it is reasonably to be expected that there would be a note of any interviews - and the denials of wrongdoing and the development of the allegations would have been apparent. This type of information would be of critical importance for any Defence.
44. Further, the cross-examination of witnesses had also focused on the circumstances of the family and timeframe for the disclosure of the alleged abuse by A to her mother and other persons. There was nothing in the book of evidence or the prosecution's disclosure to suggest the extent of the communication that occurred between witnesses on a non-face-to-face basis.
45. B accepted that she had a conversation (or conversations) with A in the first quarter of 2020. The evidence suggested, it was submitted, that A accepts that she had a conversation with B using WhatsApp sometime between A's birthday and a date when A told her mother; it was said to be "not long before I told my mum." (c. 20th of April). It was submitted that this approximate date was ostensibly confirmed by C. Neither witness could give a precise date, but the preponderance of the evidence suggested that the conversation occurred after Covid lockdowns commenced on the 27th of March. The communication appears to have been by WhatsApp and / or Viber.
46. D confirmed in her evidence that there was a family WhatsApp group in which she and other members of the family were made aware of the allegations being made by B and A. This fact only emerged during cross-examination. It was submitted to be a matter of concern that there was extensive communication and discussion within the family face-to-face and on social media regarding the allegations being made by A - once they had been made. The appellant accepts that the extent of content of any such communications is something that can only be speculated about. However, the appellant was not party to these discussions and there is nothing to suggest that he had any knowledge of what was happening until an Interim Barring Order was issued against him. The allegations were also discussed with the family's pastor before they were brought to the attention of An Garda Síochána.
47. The Court was informed that once the relevance of the WhatsApp communications became obvious a disclosure request was made. While disclosure was ordered, nothing was in fact disclosed.
48. It was submitted that the investigating gardaí failed in their duty to secure relevant evidence, such as the relevant WhatsApp messages and the green toolbox that was referred to by the complainant. C was also aware that the existence of the toolbox was relevant to the evidence of A. Counsel for the appellant submitted that it is surprising that such an item was not retained or even photographed to confirm its existence. In addition, there were no plans or photographs of the location in which the offending was alleged to have occurred, and there was no forensic evidence either. There was also said to have been a failure to secure a book, or one of A's shoes, that may have had forensic evidence on it.
49. D. Garda Michael Lynagh had confirmed in evidence that when he became involved in the investigation the toolbox and other items of potential evidential value were no longer available. He was unable to say what had happened to them.
50. Complaint is also made about the delay in commencing a proper investigation. This is said to have been of critical significance for the appellant. He had been removed from the family home on the 11th of May 2020 when C made an ex parte application for an Interim Barring Order before the District Court. The appellant was said to have had no notice of the application, or the basis of the application, and it was said that he was given a matter of a few minutes to gather some belongings before he was escorted from his dwelling by a garda. Counsel submits that it is reasonable to suggest that having had no notice of the making of the Court order he would not have been in a position to remove evidence from the room in anticipation of an investigation. It is said that the gardaí were deprived of an opportunity to gather useful evidence, if it was in the room - and the appellant has been deprived of an opportunity to undermine the prosecution case in the event that the relevant items were not present.
51. It was submitted that there was no evidence to confirm that anyone sought C's phone or phone records as part of the investigation of this matter. D. Garda Michael Lynagh confirmed that no phone records were sought as part of the investigation. Counsel for the appellant submitted that this failure showed a poor investigation overall, and that it was reasonable to expect that if any consideration had been given to phone contact between witnesses and other family members that the gardaí would have opened up other avenues of enquiry.
52. Counsel for the appellant referred the Court to a number of authorities which she suggested offered support for her client's case, including People (DPP) v PP [2015] IECA 152; People (DPP) v SA [2020] IECA 60; SB v DPP [2006] IESC 67 and People (DPP) v SQ [2023 IESC 8. It is suggested that the trial judge applied the incorrect test in considering the P.O'C application, namely has the accused been "deprived of a realistic opportunity of an obviously useful line of defence." It was said to be the wrong test because the issue of the inter-family communication is something that only came to light as the trial progressed and was not something that might reasonably have been anticipated by the Defence. It was submitted that in those circumstances the trial judge applied an incorrect test and that she should have determined whether - in light of the evidence and the limited investigation –the trial was rendered unfair.
53. In conclusion in regard to these grounds, counsel for the appellant submitted that the situation that had arisen during the trial was not one that the appellant could have anticipated or contributed to. The failure to follow up on the communication between the parties was one that might reasonably have been remedied and, if the Trial Judge had stopped the trial proceeding further, it would not have prevented a trial taking place at a later date.
Submissions on behalf of the respondent
54. In reply, it was submitted that the trial judge was entirely correct both in the manner of her consideration of the application of the test set out in The People (DPP) v. C.Ce [2019] IESC 94, but also in her application of the law to the facts as presenting to the Court. It was submitted that the height of the argument that could be advanced at trial, and on this appeal, was that the contents of the phones remained a matter of speculation as the family were engaged in discussions of events as they emerged. Indeed, this is explicitly accepted by the appellant. This was effectively a case where the appellant was suggesting that there may have been some information to be gained that would bring focus to the interactions between B and A and would show the developing nature of A's allegations in light of her discussions with B.
55. When counsel for the appellant had submitted that the trial judge (incorrectly) engaged with the evidence on the basis of the test set out in SB v DPP [2006] IESC 67, counsel for the respondent submitted that SB was a decision which followed closely on the Supreme Court's decision in SH v. DPP [2006] 3 IR 575. This was a line of authority which overruled the previous test applied in judicial review proceedings seeking to prohibit trials due to delay and instead the focus was solely on whether delay had resulted in prejudice to an accused so as to give rise to a real or serious risk of an unfair trial. It is abundantly clear, he suggests, that in fact the trial judge in the instant case was applying her mind to the correct test as set out by Clarke C.J. in C.Ce, which he maintains is encapsulated in the following quotation:
'9.2 In that regard, the trial judge must (a) first consider the prosecution case as it has actually developed at the trial. Thereafter, the trial judge must (b) consider whatever evidence is available as to the testimony which might or could have been given but which is said to be no longer available. That exercise will generally involve two principal considerations; first, the court must (c) consider the available evidence about what might have been said by the missing witness or what might have been contained in missing physical evidence, such as documents or objects. The trial judge will be required to have regard to the degree of confidence with which it can be predicted that the particular evidence would have been available, while recognising that the very fact that the evidence is not available means that that exercise must necessarily be speculative at least to some extent.
9.3 If the trial judge is satisfied that it has been established that there was a real prospect that the evidence concerned could have been tendered, next, he or she will be required to (d) assess the materiality of any such evidence. The materiality of that evidence will need to be considered in the light of the prosecution case as it evolved at the trial.
9.4 In the light of all of those factors, the court must finally (e) reach an assessment as to whether the trial is fair. The assessment of whether the trial is fair involves a conscientious determination by the trial judge whether, on the basis of all of the materials before the court, it can be said that the test identified by Hardiman J. in S.B. has been met, being that the absence of the missing evidence has deprived the accused of a realistic opportunity of an obviously useful line of defence.
9.5 Although not relevant on the facts of this case, it should also be noted that culpable prosecutorial failure or wrongdoing can be taken into account in assessing the degree of prejudice which renders a trial unfair. As noted earlier, no trial is perfect. However, the degree of departure from a theoretically perfect trial which will render the proceedings unfair can be less where it can be said that culpable action on the part of investigating or prosecuting authorities have contributed to the prejudice. A lesser departure from what might be considered to be a theoretically perfect trial will render the proceedings unfair if that departure is caused or significantly contributed to by culpable action on the part of investigating or prosecuting authorities. A greater degree of departure from the theoretically perfect trial will need to be demonstrated in cases where there is no such culpable activity.'
56. Counsel for the respondent submitted that the facts presenting in C.Ce were stark as compared to what was complained of in the instant case. C.Ce involved a witness who the Court found was in a position to give evidence favourable to the defence (or it was accepted that there was a reasonable possibility that this was the case), whereas in the instant case, what was being suggested is the retrieval of messages from the family WhatsApp group that potentially could have some bearing on the account of A. This was entirely speculative. Further, the absence of the toolbox and knives were firmly matters to be explored in cross examination as indeed they were and both issues were traversed in the course of the closing speech on behalf of the appellant. Moreover, there was no obligation on the prosecution to produce a map or plan of the family home, and the fact that one was not produced could not amount to an unfairness.
57. Addressing the appellant's reliance on The People (DPP) v SQ [2023] IESC 8, counsel for the respondent says that that was a case where the Supreme Court was critical of the failure of the prosecution to take witness statements from two persons who attended with a complainant to make a statement of complaint. The Gardaí were aware at that time of the existence of those persons and their significance was evident, however the existence of these witnesses only emerged at a time when victim impact evidence was presented to the trial court. The Supreme Court considered whether their absence rendered the trial unfair. It was submitted that the circumstances of the present case are readily distinguishable and that in regard to the instant case it must be borne in mind that A was outlining the existence of the toolbox at a time in May 2020, and the existence of the WhatsApp group emerged at trial. Counsel says that what also needs to be appreciated is that the evidence adduced from B and C respectively was evidence of complaint, and was admissible only for the limited purpose of showing consistency on the part of the complainant. The evidence potentially to be given by the missing witnesses in SQ was also evidence of complaint, and the Supreme Court had observed that complaint evidence was of limited evidential value by its very nature (paragraph 76):
'Having regard to the limited evidential value of this evidence and the strength of the other evidence, my view is that, despite a failure by the Gardaí in its investigative role, the trial was not unfair. Even had the Gardaí identified the two witnesses and taken statements from them, their evidence was not admissible in the usual course and therefore it is not necessarily the case that the prosecution could have called those witnesses in the course of the trial'.
58. Finally, counsel for the respondent has drawn our attention to the comments of O'Donnell J. (as he then was) in C.Ce wherein he stressed that the determination of the trial court should be awarded some margin of appreciation by an appellate court reviewing its decision.
Decision on Grounds of Appeal Nos 1 and 2.
59. We are not persuaded that the trial judge erred in refusing to withdraw the case from the jury on P.O'C grounds, or indeed that she had grounds to withdraw the case from them on any basis. We are satisfied that she correctly applied the law, which is as set out in the quotation from C.Ce at paragraph 55 above.
60. The fact of the matter is that A, B, C and D were all available to the Defence to be cross-examined concerning any communications that might have passed between them, and there was indeed some such cross-examination, but it was entirely speculative as to whether material communications, beyond those acknowledged by those witnesses, might have been contained in any record of WhatsApp messages exchanged between the parties.
61. Moreover, in so far as the toolbox and the knives were concerned, it had not been identified how, if the gardaí had taken possession of those items, it might have assisted the defence.
62. We are satisfied that the trial judge was justified in observing that it had not been demonstrated that the accused had been deprived of a realistic opportunity of an obviously useful line of defence.
63. While complaint is made of some degree of delay in communicating A's complaints to the gardaí, and that five weeks was allowed to elapse between matters being brought to the attention of the gardaí and A being interviewed by specialist interviewer's, we are completely satisfied that such delays were not of such significance or import as to require that the case should be withdrawn from the jury.
64. We attach no significance to the complaint about the failure to provide a map or plan of the family home for use at the trial.
65. While the appellant attaches much significance to certain passages from the evidence of B and C respectively, particularly in the case of B that quoted at paragraph 34 above, and in the case of C that quoted at paragraph 21 above, the evidence of these witnesses was solely admissible in so far as any case in which A was complainant was concerned for the limited purpose of demonstrating the consistency, or otherwise, of the complainant. It was open to the defence to draw the jury's attention to what these witnesses had said, and this was done, and to suggest that what the complainant had said in evidence was in certain respects not consistent with what she had ostensibly told B and/or C, respectively. While defence counsel did not explicitly label the complainant's evidence as "inconsistent" with that of her older sister B and/or mother C, the case that that was so was implicitly made. Whether the complainant's evidence was consistent or inconsistent with what she had said to those to whom she had complained was uniquely a jury issue, and, absent more, the trial judge would not have been justified in withdrawing the case from the jury on account of what B and/or C had said in testimony. We do not think the claimed similarity between what C said had been disclosed by A concerning unwelcome touching of her by the appellant on the way home from school, and B's own complaints, would have provided a sufficient additional basis for withdrawing the case from the jury. There were speculatively many possible explanations for this - coincidence, mistake, mix-up in recollection by C, or even collusion/fabrication by A with another or others as suggested by the defence. However, these possibilities were capable of being probed in cross-examination, as was done. Nothing to suggest an evidentially supported basis for concern about possible collusion/fabrication by A with another or others emerged. In our view the issues pointed to as potentially giving rise to concern were quintessentially suitable for resolution by a jury, and the trial judge was right to allow the case to go to the jury.
66. In all the circumstances, we have no hesitation in dismissing Grounds of Appeal no's 1 and 2.
Ground No 3 - Refusal to allow cross-examination regarding the results of a physical examination of the Complainant
67. In this ground of appeal, the appellant complains that the trial judge erred in refusing to allow cross-examination regarding the results of a physical examination of the complainant. At the oral hearing of the appeal counsel for the respondent protested, we think with some justification, that this ground of appeal is misleading in the terms in which it is cast, in that it suggests that no cross-examination whatever of any witness in that regard was permitted. In fact the only restriction imposed was on seeking to cross-examine C on that topic, primarily on grounds of relevance, but also on the basis that it invited hearsay in circumstances where C was called to give evidence of recent complaint and accordingly her evidence was admissible only for the limited purpose of showing consistency (or inconsistency as the case might be) between what had been said to the witness on the one hand by the complainant, and what the complainant in turn had said before the jury.
68. The issue developed in the following way. During the cross-examination of C, prosecuting counsel intervened to say that an issue arose at that point that required to be canvassed in the absence of the jury, and the jury were duly sent to their room. The following exchanges then ensued:
PROSECUTING COUNSEL: Judge, the complainant [A] was sent for a referral to the Laurel Clinic, which the Court will probably be familiar with.
JUDGE: I'm not actually, where's the Laurel Clinic?
PROSECUTING COUNSEL: Sorry, Judge, the Laurel Clinic is --
DEFENCE COUNSEL: I think it's Crumlin, Judge.
PROSECUTING COUNSEL: Yes, it is, yes, Crumlin Hospital yes, Judge. Crumlin's Health Ireland at Crumlin, Dublin 12. And I'm going to get a copy of this report for you ultimately, Judge, I only got the electronic copy, but effectively, she was seen by a Dr [named person], who's a consultant paediatrician with a special interest in child sexual assault, based at the Children's Health Ireland in Crumlin, Dublin 12.
JUDGE: Yes.
PROSECUTING COUNSEL: And I won't go into the full details of it, but she takes a narrative from the child, as she would with every child. She looks at current symptoms, past medical history, family history, family composition and then there's an examination.
Prosecuting Counsel then quotes from the report as to the doctor's findings, opinion and recommendations following the said examination and interview, before continuing:
PROSECUTING COUNSEL: Now, it seems to me that [defence counsel] thinks that he can cross-examine the mother of this complainant by suggesting to her that she had a medical examination and the result of the examination was normal, and then he can suggest to the jury ultimately that the fact there was nothing found, in terms of damage to the child, is inconsistent with the allegations that have been made. Now, if that is the intention, it was highly inappropriate, the appropriate way of dealing with the matter is to have oral evidence in relation to the matter from the doctor, who can be examined and cross-examined and can give her opinion that the critically important opinion that it is well documented in medical literature that the majority of children who have been sexually abused, have a normal examination. So, in my respectful submission, it is not admissible to take the hearsay evidence of the mother as to what the findings of the doctor were through the mother. And if my friend wishes this evidence to be introduced, there is an appropriate mechanism for doing so and this is simply not it.
JUDGE: Mr [defence counsel].
DEFENCE COUNSEL: I know what the procedures are, Judge, as I've indicated previously, I've been doing this quite a long time. As it happens, I wasn't going to go down that route, so Mr [prosecuting counsel] is in fact incorrect. I was simply going to leave it that there was an examination. End of story.
JUDGE: Very good.
PROSECUTING COUNSEL: Well, sorry, before you ask a question there has to be a relevance to it.
JUDGE: Ah, yes, I just wonder, but in any event, you're now going to leave it at that?
DEFENCE COUNSEL: Yes.
JUDGE: Well, very good. If he leaves it at that now --
PROSECUTING COUNSEL: Very well.
JUDGE: -- but that's the understanding then. We'll have the jury back then, thank you.
DEFENCE COUNSEL: Obviously the witness is entitled to answer it, she was present.
JUDGE: Well, I mean, I think -- sorry, I mean, now, Mr [defence counsel], you've got to be careful about that.
DEFENCE COUNSEL: Yes, I'm not going any further than that, Judge.
PROSECUTING COUNSEL: No, no, I don't --
JUDGE: No, no, I think you have to be careful about that, now.
DEFENCE COUNSEL: Yes --
JUDGE: So what is the question for the witness?
DEFENCE COUNSEL: I'd asked the question --
PROSECUTING COUNSEL: And I'm objecting to the asking of the question, because it causes the jury to speculate as to what the findings may or may not have been.
JUDGE: Yes, I think if you're not going to go down that road, Mr [defence counsel], I think maybe you should leave that question out now at this point. I mean the fact that the examination can be confirmed by other witnesses obviously.
DEFENCE COUNSEL: Judge, the witness -- this witness has --
JUDGE: So you're going to ask the witness whether her child was examined in Crumlin Hospital on a particular date, yes or no?
DEFENCE COUNSEL: Yes.
JUDGE: Yes, I mean, the witness cannot be asked anything further, you're saying you're not going to --
DEFENCE COUNSEL: I wasn't going any further than that. It's a yes or no answer.
JUDGE: Very good, well if the witness goes further into that, we'll have to consider the position then.
DEFENCE COUNSEL: Yes.
JUDGE: Because she cannot give medical evidence.
DEFENCE COUNSEL: Yes, well, I will, Mr [junior defence counsel] very wisely suggests that I will say it's a yes or no answer.
JUDGE: That she was examined in Crumlin?
PROSECUTING COUNSEL: The first rule in terms of evidence is is it relevant?
JUDGE: Are you going to be calling the doctor, Mr [prosecuting counsel]?
PROSECUTING COUNSEL: No, she's not in the book of evidence. I haven't been asked to call her, if I was asked to call her, I would call her. But I haven't been asked.
JUDGE: Well then, I think if she's not going to be called, unless you want to go down a different route, Mr defence counsel, I don't think you should ask the question.
DEFENCE COUNSEL: Well, I'd respectfully submit, Judge, that I'm entitled to ask that question --
JUDGE: On what basis.
DEFENCE COUNSEL: Because --
JUDGE: To elicit what information?
DEFENCE COUNSEL: -- because it will be apparent that as well as -- I'm really reluctant to being put in a position, Judge, by the prosecution where I'm forced to reveal my hand.
JUDGE: Well, you're in that position now, so you'll have to -- you have to explain to the Court, because the issue has arisen now --
DEFENCE COUNSEL: Yes.
JUDGE: -- so the Court has to know what's happening.
DEFENCE COUNSEL: Okay. The next position that I will be taking is, that as well as being examined she was offered counselling, that this was followed up on by the relevant authorities and the counselling offer was never taken by the witness.
JUDGE: Well, I think that can be explored without talking about the medical examination. What does the mother know about this, I wonder, but we don't know until she answers, I suppose.
PROSECUTING COUNSEL: But, no, I take your point exactly, so the counselling question is one that can be asked, and he can make whatever he wants of that, but it's completely separate to a medical examination.
JUDGE: Yes, I --
PROSECUTING COUNSEL: And why would you ask a question about medical examination if you're not asking the jury to speculate about what the outcome of it was?
DEFENCE COUNSEL: Judge, this is absolute nonsense. I'm entitled to close the case on behalf of the accused by pointing out that it might be noted that the prosecution haven't produced any medical evidence at all in support of the case.
PROSECUTING COUNSEL: The truth finally emerges. The truth, the purpose --
DEFENCE COUNSEL: Well, I would have thought that was extremely obvious.
PROSECUTING COUNSEL: Well, I'll be objecting to the question and I'm objecting to that line of argument being made in closing speech.
JUDGE: Yes. Yes, I understand that. I mean, sorry, Mr [defence counsel], I mean, you know, this is -- I think you can absolutely ask the counselling question, but to ask the question about the medical examination without going further, without doing anything further with it, is going to leave the jury to speculate. There's no doubt about that.
DEFENCE COUNSEL: But, Judge, this is part and parcel of defending a client, is you point out the gaps in the prosecution case.
JUDGE: Absolutely.
DEFENCE COUNSEL: This is a glaring gap.
JUDGE: Absolutely, but this is not the witness for that.
DEFENCE COUNSEL: But is the Court ruling that I'm not entitled to point that out?
JUDGE: Well I haven't -- we haven't got to --
...
JUDGE: We haven't got to that point yet.
DEFENCE COUNSEL: But my friend has already invited the Court to make a ruling that I'm --
JUDGE: But I haven't made a ruling on that yet.
DEFENCE COUNSEL: Sorry, I'd understood that you had.
JUDGE: No, I have not made a ruling on that. I'm discussing one witness. And, on the basis of what you've said and on the basis that you're not pursuing the issue about medical examination, you should confine your questioning to the issue of the counselling at this point. The medical matter can be dealt with later by the Court, or by other witnesses. Very good, we'll have the jury back. Thank you. The witness might be recalled, please.
PROSECUTING COUNSEL: Yes.
69. In fairness to counsel for the appellant, in so far as he makes a complaint about the trial judge's ruling, he gives it a light rub in as much as his written submissions concede, "[w]hile this is not a critical factor in the case it is submitted that there was no legal basis for the judge to take this step." That having been said, we think the substantive complaint is entirely without foundation and that the trial judge was entirely correct in her approach and ruling.
70. A defendant is entitled to cross-examine a witness, but it must be cross-examination within the rules of evidence. Two rules of evidence in particular were relevant in the context of the controversy outlined. The first was the requirement to show relevance, and the second was the rule against hearsay - the latter arising because, as has already been pointed out, the witness called to give evidence of recent complaint and accordingly her evidence was admissible only for the limited purpose of showing consistency, and anything she would potentially say as to what the doctor found, or did not find, on examination of A would be hearsay.
71. However, the trial judge was imposing no inhibition on the defence from introducing evidence by lawful means as to what had been found, or not found, during the medical examination. The doctor could have been called, either by the defence as their witness, or by being tendered for cross-examination by the prosecution at the request of the defence. That was the proper way of proceeding, and the trial judge was entirely correct in pointing that out.
72. In our view the trial judge's ruling is unassailable and Ground of Appeal No 3 is entirely misconceived. We therefore have no hesitation in rejecting it.
Ground No 4 - Failure to give a corroboration warning
73. Before the trial judge charged the jury, defence counsel requested that she should give the jury a corroboration warning:
74. DEFENCE COUNSEL: 'Judge, I'm going to ask the Court to consider a corroboration warning in respect of both B and A, in circumstances where the initial account given by B bears a striking similarity to the initial allegation or revelation made by A to her mother. In fact, it seems to be precisely the same allegation. And A said nothing further. Now, I know there can be situations where witnesses may open up, further up, but what the jury has heard from [C] is radically different from anything that's contained in the statement of A, anything that's contained in her own direct evidence, anything that's contained in cross-examination. It's a remarkable difference. The circumstances in such, I submit, indicate that there's a considerable level of uncertainty in respect of the initial revelation to the mother, particularly where we don't know when that revelation was, or how long progressed before the DVD was recorded in mid-June. So, I'd submit that this is a proper case where there is an inconsistency, significant inconsistency within the accounts given by A. In respect of B, the evidence is such, I suppose I'm reboiling the same cabbages, Judge, but the evidence is such in respect of that there is a significant shortfall between the contents of her statement and actual allegation made against her, by her, against her father, where she seems to be focusing almost entirely her feelings towards her father when she's giving her evidence, again rendering the situation unsatisfactory having regard to the fact that there is no evidence to corroborate what either of the forensic evidence or other evidence to corroborate what the two say.'
75. The trial judge ruled as follows:
'... as the parties know, section 7.1 now of the Criminal Law (Rape) (Amendment) Act 1990 abolishes the mandatory requirement for a corroboration warning in cases of sexual offending. And as has been pointed out to the Court and is accepted I think, such warning is at the Court's discretion. And further, as understood by all parties, in accordance with the jurisprudence, is no longer considered/warranted simply because of the nature of the allegations of sexual abuse, but may be warranted in circumstances to include evidence as to the unreliability of the complainant. And I think it's the case of DPP v. C.B, a court of appeal case, the party applying for the warning will need to demonstrate that the facts of the case mandate that a corroboration warning be given. The defence have sought this warning in respect of both A and B, and they point to the fact that there's certain uncertainties or a lack of clarity, that there's a similarity now between the initial count given by B or, by the account given by B and the initial count given by A in accordance with A's mother testimony. That initial account was of course never given by A herself in her own direct evidence or under cross-examination. McGrath, I understand, says that a number of factors are not considered sufficient are set out there by him, including passage of time, inconsistencies or discrepancies, but, of course, these factors taken together with the circumstance as a whole may be sufficient, but the Court has to consider the evidence as a whole in deciding whether it's going to exercise its discretion. Having heard the arguments made, the Court doesn't consider, in all of the circumstances, that a corroboration warning is warranted, and doesn't intend to give one in the circumstances of this case.'
76. The appellant complains that the trial judge erred in not giving a corroboration warning, and says there were good reasons for doing so, including:
i. The fact that the offending was alleged to have occurred repeatedly in a small house in which A lived with her parents and two other adults, and no person was aware of anything untoward happening.
ii. The fact that the initial disclosures made by A were clearly prompted or provoked by direct questioning by her sister B.
iii. The absence of any evidence supporting A's allegations and the low standard of the garda investigation.
iv. The vague nature of A's allegations.
v. The manner in which A's account of the offending appears to have changed in that the details of A's initial disclosure to C was not mentioned by A, but they bear a striking similarity to B's allegations.
vi. The fact that some 8 weeks passed between A's initial disclosure to her mother and the 15th of June when her statement was recorded.
vii. The trial judge might mitigate some of the harm done by the failure to secure phone and other evidence by a warning after declining to stop the trial.
77. We were referred to the the decision in People (DPP) v JEM [2001] 4 IR 385 where Denham J endorsed the approach taken by the English courts in R v Makanjuola [1995] 1 WLR 1348 towards the English equivalent of s. 7. We do not propose to quote the relevant passage, which is very well known and with which we are entirely familiar.
78. We were further referred to People (DPP) v TOD [2017] IECA 160 and People (DPP) v Hanley (No. 1) [2018] IECA 173, with which we are also familiar.
79. The appellant says that taking the requirement for an evidential basis to a corroboration warning at its most basic, three points of concern stand out from the evidence:
a. The disparity between the evidence given by A of the first sexual incident and the account given by her to her mother on the 20th of April.
b. The absence of any evidence to support A's allegations.
c. The evidence showing a developing account that commenced with ongoing questioning by B.
80. The appellant submits that the evidential basis required for such a warning was apparent at the conclusion of the trial. In addition, the giving of such a warning might have removed some of the unfairness that existed as previously outlined. Further, the appellant maintains that in refusing to give a warning, the trial judge did not engage in any contextualisation of the Defence observations regarding A's evidence.
81. In reply, counsel for the respondent does not accept the appellant's contention that this was a case which presented an evidential basis for requiring a warning nor that such requirement was apparent at the conclusion of the trial. He suggested that the jurisprudence in relation to the requirement to give corroboration warnings is well settled, and in that regard the respondent relied upon The People (DPP) v. Ryan [2010] IECCA 29, The People (DPP) v. KC [2016] IECA 155, The People (DPP) v. Wooldridge [2018] IECA 135, The People (DPP) v. GH [2020] IECA 130 and The People (DPP) v.VE [2021] IECA 122. It was submitted that the core of the rule is encapsulated in the following extract from the judgment of Birmingham J. (as he then was), which has been quoted with approval on more than one occasion, in The People (DPP) v. KC [2016] IECA 155 at paragraph 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.'
82. Further, in The People (DPP) v. CC [2020] IECA 139, Kennedy J. stated at paragraph 25 onwards:
'25. It is clear from the language of the trial judge that she was not satisfied to give a corroboration warning as a matter of course or as a matter of routine. In our opinion, that is in compliance with the evolving jurisprudence in this area, which means that warnings will usually only be given in circumstances where there is some evidential material which takes the case out of the ordinary and provides an evidential basis for a warning, as was the position in The People (DPP) v. Hartley [2018] IECA 175.
26. As a general rule, a trial judge should not give a corroboration warning as a matter of course or routine. That position should only be departed from where there is good reason for so doing and where there is an evidential basis for the warning.'
83. We were also referred to the more recent case of The People (DPP) v. M(ORSE) J (D) [2019] IECA 92, where McCarthy J. stated as follows at paragraph 18:
'We have stressed before and stress again that whether or not a corroboration warning should be given is in the wide discretion of the trial judge in the first instance. It is obvious that a trial judge is well placed compared to this Court to make a judgment on the evidence having regard to the run of the case on issues of credibility or reliability relevant to a decision as to whether or not a warning should be giving.
19. The inconsistencies here were of a type which is not uncommon especially in sexual offence cases. In any event, all such matters were addressed in her charge. Before a warning could be triggered and the discretion of the trial judge interfered with by this Court, a great deal more than the supposed discrepancies here would be necessary.
20. A number of authorities have been quoted to us both as to general principles and by way of example where this Court has intervened. Examples of intervention are of modest assistance since each case must depend on its own facts, but the thread running through all of the authorities is the recognition of the trial judges' discretion and the primacy of the jury as judges of fact including credibility.'
84. While the appellant had referenced The People (DPP) v TOD [2017] IECA 160 and The People (DPP) v Hanley (No. 1) [2018] IECA 173, the respondent, by way of reply, submitted that these decisions are wholly exceptional and limited to their own facts. As was stressed by McCarthy J. in The People (DPP) v. GH [2020] IECA 130 at paragraph 23:
'This Court has, on a number of occasions, made the point that where a judge has decided not to give a warning, after proper consideration of the issue, the fact that on another occasion, he or she might have been disposed to give a warning, or that other judges in the circumstances might have considered a warning, or that members of an appellate court, if making the decision, might have considered a warning, is not a basis for intervention. This Court will intervene only if the decision to refuse to give a corroboration warning was an impermissible one. Accordingly, each case must depend on its own facts. While that is the clearly established general position, there have been cases where the Court has been prepared to hold that warnings were necessary. These were cases such as DPP v. TOD [2017] IECA 160, a case involving a single allegation of historic indecent assault by a priest at a boarding school, where the complaint was made after a delay of thirty years and after the accused in the case had pleaded guilty in relation to similar offences in respect of other complainants, a fact which had been reported in the media. It was also the case that it had been established that other staff members at the same school had also been involved in the sexual abuse of pupils. Another such case was that of DPP v. Alan Hanley [2018] IECA 175, where there was strong support for the suggestion that a complainant had modified or tailored her evidence to accord with forensic evidence in the context of a retrial. The judge at the first trial had given a corroboration warning, but at the retrial, no warning was given, though by that stage, the case for a warning was, for several reasons, stronger.'
85. We were also referred to The People (DPP) v. SA [2020] IECA 60 where Kennedy J said (at paragraph 148):
'The appellant relies upon the decision of The People (DPP) v. Hanley [2018] IECA 173 as authority for the proposition that a corroboration warning is desirable where there are inconsistencies in testimony. However, the facts of Hanley are entirely different to the evidence in the present case. Lack of recall, vagueness or inconsistencies in testimony are not in and of themselves indicators of the desirability for a corroboration warning. They may be factors which a court may take into account in deciding whether or not to give such a warning.'
86. Counsel for the appellant maintains that the trial judge was entirely correct in her decision which she arrived at following a full consideration of the issue and submissions outlined to her by counsel, and she carefully exercised her lawful discretion in this regard. He submitted that there is simply no basis to suggest that the decision to refuse the appellant's request for one was impermissible. The respondent also submits that the appellant is now seeking to develop his reasons and arguments for the issuing of such a warning in relation to matters which were not raised at trial. Notwithstanding any of that, there still remains no basis to contend that the instant case was one where a warning was mandated, or that the trial judge erred in her discretion.
87. Furthermore, counsel for the respondent says this was a situation in which it was suggested before the trial judge that were was potential corroboration in a lie told by the appellant regarding his own viewing of pornography and the demeanour of A as she recounted events to her mother. Thus, any corroboration warning would require the trial judge to have brought these matters to the jury's attention as potentially amounting to corroboration if they so found.
Decision on Ground of Appeal No 4.
88. Whether or not a corroboration warning should have been given was a matter within the trial judge's discretion. There is no basis in the present case for believing that the discretion was impermissibly or improperly exercised. The appellant says there was an evidential basis on which such a warning could have been justified, had the trial judge opted to give one. That might be so, but in our assessment, it was not so strong or so compelling as to mean that the discretion could in reality only be lawfully and legitimately exercised in one way, namely in favour of giving the requested warning. The matters pointed to by the Defence were not suggestive of inherent unreliability on the part of A, but rather involved possible inconsistencies between some of what she had allegedly said to certain persons to whom she had complained and what she said herself during her testimony before the jury. Whether the complainant had indeed been inconsistent in the manner suggested, and the significance of the matters pointed to for her overall credibility and reliability, were matters that were well within the capability of a jury to resolve without any necessity for a corroboration warning. We are satisfied that the trial judge approached the issue carefully and conscientiously, and that she fully considered the arguments for and against. She gave sufficient and cogent reasons for her decision not to give a corroboration warning, and we do not consider that the complaint that she failed to consider in its proper context the evidential basis put forward by defence counsel is made out. It was not essential that the trial judge, in setting out her reasons for her decision not to give a corroboration warning, should address in every detail the context in which a claim of unreliability had been made.
89. In the circumstances we reject Ground of Appeal No 4.
Conclusion
90. The appellant's appeal against his conviction is dismissed.
Result: Dismiss