Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- G.K.

Neutral Citation: [2006] IECCA 99


Court of Criminal Appeal Record Number: 76/05

Date of Delivery: 05 July 2006

Court: Court of Criminal Appeal

18

This is an application for leave to appeal brought by the applicant from various convictions of a sexual nature brought in by a jury on the 3rd March, 2005 following a trial in the Central Criminal Court. On that date the applicant was convicted of various sexual offences perpetrated against the complainant, L.S., between the years 1991 – 1997. The complainant was born on the 18th April, 1981, and was nearly 24 years of age at the time of trial. She was aged between ten and fifteen years during the years when the offences occurred. The applicant had been charged with one count of indecent assault under s. 10 of the Criminal Law (Rape) Act, 1981(in respect of which he was found not guilty), four counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) Amendment Act, 1990 (in respect of all of which he was found guilty), three counts of unlawful carnal knowledge contrary to s.1(1) of the Criminal Law Amendment Act, 1935 (in respect of one of which he was found guilty and in respect of two of which the jury disagreed), one count of unlawful carnal knowledge contrary to s. 2(1) of the Criminal Law Amendment Act, 1935 (in respect of which he was found guilty) and three counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990 (in respect of two of which he was found guilty and in respect of one of which he was found not guilty).

The trial in the Central Criminal Court in February, 2005 was the third trial to which the applicant was subjected arising out of the offences in question. In the first trial, the jury failed to agree a verdict on any count. At his subsequent re-trial, the applicant was convicted on a number of counts but appealed his conviction on various grounds, one of which was that he was entitled for the purpose of the second trial to have had a transcript of the proceedings in the first trial. There were other grounds of appeal, but as this Court allowed the appeal in respect of the trial court’s refusal to direct the provision of a transcript, those other grounds were not the subject matter of any ruling.

In the course of the third trial, the subject of this appeal, the applicant gave evidence in which he strenuously denied any improper or inappropriate sexual contact with the complainant, but was nonetheless convicted on eight counts as outlined above. He was sentenced to eight years imprisonment in respect of the more serious offences, with shorter periods of imprisonment for the less serious offences, all such sentences to run concurrently. The Court was informed during the course of the hearing of this appeal that the applicant has to date spent approximately three and a half years in prison on foot of his various convictions arising out of these offences.

While a number of grounds were argued in the course of this appeal, this judgment is directed to the ground of appeal founded upon the learned trial judge’s refusal to allow cross-examination of the complainant in respect of a matter which emerged only at the sentencing hearing which followed the second trial. The development was, to say the least of it, both unexpected and unusual.

Following the conviction of the applicant at the second trial, a Victim Impact Report was prepared for the sentencing hearing by a clinical psychologist who had counselled the complainant after she had reported the incidents of sexual abuse to the Gardai. The complainant participated in ten sessions with the psychologist between August, 1998 and January, 1999, with a final assessment taking place in January, 2000. The psychologist’s report, which was prepared and furnished for sentencing purposes in February, 2000, indicated that the complainant had in the course of her therapy disclosed that she “became sexually active with boys when she was twelve years old”. In her report the psychologist did not indicate whether this disclosure was made during one of the ten sessions referred to or in the final assessment in January, 2000. It was the psychologist’s opinion that the disclosed behaviour was explicable by reference to the early sexualisation of the complainant as a result of her abuse by the applicant. In the course of her report, the psychologist stated as follows:-

“In L.S.’s case, traumatic sexualisation has been a feature of her early adolescence. Traumatic sexualisation refers to distorted ideas and behaviours regarding sexuality which are caused by sexual abuse. As the child’s first sexual experience happens in a distorted and inappropriate way, at a time of immature development, inappropriate sexual behaviours can result. In L.S.’s case, already sexualised by her abuse at the age of 8 and 9 years, she became sexually active with boys when she was 12 years old. In this psychologist’s opinion and in line with the research, this was a direct effect of having sexual behaviour imposed on her as a child. While L. had no control as a young adolescent, she became aware that this behaviour was abnormal and a way of helping her feel powerful. Fortunately, she took control of this aspect of traumatic sexualisation and no longer engages in inappropriate sexual behaviours.”

The importance of the disclosure of sexual activities with other boys lies in the fact that the defence were completely unaware of these activities until the report was produced at the sentencing hearing which followed the second trial. It is unclear whether prior to this report the Gardai were aware of the fact that the complainant was engaging in inappropriate sexual activity with other boys during some of the years, notably from age twelve onwards, when she stated she was being abused by the appellant. It would be a matter of some concern if they were and made no further inquiries arising therefrom.

It certainly seems that no further steps were taken by the Gardai between the second and third trials to investigate further the complainant’s disclosure. There was no information either as to the name or names of the boys concerned or any indication as to how long these activities continued or when they ceased.

A physical examination of the complainant in September, 1997, some six months after she had made complaint to the Gardai, revealed that the complainant’s hymen was broken and evidence to this effect was given by a doctor, Dr Grainne Courtney, retained by the prosecution for the purpose of carrying out such examination, at the third trial. However, it seems the complainant made no reference during the course of this examination to any prior sexual activities with other boys. The importance of this evidence will be referred to later.

Before any evidence had been given in the most recent trial, Patrick McCarthy, senior counsel for the applicant, sought a ruling from the trial judge that he be given leave to cross-examine the complainant arising out of the disclosures made by the complainant to the psychologist. The application was framed as follows:-

“It was canvassed by the gardaí in a second interview (i.e., with the appellant) as to why the complainant would be making a complaint of this nature of sexual assault and rape. My client said he did not know, was she pregnant and did she have other boyfriends, but he did not know. That previous sexual history was not pursued in the absence of information because we had no information to give an explanation to the jury as to why she would be making that complaint.”

In ruling on the application, the learned trial judge decided against allowing cross-examination for two reasons. Firstly, he held that the Victim Impact Report was a privileged document of a confidential nature which had been brought into being solely for the purpose of sentencing after conviction. Secondly, the trial judge ruled that an application of this nature was more appropriate to a case where consent was an issue. Given that consent was not an issue in the present case, the learned trial judge relied upon that consideration as an additional reason for refusing the application. A further application for leave to cross-examine the complainant about her sexual history was made immediately after the complainant had completed her evidence though no new grounds were advanced and this second application was similarly refused.

The kernel of this appeal, therefore, is to determine whether the refusal to permit such cross-examination was a proper exercise of judgment or discretion by the learned trial judge. Before proceeding to consider the provisions of the relevant legislation, it is perhaps appropriate to note that Gerard Clarke, senior counsel for the respondent, did not seek to rely on any finding that the report in question was privileged in the hearing before this Court.

Restrictions on evidence and cross-examination at trials for rape offences were introduced by the Criminal Law (Rape) Act, 1981. Section 3 of the Act provided as follows:-

“3. (1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience of a complainant with a person other than that accused.
( 2 ) ( a ) The judge shall not give leave in pursuance of subsection (1) for any evidence or question except on an application made to him, in the absence of the jury, by or on behalf of an accused person.
( b ) The judge shall give leave if, and only if, he is satisfied that it would be unfair to the accused person to refuse to allow the evidence to be adduced or the question to be asked, that is to say, if he is satisfied that, on the assumption that if the evidence or question was not allowed the jury might reasonably be satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied.
(3) If, notwithstanding that the judge has given leave in accordance with this section for any evidence to be adduced or question to be asked in cross-examination, it appears to the judge that any question asked or proposed to be asked (whether in the course of so adducing evidence or of cross-examination) in reliance on the leave which he has given is not or may not be such as may properly be asked in accordance with that leave, he may direct that the question shall not be asked or, if asked, that it shall not be answered except in accordance with his leave given on a fresh application under this section.

(4) Nothing in this section authorises evidence to be adduced or a question to be asked which cannot be adduced or asked apart from this section.”

“If at a trial any person is for the time being charged with a sexual assault offence to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience (other than that to which the charge relates) of a complainant with any person….(emphasis added).”

“a rape offence and any of the following, namely, aggravated sexual assault, attempted aggravated sexual assault, sexual assault, attempted sexual assault, aiding, abetting, counselling and procuring aggravated sexual assault, attempted aggravated sexual assault, sexual assault or attempted sexual assault, incitement to aggravated sexual assault or sexual assault and conspiracy to commit any of the foregoing offences.”

There is a dearth of decided authority in this jurisdiction as to how a trial judge should exercise his discretion under s.3 of the Act of 1981. The issue was considered by this Court in D.P.P. v. McDonagh and Cawley (Unreported, Court of Criminal Appeal, 24th July, 1990) and in the course of his judgment, Finlay CJ. had the following to say about the construction of the section:-

“Upon the true construction of this Section it would appear necessary for the Judge, in the absence of the jury, to hear all the necessary material which will permit him to reach a conclusion either with regard to questioning or with regard to the tendering of evidence concerning sexual experience of a complainant with persons other than the accused, and that it is a matter for his discretion in what form that information would be put before him, whether by way of sworn testimony or by way of a proof of evidence. It is obviously desirable where it is practicable for a ruling to be made at an early stage in the trial on any such application. It may not, however, always be possible to rule it on one occasion only, and there is nothing inconsistent with the provisions of the Section in a further or different application at a later stage in the trial or with the renewal of an application or the postponement of a decision on it. The grounds on which the learned trial Judge shall exercise his discretion are very clearly set out at section 3(2)(b), and solely consist of the question as to whether he is satisfied that if the evidence or question was not allowed, the jury might reasonably be satisfied beyond a reasonable doubt that the accused person is guilty, whereas, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied.”

Counsel for the prosecution has referred this Court to a number of English authorities in relation to analogous provisions set out in Section 2 of the Sexual Offences (Amendment) Act, 1976 (which said section has since been replaced by ss. 41-43 of the Youth Justice and Criminal Evidence Act, 1999 in that jurisdiction).

It seems clear that the statutory provisions in this jurisdiction were drawn almost entirely from the corresponding provisions set out at s.2 of the Sexual Offences (Amendment) Act, 1976 in England. The relevant section of the 1976 Act provided that:-

“… the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to allow the evidence to be adduced or the question to be asked.”

“..in my judgment, before a judge is satisfied or may be said to be satisfied that to refuse to allow a particular question or a series of questions in cross-examination would be unfair to a defendant he must take the view that it is more likely than not that the particular question or line of cross-examination, if allowed, might reasonably lead the jury, properly directed in the summing-up, to take a different view of the complainant’s evidence from that which they might take if the question or series of questions was or were not allowed.”

In R. v. Viola, the Court of Appeal said that the first question the judge has to ask himself is whether the proposed questions are relevant according to the ordinary common law rules of evidence and relevant to the case being put against the defendant. If they are not relevant in this way, that is the end of the matter. The second question is, of course, whether the questions should be allowed or not.

Archbold (2000 Ed.) par. 8-123 m states at 1081:-

“The section was clearly aimed primarily at excluding questions which went merely to credit and no more. If the proposed questions merely sought to establish that the complainant had sexual experience with other men to whom she was not married so as to suggest that, for that reason, she ought not to be believed on oath, the judge would exclude the questions or evidence. On the other hand, if the questions were relevant to an issue in the trial in the light of the way the case was being run – for example, consent as opposed merely to credit – they might as a general rule be admitted.”

“Questions which really do go to the issue of consent should, it is submitted, never be excluded under the Act of 1976. Questions which do not go to that issue and which relate to the complainant’s previous sexual experience should be excluded, unless they are such as might reasonably lead the jury to take a different view of the complainant’s evidence. Clearly, if the complainant has lied about her previous sexual experience, this is a matter which may affect the weight to be attached to her evidence. The mere fact that the complainant has previous sexual experience, however, is of no significance whatsoever. Suppose, in the instant case, that the truth was that the girl had previously had intercourse with her boyfriend, aged 15, on a number of occasions; if she had said in her witness statement that she was a virgin, or her evidence was given in such a way as to suggest that this was the case, it would obviously be right to permit cross-examination, as affecting the weight of her evidence. In the absence of such features, or any other particular feature, it is submitted that such questioning should not be permitted: the apparent suggestion in this case was that the eliciting of such information would be relevant to the issue of consent. It is submitted that any such argument should be formally resisted.

In R. v. Elahee [1999] Crim. L.R. 399, CA, the defence involved a denial of the act of intercourse with a 13 year old girl. It was held that medical evidence having been adduced that the victim’s hymen was not intact, a defence application for leave to cross-examine her about the fact that she had previously had intercourse with her boyfriend should have been granted. Disallowing such cross-examination gave rise to the clear risk that the jury would regard the medical evidence as confirmation of the complainant’s evidence.”

In allowing the appeal, the Court of Appeal held that where the issue in a case was not one of consent, but rather who had made an improper approach to whom, the evidence of a complainant’s previous sexual experience was a matter which was relevant to an issue in the trial and therefore one which the jury could properly take into account; not to assess credit, but to assess the plausibility of the account given by the defendant. In that situation the evidence had to be admitted unless there was a strong reason not to. The Court of Appeal ruled that the application to admit the evidence should have been granted, since it was unfair, once the matter of the broken hymen had properly been put before the jury, for that matter not to be carried through and the evidence of the complainant’s previous sexual experience to be put before them. It followed in those circumstances that the conviction was unsafe and a retrial was ordered.

The revelation in the instant case that the complainant had engaged in inappropriate sexual behaviour with other boys may well have been, as was suggested by the psychologist, the consequence of early sexualisation brought on by the actions of the applicant. However, the disclosure in the particular context of the complainant’s age was an important one. Mr. McCarthy has pointed out that prosecuting counsel closed the case to the jury by referring to the account given by the complainant of her experiences at the hands of the applicant and had then told the jury that “there has not been one suggestion as to why she might do that. Not one.” Indeed the interrogation of the appellant in the Garda station was in part premised on questions as to why the applicant thought the complainant would advance such allegations, what possible reason could she have. Mr. McCarthy argued that, taken in conjunction with the medical evidence, the presentation of the complainant to the jury as a young girl with no other sexual experience resulted in a real unfairness to the applicant, because the jury was deprived of the opportunity of considering the proper weight to be attached to the complainant’s evidence against a background where inappropriate sexual activity with other boys was taking place. At the very least, Mr. McCarthy argued, such activity was capable of raising a reasonable doubt in the minds of the jury, both as to the plausibility or otherwise of the account offered by the complainant and because it was capable of providing a motive for bringing a false allegation against an adult who was a regular visitor to the complainant’s family home and on friendly terms with her parents.

In the ordinary course one might begin by stating that it is well settled law that discretionary orders should not lightly be interfered with by appellate courts given that the trial judge is obviously in the best position to assess the demeanour of the witness. However, as R v Viola demonstrates, the issue is as much about making a judgment on reasoned grounds as it is about exercising a discretion. This is a case where the trial judge ruled on the application for leave to cross-examine for reasons which had no relevance to the statutory test. One of those reasons, namely that the psychologist’s report was privileged, has been abandoned by the prosecution and manifestly any question of consent was in no way germane to the facts of this case. The defence of the applicant was that he never had sexual relations with the complainant, not that she consented to such relations. It falls therefore to this Court to determine whether the ruling made is capable of being upheld for reasons other than those identified by the learned trial judge.

Having regard to the severely restrictive terminology of the statutory provision, the Court is of the view that, in general, a decision to refuse to allow cross-examination as to past sexual history may more readily be justified in most cases than the converse. Indeed the Act is quite explicit in so providing. Furthermore, the younger the age of a complainant, the less desirable it is to ever allow cross-examination which may well be extremely traumatic for a complainant of tender years. Where a form of questioning is allowed, it should be confined only to what is strictly necessary and should never be utilised as a form of character assassination of a complainant.

Moving from the general to the particular, however, it can not be denied that the admission of a history of sexual activity with other boys of her own age commencing at the age of twelve and concurrent with the time of alleged sexual abuse by the applicant passes the test of relevance. To begin with, the Court would take the view that the jury in this case would have been unlikely to surmise any other possible sexual activity on the part of a girl of such tender years, even allowing for the huge changes in adolescent sexual behaviour in recent years. Had this information been disclosed at the outset it might in fact have fortified the complainant’s credibility, because it would appear from the psychologist’s report that there may have been a ready explanation available to account for this behaviour. Unfortunately the manner in which the information ultimately emerged might have struck the jury as highly significant in the case of a girl of her age, not least because it gave rise to the possibility of some other motive for identifying the applicant as the only person with whom she had sexual relations. The sense of unease arising from the manner of the revelations can only be heightened by the knowledge that the complainant withheld the information from her parents, her family GP, from Dr. Courtney and also from the members of the Gardai to whom she first brought her complaint against the applicant. Yet the complainant had apparently no difficulty in openly discussing her abuse by the applicant with the clinical psychologist, to whom she presented as a confident and self-assured girl who showed no indicators of depression or anxiety. It is unclear when exactly these activities with other boys ceased, given that the report states only that – as of the date of the report –the complainant was no longer engaging in inappropriate sexual behaviour. If the activity continued until shortly before the making of the complaint – something only the complainant could confirm or deny – the risk of some other element in this case can only be seen as a more substantial possibility. Nonetheless, the jury were left with only “one suspect” in circumstances where the evidence of the ruptured hymen could only be seen as providing significant corroboration of the complainant’s evidence which, because of her age, effectively conveyed to the jury the impression that the applicant was the only party with whom she was ever involved.

In reaching its decision the Court wishes to stress that, even if the complainant was engaging in inappropriate sexual activity with other boys of her own age or nearly her own age, that fact, if fact it be, does not of itself undermine the complainant’s evidence that she was sexually abused by the applicant. It is the non-disclosure or concealment of the other behaviour in the particular context which obtains in this case which gives rise to an anxiety that the applicant may not, in the absence of some limited questioning to clarify this issue, have received a fair trial in accordance with due process.

The Court notes that at the time of this trial the complainant was nearly 24 years of age and there is nothing in the transcript of the trial or in the complainant’s evidence to suggest that she would have been unfairly or unduly traumatised by a limited form of cross-examination confined to testing the plausibility of her account and the weight to be attached to same by reference to the sexual activities with other boys. The medical evidence of the police doctor further warranted such a ruling, given that without the cross-examination there was every reason for the jury to accept from the medical evidence that the complainant had indeed had sexual relations with someone but no reason whatsoever to suspect that anyone other than the applicant might be involved.

It is the view of the Court therefore that the decision or ruling not to permit a limited and carefully monitored form of cross-examination of the complainant (which in any event the trial judge may not have been able to preclude in relation to the charges under the Act of 1935) was unfair to the applicant in that the history in question could have materially affected the jury’s deliberations whether to find him guilty or not guilty. In other words, to adopt the terminology of s.3(2)(b) of the Criminal Law (Rape) Act, 1981, the Court is satisfied that the effect of allowing the evidence or question might reasonably have been that the jury would not have been satisfied beyond reasonable doubt of the guilt of the applicant.

The Court would stress that its decision is not one which impugns the character of the complainant in any way. Had she been given the opportunity of responding to limited questioning about her sexual activity with other boys the jury may have been completely satisfied that those activities were totally unrelated to the bringing of her complaint against the applicant, save in the sense described by the psychologist in her report, and had ceased long before the bringing of her complaint to the authorities. However, both the jury and the applicant were deprived of relevant evidence which clearly could have affected the outcome of the case.

The Court will accordingly quash the convictions herein and, given that the applicant has been through three trials with two appeals to this Court, will not direct a retrial.