Irish Court of Criminal Appeal

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URL: http://www.bailii.org/ie/cases/IECCA/2007/C48.html
Cite as: [2007] IECCA 48, [2007] 3 IR 772

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Judgment Title: D.P.P.-v- Chaene Onumwere

Neutral Citation: [2007] IECCA 48

Court of Criminal Appeal Record Number: 256/05

Date of Delivery: 24 May 2007

Court: Court of Criminal Appeal

Composition of Court: Finnegan J., Mac Menamin J., Feeney J.

Judgment by: Finnegan J.

Status of Judgment: Approved


Judgments by	Result
Finnegan J.	Refuse leave to appeal against conviction

Outcome: Refuse leave to appeal against conv.

THE COURT OF CRIMINAL APPEAL

Finnegan J.
MacMenamin J.
Feeney J. No. 256/2005

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and
CHAENE ONUMWERE

Applicant

Judgment of the Court delivered on the 24th day of May 2007, by FINNEGAN J.

The applicant seeks leave to appeal against conviction and sentence. He was convicted of one count of sexual assault contrary to the Criminal Law (Rape) (Amendment) Act, 1990 section 2 as amended by the Sexual Offences Act, 2001 section 37. He was sentenced to six years imprisonment.
On the evening of 17th June, 2004 the complainant met a friend after work in Fitzsimons Hotel, Temple Bar, Dublin. At about 11 pm the complainant and her friend went to the hotel nightclub. They met a group of four or five Nigerian men and went back to their flat. The complainant retired to a bed fully clothed and fell asleep. She woke to find one man holding her down by the shoulders while the other was "pushing her from behind". She screamed and a third man entered the room, turned on the light, whereupon the two within the room left. The complainant felt wetness on her upper thigh and also on the bed sheets next to her. She reported these events to the gardai and samples for the purposes of DNA testing were taken from her.
The gardai attended at the men's flat. Five men were present. Four of these agreed to give DNA samples. The applicant refused.
There are ten grounds of appeal. Of these, three were not pursued at the hearing. Grounds two and three were dealt with together, as were grounds four and five and accordingly the appeal can be dealt with under five grounds.

Ground 1 - The learned trial judge erred in law in refusing to permit the accused examine the witness Werner Brown as to the nature of his recollection of the conduct of the complainant and her friend while in the hotel nightclub.
The complainant was cross-examined about her ability to recollect the events of the night in question having regard to the amount of alcohol which she had consumed and the circumstance that she was taking prescription anti-depressant medication. Her evidence was that while she had a poor recollection of the events of the evening this was due to her desire to put those events behind her and specifically this was not attributable to the consumption of alcohol or the taking of medication. She was asked did she kiss any of the males with whom she was dancing while in the nightclub and she replied that she did not. Mr Brown was a doorman at the nightclub. She was asked:
Question: So again if Mr Werner Brown comes into court and says that he witnessed you kissing and hanging around the necks of three of the men in the company he would be lying?
Answer: Yes. There is something not right about that, definitely not.
The only witness called on behalf of the applicant was Mr Brown. Before he gave evidence counsel for the prosecution objected that if Mr Brown's evidence went to credit only then it was not admissible and that the replies given in evidence by the complainant on matters collateral to matters in issue and in particular matters going to credit were binding. Counsel for the applicant gave as the reason for calling Mr Brown the introduction of evidence in relation to the complainant's ability to recollect the events of the evening, her conduct in the nightclub and her truthfulness as a witness. Counsel was asked by the learned trial judge if these were not matters as to credit and he replied:-

"There could be nothing more important in a sexual assault case than credibility. It is a question of both sides effectively telling their story and for the jury to determine whether or not the complainant's story is capable of belief beyond a reasonable doubt. Now if their credibility is undermined by them having been shown to the jury to have misrepresented facts collateral to the issue then I would have to be entitled to do that".

From this it is clear that the basis upon which it is was sought to introduce Mr Brown's evidence was one collateral to the matter in issue namely the complainant's credibility.
In R v Nagrecha [1997] CAR 401 the appellant had been conviction of indecent assault. The defence had a statement from a Mr Lee which contained the following -

"I found her very difficult. She suffered from what appeared to be severe mood changes … She also made allegations of a sexual nature against me when I told her to shape up at work or she would have to go. She reported this to my boss who did not believe her. Due to bad work standards she left shortly after this. She told work colleagues she had been sexually assaulted on one occasion by a taxi driver or at least there had been an attempt to do so. Also she told us a building worker had attempted to sexually assault her. No one believed what she said".

Counsel for the defence sought permission to cross-examine the complainant about the matters contained in Mr Lee's statement and depending on the answers which she gave be permitted to call Mr Lee to give evidence. The complainant denied that she had made any of the allegations of a sexual nature. The trial judge had held that although the defendant was entitled to ask the complainant whether she made the allegations and whether they were true as they went entirely to credit if she denies them the defence may not call witnesses to contradict her.
The Court of Appeal reviewed the authorities and held that rebuttal evidence should be admitted where such evidence goes to an issue. The court referred with approval to a passage from Cross and Tapper on Evidence (8th Ed) at p.341:-

"It has also been remarked that sexual intercourse, whether or not consensual, most often takes place in private and leaves few visible traces of having occurred. Evidence is often effectively limited to that of the parties, and much is likely to depend upon the balance of credibility between them. This has important effects for the law of evidence since it is capable of reducing the difference between questions going to credit and questions going to the issue to vanishing point. If the only issue is consent and the only witness is the complainant, the conclusion that the complainant is not worthy of credit must be decisive of the issue".

A further passage from Cross and Tapper on Evidence (8th Ed) at p.335 was also quoted with approval:-

"There are now signs of a more liberal approach to rebuttal certainly in criminal cases. A modern example is Busby where it was suggested that a police witness for the prosecution had fabricated an oral confession and threatened a potential witness for the defence so as to prevent him from testifying. Both allegations were denied by the police officer and the defence proposed to call the man who had been threatened to rebut the denial of a threat. The judge refused to permit the rebuttal applying the traditional collateral matter rule, but the Court of Appeal quashed the conviction on the basis that the defence should have been allowed to rebut the denial because it went to a fact in issue. This seems quite contrary to the decision in Harris v Tippett, and to most tests for the distinction between credit and issue, in effect, substituting substantial relevance as a test for allowing rebuttal"

Thus where consent is an issue credibility is of such importance that rebuttal evidence going to credibility may be admitted. In the present case consent is not an issue.
In the course of Mr Brown's evidence counsel for the prosecution was asked by the learned trial judge what was the purpose of the questioning and he replied "to discredit". He went on to say that "No My Lord it is not to discredit it is to establish credibility of one set of facts over the other". The only facts to which this comment could relate was the alleged conduct of the complainant in the nightclub and the court is satisfied that this conduct was not a fact in issue. Accordingly, the evidence of Mr Brown was properly excluded.

Ground 2 - The learned trial judge erred in law in refusing to discharge the jury when the prosecution served additional disclosure on the defence after the prosecution had closed its case, where such disclosure pertained to the evidence given by Mr Burrington, witness for the prosecution and where the prosecution was not purporting to recall that witness.

Ground 3 - The learned trial judge erred in law and in fact in determining that the accused was not prejudiced by the fact that it was only disclosed by the prosecution after it closed its case that at least two other people, previously unknown to the defence, had been involved in the DNA evidence adduced by the prosecution during the trial where the procedures and methods used in obtaining and analysing that evidence had been challenged by the defence.
DNA evidence was central to the prosecution case. The evidence was given by Mr Mike Burrington, a scientist from the Forensic Science Laboratory, Dublin. During the course of cross-examination by counsel for a co-accused the witness explained the deletion of a reference "16" from his report. When asked why this occurred he explained that a second analyst did not detect the element 16 and that the normal practice where two analyses do not agree is that the most conservative approach is adopted. A second analysis is carried out routinely throughout the entire procedure. This was the first time that the applicant's legal team were made aware of the existence of a second analysis.
The following day counsel for the prosecution informed the court that:

"It is best practice in the Forensic Science Laboratory, that when checking on the DNA from time to time, to get a second opinion from another scientist, in this case it was a Miss Geraldine O'Donnell. She in fact happens to be senior to Mr Burrington but was acting as a back-up scientist in each case. I am not calling her as a witness. Similarly, a Miss Linda Williams from the Forensic Science Laboratory did back-up, double checked, on some of the gel tests. I am not calling her as a witness either. … There is some five or six pages of charts or tables or notes generated by Miss Geraldine O'Donnell, and lest it be said that there has been a failure to record full disclosure in this case I’m making copies of those available now".

An application was made to discharge the jury which the learned trial judge refused to do. The applicant's submission is that failure to disclose the additional tests potentially prevented the defence from challenging the credibility of the DNA evidence. Reliance is placed on Director of Public Prosecutions v A.C. - Court of Criminal Appeal unreported 11th May, 2005 Denham J. The issue in that case was whether the prosecution failed to make prompt disclosure and if they did what consequences should flow. The court laid down the following principles -

"1. The court should consider, by reference to the principles already established in respect of cases where evidence emerges subsequent to trial, the materiality of the evidence.
2. The court should consider the culpability of the prosecution and the defence in relation to the late availability of the evidence."

In this case the evidence in issue was undoubtedly made available late. The applicant claims that it had the potentiality of enabling the DNA evidence of Mr Burrington to be attacked. Notwithstanding the availability of the documents however, it is not suggested that any discrepancy other than that related to element 16 is disclosed in the additional documentation. The discrepancy was in any event disclosed in the course of cross-examination and related to samples taken from one garment only. In these circumstances the defence in no way contributed to the late disclosure. The additional evidence was confirmatory of the evidence of Mr Burrington and, accordingly, not material in the sense of being in any way exculpatory. The failure to make disclosure in these circumstances did not affect the fairness of the applicant's trial.

Ground 4 - The learned trial judge erred in law and in fact in finding that the detention of the accused by the gardai after his arrest complied with the provisions of the Children Act, 2001.

Ground 5 - The learned trial judge erred in law in ruling that such breaches of the provisions of the Children Act, 2001 which may have occurred in relation to the accused's detention in garda custody were not matters sufficiently prejudicial to the accused to necessitate him ruling inadmissible any evidence arising out of that detention.

The applicant has an application for asylum pending and in connection with that application he gave his date of birth as 14th August, 1986. This date appears on an identity card furnished to him by the authorities. He was arrested on the 18th June, 2004 just under two months short of his eighteenth birthday.
The Children Act, 2001 in part 6 thereof contains provisions relating to the treatment of child suspects in Garda Síochána stations. Relevant to this application are section 56, section 58 and section 61. These provide as follows:-

"56. The member in charge of a Garda Síochána station shall, as far as practicable, ensure that any child while detained in the station shall not associate with an adult who is so detained and shall not be kept in a cell unless there is no other secure accommodation available.

58. (1) When a child is arrested and brought to a Garda Síochána station on suspicion of having committed an offence, the member in charge of the station shall as soon as practicable -

(a) inform or cause to be informed a parent or guardian of the child—

(i) that the child is in custody in the station,

(ii) in ordinary language and in the Irish language when dealing with a child from the Gaeltacht or a child whose first language is Irish, of the nature of the offence in respect of which the child has been arrested, and

(iii) that the child is entitled to consult a solicitor and as to how this entitlement can be availed of;

and

(b) request the parent or guardian to attend at the station without delay.

(2) (a) If the member in charge of the station—
(i) is unable to communicate with a parent or guardian of the child, or
(ii) the parent or guardian indicates that he or she cannot or will not attend at the station within a reasonable time,

the member shall inform the child or cause the child to be informed without delay of that fact and of the child's entitlement to have an adult relative or other adult reasonably named by him or her given the information specified in subsection (1)(a) and requested to attend at the station without delay.

61. (1) Subject to subsections (2) to (4), a child who has been detained in a Garda Síochána station pursuant to any enactment shall not be questioned, or asked to make a written statement, in relation to an offence in respect of which he or she has been arrested unless in the presence of—

(a) a parent or guardian, or

(b) in his or her absence, another adult (not being a member of the Garda Síochána) nominated by the member in charge of the station.

(2) Notwithstanding subsection (1), the member in charge of the station may authorise the questioning of the child or the taking of a written statement in the absence of a parent or guardian, where the member has reasonable grounds for believing that to delay the questioning would involve a risk of death or injury to persons, serious loss of or damage to property, destruction of or interference with evidence or escape of accomplices.

(7) In this section references to a parent or guardian include references to an adult relative of the child, an adult reasonably named by the child pursuant to section 58(2)(a) or the adult mentioned in subsection (1)(b)."

With regard to section 56 the position is that age may be proved by various means including the statement by a witness of his own age and the opinion of a witness as to the age of another person. However where age is an issue stricter methods of proof are appropriate and the cases show that age may be proved by the admission of a party, by evidence of a witness who was present at the birth of the person concerned, by the production of a certificate of birth supplemented by evidence identifying the person whose birth is there certified by oral or written declarations. No attempt was made to prove the applicant's age and the applicant himself did not give evidence. The learned trial judge did not make any finding as to the applicant's age but proceeded to consider submissions on the basis that he was not at the relevant time, 18 years of age.
On the evidence of Garda Elaine O'Malley the applicant was placed in a cell: she was not able to say whether or not there were other persons with him in the cell. Sergeant Yates gave evidence that Mountjoy Garda Station did not have a detention place other than a cell and indeed has only two cells. Sergeant Joseph Kiely also gave evidence that there was no detention room in Mountjoy Garda Station but that there were no adult prisoners in the cell in which the applicant was detained. In these circumstances no non-compliance with section 56 of the Act arises.
Section 58 of the Act requires the Gardai to inform the guardian of a child of certain matters and to request the parent or guardian to attend at the station without delay but if that is not possible to inform the child of his right to have an adult present. In this case the gardai arranged for an adult to be present, a Mr Chiani. He had visits from his girlfriend who was an adult. The applicant's contention is that within the asylum process he had assigned to him a social worker and that it was appropriate that she should be contacted for the purposes of section 58(1). The court however, is satisfied in the circumstances of this case including the applicant’s age, his access to his adult girlfriend and the need for an adult who could communicate with the applicant in his own language that the involvement of Mr Chiani for the purposes of the subsection complied with the requirements of section 58. The court would reiterate that this statutory right is substantive in nature and is not complied with by some mechanistic process or empty formula.
With regard to section 61(1) the interviews were conducted in the presence of Mr Chiani and the court is satisfied that this is a compliance with the section.
The provisions of section 66 of the Act are also relevant. Section 66(2) provides that the failure to observe any provision of these sections shall not of itself affect the lawfulness of the custody of a detained child or the admissibility in evidence of any statement made by the child. Nothing has been urged on the court on behalf of the applicant that suggests any oppressiveness or unfairness in the manner in which the applicant was treated and had it been necessary to do so the court would have applied the provisions of section 66(2) of the Act. In age the applicant fell just short of his eighteenth birthday at the relevant date and had been living independently.

Ground 6 - The learned trial judge erred in law in ruling that despite his finding that there had not been full compliance by the gardai with the provisions of the Criminal Justice (Forensic Evidence) Act, 1990 in the taking of samples from the accused during his detention at the garda station, that any such breaches as occurred did not require him to rule as inadmissible the evidence sought to be adduced by the prosecution arising out of those samples.
The 1990 Act, section 2(4) requires that consent be obtained for the taking of the samples relevant to this case. Section 2(6) requires a member of the Garda Síochána before causing a sample to be taken or seeking the consent of a person from whom the sample is required to inform the person of the nature of the offence in which it is suspected that the person has been involved, that an authorisation for the taking of the sample has been given in accordance with the act and that the results of any tests on the sample may be given in evidence in any proceedings. Subsection 7 requires that the consent be given in writing or if given orally that it be confirmed in writing.
The Criminal Justice (Forensic Evidence) Act, 1990 Regulations 1992 (S.I. No.130 of 1992) were made pursuant to the 1990 Act. Regulation 8 thereof requires, in the case of a person who had not obtained the age of seventeen years, that the sample should be taken in the presence of a parent or guardian; the applicant here having attained seventeen years at the relevant date this Regulation has no application. Regulation 4 requires an entry in the custody record of the giving of an authorisation to take samples. Regulation 5 requires that a person from whom it is proposed that a sample should be taken should be given the information required by section 2(6) of the Act of 1990 and that a note should be made in the custody record recording the giving of that information together with the name and rank of the member who gave the information and the date and time when it was given. Regulation 6 requires that the giving or refusal of consent to the taking of a sample shall be entered in the custody record.
Counsel for the applicant asserted to the learned trial judge that no entry had been made in the custody record that an authorisation to take a sample from the applicant had been given. It is not clear from the transcript whether or not this is in fact correct. However, the evidence of Detective Sergeant Stratford is that the authorisation to take the sample was given and that he informed the applicant of this. Detective Sergeant Stratford's evidence was that he informed the applicant that the taking of samples had been authorised. In his evidence he asked for sight of the custody record so that he could read out the samples which were in fact authorised; it would appear from this that details of the authorisation were indeed entered in the custody record. Witness further gave evidence that he explained the purpose of the taking of samples and that the results of tests can be used in the case. His evidence was that he told the applicant the nature of the offence. On this evidence there was compliance with section 2(6) of the Act of 1990.
It is consistent with compliance with the 1990 Act and the Regulations made thereunder that the applicant while consenting to the taking of certain samples did not consent to the taking of a blood sample. The applicant accordingly was clearly aware of his entitlement to refuse to consent.

Ground 7 - The trial of the applicant was unfair and/or unsatisfactory in all the circumstances.
On this ground the applicant relies on the matters raised on his behalf in relation to the Criminal Justice (Forensic Evidence) Act, 1990 and the Regulations made thereunder and the Children Act, 2001 as having the cumulative effect of rendering his trial unfair and/or unsatisfactory. All the matters so raised have already been dealt with. Having taken the same into account the court is satisfied that the applicant's trial was indeed fair and satisfactory.
Having regard to the foregoing the applicant is refused leave to appeal against conviction.

DPP v Onumwere