Irish Court of Criminal Appeal

THE COURT OF CRIMINAL APPEAL

Kearns J.

Budd J.

Herbert J.

[CCA. No. 133 of 2007]

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC

PROSECUTIONS

RESPONDENT

AND

KEITH WALSH

APPLICANT

JUDGMENT of the Court (ex tempore) delivered the 18th day of July, 2008 bv Kearns J.

The applicant in this case was convicted on a single count of rape in the Central Criminal Court on 30th March, 2007 in respect of an incident which occurred on the 23rd October, 2005 when the complainant,

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who was then a sixteen year old girl, had sexual intercourse with the applicant in the back of a car in Cork.

It was the applicant's case that there was consent to the sexual intercourse which took place and the case proceeded at the trial on this basis. At the commencement of the trial it was flagged by counsel for the defence that an application might well be made under s.3 of the Criminal Law Rape Act, 1981, as amended, for leave to cross-examine the complainant about her prior sexual history. That indication was duly noted by the trial judge who thereafter, on several occasions, intervened to enquire whether or not this application was being proceeded with.

The fact of the matter is that when the complainant had completed her evidence no such application was made and indeed evidence was taken from three further witnesses before eventually it was seen fit to raise the matter again. The learned trial judge effectively held that it was too late at that stage in the trial to bring the application and refused it, I think it is fair to say, largely on that basis.

In a sense the single point in this appeal is the argument that there was a refusal by the trial judge to exercise her jurisdiction under the section and implicit in that argument is that had she done she might have exercised that discretion in favour of the applicant and the course of the trial might in consequence have been different.

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Obviously, every appeal turns on its own particular facts. The facts really which left the defence in two minds as to how they should deal with this whole aspect of the case arose simply from some remarks which the complainant contends that she made to the applicant in the back of the car before this offence occurred. She asserted that she had told the applicant that she was a virgin and that she said this to put him off and to give him the impression that she did not want to have sex. This was the sole basis on which defence counsel was considering seeking leave to cross-examine the complainant.

However the complainant made it clear that she also told the applicant that she was menstruating and didn't want sex for that reason either. At no stage during her evidence did she assert that she was in fact a virgin and the question must arise whether there were ever grounds made out for an application in this case or had any point of a substantial nature, rather than a really purely hypothetical one, been made out, because it is quite clear that any bleeding in this case was susceptible to an explanation other than that which the complainant offered to the applicant. It may have provided some slight material for an attack on the credibility of the complainant but again in the course of cross-examining the complainant the defence were careful to restrict the nature of their cross examination, so there was a measure of uncertainty characterising the approach of the defence to this whole issue throughout the trial.

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There is an obligation on the defence to move in a timely manner any application to cross-examine a complainant as to prior sexual history. This should be either at the outset of the trial where the material contained in the Book of Evidence clearly suggests that such an application should properly be made, or in any event not later than the end of the complainant's direct evidence. It is not appropriate to simply leave matters hanging indefinitely. There is a very obvious reason for adopting this view, because the complainant in such a situation has a statutory entitlement to be represented by counsel and to have objections raised on her behalf by counsel to certain lines of questioning. The learned trial judge was quite within her rights to therefore invite the defence to clarify their position, something which they never did until the application was made very late in the day.

However, the Court accepts the point made by Mr. Shortt in his submissions that the question of the timing of an application can not ultimately and of itself determine an issue of this sort and even if an application is made out of time the interests of justice may sometimes require that even a late application be granted in an appropriate case.

The Court is satisfied that even if it was to consider the matter as though a timely application had been made it would come to no other conclusion but that the learned trial judge would have effectively been obliged to exercise her judgment to rule against the applicant on such an

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application on the particular material which was of marginal relevance only and which did not raise any point of substance which could in effect meet the criteria set out in the section-. In the circumstances the Court is satisfied that the appeal must be dismissed.