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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P. (People) v. Drought [2008] IECCA 91 (30 June 2008)
URL: http://www.bailii.org/ie/cases/IECCA/2008/2008_IECCA_91.html
Cite as: [2008] IECCA 91
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Neutral Citation: [2008] IECCA 91
Kearns J.
Gilligan J.
Feeney J.
[CCA. No. 108 of 2007]
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
And
APPELLANT
JUDGMENT of the Court (ex tempore) delivered the 30th day of June, 2008 by Kearns J.
The appellant in this case was convicted following a trial in the Central Criminal Court on 16th March, 2007 of the offence of rape. He received a sentence of seven years imprisonment following conviction, with the final eighteen months suspended.
Numerous grounds of appeal have been raised but the Court is satisfied that it can resolve, and must indeed resolve, this appeal within the principles laid down in The People (Director of Public Prosecutions) v. Cronin (No.2) [2006] 4 IR 329. It must confine its review of the rulings made in the case to those points which were actually taken and which were actually ruled upon in the court below. It can not re-run the case from A to Z afresh here, focusing on points that were available to be taken during the trial but which for one reason or another were not the subject matter of specific objections, rulings or requisitions at the end of the judge's summing up.
The whole appeal against conviction in this case comes down to this: was there a significant unfairness in certain aspects of the way in which the judge summed up the case to the jury? The concerns of defence counsel in this regard focus almost entirely on what is stated to have been the casting by the trial judge of the issue the jury had to consider in terms that they should consider whether, in the words of the trial judge, "gentle" consensual sex took place between the complainant and the appellant (as, he said, the appellant contended) or was it rape accompanied by a degree of rough treatment and the tearing of clothing (as had been contended for by the complainant).
The reference to "gentle" sex occurred on numerous occasions during the judge's summing up. It was not in fact a word which the
appellant had ever used to describe the incident, it was a word referred to by the investigating gardai who, when interviewing the appellant, asked him if the sex had been "gentle, normal or rough". The Court has counted various references to the word "gentle" in the summing up where the judge effectively characterised the nature of the defence in this way. To have the options presented in this manner created a very real danger that if the jury had particular regard, as indeed it had to have regard, to the bruises and other injuries which the complainant had suffered during the incident, then ipso facto the defence offered by the complainant was at real risk of being undermined. That is a matter which was raised by counsel at the end of the judge's charge and he raised this concern by way of requisition. The Court is not satisfied that in dealing with the requisition and in recharging the jury the learned trial judge adequately undid the characterisation of the issue as outlined above.
In the same context defence counsel raised a further requisition in relation to the evidence given by the doctor, Dr. Creavin. In this regard counsel focused more on the extent of those injuries or bruises or abrasions and stressed that the jury needed to be told that they were not serious but minor bruises and abrasions only. Quite clearly defence counsel could see the danger from the point of view of his client arising from the alternative scenarios raised by the judge in his summing up. The trial judge did recall the jury and gave some further instructions to them
in this context. I quote from his summing up at page 114 when he was redirecting the jury. He said that:-
"There were not any references in the statement (this is a statement which the defendant made to the gardai) to gentle, apart from one question asked by a police officer "would he characterise this as gentle, normal or rough?" In fact the answer of the accused was "normal". The defence asks you to look at this as an encounter in a doorway when people are drunk. You look at the account given by the accused and you will see whether that fits in with the evidence or not, bearing in mind that the burden of proof is on the prosecution. But 'normal' was the characterisation he gave to it. Normal in what context I don't know. I suppose normal in the context of having sex in a doorway but I think it was the
degree of robustness of the encounter "normal"."
The Court has some difficulty in understanding precisely what the trial judge was endeavouring to say in this passage, but quite clearly he was not resiling from the characterisation of the incident in terms of the
contention advanced by him earlier that it was either rape on the one hand or gentle consensual sex on the other.
In those circumstances the Court also feels it was appropriate in what was a borderline case where two young people and a large amount of drink was involved that the judge should have highlighted for the
benefit of the jury certain independent pieces of evidence, such as the evidence of the passing motorist who observed the couple having sex in the doorway and who did not think anything untoward was taking place. There was also evidence of the voluntary removal by the complainant of a tampon and quite clearly this could not have happened while she still had trousers on, so in circumstances where consent was an issue this was evidence of considerable importance which required more than a passing reference.
The Court will in the circumstances quash the conviction and direct a retrial.