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Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P. (People) v. Cronin [2008] IECCA 94 (23 June 2008)
URL: http://www.bailii.org/ie/cases/IECCA/2008/2008_IECCA_94.html
Cite as: [2008] IECCA 94
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Neutral Citation: [2008] IECCA 94
COURT OF CRIMINAL APPEAL 165/07
Finnegan J.
Budd J.
Gilligan J.
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
.v.
JAMES CRONIN
APPLICANT
Judgment of the Court (ex tempore) delivered on the 23rd day of June 2008 by Finnegan J.
The applicant in this case was charged with two offences, the first offence is of rape contrary to section 48 of the Offences Against the Person Act 1861 and section 2 of the Criminal Law (Rape) Act 1981 as amended by section 21 of the Criminal Law (Rape) (Amendment) Act 1990 the particulars being that on the 31st October 2004 he raped one D.C. The second offence is an offence of false imprisonment contrary to section 15 of the Non-Fatal Offences Against the Person Act 1997. He was convicted and sentenced to a term of imprisonment of eight years. Essentially two grounds arise on the appeal.
The first ground relates to the admissibility of a question which counsel for the applicant sought leave to raise on cross-examination of the complainant and the second relates to the learned trial judge's charge to the jury on the issue of lies admittedly told by the applicant in his statements to the Gardai.
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On the first ground the applicant's counsel sought to ask of the complainant whether she had in place on that occasion a contraceptive device, the coil, and the basis upon which he sought to ask that question was that it was relevant to the issue which was the sole issue in the case that of consent. The learned trial judge ruled the question inadmissible and it was not permitted. The basis upon which it was sought to ask the question is a proposition that a woman in the particular circumstances of this case was more likely to have consensual sex if she was availing of contraception. The authorities relied upon by the applicant are three cases R v Funderburk [1991] 1 W.L.R. 587, The People (Director of Public Prosecutions) v Shortt [2002] 21.R. 693 and The People (Director of Public Prosecutions) v G.K. [2007] 2 IR 92. In common in those three cases is the situation that evidence was led or at least suggested on behalf of the complainant, in the first and third of those cases that they not had previous sexual experience, and there was some evidence which would justify cross-examination in relation to the same. Where there is positive evidence or indeed a strong suggestion of a particular state of affairs in the prosecution case, and in cases of rape or indecent assault a suggestion of no previous sexual experience, then it is relevant to the credibility of the complainant if this was not in fact the case and cross-examination on that evidence should be permitted.
In the present case no positive evidence was led by the prosecution or suggestion made as to the previous sexual experience or lack of the same on the part of the complainant and in those circumstances this court is satisfied that the cases relied upon are not relevant to the facts of this case. The question sought to be asked and any answer thereto could not be relevant to the issue in the case which was an issue of consent. The court is satisfied in those circumstances that the authorities relied upon do not support the applicant's contention. There are no reported cases to
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which counsel for the applicant could refer this court in which such a question has been permitted in such circumstances.
In these circumstances this court is satisfied that the applicant's application on this ground should fail.
The second issue arises in the following circumstances. The notice of appeal sets out this ground as follows: that the learned trial judge erred in law at the trial of the applicant in failing to direct the jury that lies told by the applicant could only be corroboration of the complainant's evidence if the jury was first satisfied that the evidence of the complainant in relation to the charges of rape and false imprisonment was credible. The authorities relied upon both in the court of trial and in this court are R. v Hester [1973] A.C. 296 and R. v Kilbourne [1973] A.C. 746. The applicant relies on these two authorities for the proposition that, where corroboration is an issue, in his charge the trial judge must direct the jury to engage in a two-stage process. Firstly they must be directed to assess the credibility of the evidence given by the witness intended to be corroborated in isolation from any other evidence in the case. Secondly if they find the evidence not to be credible they are to reject it in limine. Only if at the first stage they find the evidence credible are they to proceed to the second stage and examine material capable of providing corroboration.
This approach is implicitly indicated by passages from the speeches in the House of Lords in R. v Hester by Lord Morris at page 315 and in R. v Kilbourne by Lord Hailsham at 746. The proposition was, however, considered in this jurisdiction in The Director of Public Prosecutions v Gilligan [2005] 1 I.R. 107 see Denham J. at page 141 and 142 where she rejected the proposition and this court is satisfied in those circumstances that that proposition which was apparently stated in both Hester and Kilbourne does not represent the law in this jurisdiction. If more were needed the
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court remarks that in the United Kingdom the proposition was also subsequently rejected in Attorney General of Hong Kong v Wong Muk Ting [1987] A.C. 501. Lord Bridge gave judgment and Lord Hailsham whose judgment in Kilbourne is relied upon was a member of the panel. The issue on appeal in that case was precisely that raised by the applicant here. Having cited passages from both Hester and Kilbourne, Lord Bridge went on to say:-
"Before examining these passages further the Lordships finds it helpful first to consider whether the suggested two stage approach is one which good sense or judicial experience in assessing the credibility of evidence supports. There may, of course, be extreme cases where a witness under cross-examination is driven to admit that his evidence in chief was false. Such triumphs for the cross-examiner are more frequently seen in fictional courtroom dramas than in real life. But in such an extreme case, if it should happen, there would no longer be any question of credibility. Evidence which a witness first gives and then admits to have been false is no longer sworn testimony and, if a criminal prosecution depends on it, the judge should direct an acquittal. But, apart from such extremes, any tribunal of fact confronted with a conflict of testimony must evaluate the credibility of evidence in deciding whether the party who bears the burden of proof has discharged it. It is a common place of judicial experience that a witness who makes a poor impression in the witness box may be found at the end of the day, when his evidence is considered in the light of all the other evidence bearing upon the issue, to have been both truthful and accurate. Conversely the evidence of a witness who at first seems impressive and reliable may at the end of the day have to be rejected. Such experience suggests that it is
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dangerous to assess the credibility of the evidence given by any witness in isolation from other evidence in the case which is capable of throwing light on its reliability; it would, to their Lordships minds, be surprising if the law requiring juries to be warned of the danger of convicting on the uncorroborated evidence of a witness in one of the suspect categories should have developed to the point where, in some cases the jury must be directed to make such an assessment of credibility in isolation. "
The Privy Council in that case cited with approval a passage from the judgment of James L.J. in R. v Turner [1975] 61 C.A.R. 67 in which both Hester and Kilbourne were argued. Again in R v Boardman [1975] A.C. 421 at page 454 Lord Hailsham refuted the interpretation put on his remarks in Kilbourne. In these circumstances this court is satisfied that that proposition as a proposition of law is incorrect.
On this appeal the applicant seeks to conflate that principle with the requirement of a Lucas warning where lies are relied upon as confirmatory of the evidence of a witness. In this case the Lucas warning was indeed given by the learned trial judge in an exemplary form which does not admit of criticism. What the applicant seeks to do, by calling in aid both Hester and Kilbourne, is to submit that the learned trial judge should have informed the jury that they should first examine the evidence of the complainant and unless they found that credible not proceed further to consider the applicant's admitted lies.
This court is satisfied that neither Hester or Kilbourne represent the law in this jurisdiction and that gloss upon the same or that gloss upon the Lucas warning contended for by the applicant is not appropriate. The jury look at the evidence as a
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whole. This court has looked at the learned trial judge's charge in detail and it is worth referring to some parts of the same for present purposes.
Firstly the learned trial judge in clear and explicit terms told the jury if they, on the totality of the evidence, had any reasonable doubt about the veracity of the account of the complainant D.C. then they had to make a finding of not guilty and that it was only where they are satisfied beyond reasonable doubt of the veracity of the account of D.C. that they could convict of the offence. He then went on to deal with the Lucas warning and he did that in very considerable detail. He explained that there could be reasons other than a sense of guilt where a dishonest and untruthful account is given. He gave examples and he instructed the jury to bear this in mind. This corresponds exactly with the requirements set out in two cases relied upon by the applicant, R. v Richens [1993] 4 All ER 877 and R. v Goodway [1993] 4 All E.R. 894. In the former of these cases the judgment deals in considerable detail with the requirements of a charge. In the judgment of Lord Taylor he refers to the model charge which was suggested by the Judicial Studies Board and approves of the same subject to the possibility that it may be required to be altered in the circumstances of a particular case and did require to be altered in the circumstances of that case where the issue before the court was whether the explanation given for lies and which were relevant to whether the appellant was guilty of murder or manslaughter required to be altered. The form of statement in the charge which was approved is as follows:
"The defendant has admitted that he lied to the police. You must consider why he lied. The mere fact that the defendant tells a lie is not in itself evidence of guilt. A defendant may lie for many reasons, for example: to bolster a true defence., to protect someone else, to conceal disgraceful conduct of his, short of commission of the offence, or out of panic or confusion. If you think
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that there is, or may be, some innocent explanation for his lies, then you should take no notice of them but if you are sure that he did not lie for some such other reason then his lies can support the prosecution case."
In this case the learned trial judge went to very considerable lengths to set out the Lucas warning with numerous examples of circumstances which might encourage a person otherwise innocent telling lies. There is nothing incorrect, deficient or objectionable in the manner in which the learned trial judge dealt with the matter, in fact this court considers it to be a model warning in terms of R. v Lucas [1981] 2 All E. R. 1008. The court is not satisfied that this ground has been established.
In those circumstances this court refuses leave to appeal.
DPP v J.C.