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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- TO'R [2008] IECCA 38 (14 March 2008)
URL: http://www.bailii.org/ie/cases/IECCA/2008/C38.html
Cite as: [2008] IECCA 38
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Judgment Title: D.P.P.-v- TO'R Composition of Court: Finnegan J., Feeney J., McGovern J. Judgment by: Finnegan J. Status of Judgment: Approved
Outcome: Refuse leave to appeal against conv. | ||||||||||
COURT OF CRIMINAL APPEAL 240 of 03 Finnegan J. Feeney J. McGovern J. THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) .v. TO’R APPLICANT Judgment of the Court delivered on the 14th day of March 2008 by Finnegan J. The applicant was charged before the Central Criminal Court with one count of rape contrary to section 2 of the Criminal Law (Rape) Act 1981. The particulars of the offence were that he, on a date between the 1st day of May 1996 and the 1st day of July 1996 at Mallow, Co. Cork, had sexual intercourse with P.D., a woman, who did not consent to it, and at the time he knew that she did not consent and was reckless as to whether she did or did not consent. He seeks leave to appeal against his conviction for that offence. Of the grounds of application only the following were pursued at the hearing:- 1. The trial was unsatisfactory and the verdict unsafe having regard to the fact that the jury did not hear evidence in accordance with the statement of Ms. S.D. contained in the Book of Evidence that on the day following the alleged rape the complainant had informed Ms. S.D that the applicant had tried to rape the complainant by grabbing her by the throat and trying to pull down her pants. 2. The learned trial judge erred in law and in fact: (a) in refusing to discharge the jury following: (i) the admission in evidence of the complainant’s complaint to Ms. S.D. in circumstances where the complaint was neither consistent nor recent;
(b) in failing to discharge the jury when the prosecution did not adduce the evidence of Ms. S.D. as to the said complaint. 3. The learned trial judge erred in fact and in law in failing adequately to warn the jury as to the absence of corroboration of the prosecution case in particular having regard to the delay by the complainant in reporting the allegations to the Gardai and a subsequent passage of time to the date of the trial. 4. The learned trial judge erred in fact and in law in recharging the jury:- (a) by directing the jury that the learned trial judge had been in error in stating that there was a conflict of evidence in the case, that the jury could attach such weight to the applicant’s statements in Garda custody as the jury saw fit and that it was inappropriate to describe such statements as “evidence”;
5. The learned trial judge erred in fact and in law in charging the jury in dealing with the issue of “belief” as to the respective contentions of the complainant and the applicant and in refusing to reply to the question asked by the foreman on behalf of a juror by stating that if the juror believes that the accused is guilty, but does not think that the prosecution proved this conclusively, then the jury should go on to aquit. 6. The learned trial judge erred in law and in fact in failing to direct the jury that where two reasonable inferences can be drawn from a particular fact, one favouring the accused and the other favouring the prosecution, the inference favourable to the accused should be relied upon unless on considering the evidence as a whole, the jury is satisfied beyond reasonable doubt to the contrary.
Ground 1 - The trial was unsatisfactory and the verdict unsafe having regard to the fact that the jury did not hear evidence in accordance with the statement of Ms. S.D. contained in the Book of Evidence that on the day following the alleged rape the complainant had informed Ms. S.D that the applicant had tried to rape the complainant by grabbing her by the throat and trying to pull down her pants. The events complained of occurred between midnight and 1 a.m. on the 1st June 1996. At 3 p.m. that afternoon P.D. met S.D. In relation to this she was examined as follows: Q. Did you tell her anything? A. Well, she noticed the marks on my neck. When she asked me I just started to cry. At first I was saying “Oh, it is nothing, it is nothing” but when she saw me to cry, she said “Paula you have to tell me what is on your neck, what happened”. So I told her that when I was babysitting, Thomas O’Regan had come in and tried to kiss me but I resisted and he marked my neck and used his fingers. I said he was very drunk, but he just went home. Q. That was the sum of what you told her? A. Uh-huh. Counsel for the applicant applied to have the jury discharged upon the basis that the account of P.D. of what she said to S.D. was inconsistent with the account which she gave in direct examination which was of a series of rapes. Reliance was placed on the decision of this court in The People (Director of Public Prosecutions) v Robert Brophy [1992] I.L.R.M. 709. It is not suggested that the complaint was not made as speedily after the acts complained of as could reasonably be expected nor that it was not voluntary. In that case the law on admissibility of complaints was recapitulated as follows: (a) Complaints may only be proved in criminal prosecutions for sexual offences. (b) The complaint must be made as speedily as could reasonably be expected and in a voluntary fashion, not as a result of any inducements or exhortation. Once evidence of the making of a complaint is admissible then particulars of the complaint may also be proved. (c) It should always be made clear to the jury that such evidence is not evidence of the facts on which the complaint is based but to show that the victim’s conduct in so complaining was consistent with her testimony. (d) While there is mention in one of the older cases, R v Osborne [1905] 1 KB 551, of a complaint being “corroborative of the complainant’s credibility” this does not mean that such a complaint amounts to corroboration of her testimony in the legal sense of that term but is pointing to the consistency of her testimony. Corroboration in the strict sense involves independent evidence, that is evidence other than the complainant’s evidence. (e) The law on complaint should not be confused with what takes place once the police institute their enquiries.
In The People (Director of Public Prosecutions) v M.A. [2002] 2 I.R. 601 complaint was made to two persons and it was accepted that certain parts or significant parts of the complainant’s evidence were not in accordance with what she said in her complaints. However there were significant elements in the evidence of both witnesses concerning the complaints which were consistent with the testimony of the complainant at the trial. She had complained that she had been raped and that the applicant had forcibly held her on the bed and that she had bruising on her chin. The court held that these elements of consistency made evidence of the fact of the complaints and the details of the complaints admissible. In opening the case counsel for the prosecution dealt with this aspect of the evidence which the jury would hear in the following terms:-
It was not intended to lead evidence of complaint but merely that on the following day P.D. had bruises on her neck. The learned trial judge refused to discharge the jury. He dealt with this passage of evidence in his charge as follows:-
The passage of evidence under consideration is not complaint evidence. It did not concern a complaint made by P.D. of rape but merely that S.D. observed marks to her neck and her attributing the marks to her neck to the applicant. The learned trial judge properly directed the jury to the significance of the evidence as supporting P.D.’s account that her neck was bruised. It was not evidence of a complaint that she had been raped. In these circumstances the court is satisfied that it was a correct exercise of the judge’s discretion not to discharge the jury. When S.D. gave evidence this related exclusively to her observation of the bruising and nothing in the way of complaint evidence was led either in examination or cross-examination. Counsel for the applicant had available to him the statement of evidence of S.D. and had he considered the same to be inconsistent with P.D.’s testimony so as to be damaging to P.D.’s testimony could have cross-examined S.D. as to the contents of her conversation with P.D. on the occasion but chose not to do so. The applicant fails on this ground. Ground 2 – The learned trial judge erred in law and in fact: (a) in refusing to discharge the jury following: (i) the admission in evidence of the complainant’s complaint to Ms. S.D. in circumstances where the complaint was neither consistent nor recent;
In terms of consistency the observations in relation to the first ground apply. However complaint is now also made in relation to the passage of the evidence of P.D. that it was not recent. However, this court is satisfied that if the passage of evidence was in truth evidence of a complaint in the sense that that term is employed in The People (Director of Public Prosecutions) v Brophy in the light of the evidence of P.D. it was made as speedily as could reasonably be expected. While she did not tell the applicant’s sister for whom she was babysitting on her return nor did she tell her mother or any of her sisters when she got home she explained this by reference to her own sense of shame and her unwillingness to upset her mother and to a threat made to her by the applicant. She arose at midday the following day and met with S.D. at about 3 p.m. when the conversation which she described in evidence occurred. The court is satisfied that this would meet the criterion set down in The People (Director of Public Prosecutions) v Brophy. However as the evidence which she gave was not evidence of recent complaint but rather evidence of the existence of bruising, this issue does not arise. As to ground (a) (ii) this was not pursued. As to ground 2 (b) S.D. gave evidence and it was open to the applicant’s counsel to elicit evidence of the terms in which P.D. spoke to S.D. but the decision was made not to do so. For the foregoing reasons the applicant fails on this ground. Ground 3 - The learned trial judge erred in fact and in law in failing adequately to warn the jury as to the absence of corroboration of the prosecution case in particular having regard to the delay by the complainant in reporting the allegations to the Gardai and a subsequent passage of time to the date of the trial. This court has carefully considered the learned trial judge’s charge in relation to corroboration. The issue was dealt with by him in detail and with clarity. The learned trial judge correctly set out the meaning of corroboration, the dangers of convicting on the uncorroborated evidence of a complainant and that in this case there was no evidence which could amount to corroboration. It is not surprising that there was no requisition on this issue. The applicant fails on this ground. There was a delay of two years between the offence and the complaint to the Gardai. The learned trial judge dealt with the explanation for this. There was further delay thereafter due to an earlier trial resulting in a disagreement. In his speech to the jury counsel for the applicant pointed out in considerable detail the consequences of the failure to make prompt complaint to the Gardai particularly stressing that it resulted in the non-availability of DNA and other forensic evidence: this the learned trial judge did not deal with in his charge. However he was not requisitioned in relation to not so doing. Having regard to this the applicant fails on this ground. Ground 4 - The learned trial judge erred in fact and in law in recharging the jury:- (c) by directing the jury that the learned trial judge had been in error in stating that there was a conflict of evidence in the case, that the jury could attach such weight to the applicant’s statements in Garda custody as the jury saw fit and that it was inappropriate to describe such statements as “evidence”;
There is a requisition by counsel for the prosecution in the following terms; “Judge, you told them that there was a complete conflict of evidence in the case and that somewhat concerned me because there is no evidence from the accused. You have the uncontradicted sworn evidence of P.D. and then you have an unsworn statement from the accused or statements made in regard to the station which are exculpatory. Again the jury are entitled to attach such weight as they think fit to those statements having regard to all the evidence in the case.” The learned trial judge readdressed the jury in the following terms:- “Another matter that has been raised is that I said to you at some stage in my address that there was a complete conflict of evidence in the case. I used the word ‘evidence’ and of course there has been no evidence as such given by Thomas O’Regan so my use of the word ‘evidence’ is perhaps – well, it is inaccurate. What there is is the sworn evidence on behalf of the prosecution and there are the unsworn statements which you have which were made to the Gardai. It is up to you to attach such weight to those statements as you think fit but my use of the word ‘evidence’ was inappropriate in describing it.” Counsel for the applicant asked the judge to readdress the jury to make it clear that while the statements are not sworn evidence they are evidence nonetheless and the judge declined to do so. This court is satisfied tat the learned trial judge in distinguishing evidence given on oath before the jury and statements made to the Gardai by the applicant made it quite clear that such statements were evidence and that it was a matter for the jury the weight that they would attach to the same. The learned trial judge was not in error. The applicant fails on this ground. Grounds 5 and 6 - The learned trial judge erred in fact and in law in charging the jury in dealing with the issue of “belief” as to the respective contentions of the complainant and the applicant and in refusing to reply to the question asked by the foreman on behalf of a juror by stating that if the juror believes that the accused is guilty but does not think that the prosecution proved this conclusively, then the jury should go on to aquit. The learned trial judge erred in law and in fact in failing to direct the jury that where two reasonable inferences can be drawn from a particular fact, one favouring the accused and the other favouring the prosecution, the inference favourable to the accused should be relied upon unless on considering the evidence as a whole, the jury is satisfied beyond reasonable doubt to the contrary. Before this court ground 5 was relied upon only in the context of ground 6. The learned trial judge correctly charged the jury on the burden of proof. However in the next passage of his charge he said:- “You have to ask yourselves who do you believe.” Counsel for the applicant raised a requisition in relation to this and expressed a concern that the jury might be led to believe that the standard was that in civil rather than in criminal proceedings. The learned trial judge readdressed the jury and made it clear beyond doubt that the standard of proof was the criminal standard of beyond all reasonable doubt. Thereafter at 4.15 the jury retired and considered their deliberations until 7 p.m. At that point the foreman asked a question on behalf of a juror as follows:- “What if I believe that he did it but I don’t think that the prosecution proved it conclusively?” In response the learned trial judge readdressed the jury on the onus of proof and the standard of proof. The court is satisfied that, in so far as the jury may have been misled by the learned trial judge’s reference to belief in his charge, this was fully corrected and clarified on two occasions when he readdressed the jury. The applicant fails on this ground also. As to the sixth ground the learned trial judge did not direct the jury that where two reasonable inferences can be drawn from a particular fact, one favouring the accused and the other favouring the prosecution the inference favourable to the accused should be relied upon unless satisfied beyond a reasonable doubt that the inferences against him should be accepted. Counsel for the prosecution did not deal with inferences in his opening neither did counsel for the prosecution or the defence deal with the same in closing. This may be explained by the central conflict in the case in that the applicant denied in his statements to the Gardai that he had been in his sister’s house at all on the night in question. Thus the jury had the oral evidence of P.D. and the evidence of the statements made by the applicant. The question of inferences for that reason did not arise on the facts of the case or the evidence before the jury on the core issue. Essentially the issue was one of credibility. The learned trial judge’s charge must be read in the light of this. The applicant relied upon The People (Attorney General) v Byrne [1974] I.R. 1. In that case the learned trial judge in the course of his charge told the jury that the onus on the prosecution was to satisfy them of the guilt of the accused and was held to be in error in so doing. However in the course of the judgment Kenny J. said:- “The correct charge to a jury is that they must be satisfied beyond reasonable doubt of the guilt of the accused, and it is helpful if that degree of proof is contrasted with that in a civil case. It is also essential however that the jury should be told that the accused is entitled to the benefit of the doubt and that when two views on any part of the case are possible on the evidence they should adopt that which is favourable to the accused unless the State has established the other beyond reasonable doubt.” Juries are almost invariably charged in terms of the second sentence of that quotation. In The People (Director of Public Prosecutions) v Kiely, unreported, Court of Criminal Appeal, 21st March 2001 the learned trial judge at considerable length explained that the onus of proof lay at all times on the prosecution and that the standard of proof was that beyond reasonable doubt. He stressed the importance of the presumption of innocence. He did not specifically refer to the principle that where two views on any part of the case are possible on the evidence the jury should adopt that which is favourable to the accused. The court held that the omission of the specific words concerning the benefit of the doubt where there are two views on any part of the case could not have led to any miscarriage of justice. In the course of the judgment McGuinness J. said in relation to The People (Director of Public Prosecutions) v Byrne:-
However as to the second sentence in the paragraph quoted from the judgment of Kenny J. the court had this to say:-
Here the learned trial judge correctly set out the principles of law as to the presumption of innocence, the onus of proof, the standard of proof and the benefit of the doubt in his charge, in a recharge in response to a requisition and in answer to a question from the jury. He was not requisitioned to deal with inferences. The judge’s charge taken as a whole appropriately and adequately conveyed to the jury the true meaning of the phrase “beyond reasonable doubt” and the nature of the onus resting on the prosecution. It would, however, have been preferable to include a reference along the lines of the second sentence in the passage from the judgment of Kenny J. quoted above. Specifically as to directing the jury on inferences the court has been referred to The People (Director of Public Prosecutions) v Mark Cronin [2004] 4 I.R. 329. In that case the trial judge conveyed to the jury that the obligation to draw the inference more favourable to the accused only arises where the adverse and favourable inferences are equal rather than that a reasonable inference favourable to the accused must always be acted upon even though such inference is not as likely as an adverse inference. A requisition was raised in relation to the misstatement of the law. The error occurred when the learned trial judge was addressing the jury in response to a requisition and in fact complied with the terms of the requisition. In the course of his judgment at page 238 Geoghegan J. said:-
In the course of his judgment Kearns J. dealt with the failure to raise at the trial an issue sought to be raised on appeal:-
Both on the sufficiency of the manner in which the learned trial judge charged the jury taken as a whole and on the basis that no requisition was raised on the issue now sought to be raised the applicant fails on this ground also. Having regard to the foregoing the court proposes to treat the application for leave as the hearing of the appeal and to dismiss the same. | ||||||||||