Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- P. (P.) M.

Neutral Citation: [2010] IECCA 61


Court of Criminal Appeal Record Number: 194/08

Date of Delivery: 17/06/2010

Court: Court of Criminal Appeal

Between/

Judgment of the Court delivered on the 17th day of June, 2010 by Macken, J.

This is an application for leave to appeal against conviction in respect of certain sexual offences. The applicant was originally charged with four sexual assaults, the first three in respect of one young girl (L.K.) and the fourth in respect of another young girl, her sister (S.K.) As to the first three offences, all three were said to have occurred, according to the particulars of offence, on three unknown dates between the 1st January 1998 and the 31st December 1998. The fourth offence was alleged to have occurred on the 18th September, 2004.

After a trial which took place in March 2008, the applicant was acquitted in respect of the first two counts and convicted, by majority verdict, in respect of counts 3 and 4. In June 2008 the applicant was sentenced to 18 months in respect of count 3, with the final six months suspended, and in respect of count 4 the applicant was sentenced to twelve months imprisonment, the final nine months of that sentence also being suspended, both subject to conditions.

The applicant lodged a notice of appeal against conviction. The notice of appeal lists 12 grounds of appeal and in the written submissions it appears clear that grounds 1 and 2 of the application for leave to appeal are the most important. These two grounds also formed the basis of a successful application for bail, pending appeal. It must be assumed that they constituted, in the eyes of this Court when granting bail, discrete grounds of appeal within the ambit of DPP v. Corbally [2001] 1 I.R. 180. In the above circumstances, this Court considers it appropriate to deal first with these two grounds. They are:

(a) The trial judge erred in fact and in law in refusing to discharge the jury on the grounds that counsel on behalf of the Director of Public Prosecutions had wrongfully commented twice on the applicant’s failure to give evidence on his own behalf.

(b) The conduct of the trial was manifestly unsatisfactory and not in due course of law in circumstances where the applicant did not know with certainty which incident of the three sexual assaults complained of by L.K. he had been convicted of.

“S.1(b) The failure of any person charged with an offence or of the wife or husband, as the case may be of the person charged, to give evidence shall not be made the subject of any comment by the prosecution.” (emphasis added)

“… Well, in the overall context of these things, does the door matter one way or the other? Her lordship warned you earlier about drawing any inferences from the failure of the accused person to give evidence in a case. She will warn you about that. But when it comes to the door, apart from anything else, we don’t have the best evidence in terms of the hanging of the door, because the man who hung the doors, and yet didn’t drill one side of them was Mr. M.” (emphasis added)

In relation to s.1(b) of the Act of 1924 above referred to, counsel on behalf of the applicant also cites the decision of this Court in DPP v Patrick Maples (unreported, Court of Criminal Appeal, 30th March, 1992) where Egan, J., making reference to the section, but in the context of very different facts, stated:

“… is a specific statutory enactment, which on its face, is mandatory and is an absolute prohibition against comment by the prosecution. However, the fact that I said that it is an absolute prohibition has not been followed in every case and there have been cases where the trial judge’s charge has been held to rectify the comments made by the prosecution and it depends on the particular case in every instance as to whether that discretion is permissible, whether the trial judge can, in every event, correct any wrongful comment by the prosecution.”

While counsel for the applicant maintains his submission that the section is mandatory, it is submitted that in the present case, the trial judge did not, in any event, in her charge, correct or in any way offset the prejudicial effect of the remarks made by counsel for the prosecution. Nor, it is said, did she do so in her recharge upon requisition. In exchanges in the absence of the jury she accepted that counsel for the prosecution should not have commented on the applicant’s failure to give evidence, and indicated that she intended to give warnings to the jury in relation to this. The trial judge, counsel for the applicant accepts, directed the jury to avoid drawing inferences from the applicant’s failure to give evidence and did so on a number of occasions, but she refused to direct the jury specifically to disregard the prosecution’s comments of which complaint was made. It is alleged therefore that the trial judge’s general directions to the jury could not be sufficient to cure the particular prejudice caused by the breach of s.1(b) of the Act of 1924.

Counsel for the applicant submits that his application for the discharge of the jury ought to have been acceded to because of the nature of the infringement of the section and argues that after the learned trial judge refused that application, she further failed to charge the jury appropriately. Despite having indicated she would draw specific attention in her charge to the comments made, she omitted to do so, and did not either remedy the matter in her recharge.

The Respondent’s Submission
In the written submissions and in oral argument, it is said that the comments complained of ought to be understood in the context of the exchanges recorded in the course of cross-examination of one complainant, L.K., by counsel for the applicant. These exchanges were in the following terms:

“Mr. Kavanagh: Because there isn’t a keyhole through the door to get to the locks on the outside of the door.

A. There was on that day when I was in the bedroom, it was locked from the inside.

Q. So if S tells us that his bedroom couldn’t be locked from the inside and Mr. M and other people tell us.

Judge: Well …

Mr. Kavanagh: You definitely recollect it?

A. Yes.

Judge: Mr. Kavanagh you need to rephrase that.

Mr. Kavanagh: As I understand it, S will say that his bedroom door could not be locked from the inside.

A. It was locked.

Mr. Whelan: I think my friend also referred to somebody else saying it.

Judge: Yes, Mr. Kavanagh.

Mr. Kavanagh: Well there may be a myriad of witnesses.

Judge: Would you please put it correctly Mr. Kavanagh.

Mr. Kavanagh: Well if other witnesses were called for example Mrs. M., Mr. M., and they said this door could not be locked from the inside.

Judge: Mr. Kavanagh, rephrase that please.

Mr. Kavanagh: In the event that Mr. M is called and K.M. is called and they give this evidence, are you saying that this could be incorrect?

A. Yes.”

Further, the attention of the Court is drawn to arguments which took place in the absence of the jury as to what witnesses the defence would call. This concerns an exchange at the time as to whether or not, inter alia, K.M. would be called on behalf of the applicant to give evidence, so as to ensure in the course of cross-examination that questions put to any witness would be in accordance with the normal rules of evidence.

In oral argument it is further submitted on behalf of the prosecution that the comment of counsel does not fall within the ambit of the section at all, and further, even if it did, the Act of 1924 is entirely silent as to its consequences, and does not mandate the discharge of the jury. In the circumstances, the respondent submits that the trial judge sufficiently warned the jury that no inference could be drawn from the fact that the applicant did not give evidence. Counsel for the prosecution made similar remarks. It is argued therefore that any error by the prosecution in making the comment was effectively rebalanced, both by prosecution counsel himself, and by the charge and/or recharge of the trial judge.

Conclusion:
The object of s.1(b) of the Act of 1924, especially in its time context, was to prevent the prosecution, directly or indirectly, from negating the right to silence and the presumption of innocence from which it flows, by inveighing against an accused’s failure to give evidence in his own defence (itself a relatively new right in 1924).

To understand the issues arising in relation to ground 1, it is necessary to say something about the evidence tendered and the significance of the existence or otherwise of a lock on the inside of the door of a bedroom in the applicant’s house.

On day the 5th March, 2008, S.K., one of the complainants, gave evidence of being inappropriately touched by her granduncle, P.M., the applicant, on one occasion. She claimed that there was genital and chest manipulation over her clothes. P.M. had said to her “what’s down there” and then touched her. She was cross-examined on the basis that this could not have occurred on the occasion in question as there was another man (subsequently identified as a brother of the accused, W.M., who gave evidence), sitting in the room with the accused at the time of the alleged incident. She was further cross-examined on the basis that she had refused to go to an arranged Community Care Services appointment.

L.K, the other complainant, gave evidence that almost every day she went down to the house of K.M. and P.M., where their son, S.M., lived, in order to play with the Play Station in S’s bedroom. She said that on one occasion, either in the sitting room or in the kitchen, P.M., the applicant, had touched her private parts outside her clothes. Sometimes she would be in S’s room and S. would be away with his girlfriend “in Gorey”. She gave evidence of sitting on the end of the bed playing the Play Station and P.M. came over and sat beside her and put his hands down between her legs outside her clothes. A few weeks later she was again in S’s bedroom playing with the Play Station, when P.M. came in and locked the door behind him. He locked it with a key, she said, adding “I knew what was going to happen so I started kicking my legs. He grabbed my legs and told me to stop kicking, he put his hand down there between my legs. I can’t remember how long it lasted or if he said anything. He got up and unlocked the door and went out. After about 5 minutes I got up and left the house. P.M. was sitting in the sitting room watching telly”. In cross-examination it was put to her that she was incorrect about the door because it couldn’t be locked from the inside, since there was no keyhole through the door to enable a lock to be turned from the inside. She said in response that on the day when she was in the bedroom it was locked “from the inside”.

The defence called K.M. (the wife of P.M.) as its first witness. In direct examination, when told that it was alleged (by L.K.) that the door into S’s bedroom was locked from the inside, she said it was never locked from the inside but from the outside, and was not capable of being locked from the inside. She gave evidence that S.K. either retained the key himself or gave it to her (his mother) so that she could clean the bedroom, and she confirmed that the room was not open for anyone to come in and out as they pleased.

In the course of the trial, the following exchanges took place, in the absence of the jury:

“Whelan: The defence propose to prove photographs of the door, these were not put to K.M. or to L.K.

Kavanagh: There will be a witness called who lived in the particular bedroom whose door it was. These photographs were taken on the 11th September, 2005.

Judge: I will allow L.K. to be recalled to put these photographs and the portion of the door to her and nothing else. This is demanded by the interests of justice.

Kavanagh: I propose to call the man who cut the piece out of the door.

Whelan: I object to the introduction of this “prop”. I don’t know how, what, when or by who this part of the door was created. I insist that it be left outside until it is proved in evidence.

Kavanagh: For the purpose of taking the photographs the outer handle was removed, the photograph was then taken while the door was in situ and then the outer handle was put back on it for completeness. This is not a “prop”, it is part of the door that was hanging on the bedroom in 1998. I agree that I do not have all the door. There is a photograph of one side of the door with the handle on it and, the other side of the door with the handle taken off to show that the key could not be put through from the inside. When the alleged incident occurred there were two handles on the door, one was taken off for the photographs and then was reassembled. The doors in the house were changed in 2005 and then this portion of the door was cut off because it was felt that it was going to be forensically important.”

In cross-examination by counsel for the respondent this witness said that he and his father, P. M., decided to take these pictures in case they could be used, and not because the doors were being changed at this time. They decided to photograph the door of S’s room while the door was still hanging. This occurred in September 2005, a year after he was aware of the allegations being made against his father. He said that it was his idea to take the handle off to show that there was no keyhole on the inside. The door itself was not taken down until towards the end of 2007 with the other doors. He himself took it down. He brought it to the workshop and cut out the piece with the lock. He accepted that this all happened two years after the photographs were taken.

The defence next called S.M. (son of the accused P.M.). In examination in chief he stated that in 1998 he was aged 10 going on 11 and he would be 21 in June 2008. He gave evidence that all four bedrooms in the house, including his parents room and his sisters’ rooms, had the same type of “set up” insofar as the doors were concerned, that they could not be locked on the inside. He was aware that the toilet doors could be locked from the inside but was unaware about any other doors in the house. He confirmed he had a play station at the time in question with a stereo and CD and tapes, and that, inter alia, S.K. (one of the complainants) and L.K., the other of the complainants, would come into the house. He gave evidence that when he was not in his room he always locked the door because he did not want anyone in his room, and that when he was going to school or if he was going elsewhere he would lock the door and give the key to his mother. He said he was security conscious as a youngster and he said that it was not true that L.K. would be in his bedroom without his being there. As to L.K.’s allegation that she was in the room when he was with his girlfriend in Gorey, he said that at the time in question he was 10 or 11 and did not have a girlfriend at that time, but had his first girlfriend when he was 14. He accepted in cross-examination, inter alia, that the door would be open if he was outside the house but not away, and he contradicted his mother’s evidence that the door was left open when he would go to school, or to mass. That was the extent of the relevant evidence as to the issue of the door/lock.

The terms of the statutory provision in s.1(b) recited at the commencement of this judgment are very clear. The reasons for it are equally abundantly clear. As mentioned above, the applicant carries with him at all times the constitutional right to be presumed innocent until proven guilty beyond reasonable doubt. The onus of doing so rests at all times on the prosecution and does not shift to the accused, who is not obliged to establish his innocence. That being so, parties engaged in a trial must be extremely careful not to suggest or infer in any way, or pass comment, or make statements, from which an adverse inference might be drawn by the jury which could affect that presumption of innocence. Because the presumption of innocence exists, and because no burden transfers to the accused to establish his innocence, the fact that he does not give evidence, as he is not obliged to, cannot be a basis from which any inference can be drawn.

Only in the case of a very limited number of defences does the burden of proving a particular defence, on the balance of probabilities, shift to the accused (the burden nonetheless remaining on the State to satisfy the jury beyond reasonable doubt that this defence should not be accepted by them). The accused may in such a case discharge this burden by giving evidence himself, or by calling witnesses, or through cross examination of the State witnesses, etc. However, the accused does not have to give evidence himself. The general rule, with these few exceptions - which are not relevant to the instant case - remains that the accused is not required to give any evidence or to prove anything at all at a trial.

Further, the fact that, in the course of cross-examination counsel for the accused may make statements or cross-examine in a manner which may be open to criticism, is not either a reason for permitting counsel for the prosecution to comment on the failure to give evidence, in contravention of the clear rule laid down in the Act of 1924, as occurred in this trial, even if inadvertently done in response to what was said in cross examination.

So what then is the unavailable “best evidence” to which State counsel was referring the jury? From what was said to the jury they could be under no doubt but that it was the evidence of the accused, who had actually set up this particular door. That indeed would be the “best evidence” of this fact and of the condition of the door unless altered since then. Even though this may well be the best evidence of the lock/keyhole situation, State counsel knew that this was evidence which the State could not produce, and the defence was under no legal obligation to produce and had not, in fact, produced.

If counsel had said to the jury something such as: “You heard it suggested strongly to the complainant that the lock could not be engaged from inside the room because the keyhole had not been bored through and she denied this, maintaining that the door was locked on the inside. Remember that you must carefully weigh the evidence actually given here in court and only that evidence and decide the case only on that evidence” there could be little complaint. Or if State counsel had said: “the only evidence you have of the door being locked on the inside is that of the complainant and I submit that her evidence has not been shaken in this regard. It was put to her that she was in error in this because the door had no keyhole on the inside. You heard her denial of this. You must now decide the case solely according to the evidence actually given here in this Court”. Again, if this had been said, or something similar, there could also be little criticism.

However, counsel went further. He told the jury that there was important evidence, - the “best evidence” – on the issue of the lock and keyhole which the accused could have given. It can fairly be said that this is not in any sense a comment on the weight of the evidence in the case, but rather is a reference to evidence which was not in the case. And why? Because it was evidence which only the accused could give, and he did not. Looked at in this way the words have to be accepted as being a pointed, although indirect, comment on the fact that the accused had not given evidence on a very material issue, and was therefore a breach of s.1(b) of the Act of 1924.

However, as has been pointed out, and including by counsel on behalf of the applicant, although mandatory on its face, it would not appear that the courts have dealt with the matter on the basis that the section of the Act of 1924 is not mandatory, and this Court accepts that there are cases in which this is established, and relatively well established. Rather, in the cases cited it has been found that the trial judge’s charge may be considered, with a view to ascertaining whether or not any alleged or established infringement of the section has been appropriately cured by that charge.

It seems to the Court that that exercise must depend, to some extent at least, on the nature of the alleged failure to comply with the section of the Act, the context in which such failure arises, and the precise nature of the judge’s charge or recharge in relation to the same. However the nature of the wording of the section is such that, if a contravention occurs, and if it is to be remedied in the charge, as appears to be capable of being done according to case law, nevertheless in seeking to do so and save in unusual circumstances not arising in this case, the trial judge should do so in clear, certain, and wholly unambiguous terms, having regard nevertheless for the undoubted disadvantage which may also arise for a defence when such a remedial charge must be given.

The Court is of the view that this was particularly required in the present case, because, contrary to what was said by counsel on behalf of the prosecution, the evidence in relation to the existence or otherwise of a lock on the bedroom door in question, which could be closed with a key from the inside, was not exclusively that of the applicant in the present case. In the present case evidence was given by a witness that he had removed all the doors and replaced them with other doors and locks, and he gave evidence of the state of those doors two years prior to the time of removal. It is true, of course, that when the doors were removed it was somewhat later than the events in question and later than when he took photographs of the door, but there was no suggestion whatsoever on the part of the prosecution, and no evidence tendered, from which it could or ought to be inferred, that the state of the doors had altered in any way from the time of the offences to the time they were photographed and, later still, removed by a witness other than the accused.

The nature of the infringement, and the context in which the words were spoken arose are set out above. The question then remains, following the decision in DPP v. Patrick Maples, supra., whether the learned trial judge in her charge to the jury, having regard to the other evidence in the case, corrected this impermissible comment, so that this Court can be satisfied that despite the comment made, there has not been an unfair trial or a questionable verdict. The trial judge’s detailed charge of the 7th March, 2008 extends over 40 pages, or thereabouts. The first relevant reference is very early on in the judge’s charge, and includes the following:

“… I’m going to remind you of three absolutely basic principles which must govern your deliberations. They are very simple and you have heard them before. They are: 1, the defendant is presumed innocent until proven guilty to your satisfaction; 2, accordingly the onus of proof rests on the prosecution at all times. …The accused in this and every other case is presumed innocent until the contrary is shown. He is not required and is never required to disprove anything. He who alleges must prove. That is the way our law rules. The accused has a right, as everyone of us does, to come in and say … hold our hands and say, you prove it, you say it. That is the way it works. And absolutely no inference can be drawn from the fact that, as in this case, the accused chose not to give evidence. That is his right. He who alleges must prove. He does not have to and he has every right not to give evidence. That is his constitutional right, and the right of everyone of you also. And I want you to bear that in mind seriously at all times.

Thirdly, the standard of proof which the prosecution must meet is a high one. You must be satisfied beyond a reasonable doubt of the defendant’s guilt before you can convict.” (emphasis added)

Arising from the charge there were requisitions by both parties. One requisition was raised by counsel on behalf of the prosecution concerning separate charges, and several were raised by counsel on behalf of the applicant. In relation to the question of the judge’s charge concerning the obligation to give evidence, counsel on behalf of the applicant stated as follows:

“You did judge go to some lengths to repeat to the jury that the accused man was under no obligation to give evidence. My concern is the word “adverse” was never mentioned at all when considering inference; you simply said that he wasn’t obliged to give evidence, and no inference can be drawn from the fact that he didn’t. It may be appropriate that the Court tell them that it’s, of course, no adverse inference not to be deemed to be anything that can in any way affect your judgment of him. It is a matter for the court. If you feel that you have dealt with it appropriately with relation to inference, so be it.” (emphasis added)

“Sorry, in refusing the application for the discharge of the jury, I understood that the court was going, not just tell them that absolutely no inference could be drawn, or adverse inference could be drawn from the fact he didn’t give evidence, but that you were going to deal with what the prosecutor had said in his address. That presents some difficulties if you can’t deal with it because you are prohibited from commenting in any way upon his failure, as distinct from suggesting and telling them that they can’t draw any adverse inference. If you were to put that aside and then comment, it creates difficulties.”

…

Judge: I’m asking you what you are requesting. You are making requisitions now, what are your requisitions on this point:

Mr. Kavanagh: I understood the court had indicated that you were going to deal with it with the jury as in my friend’s comments, and that hasn’t been done, and that was one of the grounds as to why you didn’t discharge the jury, because you felt you could deal with it, and if that is the case then it should be dealt with.

Judge: I think I have them all noted.”

“Now in relation to … I told you … the accused is under no obligation to give evidence, and no adverse inferences can be drawn from the fact that he didn’t give evidence.” (emphasis added)

It appears to the Court that any beneficial effect on the jury from the words of counsel for the State, “her Lordship warned you earlier about drawing any inferences from the failure of an accused person to give evidence in a case. She will warn you about that”, was undone by what counsel next said, “but when it comes to the door, apart from anything else . . . . etc.”. Whatever counsel may have intended, if anything, to express by these words, of which the applicant complains, it must be concluded that there was a real danger that they would likely be understood by the jury as creating an exception to what went before, and, as amounting to an entitlement or permission or exhortation to the jury to disregard the actual evidence regarding the door and the lock, because this was not the “best evidence” which was something which only the accused could give, but didn’t.

In the context of the comment that “the best evidence” had not been made available to the jury because the accused had not been heard, although the Court accepts that this comment was made in response to a perceived attempt by the applicant to put important evidence on this material aspect of the case before the jury without the applicant giving evidence and exposing himself to cross examination, and the possible ambiguity which that threw up, nevertheless the Court is satisfied that the comment by counsel for the prosecution could have influenced the jury in its consideration of the overall evidence on the several counts, in a manner adverse to the applicant.

The learned trial judge gave several stark warnings to the jury about not drawing inferences from the fact that P.M. had not given evidence. True, she did not say “adverse” inferences until the recharge. However, this Court is satisfied that the jury well knew that she was talking about negative and not positive conclusions. The learned trial judge, by what she said, in dealing with the defendant’s requisitions on her charge, herself clearly felt that this was sufficient to redress any detrimental effect created by the breach of s.1(b) of the Act of 1924.

These were majority verdicts: 11 to 1 and 10 to 2. This trial was all about credibility, and the above extracts from the transcript and references to the evidence given show that this door/lock/keyhole issue was, and was treated during the course of the trial, as a very significant issue on the aspect of credibility. It would not be exaggerating to say that it was a keystone of the defence. In reality, the learned trial judge failed sufficiently to focus on the issue of the breach of s.1(b) of the Act of 1924, as she initially stated she would when refusing the application to discharge the jury. She did not relate this fundamental Rule of Law (the right to silence) to the issue in her charge. She should have told the jury, for example, that they had the oral evidence and the physical evidence of the photographs and the piece of the door and, that they should determine the question of whether L.K. was correct in her claim that the door was locked from the inside by reference, and, solely by reference, to this evidence and that they must totally disregard and put entirely out to their minds any consideration of what the accused might have said had he chosen to give evidence.

While, therefore, counsel on behalf of prosecution did tell the jury in the course of his closing speech that no adverse inferences could be drawn from the fact that the applicant himself did not give evidence, and so also did the learned trial judge in her charge and recharge, this Court is of the view that the content of these was not directed sufficiently to the offending words, so as to cure the infringement of the Act of 1924 which had occurred, or to bring the matter sufficiently within the amelioration of the statutory rule as referred to by Egan, J. in DPP v. Maples, supra.

Moreover, although the learned trial judge was extremely clear, particularly in her recharge, in relation to the importance for the jury to consider each and every charge in respect of each complainant separately, the nature of the comment, in this Court’s opinion, was such that it could not be isolated sufficiently so as to render it objectionable only in relation to count 3 which concerned complainant LK. The Court is not satisfied that it would not also have affected the general approach of the jury in coming to their decision in relation to both complainants in a trial where there were two complainants, both sisters, and each alleging sexual assault by the same person.

The Court in the circumstances cannot conclude that the verdicts were safe.

For these reasons, the Court, insofar as ground 1 is concerned, will treat this application as the appeal, and will grant the relief sought arising in respect of same, set aside the convictions on counts 3 and 4, and direct a retrial. It is inappropriate for the Court, having regard to its decision in this matter, to embark upon any consideration of the remaining grounds of appeal, including ground 2, or to pass any comment in relation to them, where the possibility of a retrial exists.