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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- JS [2013] IECCA 41 (17 July 2013)
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Cite as: [2013] IECCA 41
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Judgment Title: DPP -v- JS Neutral Citation: [2013] IECCA 41 Court of Criminal Appeal Record Number: CCA 96/11 Date of Delivery: 17/07/2013 Court: Court of Criminal Appeal Composition of Court: MacMenamin J., Herbert J., McGovern J. Judgment by: MacMenamin J. Status of Judgment: Approved
Outcome: Dismiss Appeal | ||||||||||||
THE COURT OF CRIMINAL APPEAL [Record No: CCA/96/11] MacMenamin J. Herbert J. McGovern J.
J.S. Appellant and The Director of Public Prosecutions Respondent Judgment of the Court delivered by Mr. Justice MacMenamin on the 17th day of July, 2013. 1. The appellant was convicted in the Central Criminal Court on one count of rape and 14 counts of sexual assault of his niece, the complainant, between the months of May 2002 and April 2004. He was sentenced to seven years on the count of rape, and two years on each of the counts of sexual assault, the latter sentences to run concurrently, but consecutive to the sentence for rape. The events in question occurred either at the home of the complainant, whose family are involved in farming, or the home of her uncle, the appellant, also a farmer, who lived nearby. At the relevant times, the complainant was aged between 13 and 15 years. The main focus of this appeal relates to the complainant’s testimony on one of the counts of sexual assault which, she said, occurred in the summer of 2002. 2. Two issues lie at the centre of this appeal. First, it is said that the learned trial judge misdirected the jury in relation to what is termed a "Lucas warning" regarding the evidence of this assault in the summer of 2002. Second, it is contended that the charge was unsatisfactory and misled the jury through an alleged disparity or imbalance in the manner in which the judge characterised certain prosecution evidence by contrast to his description of parts of the defence case. The Lucas Warning 4. In this case, counsel for the appellant raises issues on both the nature and extent of the warning given to the jury. It is said that the judge misdirected the jury by failing adequately to warn them that, when an accused has made statements out of court, which are shown to be false, such statements may be treated as corroboration, but that there may other circumstances which explain or excuse such conduct which may not be consistent with guilt. 5. The Lucas warning was a subject of discussion in the judgment of this Court in Director of Public Prosecutions v. Curran [2011] IECCA 95. The general format of the “Lucas warning” is by now well known. As will be seen, in this appeal, there was a strong resonance between the actual words used by Lord Lane L.C.J. in the case of R. v. Lucas [1981] QB 720, and the characterisation deployed by the trial judge in his charge to the jury. 6. In Lucas, Lord Lane L.C.J. put matters this way:
7. It is necessary now to consider some further background to this case. The complainant testified as to the circumstances of the first sexual assault upon her. This was said to have taken place in the summer of 2002. The complainant was able to identify specifically the time and circumstance by reference to the activity which was going on in the appellant's farm which she was visiting. She testified that the first occurrence was after the school holidays. There was baling going on on the farm. 8. The complainant testified that the appellant was picking up bales from one of the top fields on his farm and bringing them down to a bottom field which she identified. The bales were to be cut and wrapped. She identified family members who were there. These were her own brother and two of her cousins, children of the appellant. 9. What follows is a summary of the complainant’s narrative of events in evidence. She said that she and her cousins were all taking spins on the tractor. She testified that the appellant got on the tractor, and she stayed there, on a small seat to the left of the main driver’s seat. The appellant went to go and pick up a bale from the top field when the other children were back down in the lower fields. As the appellant was driving the tractor, he asked the complainant “what would you do if I placed my hand high up on your leg?”, and claimed that it would be “no harm” as he was her uncle. She described the assault. The complainant said she lifted his hand away. She said the appellant repeated these actions as he was going back down towards the field to drop off the bale. Again, the complainant lifted his hand off. She testified to the jury that she was bewildered, embarrassed and questioning herself as a result of what happened. 10. Three years later, the appellant was interviewed in the course of an investigation which began in August 2005. He denied each and every one of the allegations. At interview he suggested that complaints had been made against him because the complainant's family were trying to blackmail him and because they had a grudge against him for having sold a field. No evidence in relation to these claims was adduced at the trial. 11. The appellant was asked at interview about the first incident of sexual assault. It was put to him that this had occurred while hay was being baled in May or June, 2002. The appellant point blank denied having made any bales at all in 2002. He specifically distinguished that year from other years. By way of distinction to 2002, he gave an account of his farming activities in the years 2001 and 2003. Some of his words are set out below. It must be noted that the appellant (as was his right) did not testify at the trial. However, at interview he denied having made round bales in any of the three or four years prior to the interview in 2005. He said the last time that he collected bales, his nephew helped him. He was specifically asked at interview:
A. 2001 in one field.”
A. I don't know why this story was made up against me. It was said to me I put my hands up her leg when I [sic] taking bales in 2002. I made no bales in 2002. I bought in bales in 2003. I made bales in 2001.” 12. Clearly an issue of credibility arose. Was there any corroborative evidence on either side? The appellant was asked by the gardaí at interview who had made bales for him. He identified two people. He said one of these two, a Mr. P.D., made bales only in one year for him. This information was provided in the context of a specific denial that the appellant had not made any bales in the year 2002. 13. The gardaí interviewed Mr. P.D. His evidence showed that the appellant was wrong in what he had said. Mr. P.D. in his statement had said that he had checked his records, and that in fact he had mowed, baled and wrapped 42 round bales for the appellant on the 17th July, 2002. He produced business records to the gardaí to bear this out. Mr. P.D. was not asked to testify in court but his evidence was accepted, read out to the jury and was not subject to any challenge. 14. As outlined, the complainant identified the first incident as having occurred in the summer of 2002 when baling was going on. It may be added that the appellant's son also testified in the case that he recalled baling silage in 2002. However, his evidence was that on the date the complainant was there, he, and not his father, the appellant, had been driving the tractor. Clearly then, an issue arose as to the appellant’s statement which had transpired to be false on this important “island of fact”. Could this statement be taken as corroboration? Neither prosecution nor defence demurred that the circumstances were such as to warrant a warning to the jury that the false statement might be explicable for a number of reasons. 15. Before counsel's speeches, the trial judge asked for submissions on the issue of the appellant's claim in the interview that he had not made any bales in the year 2002. Counsel for the appellant asked that, if there was to be any comment on the point, that it should be placed in context, including a comment from the judge that the interview had taken place some three years after the first allegation, and that the defence evidence (from the appellant’s son) was that bales had actually been made in 2002. Counsel submitted that the judge should charge the jury that the statements should be seen in the context of a man who made bales on and off for years and that what he had told the gardaí was as likely to be a mistake as a lie, and could be seen as an example of an area where the accused should be given the benefit of the doubt. The judge’s charge 17. He specifically stated to the jury:
18. However, counsel for the appellant makes the case that the warning was not sufficiently contextualised. It is said that the judge should have specifically warned the jury that the appellant may have been mistaken in identifying the year and that, in this, they should give the appellant the benefit of the doubt. 19. In response to this, the court would observe that among the circumstances where the judge indicated that a person might or tell untruths were out of “panic” or “misjudgement” or “confusion” or “indignation”. He specifically stated there might have been failure “merely to recollect something”. In the court’s view, there is no real distinction between what counsel contends should have been said and what the judge actually stated. It is difficult to avoid the conclusion that what is in issue here is a matter of phraseology or the precise terms used by the judge. It is not the function of this court to parse and analyse the statements of a judge in his or her charge to the jury with the benefit of hindsight. What must be in issue is whether the judge erred in a statement of law or misled the jury as to facts. Otherwise, a trial judge must enjoy a discretion as to the words he uses. 20. The Court has not been convinced that there was anything untoward in relation to the warning which was given by the trial judge in this case. We would observe that there was actually no evidence put before the jury that the appellant had actually been mistaken in his identification of the year. Second, it is difficult to avoid the conclusion that what is being contended for is, in fact, simply a choice of words more favourable to the appellant. In the view of the court, there is no substantial distinction to be made between the concept of the appellant having made a “mistake”, or (as the judge identified) having made a misstatement out of panic, misjudgement, confusion or failure of recollection. The accused has no entitlement to words of his counsel’s choosing. It is impossible for the court to conclude that the warning, as phrased, contained an error. 21. One of the issues counsel for the appellant raised on requisition was the nature of the Lucas warning. The requisition was couched in careful terms. It cannot be said that the submission was that he had committed any error in law. What was in question was emphasis. But it was not submitted the charge was generally unfair, biased, or that the judge held the scales unevenly. It appears all parties were at the time under the misapprehension that the judge specifically mentioned the question of “mistake”, albeit only once. In fact, he did not use the word at all. Be that as it may however, counsel submitted that the idea of “mistake” had only been mentioned in the context of an entire list, to which the judge responded that this was sufficient. We are not persuaded he erred in this. 22. The Court would again emphasise that it is not its function to lay down precise or definitive terms in which a Lucas warning, if required to be given, should be given. This must be a matter for the trial judge to decide on the facts of each case. Obviously, it should be contextualised to the degree that is necessary. It might be said that the question as to the appellant's untruths went to his credibility rather than guilt or innocence. However, on an issue of this type, there may be a thin line to be drawn between credibility on the one hand, and the question of guilt or innocence on the other. Here, the issue could have been the word of one person against another. The appellant had been very explicit indeed in his denial of carrying out any baling in 2002, even to the extent of advancing reasons why it could not have occurred in that year. This was not a passing comment in the interview. His assertion was repeated more than once. The issue was specifically put to him in circumstances where there could have been no misapprehension on his part as to its nature or importance. No evidential basis was established as to how or why the appellant might have been mistaken. The judge very specifically addressed the issue of the benefit of the doubt in the course of his charge. It is not necessary for each point to be repeated by a judge in a manner which would favour the accused over the prosecution. 23. In the circumstances, the Court concludes there has been no error in principle or misdirection to the jury in this regard. Characterisation of evidence 25. The court considers this to be unnecessary and inappropriate in the course of a Lucas warning. It is however incumbent on the trial judge in the course of his charge to the jury to instruct them that the prosecution must satisfy them beyond reasonable doubt that the particular utterances were lies – deliberate falsehoods – and were not due to some erroneous but nonetheless legitimate and genuine belief on the part of the accused, e.g. mistake, misjudgement, confusion, etc. 26. A number of points arise here. By way of further background, while the complainant was of a young age, it emerged she had been subjected to sexual assaults by a cousin, who had later died. But it then emerged that she had also been the subject of sexual assaults by her own father. All this came out after her complaint about the appellant. She was subject to cross-examination on the basis that the information regarding the appellant had first been volunteered a number of months prior to the information about her father (who subsequently pleaded guilty) and her cousin. 27. This was put to the complainant. She responded on cross-examination that the manner in which the information emerged was very much as a result of obeying the wishes of her mother, and that, the absence of any mention of her father until a later time was as a result of pressure from her mother. The judge is criticised for having characterised the fact that the first statement from the complainant in 2004 did not reveal this latter information as being “a half truth to put it no higher than that”. 28. Counsel for the appellant submits that, on only one further occasion in the charge, did the trial judge raise the question that the complainant and her mother had not fully informed the health authorities and the gardaí for at least a year and a half about the full picture. This was at a time when the offences were being investigated. Counsel for the appellant submits the charge was flawed in that the judge characterised this conduct as being “something in the nature of a half truth”, and described these as being matters which the jury might regard as “relatively minor inconsequential matters” and that the jury should bear in mind that the complainant was young. 29. The Court is not persuaded that these are issues of substance. There is nothing which could be properly characterised as being an error in principle, a misdirection, or an imbalance. At risk of repetition, the phraseology adopted in a judge's charge to the jury need not always be euphemistic. The words a judge uses need not always be those which are most favourable to the accused provided there is an accurate summation to the jury as to the law and the facts. As the court has already indicated, the Lucas warning only arises in the context of lies – deliberate falsehoods - and whether they can amount to corroboration. It is solely concerned with reminding a jury in an appropriate case that the accused may have told a lie or lies for a motive other than a realisation of guilt and a fear of the truth. The warning is concerned solely with an alternative motive for lying. The necessity for such a warning will not arise in every case. 30. A trial judge may not, of course, comment on evidence in a manner which may unfairly influence the jury’s determination on a matter of fact. However, it cannot be said that there was anything in the judge's conduct here which could be said to constitute “approval” of one view of the evidence over another. As the court has already pointed out, the trial judge clearly and unambiguously reminded the jury that persons might tell untruths out of poor recall, panic, misjudgement, confusion or indignation. A “mistake” is an error in judgment and a “misjudgement” is an erroneous opinion of something. This court is satisfied that the trial judge made the matter sufficiently clear in his charge to the jury and a charge cannot be considered insufficient or unbalanced because the trial judge failed to advert to some other possible motive for the untruth which then or subsequently came to mind. This court is also quite satisfied that the trial judge clearly directed the attention of the jury to the important consideration that what the appellant stated to members of the gardaí at interview might not be a deliberate falsehood – a lie - and the onus was on the prosecution to prove beyond reasonable doubt that it was a lie. The trial judge gave sufficient examples of possible alternative explanations for the untruth, and these were clearly not accepted by the jury. A trial judge may, in fact, comment on evidence and arguments put forward, but he cannot comment to a degree which imperils a fair and proper trial. The acid test is whether, taken as a whole, the summing up is balanced and fair. But that is not to say that when directing a jury, a judge is disentitled to express his opinions on the facts of a case, provided that he leaves the issues of fact to the jury to determine. A judge is, of course, not entitled to use language such as to lead a jury to lead them to think that they must find the facts in a particular manner. 31. This is not a situation where it can be said the judge in any way “commended” a witness or bolstered credit through comment. What arose here, rather, is a situation where the judge used particular terminology which it is now suggested went insufficiently far in its criticism of the conduct of the complainant. 32. The court is not persuaded that any of these concerns could in any sense be seen as constituting an unbalanced charge, or an unfairness to the accused. Over a number of hours, the judge carefully charged the jury as to the law, the burden and standard of proof, and the necessity to give the accused the benefit of the doubt. He went through the facts and evidence in very great detail. As always, the essential test is whether there was unfairness. The court has not been persuaded that there was any unfairness in the trial and, consequently, will reject this ground also. The appeal must therefore be dismissed. | ||||||||||||