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Cite as: [2014] IECCA 17
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Judgment Title: Director of Public Prosecutions -v- Piotrowski Neutral Citation: [2014] IECCA 17 Court of Criminal Appeal Record Number: 20/10 Date of Delivery: 30/04/2014 Court: Court of Criminal Appeal Composition of Court: Clarke J., Moriarty J., White Michael J. Judgment by: Clarke J. Status of Judgment: Approved
Notes on Memo: Appeal against conviction dismissed and reasons stated for refusal of additional evidence application. Sentence appeal to be heard in due course | ||||||||||||
THE COURT OF CRIMINAL APPEAL [Appeal No: CCA 20/10] Clarke J. Moriarty J. White Michael J.
The People (at the suit of the Director of Public Prosecutions) Prosecutor/Respondent and
Edward Piotrowski Defendant/Appellant Judgment of the Court delivered by Mr. Justice Clarke on the 30th April, 2014. 1. Introduction 1.2 In that context, he stood charged on eight counts involving allegations of aggravated burglary, assault causing harm, false imprisonment, aggravated sexual assault and rape. On the 13th October 2009, Mr. Piotrowski pleaded guilty to count no. 2 which involved an allegation of assault causing harm, contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997, against Mr. Y. He pleaded not guilty to the remaining seven counts. On the 24th October, 2009, a jury found Mr. Piotrowski guilty on each of those seven counts. 1.3 A sentencing hearing occurred on the 29th January, 2010. Mr. Piotrowski was sentenced to various terms of imprisonment but most particularly to life imprisonment in respect of each of the counts of rape and the count of false imprisonment against Ms. Z. Mr. Piotrowski has appealed to this Court, both against his conviction on those counts to which he pleaded not guilty and against his sentence on the grounds of severity. 1.4 This judgment is concerned solely with the question of the appeal in respect of conviction with the question of sentence being left over until the issues raised on this aspect of the appeal have been determined. However, before going on to consider the grounds put forward for suggesting that Mr. Piotrowski's conviction in respect of the relevant counts ought be overturned, it is of some importance to note that there was also before the Court, on the occasion of the hearing of the appeal against conviction, a motion in which it was sought by Mr. Piotrowski to introduce further evidence. Having heard that application, the Court indicated that it would not permit further evidence to be tendered but that it would give its reasons for coming to that conclusion at a later stage. The Court should, therefore, start by setting out those reasons. 2. The reasons why further evidence was not permitted
(b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired at the time of the trial. (c) It must be evidence which is credible and which might have a material and important influence on the result of the case. (d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation." 2.3 In a subtle argument, counsel for Mr. Piotrowski drew attention to the possibility, by reference to the judgment of the Supreme Court in O'Regan, that it may be appropriate for the court, in exceptional circumstances, to depart from what Professor O'Malley, in "The Criminal Process" (Round Hall, 2009) at para. 23.18, described as a rule which might run the risk of "excessive rigidity". 2.4 Without seeking to define the type of circumstances where it might, nonetheless, be appropriate, in such exceptional circumstances so as to meet the overall interests of justice, to permit new or additional evidence to be led on a criminal appeal notwithstanding that the evidence concerned could or ought to have been available at the trial, the Court was prepared, for the purposes of this application, and without so deciding, to accept that such a possibility might exist. 2.5 In that context, it is necessary to refer to the basis on which it was asserted that new or additional evidence ought be admitted. In an affidavit sworn on the 5th December of last year, Mr. Piotrowski suggested that, after he was arrested and was in custody in connection with these alleged offences, associates of Ms. Z threatened members of Mr. Piotrowski's family in Poland. He stated in that affidavit that, through a contact in prison, he became aware of three conditions imposed on him to avoid such threats being carried out, being that he was (1) to admit the charges, (2) not to give evidence or explain anything and (3) admit to all evidence and not to question same. 2.6 Mr. Piotrowski indicated that he did not inform his lawyers about that situation, that he was forced to remain silent because of the threats to which he referred, and that it was in that context that he gave instructions as to how his defence was to be conducted. 2.7 A number of points bear making concerning that account. Firstly, no independent evidence was put forward in respect of any of the matters referred to nor is there any suggestion that independent evidence might be made available in that regard. The only evidence of the relevant threats and the other circumstances which were said to have led to the approach adopted by Mr. Piotrowski at his trial, is, apparently, the evidence of Mr. Piotrowski himself. Obviously, in that context, the extent to which any credence might be placed on the matters which Mr. Piotrowski puts forward is wholly dependent on the credibility of Mr. Piotrowski's own evidence. But, of course, that was exactly the position that pertained at the trial. Leaving aside some forensic evidence to which reference will be made in due course, the principal focus of the issues which were canvassed at his trial concerned the credibility of the evidence of Ms. Z and Mr. Y, both of whom gave clear evidence of the crimes in respect of which Mr. Piotrowski stood charged. It is fair to say that the defence mounted a sustained attack on the credibility of both of those witnesses giving rise, indeed, to some of the events at the trial of which complaint is made on this appeal. However, Mr. Piotrowski did not give evidence. If he had, then, doubtless, his own credibility would have been a matter which the jury would also have to have taken into account in reaching their assessment. Mr. Piotrowski did not, however, choose to give the jury an opportunity to assess his credibility. In such circumstances, and in the absence of any compelling external and objective evidence concerning the threats of which he now complains, to allow an appeal court to take an allegation (for it was not more than that) about those matters into account would be to invite the Court to now place credibility on Mr. Piotrowski's unsupported evidence in circumstances where he did not choose to allow the jury to reach a conclusion on his credibility at the trial. 2.8 It must also be stated that the approach adopted by Mr. Piotrowski at the trial did not, in fact, conform with the conditions which he asserted were imposed on him as a result of the alleged threats to his family. On his own affidavit evidence, amongst other things, he was required to admit all of the prosecution evidence and not to question same. What in fact happened at his trial was that almost all of the prosecution evidence was strongly challenged as to its credibility. No basis was put forward on behalf of Mr. Piotrowski as to how it could be explained that, by reason of threats, he was forced to comply with conditions (1) and (2), but not condition (3). There was, quite frankly, an inherent implausibility about the account which Mr. Piotrowski sought to give for that very reason. 2.9 In addition, Mr. Piotrowski was, of course, perfectly entitled not to give evidence. It is no criticism of him to note that he did not. However, having made that choice, it did not seem to the Court that it would be appropriate for this Court to have regard to unsubstantiated and uncorroborated accounts of the circumstances of the background of his trial which are, for the reasons already addressed, internally inconsistent. The Court was more than satisfied that it should not entertain new or additional evidence which was or ought to have been available at the trial, and which, even on Mr. Piotrowski's case, did not come remotely close to a case of exceptional circumstances. 2.10 It was for those reasons that the Court declined to allow the additional evidence to be admitted on the appeal. 2.11 It is next necessary to turn to the substantive grounds which were relied on on behalf of Mr. Piotrowski for suggesting that his conviction should be overturned. A significant number of different grounds of appeal, both in respect of conviction and sentence, were included in the notice of appeal filed on his behalf. However, counsel who presented his appeal before this Court helpfully grouped those grounds into logical combinations (while abandoning one specific ground) so that the Court's task was made a lot easier. While there are some overlaps between the grounds they are, to quite a significant extent, stand alone or discrete sets of grounds. The Court, therefore, proposes to consider each separately. 3. Grounds 1 and 2 - the presumption of innocence 3.2 Second, it is worth stating that many experienced trial judges in the past (not least Finlay C.J. when he was a trial judge presiding over the Central Criminal Court) adopted a broad structure to their charge to the jury which dealt with, in sequence, (a) those matters, such as the role of judge and jury, the presumption of innocence, the burden and standard or proof and the like, which the jury was required to be told about in every case; (b) matters connected with the specific offence or offences before the court including the matters of which the jury needs to be satisfied beyond reasonable doubt in order to convict and any specific defences which may, as a matter of law, be relevant and; (c) a review of the issues in the case in question by reference to the evidence and the case made by both prosecution and defence. 3.3 Such a structure has the merit of bringing the jury logically through all of the matters which they require to know but it is only one means of achieving the end of ensuring that the jury is adequately instructed on their task. Provided that all necessary matters are addressed to the jury and provided that the way in which the trial judge approaches the charge is not so disjointed as to run the real risk of the jury not fully understanding the task which they have been set, then the structure and form of a charge is essentially a matter for the trial judge. 3.4 In that context, it is appropriate to refer to the complaint made on behalf of Mr. Piotrowski that the trial judge did not adequately address the jury on the presumption of innocence. The Court's attention was drawn to a previous decision of this Court in Director of Public Prosecutions v. D. O'T. [2003] 4 I.R. 286, in which the judgment of the Court was delivered by Hardiman J. The comments of Hardiman J. in D. O'T. need to be seen in the context of what had actually occurred at the trial in that case. The trial judge had omitted to make any reference to the presumption of innocence. Having been requisitioned, the trial judge, on recharging the jury, said only the following about the presumption of innocence:-
3.6 In contrast, in this case, the trial judge, when he had finished dealing with the burden of proof in some detail, commenced, (transcript day 8, page 25, line 33), to deal with the presumption of innocence and puts the burden of proof (and indeed the standard of proof) which lies on the prosecution in the context of the presumption of innocence by going on, in the same passage, to indicate that there is no desired result in the case other than that there be a verdict "on whether the prosecution have proved their case beyond reasonable doubt on each of these charges" (transcript day 8, page 26, lines 14-15). 3.7 It seems to this Court that the charge of the trial judge in this case was far removed from that which was criticised by this Court in D. O'T. The presumption of innocence was fully dealt with and the burden and standard of proof on the prosecution was put in the context of the importance of the presumption of innocence. The substance of the requirements for a proper charge in relation to those matters are all present and there is nothing, in this Court's view, in the form of the charge which could have confused the jury or left them with an inadequate understanding of the proper approach to be adopted. Likewise, this Court is satisfied that the trial judge properly explained the question of the benefit of the doubt to the jury. Indeed, the trial judge, with admirable clarity, synopsised the position correctly in the following passage from his charge:-
4. Grounds 3 and 4 - alleged failure to put the defence case 4.2 In substance, it is clear from those, and other, authorities that there is a duty on a trial judge to fairly put both the prosecution and the defence case to the jury. In so doing, the trial judge is not confined to any formulaic rules but rather has an obligation to ensure that the jury are assisted in understanding the substance of the case. It is in that context that the complaints made in these grounds concerning the way in which the defence case was put to the jury need to be considered. 4.3 In the written submissions filed on behalf of Mr. Piotrowski, it is submitted that "a central line in the defence case was that a sexual assault did not happen as was alleged" and the trial judge's charge was, it was said, silent on that matter. However, the trial judge said, (transcript day 8, p. 34, lines 8-10): "On the sexual assault, the defence says it's only the word of two people and there is not a screed of medical or forensic evidence. The defence case is that (Mr. Y) and (Ms. Z) are not reliable witnesses". Further examples of reasons why it might be said that those witnesses were unreliable are then identified. The defence case that Mr. Y was a reluctant partner to the actions by Ms. Z "to make up a false allegation" is fully put to the jury. It seems to this Court that the substance of the defence case was properly put to the jury. 4.4 As pointed out in Bishop, it is not the function of this Court to entertain argument which seeks to go through the judge's charge with a fine tooth comb and identify some element of the evidence or argument which, it might be said, had not been fully addressed to the jury. Rather, it is the function of this Court to assess whether the substance of the case made at the trial on behalf of the accused is fairly put. As noted earlier, the prosecution case was, to a very high degree, dependent on the credibility of the two alleged victims. Their credibility was challenged both by reference to their accounts of the events which they allege occurred on the night in question and also, to some extent, by reference to external events, not least when a sexual relationship between the two alleged victims had commenced. It is correct that not every detail of that case is mentioned in the trial judge's charge. However, the substance of that case is fully put and many of the details relied on are specifically addressed to the jury. 4.5 It is also important to note a significant aspect of the context in which the defence case was put. Mr. Piotrowski did not go into evidence. When Mr. Piotrowski was questioned after arrest, he denied having been in the house at all on the night in question. However, as already noted, he pleaded guilty to one count involving an incident in that house on that occasion. Thus, so far as the evidence was concerned, the only statement of Mr. Piotrowski's position was one denying presence in the house on the occasion in question, while the formal position adopted by him at trial was inconsistent with his not having been in the house at all. Thus, there was no evidence before the Court giving an account of events which explained the presence of Mr. Piotrowski in the house in question (necessarily implicit in his plea of guilty) in the context of him being innocent of the offences of a sexual nature. It was, of course, entirely open to the defence to seek to challenge the credibility of the prosecution witnesses by suggesting that, while aspects of the account given by them were correct, other aspects, most particularly those alleging a sexual aspect to the assaults, were not. However, it is difficult to characterise that defence as being anything other than one which was largely based on attacking, on a range of bases, the credibility of the prosecution witnesses rather than one which placed any reliance on an account of events given by the accused, whether in statements made during the investigation or at trial. In the view of this Court, the defence so characterised was properly put to the jury. 4.6 The Court is not, therefore, satisfied that any basis for allowing the appeal under grounds 3 and 4 has been made out. 5. Grounds 5 and 7 5.2 Such admissions were made on behalf of Mr. Piotrowski at his trial. However, it was a curious feature of the relevant admissions that they occurred almost at the end, rather than at an early stage, of the trial. This is a point to which I will return. However, the substance of the admissions were, of course, in a form determined on by Mr. Piotrowski, doubtless with the benefit of legal advice. The admissions were made through counsel and appear at p. 57 of day 7 of the transcript. In that context, counsel indicated that Mr. Piotrowski would not be giving evidence but that he had some admissions to make on behalf of his client. There was no specific reference to s. 22 by counsel on that occasion. The admissions were as follows:-
(2) that he inflicted some but not all of the wounds on Mr. Y; (3) that he did have a knife; (4) that there was a quarrel in the bedroom and downstairs; and (5) that he did issue some threats in the house, but not any threat to a daughter of Mr. Y. 5.4 In addition, it needs to be noted that the trial judge posed two specific questions which the jury were required to answer in addition to the question of guilt or innocence on the counts in respect of which there was a plea of not guilty. Those questions are referred to in the transcript on day 9, p. 20, immediately after a passage in which the trial judge reminded the jury of the five admissions which had been made by Mr. Piotrowski The trial judge did note that the jury should only answer yes to either of the questions if the jury were satisfied beyond reasonable doubt as to the answer; otherwise the jury were directed to answer no. The first question was as to whether Mr. Piotrowski had inflicted the injuries on Mr. Y which Mr. Y had said that he did (that question needs to be seen in the light of the limited nature of admission no. 2). The second question was as to whether Mr. Piotrowski had issued threats both to Mr. Y and Ms. Z, including a threat to the daughter of Mr. Y (that question needs to be seen in the light of the limited nature of admission no. 5). 5.5 Against that background, two complaints are made on behalf of Mr. Piotrowski concerning the trial judge's charge to the jury. First, it is said that the trial judge failed to explain, or at least to properly explain, the legal basis and nature of the statutory admissions to which reference has been made. It is said that there was a risk that the jury were, thereby, confused as to the precise status of those admissions. Second, it is said that, while conceding that there is a jurisdiction for the trial judge to ask questions of the jury in a criminal trial, such a procedure is, it was submitted, so unusual that it was inappropriate for the trial judge to do so without having given the parties (and in particular Mr. Piotrowski) an opportunity to address the trial judge, both on the issue whether such a question should be asked, at all, and also, if questions were to be asked, as to their form. 5.6 For instance, in People (Director of Public Prosecutions) v. Courtney (Unreported, Court of Criminal Appeal, 21st July 1994), the trial judge, Lynch J., also left two questions to the jury in relation to the mens rea of an accused, primarily in relation to the defence of insanity. However, in that case, both the prosecution and the defence agreed that it was appropriate to leave such questions to the jury and the form of the questions was agreed between them. The Court of Criminal Appeal dismissed the conviction appeal and, in so doing, noted that those questions had been posed in the charge, but made no further comment on the matter as they had been agreed by both sides. 5.7 As to the first of those grounds, the Court is not persuaded that any basis has been put forward to suggest that the jury could have been confused as to the effect of the statutory admissions made. The jury were aware that admissions had been made. Indeed, the foreman of the jury intervened at the beginning of day 8 to inquire about the admissions. While it was suggested in the written submissions filed on behalf of Mr. Piotrowski that the intervention concerned reflected some confusion on the part of the jury, it seems to this Court that the jury wished only to have counsel for Mr. Piotrowski go through those admissions before he started his closing address. A reading of the transcript makes clear that the suggestion in the written submissions filed on behalf of Mr. Piotrowski that the foreman asked the trial judge about the relevant admissions is simply incorrect. What the foreman says, between lines 7 and 13 on p. 1 of day 8 (it is clear that the foreman is speaking at much the same time as counsel for Mr. Piotrowski) is as follows:-
5.9 Next, it is clear that the trial judge referred the jury again to those admissions towards the close of his charge. The legal status of such admissions does not differ from a common sense understanding of an admission made. As already pointed out, the status of the admissions concerned is that they amount to conclusive evidence against the accused of the matter admitted. The remaining provisions of s. 22 are concerned with the way in which an admission can be made, the status of such an admission in respect of any subsequent criminal proceedings relating to the matter in question and the circumstances in which an admission may be withdrawn. No such questions arose on the facts of this case. What then was the trial judge to say? The jury had already been told of the admissions. The text of the admissions was reiterated to the jury by the trial judge in the course of his charge. This Court finds it difficult to see what would have been added to the situation by the trial judge indicating that the admissions were conclusive proof of the facts admitted against Mr. Piotrowski 5.10 So far as the questions addressed to the jury are concerned, this Court is satisfied that, at the level of principle, there may be cases where it is appropriate for a trial judge to add questions to the issues which the jury are asked to decide. This Court would emphasise that such a practice should very much be the exception rather than the rule. In the vast majority of cases, the appropriate course of action to adopt is simply to allow the jury to find the accused guilty or not guilty in respect of each count which goes to the jury for determination. However, there may be cases where some additional questions are considered to be necessary not least where there may be a number of different ways in which a jury might, on the evidence, find the accused guilty on one or more counts and where answers to questions posed might, thus, clarify for the trial judge the true basis on which the jury were persuaded beyond reasonable doubt that the accused was guilty. Additional questions may be particularly useful where it would be likely, in such circumstances, that the answers to the relevant questions would be of particular assistance to the trial judge in imposing sentence in the event that the accused was convicted. While not relevant on the facts of this case, there may also be circumstances where discrete legal issues were raised at the trial and where it might be reasonable to anticipate that there was a significant possibility that those issues might arise again on appeal. If there were questions whose answers might assist an appeal court in dealing with issues likely to arise on such an appeal, then it may be appropriate to add such questions. 5.11 The Court also feels that it should add that it is desirable, in the event that the trial judge feels that the addition of questions might, unusually, be appropriate, for the trial judge to give the parties an opportunity to be heard, both on the issue of whether there should be questions at all and, if there are to be questions, on their form. It is ultimately a matter for the trial judge to decide whether questions should be allowed. However, it is important to note that no controversy arose as to the questions added in Courtney precisely because the parties had agreed to the relevant questions. 5.12 On the facts of this case, the Court is satisfied that the questions posed were appropriate. As already noted, admissions had been made on behalf of Mr. Piotrowski which, in two cases, were qualified. The two questions added by the trial judge were precisely directed to giving an opportunity to the jury, if the jury were satisfied that the accused was guilty in respect of the specific counts to which those admissions related, to make clear whether that finding of guilty only went so far as the qualified admissions made by Mr. Piotrowski or went much further by reference to the case made by the prosecution supported by the evidence of the two chief prosecution witnesses. The Court is not, therefore, satisfied that there was anything wrong with the trial judge exercising his adjudicative role in determining that questions were appropriate on the facts of this case. 5.13 The Court is concerned that the trial judge did not consult with the parties prior to posing those questions. There might well be cases where a failure so to consult could be decisive in leading to a proper conclusion that a trial was unsafe. However, on the facts of this case, the Court is not satisfied that there was anything inappropriate about the questions asked or that the jury could have, in any way, been misled as to the proper approach to their task by the presence of those questions. 5.14 The Court, therefore, rejects these two grounds of appeal. The Court should also record that grounds 6 and 8 were not proceeded with at the hearing and the Court, therefore, makes no comment on the issues thereby raised. In that context, it is appropriate to turn to ground 9. 6. Ground 9
6.3 If it had been desired to put formal and proper evidence concerning Mr. Piotrowski's record in Poland before the Court, then there were, of course, ways in which that could have been sought to have been achieved. However, if proper evidence were tendered in that way then questions such as those just mentioned or others could also have been addressed. As the trial judge noted, hearsay is hearsay and is no more admissible because the defence wishes to lead hearsay evidence from a prosecution witness than in other circumstances. 6.4 On that basis the relevant evidence was, in the Court's view, correctly excluded and this ground of appeal fails. 6.5 It is then necessary to turn to the next ground. 7. Ground 10 7.2 What the trial judge said to the jury in the context of the offence in question was the following:-
7.3 Requisitions were not made by counsel on the trial judge’s explanation in his charge as to what the jury ought be satisfied in order to find Mr. Piotrowski guilty of sexual assault. However, counsel did ask the judge to re-iterate to the jury that the complainant was not embarrassed in talking about her sexual matters, which the trial judge did. The trial judge, in response to a later question by the foreman, also explained what may amount to corroboration in respect of the sexual assault charge. 7.4 It is important to emphasise that there are a whole range of factual scenarios, or alleged factual scenarios, which may be present in a case involving an accusation of sexual assault. It must further be emphasised that the range of matters which may be put in issue by the defence may vary. The precise way in which a trial judge, in charging a jury, will be required to address these issues is very much dependent on the evidence given at the trial and the nature of any challenge to that evidence. In that context, it is important to note that, in M.R., (as appears from para. 14 of the judgment of this Court delivered by Denham J.), the accused in question had given evidence and had made a specific admission in relation to one incident but had entirely denied a second incident. It was in that context the ruling of this Court was delivered. The Court went on to note that there may be factual details not at the core of the alleged acts which would not be subject to the principle and that the need for a direction might only arise in rare cases. It is also important that this Court quoted with approval from the judgment of Lord Bingham C.J. in R. v. Carr [2000] 2 Cr App R 149 which drew attention to the principle arising in cases where there was "a stark difference in the evidence of witnesses describing the two events". In addition, as Lord Bingham C.J. also noted in Carr, the ultimate question is whether the conviction is unsafe. 7.5 Here, there was, on the run of the case, no distinction between the two elements of sexual assault described. There was no conflicting evidence between different witnesses. The accused did not himself go into evidence. While there was a general attack on the credibility of the evidence of Ms. Z, no suggestion was made which could raise any legitimate distinction between the two forms of sexual assault of which she gave evidence. This is not, therefore, a case where there was any distinction between the totality of the evidence relevant to the two separate allegations of sexual assault. Nor was it a case where there was any distinction between the potential credibility of that evidence as and between those two instances. On that basis, the Court is not satisfied that there was any need for the trial judge to go further than he did in his charge to the jury. As he put it to the jury, they were required to be satisfied beyond reasonable doubt that the instances occurred. On a strict reading of the words used by the trial judge, it might, indeed, be said that the jury had been told that they must be satisfied that both occurred. However, the reality was that no distinction between the two instances arose in the context of this trial and there is, therefore, no basis on which the jury could have been confused as to their role. That ground of appeal is, therefore, rejected. The Court, therefore, turns to the next grounds. 8. Grounds 11 and 16 8.2 It is fair to say that, insofar as each of the relevant instances are concerned, the trial judge suggested to counsel that it was, at least to some extent, inappropriate to pursue generalised issues concerning the credibility of the principal witnesses without putting to those witnesses the case which the defence made. It seems to this Court that it is clear that, at least for much of the trial, the attack on the credibility of the principal witnesses for the prosecution was primarily based on collateral issues which were not directly relevant to the case itself (such as the timing of the relationship of Ms. Z with respectively, Mr. Y and Mr. Piotrowski) but which were indirectly relevant to the case and potentially material to the question of whether the jury would regard the evidence of the principal witnesses as being sufficiently trustworthy to establish proof beyond reasonable doubt. 8.3 The defence is, of course, entitled to some latitude in pursuing issues concerning the credibility of important prosecution evidence. However, it is also true that the trial judge has an important role in ensuring that the case is confined to questions which are at least of sufficient relevance to the issues which the jury has to decide to make their pursuit material. If the issues being pursued by cross-examination are directly relevant to the facts of the case in the sense of the facts which are alleged to constitute the offence charged or the guilt of the accused in respect of that offence, then wide latitude must be allowed. Where the issues raised simply go to general credibility not directly connected with the offence but connected with matters which may have some indirect bearing on the credibility of witnesses in relation to the offence, then it seems to this Court that the trial judge is entitled to exercise a greater degree of control over the extent to which such issues can be pursued. 8.4 It also needs to be noted that counsel for Mr. Piotrowski had made an application, pursuant to s. 3(1) of the Criminal Law (Rape) Act 1981, as substituted by s. 13 of the Criminal Law (Rape) (Amendment) Act 1990, to the trial judge (see transcript day 1 p. 60) for leave to cross-examine Ms. Z about her prior sexual history in relation both to Mr. Piotrowski and Mr. Y. The trial judge allowed such cross examination to take place. In giving his ruling (see transcript day 1 p. 63), the trial judge did note that he did not know what the defence was but that he would have to allow "the defence to unfold in the natural course of cross examination" rather than require the defence to tell him then what the defence was. The trial judge did, in so ruling, also indicate that cross-examination into such matters would have to be relevant. In so indicating, the trial judge was clearly correct. Aspects of the sexual relationship between Ms. Z and both Mr. Piotrowski and Mr. Y were clearly potentially relevant to the case. However, cross examination on that sexual history was quite properly confined only to any aspects of it which could be shown to have some bearing on the case. There is, therefore, a clear obligation on a trial judge to ensure that any permitted cross-examination on previous sexual history keeps within the bounds of what is relevant to the case. In addition, a judge is entitled to ensure that cross-examination on collateral issues is kept within reasonable bounds. 8.5 It might be said with some validity that it would have been preferable if the trial judge had addressed some of the comments which he made to counsel in the absence of the jury. However, that being said, this Court is not satisfied that any comments made by the trial judge were such as could have misled or prejudiced the jury. The fact remains that it took some considerable period of time for the precise line of defence being pursued to emerge. The trial judge, in charging the jury, made clear that it was for the jury to assess the credibility of the evidence given and, in particular, the testimony of the two principal witnesses. The nature of the challenge to the credibility of those witnesses was a matter for the defence. The way in which that challenge was pursued was determined by the defence. The fact that much of that challenge was based on indirect issues said to affect the credibility of the relevant witnesses was again a matter for the defence. 8.6 In all those circumstances, this Court is not satisfied that there is any risk of an unsafe conviction arising from the issues raised under this ground. 9. Ground 12 9.2 So far as the first point is concerned, an issue arose at the trial as to when Ms. Z had first made a complaint of there being a sexual element to the events which occurred on the night in question. Given the nature of the defence which ultimately emerged, being a suggestion that the sexual aspects of the events were a fabrication, then the timing of any such complaint was potentially of some relevance. On day 5, commencing at p. 79 of the transcript, Sgt. Liam Mulhall gave evidence of an account given by Ms. Z of a sexual aspect to the assault which account was said to have been given in a conversation after Ms. Z had got out of the back seat of a car and asked to speak to him. This event would appear to have occurred at about 10.45 on the morning in question. This conversation was noted and Sgt. Mulhall also gave evidence of having immediately informed Inspector Murray of those matters by phone. 9.3 However, on day 6, at p. 21, Sgt. Mulhall, under cross-examination, indicated that Ms. Z had talked to him at 9.00 a.m. in hospital (being earlier that the "motor car" discussion), as a result of which he knew that "something of a sexual nature had happened". There followed a dispute concerning whether there was any appropriate record of such a conversation and a contention that the case made by the prosecution on the Book of Evidence did not include any such reference. Notes, which had been disclosed to the defence, were produced, and it was said that those notes recorded a complaint at nine in the morning in the handwriting of a Garda Marr who was also in attendance. On that basis, counsel for Mr. Piotrowski alleged that he had been prejudiced in the conduct of his defence and sought a discharge of the jury. The Court is not satisfied that there is any substance to the issue raised under this heading. The defence was entitled, in the context of seeking to make the case that the allegation of a sexual nature to the events was fabricated, to explore when a complaint was first made. A failure to make a complaint when it might be expected is, of course, a matter which can go to the credibility of a complainant. However, in this case, as the trial judge pointed out in his ruling, Ms. Z had accepted that she had not initially made any complaint of a sexual nature. The question of whether that complaint was subsequently made at 9.00 or 10.45 was, undoubtedly, a point which the defence might seek to exploit, but it was not fundamental. That was so because there was already an admission that the complaint had not been made earlier and the question of whether it was made at 9.00 or 10.45 was one only of degree at that stage. 9.4 So far as the evidence of the night vision binoculars is concerned, it is suggested that any connection with the offence was purely speculative and that the introduction of evidence of the finding of those binoculars was, therefore, more prejudicial than probative and should have been ruled out. This Court is satisfied that, in the context of the case as whole, it was well within the entitlement of the trial judge to form the view that, on balance, evidence of the finding of the binoculars in question in Mr. Piotrowski's car, was potentially more probative than prejudicial and should be admitted. 9.5 It follows that each of the matters raised under ground 12 provide no basis for a proper appeal in this case. 10. Grounds 13 and 14 10.2 Under this heading, a further complaint is made about the admission of evidence. Prior to Ms. Z being sworn, a ruling was made by judge that certain background evidence relating to an alleged blackmail attempt, assault and threats to kill made by Mr. Piotrowski prior to the incident in question, could be admitted, provided it was not hearsay on the authority of the decision of the Supreme Court in Director of Public Prosecutions v. McNeill [2011] 2 IR 669. At day 1, p. 68, lines 6-23, the trial judge held:
The fact in issue insofar as I can discern it at this point in the trial, is as to whether or not an assault transmuted itself into a sexual assault and in that regard, evidence of the prior relationship between [Mr. Piotrowski] and [Ms. Z] is relevant, as is apparent jealousy on his part, and the parent (sic) descents into threats and violence, because those are easily translatable into the events that are supposed to have happened in the house, some of which now seem to be denied. So, therefore I haven’t the slightest doubt on the authority of McNeill and on the authority of Joyce and Walshe that the evidence is admissible. … On the other hand, anything said by the accused is admissible, so definitely the evidence is admissible.” 10.4 The evidence was, of course, undoubtedly prejudicial. The trial judge had to execute his adjudicative role in determining whether, on balance, such prejudicial evidence was sufficiently probative to warrant its admission. This Court is satisfied that it was within the range of decisions which were open to the trial judge, in all the circumstances of the case, to form the view that the probative nature of this evidence was sufficient to warrant its admission notwithstanding its prejudicial character. The Court, therefore, dismisses the appeal on this ground. 11. Ground 15 11.2 It must be recalled, as earlier pointed out, that the trial judge, in his original ruling concerning the cross examination of Ms. Z about her previous sexual history, had made clear that he retained the right to intervene if such cross examination was unfair. The Court has already noted that the trial judge was, in the light of the legislative position, as set out in s. 3(1) of the Criminal Law (Rape) Act 1981, as substituted by s. 13 of the Criminal Law (Rape) (Amendment) Act 1990, concerning such cross-examination, correct to make clear that he would require any such cross examination to be relevant. Therefore, the trial judge was correct to be careful in ensuring that any evidence of detail concerning the previous sexual history of Ms. Z was relevant to the case. It is difficult to see how it was not within the jurisdiction of the trial judge to form the view that the relevant photographs had no direct relationship to any of the issues in the case, and that any indirect relationship was so tangential as to render it appropriate to exclude the evidence in question. It follows that, in this Court's view, those grounds also fail. 12. A Cumulative Approach 13. Conclusions 13.2 As noted earlier, there remains the question of the appeal brought by Mr. Piotrowski in respect of his sentence. The Court will list the appeal in relation to sentence in early course.
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