Court of Appeal in Northern Ireland Decisions

"Q181 Moving on then, when you discussed it with your mother did you advise your mother then of the full details of what had happened in Castlederg just as you told the members of the jury this morning.

A. As time went by I told my mother more about what had happened. I remember that at the start I found it very difficult to talk about it to my mother because my mother used to get upset when I talked about it. I think until the hearing my mother probably didn't know the full extent of what happened as regards the details.

Q182… Would she have known that [the appellant] had attempted to have sex with you or tried to have sex with you? A. Yes.

Q183 She would have known that he had indecently assaulted you, touched you on occasions? A. Yes."

"Q ….did [the complainant] go into detail about what had happened or not?

A. No she didn't at that time. And not for a long time, I was dragging, dragging information from her for along time before she – and a lot I didn't hear until today."

"A. Obviously we agonised over it for a long time, I suppose, and we decided to keep it within the family and try to protect and support [ the complainant] as best we could."

"4. The evidence of complaint made by [the complainant] should not have been admitted in evidence.

5. If the evidence of complaint was properly admitted there was a failure to direct the jury on the evidential significance of a complaint in a sexual case."

"It was put to her that these things just didn't happen at all. She was also asked whether she had told her mother before [her teacher] (?) told her mother or afterwards. Mr Rodgers put to her (Inaudible). Her evidence was that her mother didn't know about it until [ her teacher] (?) told her mother, but her mother said that [ the complainant] told her the night before she went to see [her teacher] . It's a matter for you, members of the jury, just how much weight, if any, you put on that. Is it the kind of thing (Inaudible)? Does it really matter very much (Inaudible). It is clear that she was making complaints about this two or three years after the (Inaudible).

We heard from [ ] (?) the rape counsellor from Clonmel. She tells us that [ the complainant ] went to see her on 20 February 1991, four years or three and a half years after these alleged incidents, and she saw her six or eight times then. She was playing a supporting role. We weren't allowed to hear, as a matter of law, what [ the complainant] told her. That is the law that you can't be told that. But we know that she did go to a rape counsellor in 1991 and her evidence was that she told her what had happened to her.

We heard from her mother. She said, as I have already said, that [the complainant] told her before she went to see [her teacher] but she said [the complainant] didn't go into the details at all for a long time (Inaudible). 'I didn't go to the Guards. I thought about it. I thought I could protect [the complainant] and get her through it (Inaudible).' These are matters of fact (Inaudible) members of families go through. It's a matter for you as to what weight you place on this. [Her stepfather] said he first knew about this some years later from his wife. He decided (Inaudible) and it was [the complainant's] decision to go to the police in 1998.

One thing I have to warn you about, it is now some time since these events, somewhere around 13 years. You are entitled to consider why these matters did not come to light sooner. Is that a reflection on the reliability of the complainant? You have been given an explanation (Inaudible). She has told you that she didn't tell anybody for two or three years (Inaudible). She said that when she was 14 or 15 years she went to a rape counsellor for a time. Finally then, after attending the Irish Society for the Prevention of Cruelty to Children, when she was aged 20 she felt strong enough to face up to it and contact the Guards who put her in touch with the RUC. You should make allowance for the fact that with the passage of time memories are vague. Witnesses, whoever they may be, cannot be expected to remember with clarity events which happened 13 years ago and sometimes the passage of time may even play tricks on memory. You must also make allowance for the fact from the Defendant's point of view that (Inaudible) the alleged incidents happened the more difficult it maybe for him to answer them. You have only to imagine what it must be like to answer questions about events which are said to have taken place 17 years ago to appreciate the problems which may be caused by delay and even if you do believe that the delay in this case is understandable, if you decide that because of this the defendant has been placed at a real disadvantage in putting forward his case you must take that into account in his favour in deciding whether the prosecution has made sure of his guilt."

"Their Lordships accept that when the complainant herself is giving evidence, it may be difficult for her to give a fair and coherent account of her behaviour after the incident without allowing her to mention that she spoke to other people who may not be available to give evidence (within the sexual complaints exception) of what she actually said. Their Lordships would not suggest that the mere mention that the witness spoke to someone after the incident was inadmissible. In most cases it will be very difficult to draw any rational distinction between consistent conduct, which is plainly admissible (e.g. that the witness wept) and the fact that she spoke to someone such as a parent. On the other hand, it is important to avoid infringement of the spirit of the rule against previous self-consistent statements by conveying indirectly to the jury that she had given a previous account of the incident in similar terms with a view to inviting the jury to infer, not merely that her subsequent conduct was not inconsistent with her complaint but that her credibility was actually supported by the fact that she had told the same story soon after the incident.

In the present case their Lordships think that the prosecution probably went further than could be justified by the need to allow the complainant to give a fair account of her conduct after the incident. In the absence of a ruling by the judge that the questions could be asked because of an imputation of recent invention, she should not have been allowed to say that she had told five people 'what had happened.' The inference which the jury were bound to draw was that she had made statements in terms substantially the same as her evidence to the court."

"Apart from telling the jury that it did not amount to corroboration, he gave no indication of what use could be made of the complaints. Their Lordships consider that in the circumstances of this case, that was insufficient. The passages cited from the summing up would have indicated to the jury that the evidence about the complaints were in some way a relevant circumstance to be taken into account in assessing the complainant's credibility, upon which the whole prosecution case depended. On more than one occasion the jury had been told that it was a matter for them to decide whether the complaints had been made and whether it was plausible that they should have been made to some people but not to others. They had been directed not to blame the complainant for the absence of evidence confirming the complaints, because this was a matter for the police. The jury must therefore have considered that, having formed an opinion on these matters, they were entitled to put it to some use. Quite what they would have made of the direction that the complaints did not constitute corroboration is hard to say, but this difficulty is also encountered in cases of admissible complaints, when the jury has to be instructed that the evidence is admissible to show consistency and negative consent but does not amount to corroboration. As the jury had been told that even without corroboration they could convict if they believed the complainant's evidence, there must have been a significant risk that they considered themselves entitled to regard the evidence of complaint as confirming her credibility. To leave it open to the jury to take such a view was a misdirection. It was in their Lordships' view incumbent upon the judge to give the jury clear instructions that the complainant's own evidence was for this purpose of no value whatever. If the judge thought it necessary to deal with the question of why she had not gone earlier to the rape unit, it would have been sufficient for him to tell the jury that they were entitled to take into account her explanation that she had lacked the courage to do so."