D.P.P.-v- M.K., [2005] IE CCA 93 (2005)

Docket Number:214/00
Judge:McGuinness J.


Record No. 214/00

McGuinness J.

Herbert J.

Butler J.



M. K.


Judgment of the Court delivered by Mrs Justice McGuinness on the 19th day of July 2005

The applicant was convicted by a jury in the Dublin Circuit Criminal Court on the 23rd day of October 2000 on one count of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 and one count of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. The alleged assaults were occurred on 9th August 1996 when both the applicant and the complainant were thirteen years of age. At the time of his trial, therefore, the applicant was seventeen years of age. The presiding judge, His Honour Judge Kieran O'Connor, sentenced the applicant to one year's detention on each count, the sentences to run concurrently from 23rd October 2000. Leave to appeal was refused. The applicant has now served his sentence and his application is for leave to appeal against conviction only.


The facts of the case insofar as they are relevant to this application are that on the evening of 9th August 1996 the complainant attended a young persons' discotheque in a town in Co. Wicklow. In the course of the evening she consumed some alcohol. The amount of alcohol she had consumed was in issue: varying accounts of her intoxication or otherwise were given by a number of witnesses while the medical evidence in this regard was inconclusive. The discotheque ended at around 10.30 to 10.45 p.m. The complainant left the discotheque and walked along the main street to a chip shop in the company of two girls. A number of young people, including the complainant's brother and some girls from Northern Ireland, were about the main street and around the chip shop and some conversations took place. It appears that after speaking to her brother the complainant agreed to go home and went back along the main street. The complainant met with the applicant and walked with him to the entrance of a laneway. It was common case that they had a conversation there. The evidence of the complainant was that the applicant pulled her up the lane to a place where there were some bottle banks and there assaulted her both sexually and physically. She gave evidence of recognising and identifying the applicant, whom she had known for some time. The applicant's evidence was that he left the complainant at the mouth of the lane and joined other people who were standing around the chip shop.

It was common case that some time later the complainant emerged from the laneway and made her way up to the chip shop. She was bleeding from the head and had a gash in her knee. Her legs had scraping type injuries. There were abrasions inside her mouth. She was extremely distressed. She alleged that the applicant had assaulted her both physically and sexually. The applicant vigorously denied all these allegations.

The complainant was taken to the local Garda Station and thence to the Rotunda Hospital, where she was examined by Dr. Patricia Cahill, who gave evidence at the trial of her multiple injuries. The complainant alleged to Dr Cahill and in a later statement to the Gardai that the applicant had digitally penetrated her vagina and also touched the area of her vagina with his hands.

It was conceded at a very early stage on behalf of the applicant that the complainant had been assaulted in the lane concerned but he denied that he had carried out the assaults. The primary issue at the trial was, therefore, not whether the complainant had been assaulted, but rather whether the applicant was the perpetrator of the assaults.

The trial took place over a period of four days. At the opening of the trial it transpired that one of the jurors was personally known to the learned trial judge and he was therefore excused from service. The trial continued with a jury of eleven persons. During the course of the trial a number of applications were made by counsel to the court in the absence of the jury; such of these as are relevant to the grounds of appeal will be dealt with later in the course of this judgment. On the fourth day of the trial a technical witness gave brief evidence. Subsequently counsel for the prosecution and for the defence addressed the jury. The learned trial judge then charged the jury, who retired to consider their verdict. Some discussion ensued on requisitions and the learned trial judge briefly recharged the jury. After a deliberation of some two and a half hours, at about 8.15 p.m. the jury returned with a 10/1 majority verdict of guilty on the first count and a unanimous verdict of guilty on the second count. During the course of the jury's deliberations an incident took place whereby the learned trial judge permitted one member of the jury to absent himself from the other members of the jury for a period in order to recover his car from a local multi-storey car park which was about to close for the night. Certain issues arise out of this incident on the appeal and they will be dealt with in greater detail later in this judgment.


In the applicant's notice of appeal there are set out a considerable number of grounds of appeal, some of which are based on the learned trial judge's refusal to discharge the jury on the application of counsel for the defence at an early stage of the trial. Further grounds of appeal were based on matters arising from the learned trial judge's charge to the jury and from the incident whereby one member of the jury was permitted to separate from his fellow jurors.

At the hearing before this court, however, senior counsel for the applicant, Mr Gageby, set out four of the grounds of appeal on which he proposed to rely, as follows:-"1. The learned trial judge's charge to the jury that the applicant's failure in all the circumstances to give evidence amounted to his exercising his right to silence was in error both in law and in fact.2. The learned trial judge erred in law in his charge to the jury in failing to distinguish clearly between the civil and criminal standards of proof when instructing the jury as to the applicable standard of proof.

3. The verdict was rendered unsatisfactory by virtue of a material irregularity, namely the jury deliberated in the absence of one of their members.

4. The learned trial judge's charge to the jury was rendered unsatisfactory and unfair in particular in that the learned trial judge failed to point out unequivocally to the jury that there was no evidence in the case in law which could amount to corroboration."It should be noted that these grounds of appeal are numbered above in the order in which they will be considered in the course of this judgment. They were in fact ordered slightly differently in the course of Mr Gageby's submissions to this court.


As was his right, the applicant did not give evidence at his trial. Around the time of his arrest and thereafter he had, however, been extensively interviewed by members of An Gárda. In these interviews he answered all questions put to him; throughout the interviews he steadfastly maintained his innocence of the offences alleged against him. The records of all of these interviews were admitted in evidence at the trial and were given to the jury in the form of exhibits.

During the course of his charge to the jury (at Book 4 page 92) the learned trial judge said:

"You will have to have regard to what [the accused] said. He did speak, even though he didn't leave the dock, he didn't give evidence. He relied on the right to silence, which he is entitled to do. He is entitled to stay where he is in the court and adopt the attitude, I am not saying a word because I don't have to say a word. That is known as the right to silence, which [the accused] has and he acted on that. He did not give evidence. You, ladies and gentlemen, will have regard to the fact that he didn't give evidence as a right."

Counsel for the applicant submitted that it was not sufficient for the learned trial judge to tell the jury that the applicant was entitled to rely on his right to silence. He should in addition have instructed the jury that they were not permitted to draw any adverse inference from that fact.

Mr Gageby pointed out that this matter had been raised by then counsel for the defence, Mr O'Higgins, by way of requisition at the trial (Book 4 page 121-123). Counsel had submitted that rather than exercising what is generally described as a right to silence the accused had fully co-operated with the Gardai in their interviews with them. Counsel suggested that it was potentially prejudicial to say of a man that he did not take the stand and exercise his right to silence. The learned trial judge strongly rejected this submission. However, when re-charging the jury (at Book 4 page 143) the learned trial judge stated:

"The first thing I want to deal with is the right to silence. The accused man has the right to silence. When I spoke of his right to silence, that is his silence in court. He has, of course, as I have told you and as you are aware, spoken to the Guards in the bedroom of his house the night the Guard went to investigate, he spoke that night, he spoke later in the police station, the next day in the police station. So he did speak, and I emphasise that to you. That was when he spoke. But in court he did not speak, he decided and elected to rely on his right to silence which he has and nobody is to take any consequence from that. That was what I told you."

Mr Gageby acknowledged that this further explanation to the jury clarified the matter to some degree but submitted that it still fell short in not stating in particular that no adverse inference was to be drawn. In so submitting counsel relied on the dictum of Keane J. (as he then was) delivering the judgment of the Supreme Court in D.P.P. v Finnerty [1999] 4 I.R. 364 where it was...

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