Director of Public Prosecutions v J.McM.

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 11 July 2024
• Neutral Citation: [2024] IECA 219
• Docket Number: Record No: 198/23

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

and

JMcM

Appellant

[2024] IECA 219

Edwards J.

McCarthy J.

Kennedy J.

Record No: 198/23

THE COURT OF APPEAL

Conviction – Sexual offences – Corroboration warning – Appellant seeking to appeal against conviction – Whether a corroboration warning was required

Facts: The appellant, on the 13th March 2023, was convicted of nine counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, eight counts of rape contrary to s. 2 of the Criminal Law (Rape) Act 1981 and seventeen counts of rape contrary to s. 4 of the 1990 Act. The appellant appealed to the Court of Appeal against his conviction on the following grounds: (a) the trial judge erred in law by permitting an undue proliferation of exceptions to the hearsay rule upon the footing of a plurality of recent complaints by the complainant and the several seriatim receptions of such purported recent complaints, more remotely postponed in time to the posited receivers thereof and in particular, the evidence to, and thereafter testimony, by the complainant’s mother; (b) the judge erred in law and fact in determining as a matter of principle, and statutory principle at that, rather than upon an examination of the testimony and real evidence actually had that a corroboration warning was not required; and (c) the judge erred in law and fact in her charge to the jury by drawing no or insufficient attention to the conflicts in the real evidence, and in particular the expert, physical medical examination of the complainant, acutely relevant to the rape counts.

Held by the Court that it was clear from the jurisprudence that more than one complaint may be admissible once the well-known criteria in People (DPP) v Brophy [1992] ILRM 709 are met. The Court found that no issue arose regarding those criteria. The Court noted that the complainant made the complaint to her mother on the same day as she complained to the social worker. The Court held that a trial judge retains a discretion to limit the number of complaints given in order to ensure a fair trial. It was clear to the Court that the trial judge carefully considered the proposed evidence and concluded that the complaint made to the complainant’s mother satisfied the necessary criteria and that there was no basis to exclude the evidence. The Court found that the complaint to the mother contained more detail of the alleged offending than that made to the social worker. The Court held that it is now common knowledge that a complainant in a case involving sexual allegations may disclose allegations incrementally. In any event, the Court found that the evidence of recent complaint on the part of the complainant’s mother did not really go much further than that of the complaint made to the social worker and so, it was difficult in reality to see any prejudice caused to the appellant. The Court did not find an error in the manner in which the trial judge exercised her discretion. The Court was not at all persuaded that there was any evidence of the kind which mandated a corroboration warning. Even if the appellant were not impeded by virtue of the dicta in People (DPP) v Cronin [2006] 4 IR 329 in raising the argument on appeal, the Court was not persuaded that the trial judge erred in her charge; the charge was, as stated, fair and balanced.

The Court found no merit in the grounds of appeal and dismissed the appeal against conviction.

Appeal dismissed.

JUDGMENT of the Court delivered on the 11 ^th day of July 2024 by Ms. Justice Isobel Kennedy

1 . This is an appeal against conviction. On the 13 ^th March 2023, the appellant was convicted of 9 counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990, as amended, 8 counts of rape contrary to s. 2 of the Criminal Law (Rape) Act, 1981, as amended, and 17 counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990.

Background

2 . The complainant made an allegation of a sexual nature concerning the appellant to her social worker in February 2018 and was subsequently interviewed by specialist gardaí. She gave evidence that between the ages of 8 and 11 she was sexually abused by the appellant whose partner is her stepfather's niece. She stated that she regularly visited the appellant's home, particularly at weekends and holiday periods which included many sleepovers. She gave accounts of sexual assault by way of inappropriate touching, rapes and s. 4 rapes by way of the penetration of her anus and mouth.

Grounds of Appeal

3 . The appellant appeals his conviction on the following grounds:-

“(a) The learned trial judge erred in law by permitting an undue proliferation of exceptions, to the hearsay rule upon the footing of a plurality of recent complaints by the complainant and the several seriatim receptions of such purported, recent complaints, more remotely postponed in time to the posited receivers thereof and in particular, the evidence to, and thereafter testimony, by, [complainant's mother.]

(b) The learned trial judge erred in law and fact in determining as a matter of principle, and statutory principle at that, rather than upon an examination of the testimony and real evidence actually had, (sic) that a corroboration warning was not required.

(c) The learned a trial judge erred in law and fact, in her charge to the jury by drawing no or insufficient attention to the conflicts in the real evidence, and in particular, the expert, physical medical examination of the complainant, acutely relevant to the rape counts, that is to say, 5, 9, 13, 17, 21, 25, 27, 31 and 35.”

Submissions of the Parties

Admission of Recent Complaint Evidence from the Complainant's Mother

The Appellant

4 . We start our consideration of this ground by reference to the concession made on behalf of the appellant that this complaint has, in essence, been addressed by recent decisions of this Court. The appellant does not abandon the argument but relies on his written submissions.

5 . Recent complaint evidence was given by the complainant's social worker, mother and stepfather. Defence counsel at trial objected to the admission of the complainant's mother's evidence in this respect.

6 . In ruling that the complainant's mother's evidence was admissible, the trial judge commented:-

“There's no more detail, in the opinion of this Court, in [complainant's mother's] account than in [complainant's step father's] account. And I am of the view that the conditions have been met in relation to Brophy. And that the accounts of both [complainant's step father] and [complainant's mother] can go before the jury. I do not believe given the scant detail provided by [social worker], that two accounts would be excessive in the circumstances.”

7 . The appellant submits that where the judge found that there was no more detail in the mother's account, the admission of this evidence was in effect, superfluous, impacting on the fairness of the trial. The appellant relies on para. 3–209 of McGrath on Evidence (3 ^rd ed.)

The Respondent

8 . The respondent submits that the trial judge did not err in admitting the evidence of complaint and that she applied the correct legal principles. It is submitted that the trial judge exercised her discretion correctly when she allowed the recent complaint evidence of both the complainant's mother and stepfather in view of the relatively sparse detail given by the social worker regarding the complainant's disclosure.

9 . It is contended that the submission that the trial judge acknowledged that “[t]here's no more detail, in the opinion of this Court, in [complainant's mother's] account than in [complainant's step father's] account” is incorrect and must be predicated on a typographical error or...