Director of Public Prosecutions v E.O'C.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Tara Burns |
| Judgment Date | 26 July 2023 |
| Neutral Citation | [2023] IECA 216 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 99/21 |
[2023] IECA 216
Birmingham P.
McCarthy J.
Burns J.
Record Number: 99/21
THE COURT OF APPEAL
JUDGMENT of the Court delivered on the 26 th day of July, 2023 by Ms. Justice Tara Burns
This is an appeal against conviction. On 22 December 2020 the appellant was convicted by unanimous verdict of the jury of all four counts charged against him on the indictment, namely rape contrary to s. 2 of the Criminal Law (Rape) Act 1981 (as amended), rape contrary to s. 4 of the Criminal Law (Rape)(Amendment) Act 1990, directing the activities of a prostitute contrary to s. 9 of the Criminal Law (Sexual Offences) Act 1993, and intimidation of a witness contrary to s. 41 of the Criminal Justice Act 1999. The appellant is appealing against his conviction in respect of the rape, the s. 4 rape and the intimidation offences.
The appellant and the complainant were known to each other and had a previous sexual history. The appellant was also involved in the complainant's prostitution work. On 27 September 2017, the complainant was at a house which both she and the appellant had access to for the purpose of her prostitution work. The appellant arrived at the house shortly after the complainant and quickly thereafter, he carried the complainant to an upstairs bedroom where he raped her both vaginally and anally. He used a condom during the rapes which he removed and took with him when he left the house. The complainant called her sister after this ordeal and told her that she had been raped without giving any further detail. She also contacted Ruhama, a NGO that works with women affected by prostitution, and left a message on its voice service. Ms. Sarah Benson of Ruhama, called the complainant back. In the course of that conversation, the complainant reported that she had been raped and provided some detail in relation to what had occurred.
The complainant subsequently made a complaint to An Garda Síochána whereupon the appellant was arrested and detained pursuant to the provisions of s. 4 of the Criminal Justice Act 1984. When interviewed in relation to the complainant's allegations, his account of what occurred evolved from sexual contact not having taken place to an acceptance that it had – “ that he had his way with her.” The appellant's position at trial was that the complainant had consented to the sexual acts.
After the complainant made a complaint to An Garda Síochána and the appellant was arrested and interviewed, she received a snapchat from the appellant, which had been sent to all of his contacts. The snapchat was of a drawing depicting a decapitated body with a cannon firing a cannon ball. The words “ Fresh skank” and “ suffer” appeared on the drawing as did the sentence “ Being a fantasist shows the world how fake one is. It all comes out in the end”. A further message was posted that day which had the words “ I guess it takes a special kind of rape victim to want to stay close to her rapist”. A naked body of a male wearing a crown was depicted holding aloft a severed female head with words “ Karma” and “ Suffer”.
By notice of appeal dated 10 May 2021, the appellant indicated his desire to appeal his conviction with an indication that grounds of appeal would be submitted by his legal representatives. On 25 May 2021, an additional notice of appeal was lodged which set out his grounds of appeal as:-
By notice of motion dated 23 March 2023, the appellant sought leave to add two further grounds of appeal, having obtained a transcript of the trial in September 2021, namely:-
This motion was listed before the court on the same day as the appeal hearing.
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“1. That the learned trial judge erred in law and in fact in admitting evidence of recent complaints from multiple witnesses;
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2. That the learned trial judge erred in law and in fact in permitting certain evidence to be adduced pertaining to the forensic analysis of the complainant's clothing;
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3. Such further and other grounds as may arise on receipt of the transcript.”
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“a) That the learned trial judge erred in law and in fact in that he failed to identify the particular evidence which had been admitted as recent complaint evidence in his charge to the jury, which amounted to a misdirection in law.
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b) That the learned trial judge erred in law in misdirecting the jury as to the elements of the offence of intimidating a witness and in failing to accede to an application to requisition the jury on foot of an answer to a question from the jury.”
At trial, the respondent sought to lead evidence concerning the recent complaints which were made by the complainant to her sister and Ms. Benson of Ruhama. Another complaint to a friend was intended to be led by the respondent but this witness was not ultimately called.
The appellant objected to evidence of the recent complaint to Ms. Benson being given before the jury on the basis that the multiplicity of complaints would create a risk that the jury would mistake the evidence as establishing the truth of what was alleged rather than being evidence relevant to the consistency of the complainant.
Having considered submissions and authorities from both the respondent and the appellant, the trial judge ruled as follows:-
“In terms of the chronology Ms [C], a friend … allegedly spoke to [the complainant] at 7.39 pm and her sister … spoke to her at 7.56 pm. [The complainant] left a voice message for Sarah Benson at 8.06pm and Ms Benson returned the call at 8.30pm. In terms of placing the time of the alleged incident, she said that she looked at the dash clock on her car when she came into the yard of her rented property at 6.18 pm, was on the phone to her sister … for 15 or 20 minutes when [the appellant] arrived in the yard. So, it is quite clear all of these matters arose within a very short time, reasonably short time, within certainly an hour/an hour and a half of the alleged incident.
It is clear and it's more clearly set out in McGrath that it rests in the Court's discretion in terms of the number of complaints. McDonagh makes quite clear that a number of complaints can be admitted. At 3.182 in McGrath, second edition, it says, this was in relation to Brophy, “However, the Court did acknowledge that a trial judge had discretion to limit the number of references to complaints in order to ensure fairness in the trial. Although not expressed by the Court of Criminal Appeal in such terms this can be seen to be an instance where a trial judge might apply his or her general discretion to exclude evidence, the prejudicial effect of which exceeds its probative value. It is evident that once the fact and particulars of a complaint are admitted, repetition of the complaint, especially if it is very similar in its terms, does not add much probative value to the complaint. However, it gives rise to a risk of prejudice because of sheer weight of numbers. If a number of witnesses give evidence repeating the particulars of the same complaint, there is a substantial risk that the jury will not treat such evidence as going merely to the credibility of the Complainant.”
Now, in this particular case I don't think that risk arises. They all arose within a very short period of time. The Court will make quite clear to the jury that this arises only in relation to credibility. It's not corroboration. It's not self-narrative and in my view that in my discretion I think it's quite fair because of the close proximity in relation to the matters from the date of the alleged incident and the close proximity of all three complaints that they are admissible.”
The appellant submits that the trial judge erred in permitting the respondent to adduce the evidence of the two recent complaints. Whilst acknowledging the margin of appreciation which this court must afford to the trial judge's exercise of discretion in the matter, it is argued that the trial judge failed to consider the cumulative effect of each piece of recent complaint evidence and failed to weigh the probative value of the evidence against its potential prejudicial impact, instead focusing on the close proximity of the complaints to each other and to the incident itself. It is further submitted that the trial judge failed to consider what, if any probative value was added by the recent complaint evidence of the complainant's sister, which only consisted of an assertion that the appellant had “ raped” her and whether such probative value was outweighed by the prejudicial effect, in particular, in light of the admission of more fulsome recent complaint evidence from Ms. Benson.
The respondent submits that in the particular circumstances of the complaints made by the complainant, namely that they were made very close to the event and close to each other, the trial judge correctly exercised his discretion to admit both complaints. It is submitted that the complaints formed part of a continuing narrative from the complainant as to what she alleged occurred such that it was appropriate for them both to be admitted in evidence. Reliance is placed on the Court of Appeal decision in DPP v. MA [2020] IECA 367 where evidence of two complaints made in quick succession to a friend and a guard in the aftermath of a rape were found to have been properly admitted into evidence.
The court notes that the criticism made before us regarding the admission into evidence of both complaints is that the trial judge should have decided to admit the complaint made to Ms. Benson rather than both complaints. That is not the application which was made before the trial judge which instead was that he should limit the admission to the first complaint only, namely the complaint to the complainant's sister. This court will...
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