DPP v Acheampong
| Jurisdiction | Ireland |
| Judge | Murray, J. |
| Judgment Date | 11 July 2002 |
| Neutral Citation | 2002 WJSC-CCA 1810 |
| Court | Court of Criminal Appeal |
| Date | 11 July 2002 |
2002 WJSC-CCA 1810
THE COURT OF CRIMINAL APPEAL
Murray, J.
Kearns, J.
O'Neill, J.
Citations:
OFFENCES AGAINST THE PERSON ACT 1861 S48
CRIMINAL LAW (RAPE) ACT 1981 S2
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S21
DPP V BROPHY 1992 ILRM 709
R V OSBORNE 1905 1 KB 551
R V LILLYMAN 1896 2 QB 167
AG V CRADDEN 1955 IR 130
DPP V SWEETMAN UNREP CCA 23.10.2000
Synopsis:
Facts: The appellant was convicted of rape at the Central Criminal Court after trial by jury. His defence was that the complainant consented to sexual intercourse. The complainant had told two witnesses of her ordeal and the prosecution tendered this as evidence of complaint made by the complainant to third parties when the appellant was not present. The net issue of the appeal was the trial judge’s charge to the jury was unsatisfactory because he omitted to explain the purpose upon which the complaint evidence admissible in a rape trial, that is, to show consistency of account and not for the purpose of proving the fact of that complaint.
Held The court cited with approval People (DPP) v Brophy [1992] ILRM 709 on the question of admissibility on the details of a complaint in a prosecution of a sexual offence. Where evidence of a complaint to third parties is made by the prosecution, it is admissible only by virtue of the fact that it demonstrate consistency of conduct by the complainant with the evidence. Therefore a direction to the jury should be given in all cases where such evidence is tendered. While it was unfortunate that the defence did not draw this to the attention of the trial judge, its failure to do so was not a bar to this application and ruled that the jury’s verdict was unsound and ordered a re-trial.
11th day of July, 2002, by Murray, J.
The Appellant appeals against his conviction on the 10th March, 2000 at the Central Criminal Court, after trial by jury, of the offence of rape. The offence of which he was convicted was the rape of L.C. (hereafter the Complainant) on the 12th May, 1999 contrary to Section 48 of the offences against the Person Act, 1861 and Section 2 of the Criminal Law (Rape) Act 1981as amended by Section 21 of the Criminal Law (Rape) (Amendment) Act 1990.
At the Appellant's trial two witnesses were called who gave evidence that the Complainant, later in the day on which the rape was alleged to have taken place, complained to them that she had been raped by the Appellant. The first of these two witnesses Ms C. D. lived in the flat where the Complainant was staying at the time. Ms C.D. gave evidence that on the evening of 12th May, 1999 the Complainant told her that she had been raped by the Appellant in his flat to which they had gone after a night out in a nightclub. The witness gave an account of what the Complainant had told her concerning the course of events of the evening she had spent with the Appellant leading up to the time when he forcibly had sexual intercourse with her and the events immediately following. The evidence included a description given by the Complainant as to how the Appellant had held her on the bed in his flat before he had sexual intercourse with her. The Complainant was distressed when giving her account to the witness and she noticed bruising on the Complainant's chin. The second witness was a brother of the Complainant whom she met later that same evening and to whom she also gave an account of her night out with the Appellant and the events in his flat. This witness gave evidence as to the complaint made to him by the Complainant that the Accused had held her down on the bed in his flat. She complained to him that she had been raped by the Accused. She showed distress on giving this account and he also noticed bruising on her chin. The evidence of these two witnesses, which it is not necessary to recite in detail, was tendered by the prosecution as evidence of complaints made by the Complainant to third parties when the Appellant was not present.
The appeal is based on a single ground which is stated to be as follows: -
"The learned trial judge's charge to the jury was unsatisfactory by virtue of the fact that the learned trial judge omitted to explain the purpose upon which the complaint evidence was admissible in a rape trial, viz. to show consistency of account, and not for the purpose of proving the fact of the complaint itself"or as also stated "not for the purpose of proving the fact of the alleged rape."
After the learned trial judge had charged the jury, no application was made to him by the Defence (or the prosecution) in relation to this aspect of his charge.
It is not necessary, for the purposes of this appeal, to review in great detail the facts and circumstances of the case. In the months preceding the date on which the offence was alleged to have been committed the Complainant and the Appellant got to know one another, in a casual way, due to the fact that the Appellant, in the course of his work, had occasion to visit regularly the premises on which the Complainant worked. Circumstances arose where the Appellant invited the Complainant to go to an event in a nightclub in central Dublin on the night of 11th/12th May, 1999. She accepted and having spent the evening in the nightclub together they left at around 2.00am on the morning of the 12th and went to a take-away. They bought some take-away food, ate some of it in the Appellant's car and then the Complainant said she wanted to go home to her flat. They set off driving in that direction but, according to the Complainant, the Appellant did not drive to her flat but insisted on driving to his flat or bed sitter. In her evidence the Complainant stated she repeatedly expressed her wish to be driven home but eventually when they arrived at the Appellant's address she was persuaded, reluctantly, to go in and eat the remainder of the food. It was not in dispute at the trial that sexual intercourse took place between the Appellant and the Complainant in his bedsitter. The evidence of the Complainant was that the Appellant had sexual intercourse with her against her will while the Appellant maintained that she consented to having sex.
It was submitted on behalf of the Appellant that the evidence of the two witnesses concerning the complaints made to them by the Complainant was admissible at the trial only as an exception to the general rule that details of statements or conversations which a witness, including a victim, has had with third parties, other than in the presence of the Accused, are inadmissible as evidence at a trial. Evidence that the Complainant had complained to other parties concerning the alleged rape was admissible in such cases only as evidence of consistency on the part of the Complainant in her evidence concerning the alleged offence and not as evidence of the complaint itself, provided that the complaint made to other parties had been made at the first opportunity which reasonably afforded itself and which was not elicited by leading questions or inducement. It was submitted that the function of the trial judge when charging a jury where such evidence has been admitted is to instruct them fully as to the basis on which the evidence was admitted namely to show that the Complainant had at the first opportunity which reasonably afforded itself made complaints consistent with her testimony and that it was not evidence of the facts upon which the complaint was based. Counsel for the Appellant in his submissions relied on a number of authorities but in particular the judgment of the Court of Criminal Appeal delivered by O'Flaherty, J. In D.P.P. -v- Brophy [1992] I.L.R.M. 709, where, in summarising the law on the admissibility of this kind of evidence, stated "lt should always be made clear to the jury that such evidence is not evidence of the facts on which the complaint is based but to show that the victim in so complaining was consistent with her testimony."
The essence of the Appellant's submissions was that, accepting the statement of O'Flaherty, J. as a correct statement of the law, the learned trial judge in this case failed to give any direction to the jury along the lines indicated in his judgment by O'Flaherty, J. This, it was submitted, constituted a fundamental flaw in the conduct of the trial and accordingly the verdict should not be allowed to stand. In his submissions on the law in this respect, Counsel also relied on R. -v- Osbourne [1905] IKB 151, R. -v- Lillyman[1896] 2QB.
In his submissions, Counsel for the Director of Public Prosecutions pointed out that no case had been made by the prosecution that the evidence of either of the two witnesses was corroborative of the Complainant's evidence and the trial judge at no stage gave a direction to that effect. Neither did the trial judge refer to the terms of the complaints in any manner that suggested that the complaints might have this effect. Counsel went on to submit that any requirement that juries be directed that evidence of the terms of a complaint made by a Complainant to a third party is evidence going to consistency rather to corroboration is designed to prevent an injustice which does not arise in the circumstances of this particular case. In this case the only significance attached to the evidence of the two witnesses in question was that highlighted by the defence in cross-examining them, namely that the evidence demonstrated that certain parts of the Complainant's evidence were inconsistent with what she had previously said to the two witnesses. The absence of the relevant direction to the jury can only give rise to a risk of injustice where the terms of the complaint are consistent with the terms of the Complainant's...
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