DPP v Awode

CourtCourt of Appeal (Ireland)
JudgeMr. Justice Edwards
Date20 February 2017
Docket NumberRecord No : CA 201/15

[2017] IECA 44


Edwards J.

Sheehan J.

Mahon J.

Edwards J.

Record No : CA 201/15


Conviction – Sexual assault – Unsafe verdict – Appellant to appeal against conviction – Whether alleged errors by the trial judge rendered the trial unsatisfactory and the verdict unsafe

Facts: The appellant, Mr Awode, was convicted at the Dublin Circuit Criminal Court on 15th of June, 2015, on a single count of sexual assault contrary to s. 2 of the Criminal Law (Rape Amendment) Act 1990. He was sentenced to two years imprisonment with the final six months suspended for a period of three years. The appellant appealed to the Court of Appeal against his conviction. He complained that the trial judge erred in failing in the course of her charge to explain the limited basis on which evidence of complaint is admissible and the limited use to which it may be put. He said that she failed to administer the mandatory direction specified by the Court of Criminal Appeal in The People (DPP) v M.A. [2002] 2 IR 601. He complained that the trial judge failed to properly charge the jury regarding the expert opinion evidence, and in particular that she failed to direct the jury as to the weight to be attached to such expert testimony, and further failed to direct the jury as to its entitlement to accept or reject the expert opinion evidence tendered. The appellant also appealed on the basis that the trial judge did not adequately summarise the case being made on behalf of the defence in the course of her charge. The appellant asserted that these alleged errors, individually and cumulatively, rendered the trial unsatisfactory and the verdict unsafe.

Held by the Court that, in circumstances where it was not satisfied as to the existence of a real risk of a fundamental injustice having been done to the appellant, and absent any explanation for the failure to raise the issue sought to be relied upon at the trial, it was not disposed to allow the appellant to do so at this stage, having regard to The People (DPP) v Cronin (No 2) [2006] 4 IR 329. The Court was satisfied that, in the circumstances of this case, a special warning or instructions was neither required nor, indeed, would one have been justified. The Court held that it was not persuaded that to refuse to allow the appellant to ventilate the complaint he sought to make would create a real risk of a fundamental injustice being done to the appellant.

The Court held that the appeal should be dismissed.

Appeal dismissed.

Judgment of the Court delivered 20th February, 2017 by Mr. Justice Edwards

This judgment is concerned with an appeal by the appellant against his conviction by a jury, who delivered a 10/2 majority verdict, at the Dublin Circuit Criminal Court on 15th of June, 2015, on a single count of sexual assault contrary to s. 2 of the Criminal Law (Rape Amendment) Act, 1990. Following the appellant's conviction he was sentenced to two years imprisonment with the final six months suspended for a period of three years.

The Relevant Evidence

At all material times the complainant, S.L., was an in-patient at the Mater Private Hospital in Dublin. On the 24th of November, 2013, she had been admitted to the hospital and was scheduled to undergo surgery on her back, and specifically a lumbar discectomy, on the following day to address persisting symptoms from an injury that she had sustained in an earlier accident. She was accommodated on a particular ward, and specifically in a four bed room on that ward which she was required to share with a number of other women. Each bed was capable of being screened off from the others by means of cubicle curtains.


On the evening in question the appellant was working at the Mater Private Hospital as what is known as a ‘bank carer’. A bank carer, as the Court understands it, is a health care assistant provided by an outside agency to a hospital or nursing home on an ad hoc basis as the need arises, and frequently such a person may be on a zero hours contract. The jury heard that on the evening in question the appellant's primary responsibility was to care for a confused patient in another room on the complainant's ward, and also to answer any calls for assistance from other patients on the ward in question. He was the only such carer on the ward that night, alongside the nurses.


The jury heard that the complainant had been given medication, namely, a muscle relaxant and a painkiller, before bed. These had been prescribed by her neurosurgeon and the complainant told the jury that they had no effect on her alertness. The complainant went to sleep around 11 p.m. and was fasting from midnight. The curtain had not been pulled fully around the complainant's bed.


The complainant and the appellant had had some interaction when another patient in the complainant's room had vomited in the en-suite toilet, and the appellant had been asked to come and clean up, which he did.


The complainant told the jury that she was asleep and lying on her right side when she awoke in response to a feeling or sensation that her right breast was moving. She did not initially understand what it was and, before opening her eyes, attributed the sensation in her own mind to the fact that because she was in hospital she was wearing a bra, which she would not normally wear in bed, and thought ‘Oh, maybe it's just the bra’. She then opened her eyes briefly and closed them again, and once more felt the sensation in her breast. She said ‘it was like somebody was just moving my breast’ and characterised it as being the ‘sensation of somebody rubbing against it’. Under cross-examination, she told the jury that had she been at home, she would have understood the sensation immediately as being someone touching her breast, but because of her unfamiliar clothing and surroundings, it took her longer to comprehend the sensation. She opened her eyes again and rolled onto her back. On doing so, she saw the appellant move his right hand away from her body quickly before fleeing. She said he was on the right hand side of her bed and he looked ‘totally stunned’. She recognised the appellant from their earlier interaction, when he had come to clean the toilet. She testified that he was wearing a yellow polo shirt.


Under cross-examination by the defence, she was asked about a statement she had given to Una McKeown of the hospital's Human Resources Department, where she said ‘I don't know if I fell back asleep’ referring to the period in between waking up initially and subsequently rolling over. She said she now didn't think she did and that answer may have been given in response to a question of whether she fell back to sleep, and that she may have meant sleep in that context to mean ‘dozing’.


The defence also cross-examined her in relation to conversations she had had with Tresama Joseph, a staff nurse on the ward that night who walked into the room just after the incident. The prosecution did not initially intend to lead this evidence, recognising that these conversations involved complaints by the complainant which would not normally be admissible at the behest of the prosecution, on the basis that they would offend the rule against self corroboration, the only exception being where the prosecution intended to rely on such evidence for the limited purpose of showing that the complainant's conduct in so complaining was consistent with her testimony. However, the defence indicated to the prosecution that they in fact wanted such evidence to be led, and the prosecution, with some reluctance, agreed to do so. Evidence in chief concerning the complaint was then led, following which the complainant was then asked in cross-examination whether she had told Ms Joseph she was dreaming:

Q. I think again getting back to and I'm only mentioning her because I think Ms Joseph Tresama - I think that she has suggested I think that you had thought you had said to her that you thought that you were dreaming, that you might have been dreaming?

A. No. In fact, I probably said I wasn't.

Q. Okay?

A. Because when she came back in and said he said he wasn't in the room, I said, ‘He was in the room. I wasn't dreaming’ or do you know what I mean? That was the context of that conversation.


Ms Joseph was then called in chief and was later cross-examined. She told the jury she had administered the complainant her medicine. The appellant had been on the ward that night as a ‘bank carer’. Ms Joseph told the jury that after midnight, she had done her rounds. She had found the complainant standing at the end of her bed and seeming stressed. The prosecution asked Ms Joseph about the conversation she had had with the complainant at that point:

A. I just I pulled the curtains completely and I just made sure S.L. was lying down comfortably in the bed. Then, I started to I asked her, ‘what happened? Tell me now.’ Then, she said she felt as if

Q. Well, I think she indicated at that point that the male carer had been there and that at point

A. Yes. She told me

Q. -- you dealt with you went out to talk to him; is that correct?

A. No, she told me, like, she felt as if, you know

Q. Well, just perhaps the details of what she says happened well, certainly if you want to say whatever it was that happened I think that my friend is fine with that?

A. Yes. She told me, like, she felt as if her breasts were moving. So, that's what she told me. Then, I asked her, ‘was he here?’ and then she told me, like, she felt as if he was there and then I got stressed myself. So, I went out and I called Eileen Daly, my colleague, senior nurse, to come and talk to her further and give her reassurance. Eileen came back Eileen came and spoke to S.L..


Subsequently, the defence...

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