DPP v B. S

• Jurisdiction: Ireland
• Judge: Ms. Justice Kennedy
• Judgment Date: 09 April 2020
• Neutral Citation: [2020] IECA 95
• Docket Number: Record Number: 151/13
• Court: Court of Appeal (Ireland)
• Date: 09 April 2020

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

B.S.

APPELLANT

[2020] IECA 95

Whelan J.

McCarthy J.

Kennedy J.

Record Number: 151/13

THE COURT OF APPEAL

Conviction – Rape – Corroboration – Appellant seeking to appeal against conviction – Whether evidence was properly regarded as corroboration in law

Facts: The appellant, on the 22nd March 2019, was found guilty by a majority verdict of a count of rape contrary to s. 2 of the Criminal Law (Rape) Act 1981. He appealed to the Court of Appeal against conviction. In his notice of appeal dated the 10th October 2013, he put forward seven grounds of appeal but in written submissions he appeared to only rely on the following three: (1) the trial was unsatisfactory in all the circumstances; (2) his previous legal representation failed in numerous material aspects to adequately or properly prepare and conduct his defence case thereby rendering the conviction unsafe and unsound; (3) he reserved his right (inter alia in light of ground 2 above), to adduce new or additional evidence in the course of the hearing of the appeal as same may be necessary to properly present his appeal. He sought leave by way of notice of motion to particularise ground 2 by the insertion of the following: “The appellant’s defence was not presented in a satisfactory manner during the course of his trial having regard to material and instructions provided by the appellant to his legal team prior to and during the course of the trial.” The Court was satisfied to permit of this particularisation. The appellant also sought leave to add the following proposed ground of appeal: “The learned trial judge erred in law and in fact in holding that the evidence tendered by WG during the course of the trial was capable of amounting to corroboration and erred in so instructing the jury during the course of his charge.” While, originally, the respondent, the Director of Public Prosecutions, sought to contest the addition of this ground of appeal, it became clear during the hearing of the appeal that this issue had been raised with the trial judge prior to his charge. Consequently, there was no substantial objection to the addition of this ground and the Court was satisfied to deal with the appeal on the basis of, what was in substance, two grounds of appeal.

Held by the Court that, having conducted an objective evaluation of the complaints made by the appellant on affidavit and an assessment of the evidence at trial, it was led to the conclusion that the appellant had failed to demonstrate that the manner of the defence at trial rendered the conviction unsafe. The Court was satisfied that the evidence was properly regarded as corroboration in law.

The Court held that the appeal against conviction would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 9th day of April 2020 by Ms. Justice Kennedy .

1 This is an appeal against conviction. On the 22 ^nd March 2019, the appellant was found guilty by a majority verdict of a count of rape contrary to s.2 of the Criminal Law (Rape) Act 1981.

Background

2 This appeal relates to a count of rape that occurred on 26 ^th July 2010. The complainant in this case was seventeen years old at the time and an employee of the appellant. On the night in question the complainant was attending a staff party at the hotel owned by the appellant. At a certain point the appellant asked the complainant if he could confide in her, and she had a further drink with him in the hotel bar. Later, the complainant went with the appellant to the presidential suite in the hotel. The complainant turned on the television and made some comment about what was on TV. The evidence was given that the appellant told the complainant to shut up, which the complainant initially thought was due to the appellant's inability to say what was on his mind. A little later, the complainant made a further remark whereupon the appellant told the complainant to shut up and in an aggressive manner hinged at her, pinned her down on the couch and had sex with her. The complainant struggled and managed to get the appellant off her. The complainant got dressed and left the hotel. A few days later she confided in her friend what had happened and a few months later she told her parents who brought her to the Rape Crisis Centre and thereafter she made a complaint to the Gardaí.

Grounds of appeal

3 In his notice of appeal dated the 10 ^th October 2013, the appellant puts forward seven grounds of appeal but in written submissions he appears to only rely on the following three:-

(1) The trial was unsatisfactory in all the circumstances

(2) The applicant has also instructed that his previous legal representation failed in numerous material aspects, to adequately or properly prepare and conduct his defence case thereby rendering the conviction unsafe and unsound

(3) The applicant reserves his right ( inter alia in light of ground 2 above), to adduce new or additional evidence in the course of the hearing of the appeal as same may be necessary to properly present his appeal.

4 Grounds (1) and (2) may be read together. The appellant sought leave by way of notice of motion to particularise ground (2) by the insertion of the following:

“The appellant's defence was not presented in a satisfactory manner during the course of his trial having regard to material and instructions provided by the appellant to his legal team prior to and during the course of the trial.”

The Court is satisfied to permit of this particularisation.

5 The appellant also seeks leave to add the following proposed ground of appeal:-

“The learned trial judge erred in law and in fact in holding that the evidence tendered by WG during the course of the trial was capable of amounting to corroboration and erred in so instructing the jury during the course of his charge.”

6 While, originally, the respondent sought to contest the addition of this ground of appeal, it became clear during the hearing of the appeal that this issue had been raised with the trial judge prior to his charge. Consequently, there was no substantial objection to the addition of this ground and we are satisfied to deal with the appeal on the basis of, what is in substance, two grounds of appeal.

Submissions of the parties

Manner in which defence was presented at trial

7 These grounds of appeal are predicated on an assertion by the appellant that his previous legal counsel failed in presenting his defence by failing to establish in evidence matters specifically relating to timing; namely, the time spent by the appellant and the complainant in the presidential suite on the occasion in question. The appellant contends that this was for a period of approximately two hours, whereas the complainant stated that it was for a period of some 20-30 minutes. It is contended that the previous legal team failed to put this matter specifically to the complainant and to another prosecution witness; WG and further failed to interrogate the issue properly or at all with the witnesses. This issue, it is submitted, was of critical importance and would have cast serious doubt on the complainant's credibility.

Fresh evidence

8 The appellant has sworn an affidavit dated the 28 ^th November 2019 in order to provide additional evidence relating to these grounds, his present solicitor, Ms. Bartels, has sworn an affidavit, while his previous solicitor has sworn a replying affidavit.

9 An issue arose at hearing as to whether the sworn averments on the part of the appellant come within the ambit of ‘additional evidence’ as that term is understood in the context of seeking leave to adduce fresh evidence. Where new evidence is presented on appeal, a court must assess whether the material renders the trial unsatisfactory. Prior to doing so, however, as an appeal is conducted on the basis of the evidence at trial, fresh evidence will only be permitted in certain instances and where certain criteria are established. In the ordinary course of events, an affidavit of the proposed witness setting out the ‘fresh evidence’ is lodged together with an explanation as to why such material was not relied upon at trial.

10 The Director of Public Prosecutions accepts that s.3(3) (d) of the Criminal Procedure Act, 1993, permits this Court to receive and consider the affidavit evidence in terms of the principles stated in The People (DPP) v. O'Regan [2007] 3 IR 805. The appellant also relies on s.3(3)(e) of the 1993 Act. The relevant provisions of the Act provide as follows:

“3(3) The Court, on the hearing of an appeal or, as the case may be, of an application for leave to appeal, against a conviction or sentence may –

(d) receive the evidence, if tendered, of any witness;

(e) generally make such order as may be necessary for the purpose of doing justice in the case before the Court.”

11 The principles which govern the admissibility of fresh evidence are as stated in Willoughby v. DPP [2005] IECCA 4 and as approved by the Supreme Court in The People (DPP) v. O'Regan [2007] 3 IR 805:-

“a) Given that the public interest requires that a defendant bring forward his entire case at trial, exceptional circumstances must be established before the court should allow further evidence to be called. That onus is particularly heavy in the case of expert testimony, having regard to the availability generally of expertise from multiple sources.

b) The evidence must not have been known at the time of the trial and must be such that it could not reasonably have been known or acquired at the time of the trial.

c) It must be evidence which is credible and which might have a material and important influence on the result of the case.

d) The assessment of credibility or materiality must be conducted by reference to the other evidence at the trial and not in isolation.”

12 By way of brief summary, it was established in evidence that a...