DPP v Boakye Osei
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 14 March 2022 |
| Neutral Citation | [2022] IECA 61 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [73/20] |
and
[2022] IECA 61
The President
McCarthy J.
Kennedy J.
[73/20]
[71/20]
THE COURT OF APPEAL
Conviction – Rape – Unfair trial – Appellants seeking to appeal against conviction – Whether the trial was unfair
Facts: Both appellants, Mr Osei and Mr Opoku, on 6th November 2019, following a trial in the Central Criminal Court which lasted twenty days, were convicted of the offence of rape contrary to common law. Both appellants appealed to the Court of Appeal against their conviction on a number of grounds: (a) both appellants raised issues as to the use of live video link for the complainant’s evidence; (b) there was an issue as to the non-disclosure of certain XRY evidence raised by both appellants; (c) Mr Osei took issue with the admission into evidence of the video clips from the complainant’s phone; (d) both appellants raised issue as to a certain exchange between the trial judge and a witness during the trial, while Mr Opoku also took issue with what was termed as “excessive judicial intervention” generally; (e) the admission of both appellants’ memoranda of interview raised issues; (f) Mr Osei took issue with the refusal to exclude certain DNA evidence; (g) Mr Osei also took issue with the refusal of the trial judge to give a corroboration warning; and (h) both appellants took issue with certain aspects of the judge’s charge.
Held by the Court that it had not been persuaded that the trial was unfair or that the verdicts were unsafe.
The Court dismissed the appeals against conviction.
Appeal dismissed.
JUDGMENT of the Court delivered (electronically) on the 14 th day of March 2022 by Birmingham P.
. On 6 th November 2019, following a trial in the Central Criminal Court which lasted twenty days, both appellants were convicted of the offence of rape contrary to common law. Both appellants have appealed against their conviction on a number of grounds.
. The offence relates to events that occurred in the early hours of 18 th February 2015 at the home of Mr. Opoku in a town in the north-west of the country. The complainant in the case (“A”) was a student at the time. On the occasion in question, she had decided to go out with a friend (“C”). At trial, the prosecution case was that both young women consumed a significant quantity of alcohol and were heavily intoxicated. The complainant had consumed alcohol at her home before going out to socialise at a local nightclub, including consuming alcohol that she had won as a prize in a table quiz. As they walked home from a nightclub, they met the two accused who were in a car. The young women had never met either man previously, however they ended up in the car with the two men and went to the home of Mr. Opoku. There was evidence that the complainant consumed more vodka at this location. The prosecution case was that, at Mr. Opoku's house, she was very drunk. Two video clips from her phone, which had been recorded by C, were played to the jury. In one clip, the complainant is seen with a glass in her hand, near her mouth, and Mr. Opoku had his hand on the glass. In the other clip, she is seen staggering and falling onto the bathroom floor before being lifted by both appellants who then carried her into the bedroom and placed her on the bed.
. The jury heard that Mr. Opoku engaged in sexual intercourse with the complainant, who did not consent to the intercourse, and indeed, was incapable of consenting due to her level of intoxication. Mr. Osei engaged in a degree of sexual activity with C, but she did not permit him to have intercourse with her. At one point, Mr. Opoku left the bedroom, having had sex with the complainant, and then Mr. Osei got on top of the victim and had sex with her when she was (at best) semi-conscious. When interviewed, originally by Gardaí and again at trial, Mr. Opoku admitted to having sex with A, but said that it was consensual. In contrast, Mr. Osei, when interviewed by Gardaí, denied having sex with the complainant, and that position was maintained at trial. The evidence against him came principally from DNA evidence found on a condom, which was discarded in a bin in the apartment, and on the complainant's underwear. Semen was found on the interior gusset area of the complainant's underwear, and there were trace elements on the inside of the condom. A DNA profile from the semen matched that of appellant Mr. Osei. The complainant's DNA was found on the outside of the condom.
. In addition, the jury heard from C who gave evidence of Mr. Osei moving over to the victim and having sex with her when Mr. Opoku had left the bedroom. The complainant's recall of events was limited, but she gave evidence of having been penetrated by two men, though she was unable to be certain whether this was penile or digital penetration. The evidence relied on by the prosecution against Mr. Osei also included his denials of sexual activity with the complainant.
. The complainant and C woke up the following morning and both gave evidence of still feeling drunk at that stage. They played video clips in the morning in the presence of both accused, and Mr. Osei tried to persuade the complainant to delete them. She pretended that she had done so, but later handed the phone to Gardaí and watched the videos again in the presence of members of An Garda Síochána. At that point, both young women returned to the flat of the complainant, but having spoken to the complainant's flatmate, they then attended with the college nurse (“Nurse G”) and the Gardaí were contacted. The complainant attended at a Sexual Assault Treatment Unit (“SATU”) where she was examined, swabs were taken, and she handed over her underwear.
. In summary, the evidence against Mr. Opoku at trial consisted of the evidence of the complainant that she did not consent, his admissions to having had sex, the evidence of the level of the intoxication of the complainant (which included the evidence of C), and the video clips from the phone. The evidence at trial against Mr. Osei comprised the evidence of the complainant (which was limited), the evidence of C, and the forensic evidence, alongside his denials in interview of having had sex with her.
. There is considerable overlap in the grounds of appeal advanced by both appellants. The grounds are summarised as follows:
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a) both appellants raise issues as to the use of live video link for the complainant's evidence;
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b) there is an issue as to the non-disclosure of certain XRY evidence raised by both appellants;
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c) Mr. Osei takes issue with the admission into evidence of the video clips from the complainant's phone;
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d) both appellants raise issue as to a certain exchange between the trial judge and witness Nurse G during the trial, while Mr. Opoku also takes issue with what is termed as “excessive judicial intervention” generally;
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e) the admission of both appellants' memoranda of interview raised issues;
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f) Mr. Osei takes issue with the refusal to exclude certain DNA evidence;
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g) Mr. Osei also takes issue with the refusal of the trial judge to give a corroboration warning; and,
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h) both appellants take issue with certain aspects of the judge's charge.
. The first ground (on which both appellants rely) relates to the fact that the complainant was permitted to give evidence by video link. The position is that after the incident, the complainant moved to Australia having qualified in her chosen profession. In advance of the scheduled trial, a successful application was made to the court to have the evidence of the complainant taken by live video link from Australia; at that stage, the second appellant, Mr. Opoku, was not before the Court, having absconded to England. At a later stage, he was returned to this jurisdiction on foot of a European Arrest Warrant and an order was made, without opposition, that both appellants be tried together. A second application to have the complainant's testimony taken by live video link followed and that was also acceded to. Section 13(1) of the Criminal Evidence Act 1992 permits the giving of evidence by live video link in certain circumstances. It provides:
“(1) In any proceedings (including proceedings under section 4E or 4F of the Criminal Procedure Act, 1967) for a relevant offence, a person other than the accused may give evidence, whether from within or outside the State, through a live television link—
(a) if the person is under 18 years of age, unless the court sees good reason to the contrary,
(b) in any other case, with the leave of the court.”
. In this case, it was not in dispute either that the accused men were facing trial for a relevant offence (being a sexual offence), or that the injured party was over the age of eighteen. As such, the position was that she could only give evidence by video link with the leave of the trial court. Therefore, the question that arises for consideration is whether the trial court acted inappropriately in permitting the complainant to give her evidence from Australia by video link.
. The appellants place particular reliance on the decision of O'Neill J. in D v. O'D [2010] 2 IR 605. This Court has recently had occasion to consider that decision. In the course of our judgment in the case of DPP v. O'Driscoll [2022] IECA 4, we pointed out that the judgment in question was delivered in the context of a judicial review, where the relief sought was an order of certiorari quashing a decision directing the use of video link facilities. In O'D, the applicant was facing trial in respect of five offences alleged to have been committed by him contrary to s. 5 of the Criminal Justice ( Sexual Offences) Act 1993, which provides for the offence of having sexual...
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