DPP v C.C.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 22 May 2020 |
| Neutral Citation | [2020] IECA 139 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 133/17 |
| Date | 22 May 2020 |
[2020] IECA 139
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 133/17
THE COURT OF APPEAL
Crime & sentencing – Sexual offences – Indecent assault – Appellant seeking to appeal against conviction
Facts: The appellant had been convicted of indecent assaults contrary to common law committed against his son. He now sought to appeal against conviction.
Held by the Court, having reviewed the appellant’s submissions on section 7 of the Criminal Law Rape (Amendment) Act 1990, that the appeal would be dismissed. The trial judge had chosen to not give a corroboration warning, and it was within her discretion to decide how to address the absence of independent evidence.
Appeal dismissed
This is an appeal against conviction. On the 3rd April 2017, the appellant was convicted of three counts of indecent assault contrary to Common Law.
The counts on the indictment relate to offences between 1977 and 1979. The evidence concerned the sexual abuse by the appellant of his son during that period. The complainant, who was born in 1963, worked and lived on the premises of a chip shop owned by his father. The complainant stated that events of a sexual nature began shortly after he began to work fulltime in the shop. He was touched inappropriately on occasion and assaulted in the bedrooms upstairs which included being gagged and restrained on occasion as well as penetration of his anus and mouth by the appellant's penis.
Count three on the indictment also referred to assaults but the location was that of a caravan belonging to the appellant. The complainant stated that the appellant would return from the pub inebriated and anally rape him. He stated that the assaults were rougher due to the appellant's inebriation.
The complainant made his first statement to the Gardaí in March 2004 and the appellant was interviewed in December 2004. The appellant was subsequently out of the jurisdiction between 2005 and 2013 and his surrender was sought under the European Arrest Warrant procedure and the appellant returned to the jurisdiction in October 2013.
The appellant puts forward seven grounds of appeal in his notice of appeal but in written and oral submissions the focus is on a singular ground of appeal relating to a corroboration warning.
Prior to speeches and charge, counsel for the appellant made an application for a corroboration warning. This application was predicated on alleged inconsistencies in the evidence of the complainant at trial. These inconsistencies related largely to the timeframe given by the complainant, the locations of the assaults and the late introduction of an allegation concerning the appellant's then partner.
In relation to the timeframe of the offences as given by the complainant, counsel for the appellant noted that the complainant provided 13 statements, that he gave different timeframes in different statements and in a prior trial. In his first statement in 2004 the complainant stated he was abused in the shop and the caravan in 1974 when he was aged 11. He then went on to withdraw this complaint in 2013 and then some months later made another statement in which he said the abuse occurred in the shop between 1973 and 1977 when he would have been between the ages 11 and 14. During the previous trial the complainant stated that this statement was correct, however in the course of this trial in his direct evidence the complainant stated that he was in the shop for four years between 1976 and 1980 and the abuse occurred during this period, between the ages 13 and 17. When confronted with these inconsistencies during cross-examination, the complainant adopted the position that this abuse occurred as a continuum in the shop from 1974 to 1980.
In relation to location, counsel for appellant pointed out that there was also inconsistency in terms of where within the shop did the abuse occur and whether it occurred mostly in the back bedroom or the front bedroom.
In relation to the appellant's partner, the complainant alleged that his father forced him to have sexual intercourse with his father's partner at the relevant time. This allegation did not surface until the complainant's final statement to Gardaí in March 2017 and counsel for the appellant argued that such a dramatic allegation so late in the day cast serious doubts on the complainant's reliability.
The trial judge ruled as follows on the issue of the corroboration warning: -
“JUDGE: — I tend not to give corroboration warnings, but I will say that there is no independent evidence and that there is no corroboration, so that - - and I usually do that in the context of the delay warning, to say that you don't have any independent evidence of these events and to tell them that corroboration is independent evidence tending to link, so I will certainly say that to them, but I — it seems to me that —
MR DEVALLY: Very well, Judge, just to avoid any doubts —
JUDGE: Yes. Yes.
MR DEVALLY: — the decision as to what you say to the jury, of course I would abide —
JUDGE: Yes.
MR DEVALLY: — but I think there is either a corroboration warning, in other words, the warning is the corroboration warning, or there's a decision that there is no requirement for the warning.
JUDGE: Yes, well, that is the — I am — that is the decision —
MR DEVALLY: I just want that to be clear for the transcript, yes.
JUDGE: – I am making, but what I do — what I will say is that there is no independent evidence, that in certain sexual cases you might have forensic evidence or you might have independent evidence and that there isn't independent evidence in this case —
MR DEVALLY: Very well.
JUDGE: — which would corroborate the account of the complainant and, as you both know, that's not an unusual scenario in these types of cases. So, that would be my proposal in relation to that, so that you can tailor your closings to take that into account.”
The appellant submits that the ruling given by the trial judge was insufficient in the circumstances as it did not show any engagement with the evidence in the case as required by section 7 of the Criminal Law Rape (Amendment) Act 1990. The appellant submits that it is only possible to discern if a trial judge's discretion has been exercised on a correct legal basis if there is a reasoned basis given. The appellant refers to The People (DPP) v. Dolan [2007] IECCA 30 where Kearns J. observed as follows: -
“This court is therefore left in the position that, while a ruling of considerable significance was made in the course of this case, it cannot deduce from anything in the ruling of the learned trial judge that there was a reasoned basis for his decision not to give the warning. The Court would stress that during the course of a trial it cannot be expected that the trial judge will give an elaborate judgment on every legal issue which arises for his ruling, but every important ruling must at least disclose a decision judicially made, that is to say, one which is reasoned and based on legal principle. Regrettably, the ruling in the present case cannot be seen as meeting either requirement.”
It is accepted that in the subsequent case of The People (DPP) v. Ryan [2010] IECCA 29 the Court expressed the view that The People (DPP) v. Dolan [2007] IECCA 30 did not lay down a universal rule that a reasoned ruling must always be given but it is submitted that instances where a reasoned ruling would be unnecessary must be exceptional. The appellant further notes that in The People (DPP) v. Douche [2014] IECA 20, the Court stated that the decision in relation to a warning must be “susceptible to analysis on the basis of whether it is, indeed, a decision judicially made.”
The appellant submits that no reason for refusal of the corroboration warning can be gleaned from the decision, save that the trial judge “tends not to give corroboration warnings”. The appellant notes that in The People (DPP) v. Wallace (unreported C.C.A. 30th April 2001), Keane CJ stated: -
“…the express legislative provision for the abolition of the mandatory warning, if I can call it that, must not be circumvented by trial judges simply adopting a prudent or cautious course of giving the warning in every case where there is no corroboration or where the evidence might not amount, in the view of the trial judge, to corroboration.”
It is submitted that by the same token, a trial judge cannot fetter her discretion by refusing to give a corroboration warning as a matter of practice.
The appellant further submits that even if the trial judge had made the same decision following an engagement with the evidence such a decision would have been “clearly wrong in fact” as the scale of the inconsistencies and variations in the evidence and accounts provided by the complainant went well beyond what one would normally associate with an allegation of this type.
The respondent refers to The People (DPP) v. Wallace (unreported C.C.A. 30th April 2001) where Keane C.J. referred with approval to the decision in The People (DPP) v. JEM [2001] 4 IR 385 and stated: -
“…the express legislative provision for the abolition of the mandatory warning, if I can call it that, must not be circumvented by trial judges simply adopting a prudent or cautious course of giving the warning in every case where there is no corroboration or where the evidence might not amount, in the view of the trial judge, to corroboration. That would be to circumvent the clear policy of the legislature and that, of course, the courts are not entitled to do.”
The respondent submits that the complainant gave a clear outline of the sexual misconduct alleged....
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