DPP v C.Ce

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 08 December 2017
• Neutral Citation: [2017] IECA 326
• Docket Number: No. 210 of 2016
• Court: Court of Appeal (Ireland)
• Date: 08 December 2017

[2017] IECA 326

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Hogan J.

Mahon J.

No. 210 of 2016

The People (at the suit of the Director of Public Prosecutions)

Respondent

And

C. Ce

Appellant

Crime & sentencing – Sexual offences – Rape and indecent assault– Appeal against conviction

Facts: The appellant had been convicted of an offence of rape and an offence of indecent assault, carried out against his niece. He now appealed against conviction, alleging the trial judge's decisions as to refusing to stop the trial, admitting certain evidence and her charge to the jury rendered his trial unfair.

Held by the Court that the appeal would be dismissed. It could not be said that the trial judge had failed to make clear the relevance of delay in the case, or that the admission of the appellant's son's evidence was handled incorrectly. Finally, the charge to the jury was properly contextualised.

JUDGMENT of the Court delivered on the 8th day of December 2017 by Mr. Justice Birmingham

1 On 12th May, 2016, following a four day trial, Mr. C.Ce was convicted of two offences, one of rape and one of indecent assault. Subsequently, on 11th July, 2016, he was sentenced to seven years imprisonment in respect of the rape offence and to a concurrent term of 18 months imprisonment in respect of the indecent assault. He has now appealed against his conviction. A number of grounds of appeal have been formulated which were summarised in the written submissions as follows:

(i) The refusal of the trial judge to stop the trial at the close of the prosecution evidence on the grounds of prejudice caused by delay in the making of the complaint.

(ii) The ruling of the trial judge in relation to the alleged admissions by the appellant to his son.

(iii) Issues relating to the trial judge's charge, in particular in relation to corroboration warning, the delay warning and the provision of a modified Lucas warning.

2 Before turning to deal with the grounds of appeal, and in the Court's view only one is a point of substance, it is appropriate to refer to the evidence that was put before the jury.

3 The case related to events that are alleged to have occurred in the summer of 1971. The complainant, Ms. A.U., gave evidence that along with her mother, who is a sister of the appellant, and her siblings, she went to Clare to stay with the appellant. The complainant and her family were living in Britain at this stage. A.U. was aged 11 in summer, 1971. In evidence the complainant described an incident when she was indecently assaulted by C.Ce. on an occasion when he had taken her hunting. She also described a second incident, this time of rape, during the same holiday. She referred to the background to the rape incident involving a row between the appellant and his son in the course of which the latter produced a shotgun. She says that she was taken from the bed where she had been sleeping by a woman named M.C. and brought by her to the appellant's bedroom. She then describes M.C. undressing her and then lying her naked in the bed alongside the appellant who was already naked in the bed. After M.C. left the room, the appellant proceeded to have sexual intercourse with her.

4 Some weeks after the incident, the complainant and her siblings returned to Britain. The complainant had very limited contact with the appellant thereafter, encountering him on only one occasion in 1987. She made a complaint to Gardaí in April, 2004.

5 In the course of the trial, the complainant's brother described visiting Clare with his mother, his two sisters, one of whom was the complainant, and his two brothers. In evidence, he described a row between C.Ce. Senior, who is his uncle, the appellant, and C.Ce. Junior during the course of which a shotgun was produced. Perhaps unsurprisingly the details he offered of this incident which the prosecution say formed the background to the rape, diverged in certain respects from the description of the incident provided by the complainant. C.Ce. Junior gave evidence on behalf of the prosecution. He described his aunt and her family, including the complainant, coming to Ireland for a holiday and staying with his father at his house in Clare. He went on to describe a row between himself and his father in the course of which the witness produced a shotgun. According to him, the background was an earlier row in a licensed premises between his father and M.C. which escalated on their return to the house. C.Ce. Junior also gave evidence in relation to an occasion when he taxed his father in relation to these and related matters which led to his father admitting his involvement in this matter. This conversation would seem to have been alleged to have occurred in 1997.

6 C.Ce. Senior did not give evidence in his own defence. However, the trial court heard an account of an interview conducted with him after he had been arrested and detained in 2005 in the course of which he denied any wrongdoing. He also denied that there had ever been a time when he and the complainant and her family had all been staying at the location in Clare.

The grounds of appeal

7 The Court will deal first with the issues raised in relation to the trial judge's charge and her response to requisitions. It is necessary to say a little about the procedural backdrop to the charge and requisitions. When the prosecution evidence before the jury closed, the trial court proceeded to deal with what was described as a P.O.C. application i.e. a request that the trial judge stop the trial by reason of delay and the prejudice that it had given rise to (from the case of DPP v. P.O.C. [2006] 3 I.R. 238). It is of some significance that the evidence before the jury concluded at 3.50 pm on 10th May, 2016, the second day of the trial. In the absence of the jury, judge and counsel discussed arrangements for dealing with the issue which it was envisaged would involve fairly brief evidence in relation to the period between complaint to Gardaí and the charging of the appellant and then substantial legal argument. In the course of that debate the judge commented:-

'Now, I don't want to be pre-emptive in any respect, but while you're working on those things, I might as well direct my mind to a charge, whether it's going to be needed or otherwise is another issue, that will depend on the issue tomorrow. Is there anything you want to say to me in relation to what might be included in it or what you might want included in it?'

Prosecution counsel responded by saying that a strong, tailored 'Haugh warning' would be needed. Counsel then referred to the possibility of a corroboration warning, indicating that whether there was one was a matter of discretion for the judge. In further discussions, counsel, prompted by the judge, touched on the issue of evidence that might be regarded as constituting corroboration and referred to the evidence in relation to the conversation between the accused and his son as the only possible source of corroboration. Counsel also canvassed the possibility of a modified Lucas warning, in a situation where he felt that the jury might conclude that the accused had lied when he told the Gardaí in interview that the complainant and her family had never stayed as visitors in his home while he was there. After brief evidence from a retired Garda Sergeant in relation to his efforts to move the case on, and before the court rose for the day, the trial judge asked counsel for the defence whether, again not being pre-emptive, he wanted to say anything in relation to the charge. Counsel responded that, in a situation where the prosecution case had not finally closed and there was a substantial legal issue to be dealt with, he had not at that point applied his mind to the question of the judge's charge. When the judge ruled on the P.O.C. issue and directed that the trial should proceed, counsel then proceeded to deliver their closing speeches and the judge gave her charge without any further discussion about what the charge might contain.

8 The relevance of the sequence of events described is that when defence counsel raised requisitions relating to delay, corroboration and the Lucas warning, the judge felt that these were matters that could and should have been raised with her before she delivered her charge and this led to some testy exchanges between the judge and defence counsel.

Modified Lucas warning

9 The defence is critical of the fact that the judge cautioned the jury about the dangers of relying on lies told by an accused and advised them as to the limited use that could be made of lies. The defence says that the issue of a Lucas warning normally arises in situations where it is admitted that lies were told, or where there was clear proof of lies but that the issue in the instant case of whether what was said about visitors staying with the appellant was the truth or a lie, was inextricably linked with the issue of whether the appellant had or had not committed the offences. It is said that, in the circumstances, the reference to lies was disadvantageous and indeed very damaging from the defence perspective. In the Court's view, the point made by the defence is somewhat misconceived. The Lucas direction, or the modified Lucas direction, which is required to be given in certain circumstances is designed to guide jurors about the extent to which reliance can be placed on lies. However, even before the concept of a Lucas warning entered the lexicon, it was always open to judges to discuss with jurors the relevance of lies and to caution against attaching unduly broad and impermissible significance to them.

10 In this case, any jury was quite likely to conclude that the appellant had not told the truth in relation to whether the complainant had visited, given that the jury had evidence on this topic not just from the complainant, but also her brother and from the...