DPP v O'Cinneide
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 04 April 2019 |
| Neutral Citation | [2019] IECA 96 |
| Docket Number | [108/18] |
| Court | Court of Appeal (Ireland) |
| Date | 04 April 2019 |
[2019] IECA 96
THE COURT OF APPEAL
Kennedy J.
Birmingham P.
McCarthy J.
Kennedy J.
[108/18]
Conviction – Rape – Corroboration – Appellant seeking to appeal against conviction – Whether the trial judge erred in his direction to the jury on corroboration
Facts: The appellant, Mr O’Cinneide, on the 5th of February 2018, was convicted of rape contrary to s. 2 of the Criminal Law (Rape) Act 1981, and was sentenced to five years’ imprisonment with the final eighteen months suspended. He appealed to the Court of Appeal against his conviction on the grounds that: (a) the trial judge erred in law by refusing to discharge the jury when the complainant repeatedly referred to “information that she was not permitted to talk about”; and (b) the trial judge erred in his direction to the jury on corroboration.
Held by the Court that it rejected the appellant’s contention that the replies to questions asked on behalf of the appellant gave rise to an impression in the presence of the jury that information and conversations were being withheld from them. On the contrary, the Court did not see any prejudice arising to the appellant in circumstances where the evidence was being given by a witness from whom evidence was given in direct evidence and in cross-examination in a careful fashion. The Court held that the fact that no requisition was raised on the terms of the corroboration warning was pertinent in assessing whether the language used by the trial judge was appropriate. The Court could see no error in the direction given by the trial judge.
The Court held that the appeal would be dismissed.
Appeal dismissed.
The appellant appeals against his conviction on the 5th of February 2018. He was convicted of rape contrary to section 2 of the Criminal Law (Rape) Act, 1981, as amended, and was sentenced to five years” imprisonment with the final eighteen months suspended.
The events giving rise to the offence occurred on the 23rd November 2014. By way of background, the injured party met the appellant about two weeks prior to the offence and they began dating. She gave evidence that on the night in question, she and the appellant were in the midst of becoming physically intimate when she told him she was not willing to engage in sexual intercourse without the use of a condom. The appellant made attempts to have sexual intercourse with the injured party without a condom and was rebuffed by her in clear terms. He ultimately succeeded in doing so, and was prosecuted and convicted of the offence of rape.
The appellant puts forward two grounds of appeal in that: -
a) The trial judge erred in law by refusing to discharge the jury when the complainant repeatedly referred to ‘information that she was not permitted to talk about’; and
b) The trial judge erred in his direction to the jury on corroboration.
On the conclusion of the complainant's evidence, counsel for the appellant made an application to discharge the jury on the basis that, during cross-examination, the complainant made several references to evidence which had not been before the jury. Moreover, it was contended that in the course of her direct examination the complainant consistently enquired as to whether she could or could not give certain evidence. The application was refused.
The evidence in question concerned a conversation outlined in the complainant's statement that is alleged to have occurred between the appellant and the complainant in the direct aftermath of the offence. The first reference to this conversation was made during the direct examination of the complainant when the following exchange occurred: -
‘A. The next bit was he put his clothes on and he came back out into that hall and this was the bit actually that terrified me and it was terrifying and it's
Q. All right.
A. I'm not allowed say that, no?
Q. Well, if you can just tell us what you saw him doing or where he went?
A. Okay. So, he came in, he came in so, this is my bedroom, this is the hall, this is the sitting room, so I was sitting on my bed and I could clearly see around the corner and he came around the corner here and he gave out to me, asking me do you know how long you get for something like this.
Q. Yes.
A. And then I replied to him
MR WHITE: Judge, I'd object to this evidence.
MR GILLANE: Well, if it's words that the accused said I don't know what the objection could be but I'm not
JUDGE: Are we going to need to argue it in the absence of the jury?
MR GILLANE: I mean I'm happy to move on but
MR WHITE: Well, I would ask that the prosecution move on from it, Judge.
JUDGE: Okay. Well, you're moving on.’
The appellant refers to two subsequent occasions during cross-examination where it is contended that the complainant referred to this conversation, while being cross-examined on the content of text messages between the complainant and her friend discussing the event. She was asked about the following series of text messages: -
‘Q. And then E… came back to you further, ‘well, he's a bit thick and obviously not sexually mature if he thinks that sex without a condom is okay first thing’?
A. Too right.
Q. And you clearly said, ‘No.’ ‘He doesn't sound at all like he cares for your feelings and then to blame you by saying you over reacted is a total dick move’?
A. Yes, and again he did say that, but that was cut off earlier as not relevant when the jury had to leave. This is all stuff that I have said already and I've confirmed numerous times.
Q. And E… got back to you again, ‘It's not okay, …’, and goes on, ‘He didn't say I over reacted, he said I am not a rapist and then he put on his clothes and said, I'm going, I think better in the car’?
A. And again in text message you don't give a blow by blow account, especially there was a conversation that happened there between him getting up and saying he's not a rapist and him going. There was a conversation that happened in my hall.’
The cross-examination continued with a further reference as follows: –
‘Q. Yes, your call to the police station seems to have been just after 11 o'clock, these text messages are all going on, and there's a message I think that's coming in from E…?
A. Yes.
Q. ‘Fence yes, fence what if this is routine for him, no freak incident equal ruin his life’?
A. Again, conversation that we weren't allowed speak about would explain why I said that, it's a very reasonable statement and again, I'm a responsible person, I know I probably shouldn't, but anyway, I'm someone who takes my actions very seriously in regard to that, I'm not going to go and go through all of this and there's also the emotional impact, I'm not an idiot, it's hard doing this, it's very hard.’
The appellant submits that the above passages highlight an impermissible reference to evidence that had been deemed inadmissible and gave the jury the impression that evidence was being withheld from them. Moreover, it is contended that the complainant's answers in cross-examination caused the appellant prejudice.
The appellant further contends in written submissions that the complainant's answers were calculated to draw attention to evidence which the witness knew had been ruled inadmissible. Before dealing with the substance of this ground; it is clear that the answers arose in the course of questions asked in cross-examination and it is difficult to conceive how, therefore, the argument can be advanced that the replies on the part of the complainant were deliberately designed to prejudice the appellant.
The appellant submits that to inform the jury that there was evidence to which they were not privy would lead them to speculate on the nature of such evidence and in doing so, it would be natural for them to conclude that such evidence was not advantageous to the accused.
The respondent submits that discharging a jury during the course of a trial is a last resort and refers to DPP v. Cleary [2009] IECCA 142, where the Court of Criminal Appeal adopted the Supreme Court's comments in Dawson v. Irish Brokers Association [1998] IESC 39 and held that: -
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