DPP v CM
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy. |
| Judgment Date | 24 April 2020 |
| Neutral Citation | [2020] IECA 117 |
| Docket Number | Record Number: 45/18 |
| Court | Court of Appeal (Ireland) |
| Date | 24 April 2020 |
[2020] IECA 117
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 45/18
THE COURT OF APPEAL
Conviction – Rape – Presumption of innocence – Appellant seeking to appeal against conviction – Whether the trial judge failed to properly direct the jury in his explanation of the presumption of innocence and the legal burden on the prosecution in a criminal trial
Facts: The appellant pleaded guilty to a count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. The appellant pleaded not guilty to a count of rape contrary to s. 2 of the Criminal Law (Rape) Act 1981. The trial commenced before the Central Criminal Court on 13th December 2017 and concluded on 19th December 2017 when the jury returned a verdict of guilty in respect of the count of rape. Following his conviction, on the 31st January 2018, a notice of appeal was filed and 83 grounds of appeal against conviction were filed on the 6th February 2018 by the appellant’s previous legal team. The appellant brought a motion to adduce three additional grounds of appeal in substitution for the 83 grounds originally filed: (1) the trial judge failed to properly direct the jury in his explanation of the presumption of innocence and the legal burden on the prosecution in a criminal trial and specifically the phrase “Beyond a reasonable doubt”; (2) the trial judge failed to properly instruct the jury in relation to the legal concept of the “Benefit of the doubt”; (3) the trial judge misdirected the jury in respect of the Lucas warning, specifically in telling the jury that “where lies have been told by an accused person ... these can be regarded as independent confirmation ... of the essence of the prosecution case”.
Held by the Court of Appeal that it would refuse leave to adduce the additional grounds set out in the notice of motion. The Court was not persuaded in terms of The People (DPP) v Cronin (No. 2) [2006] 4 IR 329 that there was an error or oversight of any kind, let alone one of substance. The Court was satisfied that no injustice would be caused to the appellant in dismissing the reliefs sought in the notice of motion in the circumstances of the case.
The Court held that the appeal would be dismissed.
Appeal dismissed.
This is an appeal against conviction. The appellant pleaded guilty to a count of assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act, 1997. The appellant pleaded not guilty to a count of rape contrary to section 2 of the Criminal Law (Rape) Act, 1981. The trial commenced before the Central Criminal Court on 13 th December 2017 and concluded on 19 th December 2017 when the jury returned a verdict of guilty in respect of the count of rape.
The appellant and the complainant had been in a relationship for approximately 4-5 years at the time of the offences. On the 28th of April 2016, the complainant had returned to her flat and had fallen asleep on the conch. The appellant was not residing at the flat at that time. The complainant woke up later that night to find herself being assaulted by the appellant.
The complainant was punched to the face and body and struck with a sweeping brush. The appellant told her to go to the bedroom and then caught her by the hair and dragged her to the bedroom. He punched her while she was on the bed and began to strangle her. He indicated he was going to break her windpipe.
The following morning the appellant was still in the flat and the complainant had fallen asleep in the bedroom. The appellant went to purchase Lucozade for the complainant and on his return, got into the bed with the complainant. He began to rub her leg and asked her for sex; the complainant refused. He then got on top of the complainant and attempted to remove her shorts, he succeeded and then inserted his penis into her vagina. The complainant turned her head away and cried and the appellant told her to shut up. In the aftermath, the appellant left the flat and shortly thereafter, the complainant contacted An Garda Síochána.
The appellant was arrested and he initially denied being present in the complainant's flat on the night in question. As the interviews proceeded, the appellant accepted that he had been in her presence and that he had assaulted her but denied raping her.
The appellant's trial commenced before the Central Criminal Court on 13 th December 2017 and concluded on 19 th December 2017 when the jury returned a verdict of guilty in respect of the count of rape.
Following his conviction, on the 31 st January 2018, a notice of appeal was filed and 83 grounds of appeal against conviction were filed on the 6 th February 2018 by the appellant's previous legal team. The appellant has brought a motion to adduce three additional grounds of appeal in substitution for the 83 grounds originally filed.
st October 2018: A notice of change of solicitor was filed.
th November 2018: The transcripts of the trial were made available.
rd February 2020: The notice of motion was filed.
The appellant's present solicitor swore two affidavits on behalf of the appellant in which he avers, inter alia, that the proposed new grounds are addressed in the general sense in certain of the original grounds of appeal. We do not intend to set forth the 83 grounds of appeal, we refer to the three new grounds on which the appellant now seeks to rely in substitution for the original grounds filed.
The appellant seeks to rely on three new grounds of appeal:-
(1) The learned trial judge failed to properly direct the jury in his explanation of the presumption of innocence and the legal burden on the prosecution in a criminal trial and specifically the phrase “ Beyond a reasonable doubt.” The learned trial judge described the civil standard in terms of which version is more likely or probable but then, in explaining the criminal standard, once again made reference to “ probability” as a part of the test.
(2) The learned trial judge failed to properly instruct the jury in relation to the legal concept of the “ Benefit of the doubt.” The learned trial judge omitted to direct the jury that where two views on any part of the case were possible on the evidence, then the jury should adopt that which is favourable to the accused unless the other view has been established beyond a reasonable doubt;
(3) The learned trial judge misdirected the jury in respect of the Lucas warning, specifically in telling the jury that “where lies have been told by an accused person … these can be regarded as independent confirmation … of the essence of the prosecution case.”
Firstly, we have considered whether the three grounds upon which the appellant now seeks to rely are in effect subsumed into the original grounds filed. We are not satisfied that there is any correlation between these grounds and the original grounds. Therefore, we must assess whether the appellant should be permitted, at this remove to rely on grounds of appeal which were not the subject of the original grounds of appeal. In this regard, while the submissions filed on behalf of the appellant do not address the issue as to whether leave ought to be granted to add new grounds of appeal, oral submissions were made at the hearing. We now propose to address this preliminary issue but in order to do so, we must consider each of the three new grounds in turn.
It is well settled that an appellate court will be reluctant to allow new grounds to be relied upon on appeal unless such is necessary in order to ensure that justice is done. It is incumbent on the counsel at trial to raise any issues which may arise in the course of trial and in accordance with the principles stated in The People (DPP) v. Cronin (No. 2) [2006] 4 IR 329, an explanation will be called for as to why such issues were not canvassed at trial.
In Cronin (No. 2), the Supreme Court emphasised that it is not normally open to an appellant to raise a new point on appeal which was not raised in the course of trial by the defence or raised by way of a requisition concerning the trial judge's charge. Such an approach is particularly deprecated in situations of tactical strategy. The Court stated at p. 346:–
“… [C]ases will continue to occur where a trawl of a judge's charge years after the event will be made to see if a point can be found which might have been argued or been the subject matter of a requisition at the end of the judge's charge at the original trial, even though competent lawyers at the trial itself did not see fit to do so.”
An appellate court will consider whether there is any suggestion of error on the part of the previous legal team in circumstances where the point was not raised at trial and will assess whether there is any risk of injustice to an appellant as a result of the point not been taken at trial. In this regard the now oft quoted passage of Kearns J. at p. 346 is apposite: –
“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken.”
(1) The learned trial judge failed to properly direct the jury in his explanation of the presumption of innocence and the legal burden on the prosecution in a criminal trial and specifically the phrase “Beyond a reasonable doubt.” The learned trial judge described the civil standard in terms of which version is more likely or probable but then, in explaining the...
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DPP v P.P.
...doubt as to the correct legal principles. Reliance is placed on The People (DPP) v. McDonagh [2012] 1 IR 49 and The People (DPP) v. CM [2020] IECA 117 in which case this Court reiterated that when assessing any perceived deficiencies in a charge one must consider the totality of the Discuss......