DPP v Cronin
| Jurisdiction | Ireland |
| Judge | Finnegan J. |
| Judgment Date | 23 June 2008 |
| Neutral Citation | [2008] IECCA 94 |
| Court | Court of Criminal Appeal |
| Date | 23 June 2008 |
[2008] IECCA 94
COURT OF CRIMINAL APPEAL
Finnegan J.
Budd J.
Gilligan J.
OFFENCES AGAINST THE PERSON ACT 1861 S48
CRIMINAL LAW (RAPE) ACT 1981 S2
CRIMINAL LAW (RAPE)(AMDT) ACT 1990 S21
NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S15
R v FUNDERBURK 1990 1 WLR 587
PEOPLE (DPP) v SHORTT (NO 2) 2002 2 IR 696
PEOPLE (DPP) v K (G) 2007 2 IR 92
R v HESTER 1973 AC 296
R v KILBOURNE 1973 AC 729
DPP v GILLIGAN 2006 1 IR 107
AG OF HONG KONG v WONG MUK TING 1987 AC 501
R v TURNER 1975 61 CAR 67
R v BOARDMAN 1975 AC 421 1974 2 AER 958 1974 3 WLR 673
R v LUCAS 1981 2 AER 1008
CRIMINAL LAW
Evidence
Admissibility - Sexual offences - Previous sexual history of complainant - Leave to cross-examine complainant on presence of contraceptive device refused - Whether positive evidence as to previous sexual history led by prosecution - Whether relevant to issue of consent - R v Funderbunk [1991] 1 WLR 587; People (DPP) v Shortt [2002] 2 IR 693 and People (DPP) v GK [2006] IECCA 99, [2007] 2 IR 92 not followed - Charge to jury in relation to lies admittedly told by accused in statement - Applicable principles - Lucas warning - R v Hester [1973] AC 296; R v Kilbourne [1973] AC 746; DPP v Gilligan [2005] IESC 78, [2006] 1 IR 107; Attorney General of Hong Kong v Wong Muk Ting [1978] AC 501; R v Turner [1975] 61 CAR 67 and R v Boardman [1975] AC 421 considered - R v Richens [1993] 4 All ER 877; R v Goodway [1993] 4 All ER 894 and R v Lucas [1981] 2 All ER 1008 applied - Leave to appeal against conviction refused (165/2007- CCA - 23/6/2008) [2008] IECCA 94
People (DPP) v Cronin
23rd day of June 2008 by Finnegan J.
The applicant in this case was charged with two offences, the first offence is of rape contrary to section 48 of the Offences Against the Person Act 1861 and section 2 of the Criminal Law (Rape) Act 1981 as amended by section 21 of the Criminal Law (Rape) (Amendment) Act 1990 the particulars being that on the 31 st October 2004 he raped one D.C. The second offence is an offence of false imprisonment contrary to section 15 of the Non-Fatal Offences Against the Person Act 1997. He was convicted and sentenced to a term of imprisonment of eight years. Essentially two grounds arise on the appeal.
The first ground relates to the admissibility of a question which counsel for the applicant sought leave to raise on cross-examination of the complainant and the second relates to the learned trial judge's charge to the jury on the issue of lies admittedly told by the applicant in his statements to the Gardai.
On the first ground the applicant's counsel sought to ask of the complainant whether she had in place on that occasion a contraceptive device, the coil, and the basis upon which he sought to ask that question was that it was relevant to the issue which was the sole issue in the case that of consent. The learned trial judge ruled the question inadmissible and it was not permitted. The basis upon which it was sought to ask the question is a proposition that a woman in the particular circumstances of this case was more likely to have consensual sex if she was availing of contraception. The authorities relied upon by the applicant are three cases R v Funderburk [1991] 1 W.L.R. 587, The People (Director of Public Prosecutions) v Shortt [2002] 2 I.R. 693 and The People (Director of Public Prosecutions) v G.K. [2007] 2 I.R. 92. In common in those three cases is the situation that evidence was led or at least suggested on behalf of the complainant, in the first and third of those cases that they not had previous sexual experience, and there was some evidence which would justify cross-examination in relation to the same. Where there is positive evidence or indeed a strong suggestion of a particular state of affairs in the prosecution case, and in cases of rape or indecent assault a suggestion of no previous sexual experience, then it is relevant to the credibility of the complainant if this was not in fact the case and cross-examination on that evidence should be permitted.
In the present case no positive evidence was led by the prosecution or suggestion made as to the previous sexual experience or lack of the same on the part of the complainant and in those circumstances this court is satisfied that the cases relied upon are not relevant to the facts of this case. The question sought to be asked and any answer thereto could not be relevant to the issue in the case which was an issue of consent. The court is satisfied in those circumstances that the authorities relied upon do not support the applicant's contention. There are no reported cases to which...
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