DPP v D (A)

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 25 July 2008
• Neutral Citation: [2008] IECCA 101
• Court: Court of Criminal Appeal
• Date: 25 July 2008

[2008] IECCA 101

COURT OF CRIMINAL APPEAL

Finnegan J.

Gilligan J.

MacMenamin J.

58/07

DPP v D (A)

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

PROSECUTOR

and

A.D.

APPLICANT

CRIMINAL LAW (RAPE) ACT 1981 S2

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S21

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S3

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

SEX OFFENDERS ACT 2001 S37

NON-FATAL OFFENCES AGAINST THE PERSON ACT 1997 S5

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA STATIONS) REGS 1987 SI 119/1987

R v GALBRAITH 1981 1 WLR 1039

DPP v M UNREP CCA DENHAM 15.2.2001 2001/8/1990

DPP, PEOPLE v HEALY 1990 2 IR 73

DPP v BUCK 2002 2 IR 268

DPP, PEOPLE v FINNEGAN UNREP CCA BARRINGTON 15.7.1997 1998/4/977

CRIMINAL LAW

Evidence

Sexual offences - Whether trial judge erred in failing to withdraw case from jury - Whether sufficient evidence to justify case going to jury - Whether trial judge applied improper test - Considerations which apply - R v Galbraith [1981] 1 WLR 1039 and People (DPP) v M (Unrep, CCA, 15/2/2001) applied - Decision of jury -Whether perverse - Charge to jury in respect of separate offences of rape and sexual assault from same set of facts - Whether perverse to convict in respect of some but not all counts - People (DPP) v Molloy (Unrep, CCA, 28/7/1985) distinguished - Interview of accused - Right of access to a solicitor - Interview continued despite arrival of solicitor - Whether entirety of interview ought to have been excluded - Whether any causative link or effect between breach of constitutional right of access and making of statement - People (DPP) v Healy [1990] 2 IR 73; People (DPP) v Buck [2002] 2 IR 286; People (DPP) v Finnegan (Unrep, CCA, 15/7/1997) approved - Criminal Justice Act 1984 (No 22), s 7(3) - Appeal dismissed (58/2007 - CCA - 25/7/2008) [2008] IECCA 101

People (DPP) v D(A)

1 Judgment of the Court delivered on the 25th day of July 2008 by Finnegan J.

2 The applicant was convicted before the Central Criminal Court (White J.) on the 29 ^th January 2007 of two counts as follows:-

3 Count 1.

4 Rape contrary to section 2 of the Criminal Law (Rape) Act, 1981 as amended by section 21 of the Criminal Law (Rape) (Amendment) Act 1990.

5 Count 4

6 Assault causing harm contrary to section 3 of the Non-Fatal Offences Against the Person Act, 1997.

7 He was found not guilty of two offences as follows:-

8 Count 2.

9 Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 as amended by section 37 of the Sex Offenders Act, 2001.

10 Count 3.

11 Threatening to kill contrary to section 5 of the Non-Fatal Offences Against the Person Act, 1997.

12 Count 3 was withdrawn from the jury at the close of the prosecution case.

13 The offences were alleged to have been committed on the 19 ^th March 2006 against A.K. a Russian National. In summary the prosecution evidence was as follows.

The evidence of A.K.

14 A.K. is the complainant. She is a graduate and at that time was working as a waitress and studying at a local Institute of Technology. On the 18 ^th March 2006 she had been drinking very much to excess in her apartment. She was in a low mood. At 6.15 p.m. that evening she commenced telephoning a number of friends. She telephoned S.T. a former boyfriend, D.D. her current boyfriend and A.D. an acquaintance to whom she was attracted. In response to a telephone call S.T. came to her apartment with wine which they drank. At 7.56 she received a text message from D.D. that he was coming to see her and she asked S.T. to leave. There was a knock on the door which S.T. answered as he was leaving: it was the applicant and he entered the apartment. A.K. had never seen him before. He entered the bedroom where A.K. was lying in bed covered with a duvet. They started talking and some little time later she gave the applicant her ATM card and pin number and asked him to withdraw some money and buy wine. After the applicant had left D.D. arrived and he entered the bedroom and sat talking to A.K. until the applicant returned. All three continued in conversation and drinking wine. A.K. blacked out for a time. When she awoke the applicant attempted to get into bed with her which she resisted. She put on her dressing gown and ran to a neighbouring apartment where the applicant caught her by the hair, took her back to her apartment, locked the door, took the key and dragged her to the bedroom and threw her onto the bed. She started to scream and he put his hands on her face and throat in an effort to stop her. She was choking and so gave up fighting and the applicant had sex with her. The applicant then demanded oral sex which she refused and the applicant attempted to force her to do so pulling her hair very badly from behind. He then demanded anal sex and she again refused but the applicant attempted to carry out the act. He put both hands on her throat and started to choke her saying "die, bitch die". He inserted his fingers into her anus. From time to time during these events her boyfriend D.D. was present in the bedroom. After two to three hours the applicant went to the kitchen, had something to eat and then returned to the bedroom saying that he was going to cook some chicken. She asked D.D. to leave and after that had some further conversation with the applicant and then went to sleep. She awoke at about 9.30 a.m. on the morning of the 19 ^th March and rang her friend D.P. who together with a friend came to the apartment and escorted the applicant off the premises.

Evidence of D.P.

15 When he arrived at the apartment on the morning of the 19 ^th March A.K. was wearing pyjamas and a coat and was crying. There were black and blue marks on her neck and her hair was pulled out.

Evidence of Dr. Brennan

16 Dr. Brennan examined A.K. on the afternoon of the 19 ^th March. She found her to have sustained the following injuries:

17 2 (i) Bruising of her left upper and lower eye lid.

18 3 (ii) Bruising of the inner aspect of the left ear.

19 4 (iii) A lot of bruising and considerable swelling at the front of her neck with multiple petechiae or pin point flat red areas caused by bleeding into the skin.

20 5 (iv) An area of hair loss measuring 2 cm by 4 cm at the back of the head.

21 6 (v) Petechiae or bleeding into the hair follicles.

22 7 (vi) Bruising on the inner aspect of the right wrist and in front of the right shoulder.

23 8 (vii) Bruising over the left elbow.

24 9 (viii) Bruising over the inner part of the left wrist and on the left arm close to the shoulder.

25 10 (ix) Bruising over the left inner thigh and on the left thigh closer to the knee.

26 11 (x) Small bruising along the outer side of her right breast and a bruise above the left breast and deep bruising with bleeding into the skin along the front of the right shoulder.

27 12 (xi) Bruising over the bony part of the lower back and over the back of both shoulders.

28 She took photographs of the bruising which were introduced in evidence. In the opinion of Dr. Brennan the injuries were consistent with A.K.'s account. In particular the bruising to the neck looked like finger marks. The hair loss and bleeding into the hair follicles was suggestive of a pulling force being applied to A.K.'s hair. The bruising to the left inner thigh was consistent with the thighs having been forced or held apart.

Evidence of S.T.

29 When he left A.K. on the evening of 18 ^th March she was in good form, laughing and joking. When he saw her the following morning she was completely changed. She was withdrawn, scared, upset and crying. There were bruises to her face, eyes and throat and the hair to back of her head was in clumps.

Evidence of D.D.

30 He was drinking wine with A.K. in her apartment on the night of the 18 ^th March when the applicant arrived at about 11.30 p.m. The three of them drank wine and engaged in conversation. He went to the toilet and when he returned the applicant was sitting on top of A.K. and was trying to choke her. She was fighting him and trying to push him away. He said he wanted sex and she refused him. At various times he saw the applicant holding the complainant by the arms or around the neck and the complainant trying to push his arms and hands away.

Evidence of Dr. Ramsbottom

31 Dr. Ramsbottom gave DNA evidence in relation to vaginal swabs taken from A.K. on the 19 ^th March. The samples matched the applicant's DNA profile.

Evidence of Garda Donal Loughnane

32 He photographed A.K.'s apartment on the 19 ^th March. Included in the photographs were photographs showing clumps of hair at two different locations on the bed.

33 A.D. was abroad and did not attend to give evidence.

The applicant's statements

34 The applicant made two statements at interview and at trial objection was made to their admission in evidence. A number of witnesses were called relevant to the applicant's state of health at the time of the interviews. It emerged in evidence that tests carried out on the applicant confirmed the presence of cannabis in his blood at the time of the interviews. On behalf of the applicant it was submitted to the court that the statements ought not to be admitted having regard to the evidence as to his medical condition he having consumed cannabis. Further it was submitted that there had been breaches of the Criminal Justice Act 1984 (Treatment of Persons in Custody in Garda Stations) Regulations 1987. In the course of the first interview the applicant's solicitor attended at the Garda Station but was not allowed immediate access to the applicant. The learned trial judge ruled that everything that occurred at interview after the interrogating officers were informed of the presence of the applicant's solicitor...