DPP v D.R

• Jurisdiction: Ireland
• Judgment Date: 01 January 1998
• Date: 01 January 1998
• Docket Number: [C.C.A.
• Court: Court of Criminal Appeal

The People (Director of Public Prosecutions) v. D.R.

The People (Director of Public Prosecutions)

and

D.R

[C.C.A. No. 178 of 1996]

Court of Criminal Appeal

Criminal law - Trial - Procedure - Objection to presence in court of complainant's spouse - Statutory provision - Discretion of trial judge - Whether presence affected applicant's right to fair trial - Criminal Law (Rape) (Amendment) Act, 1990 (No. 32), s. 11.

Criminal law - Trial - Procedure - Cross examination - Improper question - Comments adverse to defence - Prejudicial effect - Subsequent direction of trial judge to jury - Whether directions of trial judge sufficient to ensure fair trial.

Criminal law - Evidence - Complaint - Allegations of sexual offences - Admissibility - Whether complaint made as soon as was reasonably possible - Evidence of condition of complainant - Ruling of trial judge.

Section 11(3) of the Criminal Law (Rape) (Amendment) Act, 1990 provides:-

"Sub-sections 1 and 2 are without prejudice to the right of a parent, relative or friend of the complainant or, where the accused is not of full age, of the accused to remain in court."

The applicant was charged before the Central Criminal Court on counts of rape and sexual assault. At the trial objection was taken to the presence in court of the complainant's spouse. The trial judge ruled that by virtue of the provisions of s. 11 of the Criminal Law (Rape) (Amendment) Act, 1990, he had no discretion but to allow the complainant's spouse to remain in court. The applicant also objected to the admissibility of evidence of the complaint made by the complainant on the grounds that it had not been made as soon as was possible after the alleged incidents complained of. Further objections were made regarding the nature of the prosecution's cross-examination of the applicant and the trial judge's summing up to the jury.

The applicant was convicted by the unanimous verdict of the jury. Leave to appeal was refused by the trial judge. The applicant appealed against this refusal to the Court of Criminal Appeal.

Held by the Court of Criminal Appeal (Barrington, Barr and McGuinness JJ.) in dismissing the appeal, 1, that the trial judge had evidence before him which justified a finding that the complaint had been made as soon as was reasonably possible after the alleged incidents complained of.

The People v. Brophy [1992] I.L.R.M. 709 applied.

2. That it was unfair to put a question in cross-examination to an accused the effect of which was to imply that if a complainant's evidence was not correct that complainant must be guilty of perjury.

3. That, in the circumstances of the instant case, the trial judge had corrected any prejudice which might have thereby resulted by accepting the objections of the applicant and directing the jury accordingly.

4. That any comments adverse to the applicant which were made by the trial judge during his summing up to the jury were adequately remedied by subsequent corrections. In particular, the jury had the benefit of having the transcripts of both the complainant's and the applicant's evidence in chief read over to them.

Per curiam:That the purpose of s. 11 of the Criminal Law (Rape) (Amendment) Act, 1990, was not to fetter the discretion of a trial judge where he felt it desirable in the interests of justice that a person be excluded from court. Accordingly, the trial judge was wrong to rule as he did in the instant case. However, it could not be said that his ruling had any impact on the conduct or outcome of the applicant's trial.

Case mentioned in this report:-

The People v. Brophy [1992] I.L.R.M. 709.

Criminal appeal.

The facts are summarised in the headnote and are set out...