DPP v Dolan

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 03 May 2007
• Neutral Citation: [2007] IECCA 30
• Docket Number: [CCA No: 118/2006]
• Court: Court of Criminal Appeal
• Date: 03 May 2007

[2007] IECCA 30

COURT OF CRIMINAL APPEAL

Kearns J.

McKechnie J.

Hanna J.

[CCA No: 118/2006]

DPP v DOLAN

Director of Public Prosecutions

RESPONDENT

V

Peter dolan

Applicant/Appellant

CRIMINAL LAW

Rape

Corroboration warning - Exercise of discretion - Whether reasoned basis for refusal of trial judge to exercise discretion to give warning to jury - People (DPP) v Ferris (Unrep, CCA, 10/6/2002) followed - Criminal Law (Rape) (Amendment) Act 1990 (No 32), s 7(1) - Conviction set aside and retrial directed (2006/118CCA - CCA - 3/5/2007) [2007] IECCA 30

People (DPP) v D(P)

Mr. Justice Kearns

1 This is an appeal brought by the applicant following his conviction in the Central Criminal Court on 30th March, 2006, on one count of rape of M.G., which said rape included anal rape, contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act,1990 and one further offence of assault against the said M.G. contrary to s. 3 of the Non-Fatal Offences against the Person Act, 1997. Both offences are alleged to have occurred during the course of the same incident which occurred in the early hours of the morning in a hostel in Dún Laoghaire on 13th March, 1999.

2 By way of background, the complainant alleged that she lived in Limerick and had travelled to Dublin by train the previous afternoon. It was her intention to visit her sister who lived in London and, for that purpose, she intended boarding the ferry in Dún Laoghaire on the evening of 12th March, 1999. Being unsure of directions when she arrived at Heuston Station, she approached the applicant to ask for assistance. In the course of the conversation, the applicant informed her that he was also going to Dún Laoghaire and would accompany her there. She decided to go for a few drinks with the applicant at Heuston Station as a consequence of which, by the time they arrived in Dún Laoghaire the complainant had missed the ferry and the next sailing was not until the following morning. At the instigation of the applicant, they checked into a nearby hostel for the night. The complainant gave evidence that the applicant made the arrangements at the hostel and informed her there was only one room available. Both parties went up to the room for a short period and then went to a local pub, from which they returned some hours later. On returning to the hostel, the keys of the room were collected at the desk and they both went upstairs. The complainant gave evidence that as she was about to go asleep in a separate bunk, the applicant appeared naked before her, proceeded to take her clothes off, and then forced both oral, vaginal and anal sex upon her, notwithstanding violent resistance on her part. A member of staff who was working in the hostel on the night in question gave evidence of hearing shouting and screaming emanating from the room and, on entering the room was requested to contact the gardaí by the complainant who at that time was alleging that she had been raped. The gardaí were duly called and the court heard evidence from various members of the gardaí who attended at the scene. Part of that evidence included testimony from Garda Orla Cooper, who conducted a physical examination of the complainant in the bathroom of the hostel and who told the court that she observed bleeding in the region of the anus of the complainant and extensive bruising on both buttocks. However, the complainant declined to make a complaint, or to permit a formal medical examination at that stage. She also initially furnished a false name. The following morning the complainant continued her journey to England from where she returned the following day, apparently heavily under the influence of alcohol. She then made a complaint to the gardaí and was medically examined. Some bruising in and around the anal area was noted.

3 In the course of the trial, the learned trial judge acceded to an application made by the defence, pursuant to s.3 of the Criminal Law (Rape) Act,1981, to permit cross-examination of the complainant in relation to her prior sexual history.

4 At the conclusion of the case for the prosecution, counsel for the applicant indicated that he did not propose going into evidence. He then invited the learned trial judge to give the"corroboration warning" in respect of the complainant's evidence, as provided for by s. 7(1) of the Criminal Law (Rape) (Amendment) Act, 1990.

5 In the course of making this application, counsel for the applicant, Mr. John Phelan SC, advised the learned trial judge that there was agreement between the prosecution and the defence, that there was no material in the case capable of amounting to corroboration such as is required in Irish Law. This Court is not concerned with any issue as to whether such agreement was appropriate on the state of the evidence and the appeal is solely concerned with the manner in which the trial judge dealt with the application to give the warning to the jury.

The submission and ruling were as follows:-

6 Mr. Phelan: "Just to advise your Lordship, number 1, I do not propose going into evidence, my Lords; number 2, I have had this brief discussion with Mr. Comyn and I would submit in this matter that there is no corroboration in the proceedings and I would be asking your Lordship in the fullness of time to give the warning, in fact, which is discretionary of course, to the jury on the question of accurate corroboration.

7 Judge: Well, Mrs. Justice McGuinness has said that the warning is demeaning of women.

8 Mr. Phelan: Mrs. Justice McGuinness may say that, but I had a very interesting experience before the Court of Criminal Appeal two years ago, my Lord, where they took a very different view on the matter.

9 Judge: Well, if the Court...