DPP v Douche
| Jurisdiction | Ireland |
| Judge | MacMenamin J. |
| Judgment Date | 20 May 2014 |
| Neutral Citation | [2014] IECCA 20 |
| Date | 20 May 2014 |
| Docket Number | [CCA No. 110/2012] |
| Court | Court of Criminal Appeal |
[2014] IECCA 20
COURT OF CRIMINAL APPEAL
MacMenamin J., Moriarty J., Herbert J.
[CCA No. 110/2012]
Criminal Law – Sexual Offences – Evidence – Corroboration – Delay – Direction to the Jury – Warning – Withdrawal of Prosecution.
Facts: The accused had been convicted by majority jury in the Central Criminal Court of six counts of indecent assault and one count of sexual assault. The offences were alleged to have occurred between 1988 and 1991 against the accused’s nephew, who was a minor at that time, in the house where the appellant lived with his mother. The appellant appealed against his conviction on the following grounds; the charge to jury regarding corroboration of evidence and delay was deficient and that the prosecution should have been withdrawn from the jury as the evidence was of a tenous nature.
Held by MacMenamin J. nem diss, that although it is not necessary for a judge to set out exactly the words he is going to use in a warning or charge to a jury regarding the corroboration of evidence, counsel should know how such a direction will be expressed as well as the reasons before issuing their closing speeches. In this case, the trial judge denied that his charge to the jury regarding corroboration was in fact a warning and MacMenamin J. higlighted that the charge given to the jury did not not explain the dangers of convicting on uncorroborated evidence or that in such instances a jury should be slower to convict.
As regards the warning given to the jury regarding delay in bringing proceedings, MacMenamin J. stipulated that in such circumstances there should be a general explanation of the dangers of delay in bringing proceedings which should be followed by the judge contextualising how such dangers affect the case being dealt with. MacMenamin J. found that although the trial judge had highlighted the dangers of delay he did not proceed to contextualise how such dangers impacted this case such as identifying that there was no suggestion of dominion which could possibly explain why there was a delay in this case.
The final point of appeal lay in the failure of the trial judge to grant a declaration at the end of the prosecution’s submissions to withdraw the case from the jury on the basis that the evidence was tenous. MacMenamin J. held however that there was sufficient evidence in the case and that the prosecution should not have been withdrawn from the jury.
Given his findings on the charge to the jury regarding corroboration and delay MacMenamin J. held that the charge to the jury was deficient, the conviction should be quashed and a re-trial should be directed.
1. The appellant was tried in the Central Criminal Court between the 23rd and 27th January, 2012, on a number of different counts involving indecent conduct towards a young male person, then a minor. He was arraigned, and pleaded not guilty to 18 counts of indecent assault, and two counts of sexual assault, alleged to have taken place on dates between the 14th October, 1988, and the 30th June, 1991. The appellant was acquitted by direction of the trial judge in respect of three counts which were the earliest in time, dating between 14th October, 1988, and 31st March, 1989. He was convicted by majority jury verdict of 10:2 in respect of four counts ranging from dates between 1st April, 1989, and 30th September, 1989, and convicted of two further counts of indecent assault on two dates between 16th February, 1990, and the 15th May, 1990. Finally, the appellant was also convicted by a majority jury verdict in respect of a single count of sexual assault committed between 1st March, 1991, and the 30th April, 1991. The appellant was acquitted by jury verdict on all remaining counts of indecent assault and sexual assault. In total, therefore, the appellant was convicted of six counts of indecent assault and one count of sexual assault. He was acquitted on 12 counts of indecent assault and one count of sexual assault.
The Background
2. The assaults are said to have taken place in a house where the appellant lived with his elderly mother. It is said that while the complainant was an adolescent, he came to stay in the house on a number of occasions and the assaults took place in the appellant’s bedroom over a number of years. No other person was resident in the house save, at one point, a visiting student from abroad.
3. The main element of the prosecution case was the testimony of a single witness, namely the complainant, Mr. D.F, who was aged 37 years at the date of trial and was the nephew of the appellant. D.F.’s evidence was not corroborated, and the matters of which he complained were alleged to have taken place some 24 years prior to the date of trial, the first complaint having been made by him to the Gardaí on 28th August, 2009. This was eighteen years after the date of the last count on which he was convicted. Upon conviction, the appellant was remanded in custody, and was sentenced on 20th March, 2012. On each of the counts of indecent assault, a sentence of eight years was imposed, with the final two years suspended; on the count of sexual assault the appellant was sentenced to a maximum sentence of five years imprisonment.
The Main Points in the Appeal
4. Three fundamental issues arise in this appeal. The first relates to the question of whether the trial judge should have given the jury a caution or warning in relation to the dangers of conviction on corroborated evidence. The second issue relates to the nature of the caution or warning which the jury should have received in relation to cases where there has been a significant lapse of time. The third issue relates to whether or not there was sufficient evidence to allow the case go to the jury. This last point is considered more briefly.
The Statutory Position
5. Section 7(1) of the Criminal Law (Rape) (Amendment) Act 1990 provides:-
“7(1) “Subject to any enactment relating to the corroboration of evidence in criminal proceedings, where at the trial on indictment of a person charged with an offence of a sexual nature evidence is given by the person in relation to whom the offence is alleged to have been committed and, by reason only of the nature of the charge, there would, but for this section be a requirement that the jury be given a warning about the danger of convicting the person on the uncorroborated evidence of that other person, it shall be for the judge to decide in his discretion having regard to all the evidence given, whether the jury should be given the warning: and accordingly any rule of law or practice by virtue of which there was such a requirement as aforesaid is hereby abolished.”
(2) If a judge decides, in his discretion, to give such a warning as aforesaid, it shall not be necessary to use any particular form of words to do so.”
The Appellant’s Submissions
6. The appellant makes a number of points. First, it is said the trial judge did not make clear, prior to the charge to the jury, whether or not it was intended to give a warning, and, if so, what the terms of the warning might be. Next, it is said that if the trial judge did decide to give a warning (a matter said to be not clear), he nonetheless failed to adequately caution the jury in relation to the dangers of convicting in the absence of corroborating evidence, having regard to all the circumstances of the case. It is then said the trial judge erred in refusing to recharge the jury in a more comprehensive manner on the issue of corroboration, having been requisitioned to do so. It is said that in this trial, the position in relation to whether or not a corroboration caution or warning had been given became confused when both counsel for the prosecution and defence believed a warning had been given, but the trial judge stated in response to requisition that no corroboration warning had been given at any stage. The appellant says that this crux led to a situation where it was unclear, both to defence and prosecution, whether there was to be a corroboration caution or warning, any indication as to the phraseology thereof, and whether or not the words which the trial judge used were sufficient to alert the jury to the necessity of the need for special care in the circumstances of the case.
7. At the closing of the prosecution case, the defence did not go into evidence. Prior to closing speeches, there is no doubt that defence counsel very fully set out his position on the need for a warning. He drew the court’s attention to the judgment of this Court in Director of Public Prosecutions v Robert Gentleman (Unreported, Court of Criminal Appeal, 25th February 2002). Counsel quoted a passage from Keane C.J.’s judgment in Gentleman, wherein can be discerned the striking resemblances between the facts of that case (where this Court concluded there had been an insufficient warning) and the circumstances of the instant case.
8. Prior to further discussion, it is important to emphasise that, as a result of the 1990 Act, a trial judge now has discretion as to whether or not to furnish a warning. As subsection (2) of the section points out, it is not necessary to use any particular form of words in giving the warning or caution, even though subsection (1) does use the terminology “ the warning”. Quite clearly, the true meaning of the section is that no specific formula of words is necessary. This does not absolve the trial judge, however, from ensuring that any such caution or warning given is sufficient and adequate in the circumstances.
Corroboration Warnings
9. Here,...
To continue reading
Request your trial
-
DPP v J.K.
...with an uncorroborated allegation of this nature’. 67 This was approved and applied in The People (Director of Public Prosecutions) v D [2014] IECCA 20. In that case, MacMenamin J. held that there was a requirement that a warning, if given, must be ‘ clear, unmistakeable and contextualised......
-
DPP v Maxwell
... ... Other cases referred to were DPP v. O'Driscoll [2017] IECA 91 and DPP v. Cash [2015] IECA 198 and DPP v. Paul McGillian [2018] IECA 62 ... 18 The respondent also relied on DPP v. Douche [2014] IECA 20 as an authority for the proposition that the adverse effect of jail on an offender's family may be a highly material consideration in sentencing and a mitigating factor ... 19 The Court has taken into account all of the authorities which have been opened to it and the views ... ...
-
DPP v C.C.
... ... Dolan [2007] IECCA 30 did not lay down a universal rule that a reasoned ruling must always be given but it is submitted that instances where a reasoned ruling would be unnecessary must be exceptional. The appellant further notes that in The People (DPP) v. Douche [2014] IECA 20 , the Court stated that the decision in relation to a warning must be “susceptible to analysis on the basis of whether it is, indeed, a decision judicially made.” ... 13 The appellant submits that no reason for refusal of the corroboration warning can be gleaned from ... ...
-
DPP v C.Ce
...was inadequate, as it contained only a reference to 'the great lapse of time'. The defence draws attention to the case of DPP v. D. [2014] IECCA 20 and the observations of MacMenamin J. that if a warning is given it must be clear, unmistakeable and contextualised. In the Court's view what ......