DPP v Ferris

• Jurisdiction: Ireland
• Judge: FENNELLY J.
• Judgment Date: 10 June 2002
• Neutral Citation: 2002 WJSC-CCA 2061
• Court: Court of Criminal Appeal
• Date: 10 June 2002

2002 WJSC-CCA 2061

COURT OF CRIMINAL APPEAL

Fennelly J.

Lavan J.

Abbott J.

6/01

DPP v Ferris

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

and

WILLIAM FERRIS

Applicant

OFFENCES AGAINST THE PERSON ACT 1861 S62

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1(f)

DPP v MCGRAIL 1999 2 IR 58

STIRLAND v DPP 1944 AC 315

ELEVENTH REPORT ON EVIDENCE OF THE UK CRIMINAL LAW REVISION COMMITTEE

DPP, PEOPLE v MCGRAIL 1990 2 IR 38

CRIMINAL EVIDENCE ACT 1898

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1(f)(i)

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1(f)(ii)

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1(f)(iii)

R v ROWTON 10 COX CC 25

R v BUTTERWASSER 1948 1 KB 4

AG, PEOPLE v BOND 1966 IR 214

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7(1)

DPP v M (J E) (AKA M (S)) UNREP DENHAM 1.2.2000 2000/8/3053

DPP v WALLACE UNREP KEANE 30.4.2001

MAKANJUOLA, IN RE 1995 3 AER 730

Abstract:

Criminal law - Evidence - Corroboration warning - Character evidence - Right to fair trial - Practice and procedure - Discretion of trial judge - Whether evidence as to character of accused incorrectly admitted - Whether conviction should be quashed - Offences against the Person Act, 1861 - Criminal Justice (Evidence) Act, 1924 - Criminal Law (Rape) (Amendment) Act, 1990.

Facts: The applicant was convicted of the offence of indecent assault. The applicant brought an application seeking to quash the conviction principally on the grounds that the trial judge had incorrectly allowed evidence as to his character to be adduced by the prosecution. In addition it was argued that the trial judge had failed to direct the jury in relation to the absence of corroboration. During the trial two witnesses gave evidence on behalf of the defence. The prosecution successfully argued that this evidence constituted evidence as to the character of the applicant and thereafter adduced evidence that the Gardaí had found paedophile pornography in the applicant’s flat.

Held by the Court of Criminal Appeal (Fennelly J delivering judgment, Lavan J and Abbott J agreeing) in quashing the conviction and directing a re-trial. The only evidence which was permitted at a criminal trial was evidence that was relevant as to whether the accused had committed the act in question. The Criminal Justice (Evidence) Act, 1924 (“the 1924 Act”) provided that both an accused and the spouse were competent witnesses for the defence. The 1924 Act also provided that in certain circumstances an accused could be cross-examined as to his character. In this instance the protection afforded to the applicant under the 1924 Act had not been lost and the trial judge had wrongly permitted the applicant to be cross-examined as to his character. The trial judge had correctly exercised his discretion in not giving a corroboration warning with regard to the evidence of the complainant. The other grounds of appeal were rejected.

1 JUDGMENT of the Court delivered the 10th day of June, 2002, by FENNELLY J.

2 The applicant was convicted by a jury at Dublin Circuit Criminal Court on 15th November 2000 of 32 counts of indecent assault on a male person contrary to section 62 of the Offences against the Person Act, 1861. The offences were charged as having been committed over a period of some nine years from 1983 to 1992 against a person who was only some four years of age at the beginning of the period and thirteen years of age at the end.

3 The applicant was a friend of the parents of the complainant and a frequent visitor to their home. The offences were alleged to have occurred on weekends when the applicant, a man in his forties, took the complainant and on some occasions one or other of his two younger brothers for drives in the Dublin area. The evidence of the complainant was that the applicant would, while the car was stopped, commence by appearing to tickle him but then move his hands down to his genital area and sometimes inside his trousers. These incidents occurred on almost every drive. The appellant gave evidence and completely denied the charges.

4 The notice of appeal raises a large number of grounds. The most substantial ones concern:

5 • . the admission of evidence alleged to tend to establish the bad character of the applicant, whether pursuant to section 1(f) of the Criminal Justice (Evidence) Act, 1924("the act of 1924") or otherwise;

6 • . the failure to direct the jury on the absence of corroboration.

7 I propose to deal first with these issues and then to cover the other points in a more collective way.

CHARACTER EVIDENCE

8 The origin of this problem lies in the decision of the defence to call as witnesses two aunts of the complainant, being sisters of his deceased father. The principal reason for calling them was to ask them to explain a dispute in the family of the complainant concerning the attendance of the applicant at the funeral of his father. The first aunt, who had two children, a boy and a girl, was asked about contact between the applicant and her own children. The exchange was as follows:

Q.	Could you say whether he ever has met them when they were children?
A.	Yes, oh yes, he used to bring them out.
Q.	Yes. Have you any complaint about that?

A. No, none whatsoever.

9 The second aunt, had two girls. The evidence was as follows:

Q.	Has Mr Ferris ever been in their company alone?
A.	He has. Yes.
Q.	Yes. Have you had any difficulties or complaints about that?
A.	None at all.

10 This witness also expressed the opinion, in answer to a question, that the allegations against the applicant were untrue.

11 Arising from this evidence, counsel for the prosecution, Mr Thomas O'Connell, S.C., submitted to the trial judge in the absence of the jury that the defence had in effect given evidence of the applicant's good character and had thereby lost his shield against certain types of cross-examination. He applied for leave to call rebutting evidence and to have the applicant recalled so that he could further cross-examine him. He relied on section 1(f) of the act of 1924. He referred the trial judge to the fact that gardaí had found pornographic videos and literature, including paedophile material on a search of the applicant's flat and to statements of admission made by the applicant to the gardaí in relation thereto. Defence counsel, Mr Erwan Mill-Arden S.C., submitted that the character of the accused had not been put in issue, that the evidence in question was limited to explaining a family dispute and that, in that context, the jury would expect to hear if the two aunts had children of their own and their relations with the accused, particularly whether there were any other complaints against the accused within the family group.

12 The trial judge ruled that the defence had given evidence specifically for the purpose of the advancement of the character of the accused. The evidence of the two aunts on the point of the relations between the accused and other children was superfluous unless it was designed to put forward the good character of the accused.

13 The accused was consequently recalled by direction of the judge and cross-examined by Mr O'Connell. He admitted to the following matters:

14 • . that the gardaí had obtained a search warrant under the Customs Acts and had searched his flat;

15 • . that they had found videos and books which the accused admitted were his property;

16 • . that these depicted explicit sexual activity between young boys and men;

17 • . that the books consisted of paedophile pornography.

18 All of this was established in graphic detail which I do not find it necessary to recount.

19 In his charge to the jury, the trial judge dealt with this issue as follows:

"In the course of the evidence there was the unusual dimension to it at the end that you heard evidence being adduced from questions put to Mr Ferris about items found in his flat, items of an explicit paedophilic pornographic dimension, books and films. This evidence is called to deal with, in the broad picture, of the character of the Accused because he had called evidence suggesting that he was a person of exemplary character, particularly in the context of young children, where the two aunts, you will recall, were asked were they married, did they have young children and did Mr Ferris take them out on trips similar to that of the Farqueson children. And the answer was “Yes” and there was never a complaint, he was a man of exemplary character in that regard

The evidence of the finding of videos and of books of an explicit paedophilic pornographic nature in his apartment is there to deal with that issue and aspect of the evidence, and no more. I would ask you specifically not to borrow from it to help you come to a conclusion beyond reasonable doubt as to the facts of what occurred in the motor car. Borrow from it from the point of view of assessing the credit and character of the Accused, and no more. ....

…… the fact that he was someone who was or had a disposition to employ pornographic and paedophilic material for his entertainment might well be something that would assist you in assessing his credit in regards to his testimony and very, very definite denial of any wrongdoing on his part."

20 To avoid any possible misunderstanding, it should be emphasised that neither the court of trial nor this court has been invited to rule on the admissibility of this evidence on any basis other than the operation of the act of 1924.

21 Mr Mill-Arden submits that this evidence should not have been admitted. He says that the cases show that the prohibition in section 1(f) of the act of 1924 is absolute...