DPP v Ferris

JurisdictionIreland
CourtCourt of Criminal Appeal
Judgment Date10 Jun 2002
Docket Number[C.C.A. No. 6 of 2001]

Court of Criminal Appeal

[C.C.A. No. 6 of 2001]
The People (Director of Public Prosecutions) v. Ferris
The People (at the suit of the Director of Public Prosecutions)
Prosecutor
and
William Ferris
Accused

Cases mentioned in this report:-

Maxwell v. Director of Public ProsecutionsELRUNK [1935] 1 A.C. 309; [1934] All E.R. 168; (1934) 24 Ca. App. Rep. 152.

The People (Attorney General) v. BondIR [1966] I.R. 214.

The People (Director of Public Prosecutions) v. J.E.M.IR [2001] 4 I.R. 385.

The People (Director of Public Prosecutions) v. McGrailIR [1990] 2 I.R. 38.

The People (Director of Public Prosecutions) v. Wallace (Unreported, Court of Criminal Appeal, 30th April, 2001).

Rex. v. ButterwasserELRUNK [1948] 1 K.B. 4; [1947] 2 All E.R. 415.

Regina v. MakanjuolaWLRUNK [1995] 1 W.L.R. 1348; [1995] 3 All E.R. 730.

R. v. RowtonENRENR (1865) Le. & Ca. 520; 10 Cox 25.

Stirland v. Director of Public ProsecutionsELRUNK [1944] A.C. 315; [1944] 2 All E.R. 13.

Criminal law - Evidence - Character of accused - Cross-examination of accused - Evidence of accused's character given by defence witness other than accused - Whether accused loses protection - Whether character evidence admissible - Whether permissible for accused to be cross-examined on such evidence - Criminal Justice (Evidence) Act 1924 (No. 37), s. 1(f)(ii).

Criminal law - Evidence - Corroboration - Sexual offences - Failure of trial judge to charge jury on danger of conviction in absence of corroboration - Jury informed of decision by prosecution - Whether proper for prosecution to address jury on such issue - Criminal Law (Rape) (Amendment) Act 1990 (No. 32), s. 7.

Criminal appeal

The facts have been summarised in the headnote and are more fully set out in the judgment of the Court of Criminal Appeal delivered by Fennelly J., infra.

On the 15th November, 2000, in Dublin Circuit Criminal Court (Judge McCartan and a jury), the accused was convicted of 32 counts of indecent assault on a male person contrary to s. 62 of the Offences against the Person Act 1861 and was sentenced to three years imprisonment.

By application dated the 2nd January, 2001, the accused sought leave to appeal against the refusal for leave to appeal.

The matter came before the Court of Criminal Appeal (Fennelly, Lavan and Abbott JJ.) on the 29th April, 2002, where the application for leave was treated as the hearing of the appeal.

Section 1(f)(ii) of the Criminal Justice (Evidence) Act 1924 provides:-

"a person charged and called as a witness in pursuance of this Act shall not be asked, and if asked shall not be required to answer, any question tending to show that he has committed or been convicted of or been charged with any offence other than that wherewith he is then charged, or is of bad character, unless:-

(ii) he has personally or by his advocate asked questions of the witnesses for the prosecution with a view to establish his own good character, or has given evidence of his good character, or the nature or conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution."

The accused was convicted of indecent assault on a male person contrary to s. 62 of the Offences against the Person Act 1861. At his trial, counsel for the accused called two aunts of the complainant as witnesses. In the course of their direct examination, both witnesses gave evidence that the accused had spent time alone in the company of their own respective children, that no complaint regarding his conduct to them had ever been received and that they believed the allegations which had been made against him were untrue.

The trial judge held that the defence had, in effect, given evidence with a view to establishing the accused's good character and that the accused had, therefore, lost the protection afforded to witnesses by s. 1(f) of the Act of 1924. The accused was recalled to enable this evidence to be challenged by way of cross-examination. In the course of cross-examination, the accused made certain prejudicial admissions which his counsel argued should not have been admitted.

The trial judge exercised his discretion pursuant to s. 7 of the Criminal Law (Rape)(Amendment) Act 1990 not to charge the jury in relation to corroboration and, during the prosecution summing up, this decision and the reasons for it were explained to the jury. The accused submitted that a warning on corroboration should have been given and that if no warning was being given, the jury would have been confused by the prosecution in its address to them.

Held by the Court of Criminal Appeal (Fennelly, Lavan and Abbott JJ.), in allowing the appeal and ordering a re-trial, 1, that, where evidence was given by a defence witness other than the accused as to the accused's good character, it was not permissible for the prosecution to introduce rebuttal evidence by way of cross-examination of the accused. It was only where the accused himself gave evidence as to his own good character, that he would lose the protection afforded to him by s. 1(f) of the Act of 1924.

Maxwell v. Director of Public ProsecutionsELR [1935] 1 A.C. 309 approved.

2. That, although the prosecution did maintain the right to call witnesses to rebut defence evidence of good character, it was doubtful whether the nature of the evidence as elicited in cross-examination would have been admissible in the form given in this case. Rebuttal evidence should only contradict evidence of an accused's good character and should not imply any disposition to commit the offence in question.

The People (Attorney General) v. BondIR [1966] I.R. 214 considered. R. v. RowtonENR (1865) Le. & Ca. 520 approved. Stirland v. Director of Public ProsecutionsELR [1944] A.C. 315 not followed.

3. That the discretion of the trial judge whether or not to address the jury on the question of corroboration should be interfered with only if it appeared that the decision was made upon an incorrect legal basis or was clearly wrong in fact.

The People (Director of Public Prosecutions) v. J.E.M.IR [2001] 4 I.R. 385 and The People (Director of Public Prosecutions) v. Wallace (Unreported, Court of Criminal Appeal, 30th April, 2001) considered. Regina v. MakanjuolaWLR [1995] 1 W.L.R. 1348 approved.

4. That informing the jury of the trial judge's decision not to address them on corroboration was both unnecessary and confusing and was a departure from desirable practice. Such remarks however, on their own, would have been insufficient to warrant the setting aside of the conviction.

Cur. adv. vult.

In accordance with the provisions of s. 28 of the Courts of Justice Act 1924, the judgment of the court was delivered by a single member.

Fennelly J.

10th June, 2002

The accused was convicted by a jury at the Dublin Circuit Criminal Court on the 15th November, 2000, of 32 counts of indecent assault on a male person contrary to s. 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.

The accused 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 accused, a man in his fifties, 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 accused 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 accused gave evidence and completely denied the charges.

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

· the admission of evidence alleged to tend to establish the bad character of the accused, whether pursuant to s. 1(f) of the Criminal Justice (Evidence) Act 1924 ("the Act of 1924") or otherwise;

· the failure to direct the jury on the absence of corroboration.

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

Character evidence

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...

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