DPP v GK

• Jurisdiction: Ireland
• Judge: Mr. Justice Kearns
• Judgment Date: 05 July 2006
• Neutral Citation: [2006] IECCA 99
• Date: 05 July 2006
• Court: Court of Criminal Appeal
• Docket Number: [C.C.A. No. 76 of 2005]

[2006] IECCA 99

THE COURT OF CRIMINAL APPEAL

Kearns J.

Budd J.

Gilligan J.

[76/05]

DPP v K (G)

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

G.K.

APPLICANT

CRIMINAL LAW:

Sexual offences

Evidence - Previous sexual history - Re-trial - Evidence revealed at sentencing stage following first conviction - Victim impact report - Application for leave to cross examine - Statutory test for ruling on application - Impression conveyed by medical evidence - Corroboration - Whether sexual history evidence could have materially affected jury's deliberations - Whether jury would have been satisfied beyond reasonable doubt of guilt of applicant - Criminal Law(Rape) Act 1981 (No 10), ss 1 and 3 - Criminal Law (Rape) (Amendment) Act 1990 (No 32), ss 12 and 13 - Conviction quashed, no retrial ordered (76/2005 - CCA -5/7/2006) [2006] IECCA 99 People (DPP) v K(G)

Facts: The applicant applied for leave to appeal against convictions for offences of a sexual nature. The trial was the third trial. This judgment was directed to the ground of appeal founded upon the trial judge's refusal to allow cross-examination of the complainant in respect of a matter which emerged in a victim impact report at the sentencing hearing following the second trial. Specifically, the report disclosed that the complainant had been sexually active with boys during the years when she alleged she was abused by the applicant. The defence was totally unaware of these activities until the report was produced.

Held by the Court of Criminal Appeal in quashing the conviction and not directing a re-trial that the ruling not to permit a limited and carefully monitored form of cross-examination of the complainant was unfair to the applicant in that the history in question could have materially affected the jury's deliberations whether to find him guilty or not guilty.

Reporter: R.W.

1 Mr. Justice Kearns on the 5th day of July, 2006.

2 This is an application for leave to appeal brought by the applicant from various convictions of a sexual nature brought in by a jury on the 3 ^rd March, 2005 following a trial in the Central Criminal Court. On that date the applicant was convicted of various sexual offences perpetrated against the complainant, L.S., between the years 1991 - 1997. The complainant was born on the 18 ^th April, 1981, and was nearly 24 years of age at the time of trial. She was aged between ten and fifteen years during the years when the offences occurred. The applicant had been charged with one count of indecent assault under s. 10 of the Criminal Law (Rape) Act, 1981(in respect of which he was found not guilty), four counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) Amendment Act, 1990 (in respect of all of which he was found guilty), three counts of unlawful carnal knowledge contrary to s. 1(1) of the Criminal Law Amendment Act, 1935 (in respect of one of which he was found guilty and in respect of two of which the jury disagreed), one count of unlawful carnal knowledge contrary to s. 2(1) of the Criminal Law Amendment Act, 1935 (in respect of which he was found guilty) and three counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990 (in respect of two of which he was found guilty and in respect of one of which he was found not guilty).

3 The trial in the Central Criminal Court in February, 2005 was the third trial to which the applicant was subjected arising out of the offences in question. In the first trial, the jury failed to agree a verdict on any count. At his subsequent re-trial, the applicant was convicted on a number of counts but appealed his conviction on various grounds, one of which was that he was entitled for the purpose of the second trial to have had a transcript of the proceedings in the first trial. There were other grounds of appeal, but as this Court allowed the appeal in respect of the trial court's refusal to direct the provision of a transcript, those other grounds were not the subject matter of any ruling.

4 In the course of the third trial, the subject of this appeal, the applicant gave evidence in which he strenuously denied any improper or inappropriate sexual contact with the complainant, but was nonetheless convicted on eight counts as outlined above. He was sentenced to eight years imprisonment in respect of the more serious offences, with shorter periods of imprisonment for the less serious offences, all such sentences to run concurrently. The Court was informed during the course of the hearing of this appeal that the applicant has to date spent approximately three and a half years in prison on foot of his various convictions arising out of these offences.

5 While a number of grounds were argued in the course of this appeal, this judgment is directed to the ground of appeal founded upon the learned trial judge's refusal to allow cross-examination of the complainant in respect of a matter which emerged only at the sentencing hearing which followed the second trial. The development was, to say the least of it, both unexpected and unusual.

6 Following the conviction of the applicant at the second trial, a Victim Impact Report was prepared for the sentencing hearing by a clinical psychologist who had counselled the complainant after she had reported the incidents of sexual abuse to the Gardai. The complainant participated in ten sessions with the psychologist between August, 1998 and January, 1999, with a final assessment taking place in January, 2000. The psychologist's report, which was prepared and furnished for sentencing purposes in February, 2000, indicated that the complainant had in the course of her therapy disclosed that she "became sexually active with boys when she was twelve years old". In her report the psychologist did not indicate whether this disclosure was made during one of the ten sessions referred to or in the final assessment in January, 2000. It was the psychologist's opinion that the disclosed behaviour was explicable by reference to the early sexualisation of the complainant as a result of her abuse by the applicant. In the course of her report, the psychologist stated as follows:-

"In L.S.'s case, traumatic sexualisation has been a feature of her early adolescence. Traumatic sexualisation refers to distorted ideas and behaviours regarding sexuality which are caused by sexual abuse. As the child's first sexual experience happens in a distorted and inappropriate way, at a time of immature development, inappropriate sexual behaviours can result. In L.S.'s case, already sexualised by her abuse at the age of 8 and 9 years, she became sexually active with boys when she was 12 years old. In this psychologist's opinion and in line with the research, this was a direct effect of having sexual behaviour imposed on her as a child. While L. had no control as a young adolescent, she became aware that this behaviour was abnormal and a way of helping her feel powerful. Fortunately, she took control of this aspect of traumatic sexualisation and no longer engages in inappropriate sexual behaviours."

7 The psychologist also noted that the complainant "is able to discuss her abuse openly and has never shown avoidance or an inability to examine her abuse in detail while in therapy."

8 The importance of the disclosure of sexual activities with other boys lies in the fact that the defence were completely unaware of these activities until the report was produced at the sentencing hearing which followed the second trial. It is unclear whether prior to this report the Gardai were aware of the fact that the complainant was engaging in inappropriate sexual activity with other boys during some of the years, notably from age twelve onwards, when she stated she was being abused by the appellant. It would be a matter of some concern if they were and made no further inquiries arising therefrom.

9 It certainly seems that no further steps were taken by the Gardai between the second and third trials to investigate further the complainant's disclosure. There was no information either as to the name or names of the boys concerned or any indication as to how long these activities continued or when they ceased.

10 A physical examination of the complainant in September, 1997, some six months after she had made complaint to the Gardai, revealed that the complainant's hymen was broken and evidence to this effect was given by a doctor, Dr Grainne Courtney, retained by the prosecution for the purpose of carrying out such examination, at the third trial. However, it seems the complainant made no reference during the course of this examination to any prior sexual activities with other boys. The importance of this evidence will be referred to later.

11 Before any evidence had been given in the most recent trial, Patrick McCarthy, senior counsel for the applicant, sought a ruling from the trial judge that he be given leave to cross-examine the complainant arising out of the disclosures made by the complainant to the psychologist. The application was framed as follows:-

"It was canvassed by the gardaí in a second interview (i.e., with the appellant) as to why the complainant would be making a complaint of this nature of sexual assault and rape. My client said he did not know, was she pregnant and did she have other boyfriends, but he did not know. That previous sexual history was not pursued in the absence of information because we had no information to give an explanation to the jury as to why she would be making that complaint."

12 Mr McCarthy argued that the revelation in the Victim Impact Report provided an explanation as to why the complainant might have made a false complaint against the applicant and it was a matter which the jury were...