DPP v A.H.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 28 June 2022 |
| Neutral Citation | [2022] IECA 156 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 26/2021 |
[2022] IECA 156
The President
McCarthy J.
Kennedy J.
Record Number: 26/2021
THE COURT OF APPEAL
Conviction – Rape – Unfair trial – Appellant seeking to appeal against conviction – Whether the trial judge erred in law by frequently and excessively intervening during the examination and cross-examination of the appellant, and thereby disrupted and prejudiced the appellant’s evidence to such an extent so as to render the trial unfair
Facts: The appellant, on the 21st September 2020, was convicted by a jury at the Central Criminal Court, sitting in Cork, of rape contrary to s. 48 of the Offences Against the Person Act 1861, as provided for by s. 2 of the Criminal Law (Rape) Act 1981, as amended by s. 21 of the Criminal Law (Rape)(Amendment) Act 1990. The appellant appealed to the Court of Appeal against conviction on four grounds, namely: (1) that the judge erred in law and in fact in refusing the appellant’s application to rule Google Searches made by the appellant on his telephone as inadmissible in evidence; (2) that the judge erred in law in refusing to recall the jury to identify the defence case on the issue of consent, despite having been asked to do so by way of requisition; (3) that the said conviction was unsafe and unsatisfactory in that the judge erred in law in refusing the appellant’s application for a direction in the case; and (4) that the judge erred in law by frequently and excessively intervening during the examination and cross-examination of the appellant, and thereby disrupted and prejudiced the appellant’s evidence to such an extent so as to render the trial unfair.
Held by the Court that it did not consider that prolonged and frequent interventions by a judge, in and of themselves, render a trial unfair, each case must be carefully considered on its own merits and the purpose and nature of the interventions is of paramount importance. The Court held that this is because the rationale underpinning the intervention may inform the fairness or otherwise of the trial. The Court found that many of the judge’s interventions in this case were for the purpose of ensuring clarity and did not constitute interventions of a substantial nature; indeed, such interventions are entirely justified. The Court noted that certain interventions were simply for the witness to re-state his evidence; for example, it was apparent from the transcript that the appellant could not always readily be heard. The Court held that there was no doubt but that the trial judge asked incisive and probing questions, and that some of those questions were directed towards the factual issues. The Court held that he was acutely alert to the evidence given and his questions were highly relevant. The Court held that there was equally no doubt, but that the judge was acting with the very best of motives; however, the Court was concerned that the nature of the interventions taken in conjunction with the prolonged and frequent occurrence of the interventions were likely to render the trial unfair and thus render the verdict unsafe. The Court was reluctant to interfere with the discretion of a trial judge who is best placed to assess the evidence as it unfolds at trial, but it believed that the judge entered the arena to too great a degree, notwithstanding that he did so with the best of motives, such interventions may have given the impression that the judge was, in effect, cross-examining the appellant. The Court reiterated that frequent or prolonged interventions would not necessarily give rise to an unfair trial; it is the nature and character of the interventions which is the significant issue.
The Court held that it would quash the conviction and hear submissions on a re-trial.
Appeal allowed.
JUDGMENT of the Court delivered on the 28th day of June 2022 by Ms. Justice Isobel Kennedy.
This is an appeal against conviction. On the 21st September 2020, the appellant was convicted by a jury at the Central Criminal Court, sitting in Cork, of rape contrary to section 48 of the Offences Against the Person Act, 1861, as provided for by section 2 of the Criminal Law (Rape) Act, 1981, as amended by section 21 of the Criminal Law (Rape)(Amendment) Act, 1990.
On the evening of the 26th August 2017, the complainant went to a restaurant with her parents and aunt. After dinner, the party went to a pub and met up with the appellant and others. The appellant is the partner of the complainant's aunt.
The evidence adduced was that, at approximately 2am, the party returned to the apartment where the complainant's aunt lived with the appellant. Further alcohol was consumed there and the complainant is said to have fallen asleep in a chair in the living room.
Circa 4am, the complainant's parents left the apartment to go home and it was agreed that the complainant would stay with her aunt in the apartment.
At approximately 5am, the appellant and his partner went to bed, some point thereafter, the appellant left his own bedroom and entered the spare bedroom which the complainant was using. At this point, two different versions of events emerge.
On the appellant's version of events; he entered the spare bedroom to use the en-suite bathroom and the complainant was awake in the bed. He said that after coming out of the bathroom, he sat on the end of the bed and that the complainant held his hand and began kissing him and rubbing his penis. He said that she was fully-clothed at this point but that she assisted him in removing her clothes. The appellant's evidence is that he then asked the complainant whether she was on the pill, she answered affirmatively and then he engaged in consensual sex with her, during which he ejaculated.
On the complainant's version of events, she was asleep and woke to find the appellant on top of her, penetrating her. She recalled him asking her whether she was on the pill but that this occurred during or after the penetration taking place. She recalled answering in the affirmative. It is her evidence that the appellant then told her not to tell anyone.
Later that morning the complainant was driven home by the appellant. It is the complainant's evidence that in the car she pretended that she didn't remember what had happened the night before but that shortly after she returned home she told her mother that she thought the appellant had raped her. The complainant was then taken to the Garda Station and from there to the Sexual Assault Treatment Unit where she was seen by a Dr. Cremin.
On the evening of the 27th of August, Gardaí attended at the appellant's apartment with a search warrant. They spoke to the appellant under caution and the Garda Sergeant made notes of the conversation. The appellant informed him of the matters set out at para. 6 above.
The appellant appeals his conviction on four grounds, namely;
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1. That the judge erred in law and in fact in refusing the appellant's application to rule Google Searches made by the appellant on his telephone as inadmissible in evidence.
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2. That the judge erred in law in refusing to recall the jury to identify the defence case on the issue of consent, despite having been asked to do so by way of requisition.
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3. That the said conviction is unsafe and unsatisfactory in that the judge erred in law in refusing the appellant's application for a direction in the case.
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4. That the judge erred in law by frequently and excessively intervening during the examination and cross-examination of the appellant, and thereby disrupted and prejudiced the appellant's evidence to such an extent so as to render the trial unfair.
As regards this, the fourth ground of appeal, it is stated that throughout the course of the appellant's evidence, the trial judge intervened excessively. It is submitted that during the examination-in-chief and cross-examination, the judge asked in excess of 40 questions.
The appellant contends that if interruptions during the examination of a witness are overly frequent in nature, they may render a fair trial impossible. R v Clewer (1953) 37 Cr App R 37 is cited in support of this of this proposition. It is also noted that in Jones v National Coal Board [1957] 2 QB 55, both sides successfully appealed to the Court of Appeal on the ground that the constant interruptions of counsel by the trial judge during examination and cross-examination of a witness rendered the trial unfair.
Moreover, it is said that the foregoing decision was approved in the well-known Irish decision of The People (DPP) v McGuinness [1978] IR 189 in which an appeal against conviction was successful where there were excessive interventions by the trial judge in cross-examination of the complainant. The court in that case also observed that active participation by a judge in the examination-in-chief of witnesses is undesirable due to the perception of impartiality on the part of the trial judge which might arise.
The case of Peter Farrelly v District Judge Anne Watkin [2015] IEHC 117 is cited as authority for the contention that the interventions of a trial judge must not go beyond seeking clarification and ensuring the impartiality of the trial. Similarly, quotation is made from the recent case of Konadu v DPP [2018] IEHC 72 wherein it was noted that the judge must “rigorously” avoid the possibility that interventions might yield the belief that he or she has taken a particular view of a witness. Reference is also made to the case of The People (DPP) v DC [2019] IECA 367 in which Edwards J. quoted a passage from R v Inns [2018] EWCA Crim 1081 with approval.
It is contended that the trial judge in the instant case failed to “rigorously” avoid the possibility that his interventions might...
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