DPP v Halligan

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 21 February 2019
• Neutral Citation: [2019] IECA 129
• Docket Number: [138/2017]
• Court: Court of Appeal (Ireland)
• Date: 21 February 2019

[2019] IECA 129

THE COURT OF APPEAL

McCarthy J.

Birmingham P.

McCarthy J.

Kennedy J.

[138/2017]

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

PETER HALLIGAN

APPELLANT

Conviction – Rape – Reasonable doubt – Appellant seeking to appeal against conviction – Whether the trial judge erred in failing to properly or adequately direct the jury on reasonable doubt

Facts: The appellant, Mr Halligan, appealed to the Court of Appeal against his conviction on the 31st of January, 2017 in the Central Criminal Court of two counts of rape contrary to s. 4 of the Criminal (Rape) (Amendment) Act. He was sentenced on the 13th of March, 2017 to eight years’ imprisonment on the first count and five on the second to run concurrently, with the final two years suspended. The appellant appealed on the grounds that the trial judge erred: (i) in failing to properly or adequately direct the jury on reasonable doubt; (ii) in failing to properly or adequately direct the jury on the issue of evidence/absence of evidence from the appellant; (iii) in failing to contextualise the requirement that no adverse inference may be drawn from the absence of evidence from the appellant at the trial by reference to the presumption of innocence; and (iv) in refusing requisitions raised by counsel on behalf of the appellant in respect of those points.

Held by the Court that, in a case where the evidence was as strong, indeed overwhelming, as it was and where the charge read as a whole was fair and balanced, the arguments advanced had not caused it to have any doubts about the satisfactory nature of the trial or safety of the verdict.

The Court held that the appeal would be dismissed on all grounds.

Appeal dismissed.

JUDGMENT of the Court delivered on the 21st day of February 2019 by Mr. Justice McCarthy

1 This is an appeal against the conviction of the appellant on the 31st of January, 2017 in the Central Criminal Court of one count of rape and another of rape contrary to s.4. of the Criminal (Rape) (Amendment) Act. He was sentenced on the 13th of March, 2017 to eight years” imprisonment on the first count and 5 on the second to run concurrently, with the final two years suspended.

2 On the 24th of July, 2014 the complainant was walking home at approximately 11 p.m. from a get-together in a friend's house in Larchville, Waterford. She was sixteen years old at the time. She had been accompanied by two friends but became separated from them as she was rushing to get home. She had stayed out later than the time permitted by her mother and feared that she would be angry with her. At a walk-way between Tramore Road and Cherrymount Estate, she was approached by the appellant from behind who grabbed and dragged her further along the walk-way. The appellant threatened to throw her into a nearby river, which put the complainant in fear. She was subjected to oral and vaginal rape. She told him that she was fourteen years old in hope that that would persuade him to stop but it did not. After the attack he told her not to tell anyone what had happened. She walked home in a distressed state and informed her mother of the rape, who immediately rang for the Gardaí. After his arrest, the appellant initially denied that anything occurred between him and the complainant and asserted that he had been chased by a man with a knife (characterised as a phantom by the prosecution) when on the road proper but later admitted that sexual activity did occur but that it was consensual. He denied that it extended to oral sex, as alleged by the complainant. He stated that the complainant approached him and initiated sex.

3 The case was a strong one. On arrest, the accused told the gardaí that he had nothing to do with the crime and that he had been chased by a man as aforesaid on the roadway, but a number of witnesses gave evidence that they had seen no such thing. Subsequently, when interviewed whilst detained for the investigation of the offence he stated that he had lied because he had a girlfriend who he did not wish to find out about what he said was a consensual sexual encounter with the complainant. However, during the interview he also said that there had been no oral sex, whereas his semen was found on a swab taken from her mouth when she was subsequently examined at a sexual assault treatment unit and swabs taken from there. Furthermore, she was found to have injuries consistent with some violent event, and accordingly consistent with what had occurred. In addition, her earrings were found on the ground. She was in a shocked state when, a short time after the crimes she reported it to her mother and of course the latter, apart from incapacity to corroborate, was a complaint consistent with her allegations made in the immediate aftermath.

4 The appellant appeals on the ground that the trial judge (Butler J.) erred:

(i) In failing to properly or adequately direct the jury on reasonable doubt;

(ii) in failing to properly or adequately direct the jury on the issue of

evidence/absence of evidence from the appellant;

(iii) in failing to contextualise the requirement that no adverse inference may be

drawn from the absence of evidence from the appellant at the trial by

reference to the presumption of innocence;

(iv) in refusing requisitions raised by counsel on behalf of the appellant in

respect of those points.

5 Grounds two and three, pertain to the manner in which the judge dealt with the fact that the accused chose not to give evidence and should be dealt with together. Ground four is effectively a complaint that the judge did not rectify his alleged errors after requisition; of course the real question is whether or not such errors exist, and hence there is no necessity to deal with that ground separately. Of course the grounds all pertain to the charge, and before we go further we think that we should emphasise that the judges” charge must be taken as a whole: authority is scarcely necessary for this proposition.

Ground One

(i) Failing to properly or adequately direct the jury on reasonable doubt.

6 We think it right in the first instance to refer to portions of the charge. It will be seen on perusal of it that the judge referred at the commencement and indeed on a number of occasions thereafter to the presumption of innocence and the onus of proof, with special reference to the fact that the onus does not shift to the accused. Specifically, with respect to the concept of reasonable doubt he had this to say: -

‘ Now, you've heard counsel mention the concept of reasonable doubt and judges and lawyers spend a lot of time trying to explain to juries what is and what is not reasonable when...