DPP v Jem

JurisdictionIreland
JudgeMrs. Justice Denham
Judgment Date01 February 2000
Neutral Citation2000 WJSC-CCA 3053
Date01 February 2000
Docket Number28/98,[C.C.A.
CourtCourt of Criminal Appeal
DPP v. M(JE)(AKA M(S))

BETWEEN

THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)
v.
J.E. M. (aka S.M.)
APPLICANT

2000 WJSC-CCA 3053

Denham J.

Geoghegan J.

McGuinnness J.

No. 28/98

THE COURT OF CRIMINAL APPEAL

Synopsis

Criminal Law

Criminal; sexual assault; corroboration; applicant had been convicted of sexual assault; applicant seeking leave to appeal against conviction and sentence on grounds, inter alia, that the trial judge had failed to warn the jury that it was dangerous to convict in the absence of corroboration; whether the trial judge erred in principle or failed to balance fairly the conflicting rights in the case in refusing to recall the prosecutrix for cross-examination; whether there was any basis on which the court could interfere with the exercise of the trial judge's discretion in refusing to discharge the jury during the evidence of a prosecution witness; whether there was any basis on which the court could interfere with the trial judge's exercise of discretion in refusing in his summing up to give the jury a warning that it was dangerous for them to convict the applicant in the absence of corroboration; s.7, Criminal Law (Rape) (Amendment) Act, 1990.

Held: Leave to appeal against conviction refused; application for leave to appeal against sentence may proceed.

D.P.P v. M (J E) - CCA: Denham J., Geoghegan J., McGuinness J. - 01/02/2000 - [2001] 4 IR 385

A jury at Sligo Circuit Court convicted the applicant on four counts of sexual assault on a fifteen year old girl. The applicant was sentenced to two years imprisonment on each count, the sentences to run concurrently. In his application for leave to appeal against conviction it was contended that the trial judge wrongly refused to give the jury a warning regarding the lack of corroboration evidence. In addition it was contended that the trial judge wrongly refused the application of counsel for the applicant that the prosecutrix be recalled to be cross-examined. The court refused the application and held that section 7 of the Criminal Law (Rape) (Amendment) Act 1990 did not make the corroboration warning mandatory in all cases. The issuing of such a warning was at the discretion the trial judge after having considered all the evidence. The trial judge did not err in principle or fail to balance fairly the rights of the applicant in refusing to recall the prosecutrix to be cross-examined on matters requested by counsel for the applicant.

Citations:

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2

DPP, PEOPLE V HEALY 1990 1 IR 388, 3 FREWEN 188

O'LEARY V AG 1995 1 IR 254, 1995 2 ILRM 259

R V SAWYER 1980 71 CAR 283

DPP, PEOPLE V M (MJ) UNREP CCA 28.7.1995

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7

DPP, PEOPLE V REID 1993 2 IR 186

DPP, PEOPLE V C (J) UNREP CCA EX-TEMP 7.11.1994

DPP, PEOPLE V MURPHY CCA EX-TEMP 3.11.1997

CRIMINAL JUSTICE (PUBLIC ORDER) ACT 1994 S32

MAKANJUOLA, IN RE 1995 3 AER 730

ASSOCIATION PROVINCIAL PICTURE HOUSES LTD V WEDNESBURY CORP 1947 2 AER 680

1

Judgment of the Court delivered by Mrs. Justice Denham on the 1st day of February, 2000.

2

This is an application for leave to appeal against conviction and sentence after a nine day trial before his Honour Judge White at Sligo Circuit Court at which the applicant was found guilty on each of four counts on an indictment of sexual assault on a fifteen year old girl on two dates being 9th August, 1995 and 13th August, 1995.

3

The indictment charged:

Count No. 1

Statement of Offence

Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990.

Particulars of Offence

J.E.M. (aka S.M.) a male person on the 9th August, 1995 at K— within the County of––sexually assaulted [A.C.] a female person.

Court No. 2

Statement of Offence

Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990.

Particulars of Offence

J.E.M. (aka S.M.) a male person on the 9th August, 1995 at S— within the County of––sexually assaulted [A.C.] a female person.

Court No. 3

Statement of Offence

Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act,. 1990.

Particulars of Offence

J.E.M. (aka S.M.) a male person on the 13th August, 1995 at K— within the County of––sexually assaulted [A.C.] a female person.

Court No. 4

Statement of Offence

Sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990.

Particulars of Offence

J.E.M. (aka S.M.) a male person on the 13th August, 1995 in the sitting room of his dwellinghouse at K— within the County of––sexually assaulted [A.C.] a female person.

4

The applicant pleaded not guilty to the offences set out in the indictment. He was tried before a judge and jury and found guilty on all four counts by a jury. The applicant was sentenced to:

5

(i) 2 years imprisonment on Count No. 1

6

(ii) 2 years imprisonment on Count No. 2 and which said sentence of imprisonment is to run concurrently with sentence imposed on Count No. 1.

7

(iii) 2 years imprisonment on Count No. 4 consecutive to sentence imposed on Count No. 1.

8

(iv) 2 years imprisonment on Court No. 3 concurrent with sentence imposed on Count No. 4.

9

The grounds of appeal are:

10

(1) That the verdict of the jury was against the evidence and the weight of the evidence.

11

(2) That the learned trial judge wrongly refused the application of counsel for the accused that the prosecutrix be recalled in order to be cross examined on two matters which she had given in evidence at the first trial herein.

12

(3) That the learned trial judge wrongly refused to discharge the jury during the evidence of a prosecution witness Mrs. O'C.

13

(4) That the learned trial judge wrongly refused to discharge the jury when counsel for defence applied for him to do so on Tuesday morning, 27th day of January, 1998.

14

(5) That the learned trial judge in his summing up declined to give the jury the warning that it was dangerous to convict in the absence of corroboration.

15

(6) That the learned trial judge did not properly or adequately direct the jury in regard to corroboration and in particular erred in telling the jury that counsel for the accused in his closing speech to the jury was wrong when he (counsel) told the jury that there was a rule of law that it was dangerous to convict in the absence of corroboration in a trial for a sexual offence.

16

(7) That by reason of the said matters the trial was rendered unsatisfactory.

17

(8) That the sentence imposed was in all circumstances excessive.

18

Mr. Seamus Sorohan, S.C., counsel on behalf of the applicant, stated that he would not be arguing ground number 4 and that grounds number 5 and 6 would be taken together. The application as to the sentences was adjourned. Thus, the case proceeded as an application in relation to grounds number 1,2,3,5 and 6 together, and 7.

19

The first ground, that the verdict of the jury was against the evidence and the weight of the evidence is a general ground of appeal. It may best be assessed in the overall context of the appeal. Consequently it is a matter for determination at the conclusion of consideration of the specific grounds of appeal.

20

Counsel submitted, on the second ground, that the learned trial judge wrongly refused the application that the prosecutrix be recalled in order to be cross-examined on two matters on which she had given evidence in the first trial. Mr. Sorohan, S.C., described how it is difficult to cross-examine girls in cases of this type, that he proceeded in a manner which was courteous, and sought to leave her with her dignity. He referred to Volume D, pages 3 to 5 and Volume H, page 2 of the transcript of the trial. Volume D, pages 3 to 5 relate to the 16th January, 1998. On that date the transcript relates:

"JUDGE: Exactly. Mr. Sorohan, do you have any other application to make?"

21

MR. SOROHAN: Yes. I have, with great temerity, to ask if you[r] lordship would consider, perhaps with understandable reluctance on your part, to consider asking the young lady to come back to the box for two or three very short matters, which I didn't put to her because I felt a bit hurried yesterday, and I didn't realise at the time that I should have put to her. They are very short matters, my lord, and she shouldn't be in the witness box for more than three or four minutes.

22

JUDGE: Is this rebuttal evidence?

23

MR. SOROHAN: No my lord, it is not purely that; it is something that was said in her evidence at the first trial.

24

JUDGE: What are the matters you want to put?

25

MR. SOROHAN: It is a matter of something she swore to, which I completely forgot yesterday in my hurry to sit down. There is a matter of a trip to C...., where she met the accused man. That is about it, I think, my lord. Oh, it is where he drove her home on one occasion before this incident; that is all it is.

26

JUDGE: I am very reluctant to recall this witness. Clearly what I will do in this case, in relation to the normal position of where evidence is going to be adduced by a witness, called by you, it would be normal for it to be put to the witness, but in the light of the two matters you have suggested, I will keep the matter open. If Miss C. has to be recalled, I will, but Miss C. gave evidence at length on the 14th and 15th of January. She was cross-examined at length. Great latitude was given in that cross-examination and it was a considerable ordeal for her. I certainly would not be anxious that she be recalled.

27

MR. SOROHAN: Well I feel, my lord, that in all the circumstances, if I could put one matter to her only, if you allowed her to be recalled now; it will be extremely short. It is something that she swore to at the first trial, which is nothing to do with the...

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