DPP v K.A.

JurisdictionIreland
JudgeMr. Justice Mahon
Judgment Date20 June 2018
Neutral Citation[2018] IECA 186
Docket NumberRecord No. 149/2017
CourtCourt of Appeal (Ireland)
Date20 June 2018

[2018] IECA 186

THE COURT OF APPEAL

Mahon J.

Birmingham P.

Mahon J.

Edwards J.

Record No. 149/2017

BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
- AND–
K.A.
APPELLANT

Conviction – Rape – Failure to discharge jury – Appellant seeking to appeal against conviction – Whether the trial judge erred in failing to discharge the jury after prosecuting counsel had made certain comments which were highly prejudicial to the appellant in her closing speech

Facts: The appellant appealed to the Court of Appeal against his conviction following an unanimous jury verdict of guilty on the 27th March 2017 of one count of rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981 on the grounds that the trial judge: (i) erred in that she incorrectly admitted evidence of recent complaint when same ought to have been excluded; (ii) erred in that she failed to discharge the jury after prosecuting counsel had made certain comments which were highly prejudicial to the appellant in her closing speech; (iii) incorrectly curtailed the cross examination of various prosecution witnesses on behalf of the appellant, while limiting the extent to which reference could be made to the statements of persons who were not present at trial to testify; (iv) incorrectly refused an application to withdraw the case from the jury on the basis that a real risk of unfairness/prejudice had arisen by reason of the unavailability or absence of certain key witnesses at trial; and (v) erred in fact and in law in refusing to give a corroboration warning as part of her charge to the jury.

Held by the Court that it would have been, in the particular circumstances of this case, entirely artificial to exclude the content of a 999 call simply on the basis that it was not, literally or physically, the first complaint made. The Court noted that the trial judge strongly emphasised to the jury the fact that the appellant's decision not to give evidence was his entitlement and that no significance could be attached to it. The Court held that it was appropriate that questions put to a witness in cross examination based on the content of a statement made by a person who had not, nor would be giving evidence in the course of the trial, were inadmissible where they were put in the context of evidence from that person. The Court noted that the only people who were present when the rape allegedly took place were the appellant, his co-accused and the complainant. The Court held that such evidence as might have been given by a late witness was therefore limited. Given that there was a basis for the trial judge exercising his discretion not to give a corroboration warning, the Court could not identify any basis for criticising that decision.

The Court held that, as none of the grounds of appeal succeeded, it would dismiss the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 20th day of June 2018 by Mr. Justice Mahon
1

The appellant has appealed his conviction following an unanimous jury verdict of guilty on the 27th March 2017 of one count of rape contrary to s. 48 of the Offences Against The Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) 1990. While this judgment is concerned solely with the conviction appeal, the appellant has also appealed his sentence of ten years imprisonment, with the final one year suspended, imposed on the 29th May 2017.

2

The appellant had been returned for trial with a co-accused, P.O'B. P.O'B pleaded guilty so that the trial, which commenced on the 23rd March 2017, proceeded in respect of the appellant alone. It was alleged that Ms. N. was raped by both men in Balleyphehane Park in Cork in the early hours of the morning of the 28th June 2013. It was alleged that the offence took place on a bandstand in the park in circumstances where the appellant forcibly held the complainant while she was vaginally raped by P.O'B. The offence occurred in circumstance where Ms. N. had been drinking in the park with a number of others. She became upset because her phone went missing and her handbag appeared to have been rifled. Within a short period of time all but the two accused men left. She was then forcibly held down while P.O'B raped her. Later, when the two men walked away from her she shouted after them that she intended to go to the gardaí, whereupon P.O'B threatened that he would 'kill her stone dead'. The appellant, following the incident expressed concern for Ms. N. and hugged her before leaving with P.O'B. Shortly afterwards she reported the incident to a man on a bicycle who allowed her to use his phone to contact her boyfriend. On arrival at her boyfriend's house, and on her boyfriend's advice, she contacted the gardaí. Gardaí took Ms. N. to the Sexual Assault Treatment Unit in the South Infirmary Hospital.

3

The grounds of appeal on which the appellant relies are as follows:-

(i) the learned trial judge erred in that she incorrectly admitted evidence of recent complaint when same ought to have been excluded;

(ii) the learned trial judge erred in that she failed to discharge the jury after prosecuting counsel had made certain comments which were highly prejudicial to the appellant in her closing speech;

(iii) the learned trial judge incorrectly curtailed the cross examination of various prosecution witnesses on behalf of the appellant, while limiting the extent to which reference could be made to the statements of persons who were not present at trial to testify;

(iv) the learned trial judge incorrectly refused an application to withdraw the case from the jury on the basis that a real risk of unfairness / prejudice has arisen by reason of the unavailability or absence of certain key witnesses at trial, and

(v) the learned trial judge erred in fact and in law in refusing to give a corroboration warning as part of her charge to the jury.

4

Ground (v) was not included in the original Notice of Appeal and its addition is subject to a motion for leave to add the ground of appeal. It is contended that this ground of appeal was omitted by mere inadvertence and it is pointed out that the learned trial judge had been requested to give a corroboration ruling and had refused. In these circumstances the court is prepared to permit this ground as an additional ground of appeal.

Recent complaint
5

Following the incident Ms. N. walked from the park onto the road. A cyclist, Mr. G., stopped and spoke to her. She complained to Mr. G. of what had occurred and asked him to use his phone. She telephoned her boyfriend who advised her to call the gardaí which she did. The respondent did not seek to introduce the complaint evidence made to the boyfriend. The appellant agreed to have the evidence of Mr. G. read to the jury pursuant to s. 21 of the Criminal Justice Act 1984. The content of the 999 call made to the gardaí being opened to the jury was objected to. A voir dire was held in relation to the admissibility of the content of the 999 call, and at its conclusion the learned trial judge ruled as follows:-

'The question I have to address is the complaint made by Mr Grehan on behalf of his client, two questions, first of all, the multiplicity of complaints and secondly the contention that the prosecution are cherry-picking their best complaint, so to speak. As regards the issue of multiplicity of complaints, I have no difficulty and I am perfectly satisfied that it is not prejudicial. In fact that I should phrase it this way, that is it more probative than prejudicial to allow the introduction of certainly the two complaints, that is Mr G. and the 999 call. As regards cherry-picking, I'm also satisfied that the first complaint was made to Mr G. That's perfectly admissible. And secondly, the complaint in relation to the 999 call is also absolutely admissible and highly probative evidence.'

6

In DPP v. GC [2017] IECA 43, Edwards J. in delivering the court's judgment approved and endorsed the following statement from R v. Valentine [1996] 2 Cr App R 213, as follows:-

'The authorities establish that a complaint can be recent and admissible although it may not have been made at the first opportunity that presented itself. What is the first reasonable opportunity will depend on the circumstances, including the character of the complainant and the relationship between the complainant and the person to whom she complained and the persons to whom she might have complained but did not do so. It is enough if it is the first reasonable opportunity.'

And

'We now have greater understanding that those who are the victims of sexual offences, be they male or female, often need time before they can bring themselves to tell what has been done to them, that some victims will find it impossible to complain to anyone other than a parent or member of their family, whereas others may feel it quite impossible to tell their parents or members of their family.'

7

The 999 call was made to the gardaí by Ms. N. in what might be described as the immediate aftermath of the attack on her. She made the 999 call at the prompting of her boyfriend on telling him of what had occurred to her. Both the complaint to the boyfriend and to the gardaí through the 999 call could almost be said to have been contmporaneous with the assault on Ms. N. It would have been, in the court's view, in the particular circumstances of this case, entirely artificial to exclude the content of the 999 call simply on the basis that it was not, literally or physically, the first complaint made. This ground of appeal is therefore dismissed.

Comments made by counsel for the prosecution: Failure to discharge the jury
8

In his oral submissions Mr. Grehan S.C. described this ground as his main ground of appeal.

9

It was maintained by Mr. Grehan that certain comments made by counsel for the...

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1 cases
  • DPP v K.A.
    • Ireland
    • Supreme Court
    • 12 December 2019
    ...relates only to the judgment on his appeal of the sentence ( [2019] IECA 53) and not the judgment relating to the conviction ( [2018] IECA 186). General Considerations 3 The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Artic......

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