DPP v K.McD.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 11 July 2022 |
| Neutral Citation | [2022] IECA 186 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 217/19 |
[2022] IECA 186
Edwards J.
McCarthy J.
Kennedy J.
Record Number: 217/19
THE COURT OF APPEAL
Conviction – Sexual offences – Corroboration warning – Appellant seeking to appeal against conviction – Whether the trial judge was correct to refuse the appellant’s application for a corroboration warning
Facts: The appellant, on the 30th July 2019, was convicted 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; two counts of indecent assault contrary to s. 10 of the 1981 Act; and two counts of sexual assault. An effective sentence of seven years was imposed on the 21st October 2019. The appellant appealed to the Court of Appeal against conviction. The appellant relied on five grounds of appeal, as follows: (1) it was said that there was a failure of the trial court to ensure a fair trial, as a result of constant interruptions from the bench during the cross-examination of the complainant and this included a complaint as to a comment to both the complainant and the jury that counsel for the accused was simply cross-examining on the basis of accusing the complainant of “making it up”; (2) there was a complaint that the trial judge, despite the fact that cross-examination of the complainant had been completed, amended the indictment, where re-cross-examination would have been futile; (3) linked with ground 2 above, there was a complaint in relation to the decision of the court to amend the indictment, in the circumstances of “the extreme age of the case”, where the appellant was unable to rely on alibi evidence “where the allegations kept changing, in time”; (4) there was a complaint in relation to the refusal of the trial judge to give a corroboration warning; and (5) issue was taken with the trial judge’s refusal to avoid informing the jury that the complainant had travelled from Australia in order for the case to be prosecuted, in circumstances where the allegations took place between 27 and 32 years before the trial.
Held by the Court that it did not consider that the interventions by the judge rendered the trial unfair; the interventions were for the purpose of achieving clarity, removing ambiguity and ensuring that the witness understood the questions asked. The Court held that the trial judge properly amended the indictment and carefully considered the matter; in addition, he acceded to the defence request to inform the jury of the amendment during the appellant’s evidence-in-chief. The Court was satisfied that no injustice was caused to the appellant. The Court held that the fact that the case was an old one, coupled with the absence of corroboration did not necessarily give rise to the requirement for a corroboration warning. It was apparent to the Court that the trial judge was conscious of the fact that he had a discretion and he carefully and conscientiously exercised that discretion. The Court saw no basis for interfering with same. The Court held that the judge gave the usual legal directions to the jury in his charge and advised the jury that the fact that the complainant came from Australia and made a statement was not evidence which verified the content of her statement. The Court held that the matter complained of provided background information regarding the complainant as to her current residence and occupation. The Court held that whilst it could be said that the evidence was of little relevance, it could not be said that it was prejudicial.
The Court held that, having rejected all grounds of appeal, the appeal would be dismissed.
Appeal dismissed.
JUDGMENT of the Court delivered on the 11th day of July 2022 by Ms. Justice Isobel Kennedy.
This is an appeal against conviction. On the 30th July 2019, the appellant was convicted 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; two counts of indecent assault contrary to s. 10 of the Criminal Law (Rape) Act, 1981; and two counts of sexual assault. An effective sentence of seven years was imposed on the 21st October 2019. This appeal is one against conviction only.
The appellant in this case, KMcD, was convicted of five counts of certain sexual offences in respect of the complainant, AR, who was the younger sister of the appellant's long-term partner. The offences in question took place on various dates between 1987 and 1994, when the complainant was aged between seven and fourteen years old. AR gave evidence during trial as to the events which occurred during her childhood.
AR described being indecently assaulted and later raped by the appellant in the bedroom she shared with a third sister, while she was between the ages of seven and eight. She further described a later indecent assault, which occurred when she had moved into a room usually occupied by a fourth sister, while the latter was living abroad between 1989 and 1990. During this period, the complainant made a disclosure about the events to her cousin.
In 1990, the appellant and his partner moved in together, and their first child was born. The complainant described babysitting the appellant's children on a number of occasions, and being sexually assaulted by the appellant while staying over at his house. She described another incident of sexual assault occurring outside the family home between 1992 and 1994.
The appellant now relies on five grounds of appeal, as follows:
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1. It is said there was a failure of the trial court to ensure a fair trial, as a result of constant interruptions from the bench during the cross-examination of the complainant. This includes complaint as to a comment to both the complainant and the jury that counsel for the accused was simply cross-examining on the basis of accusing the complainant of “making it up.”
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2. There is a complaint that the trial judge, despite the fact that cross-examination of the complainant had been completed, amended the indictment, where re-cross-examination would have been futile and;
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3. Linked with ground 2 above, there is a complaint in relation to the decision of the court to amend the indictment, in the circumstances of “the extreme age of the case”, where the appellant was unable to rely on alibi evidence “where the allegations kept changing, in time.”
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4. There is complaint in relation to the refusal of the trial judge to give a corroboration warning.
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5. Issue is taken with the trial judge's refusal to avoid informing the jury that the complainant had travelled from Australia in order for the case to be prosecuted, in circumstances where the allegations took place between 27 and 32 years before the trial.
The above grounds can be more aptly placed under five headings, considered below.
It is said that the trial judge “entered the arena” during cross-examination of the complainant more than was necessary, including by interpreting questions by counsel. In particular, issue is taken with the judge's interpretation of certain questions, which were to the effect that counsel was suggesting that AR was fabricating her evidence. The appellant refers to certain clarifications that the judge requested of defence counsel on Days 2 and 3 of the trial. Moreover, it is said that the judge intervened excessively in the complainant's direct testimony.
On behalf of the Director, it is said that the interruptions of the judge were “with a view to clarifying points of detail” and, moreover, that the interventions were not confined to cross-examination, but also occurred during direct evidence. It is accepted by the Director that the trial judge did intervene “on many occasions, quite often.” It is noted, however, that at no point during the trial was this issue raised, and moreover, at certain points, defence counsel thanked the trial judge for his interventions.
In relation to the particular issue of the judge interpreting defence counsel's questions as suggesting that the complainant was “making up” the allegations, the following exchange took place in cross-examination:
“Q. […] And I'm putting it to you that you're saying that the period is much, much shorter than in fact it was to get over the difficulty of what you say in your statement about where you say you were sexually attacked?
A: I'm sorry, I don't understand your question.
Q: I'm saying to you that you are now saying to the Court that you only spent two weeks with [brother M] in the room, in the — what I've just called the nursery bedroom because you want to make out that you were sexually interfered with in room seven?
JUDGE: I'm not clear —
A: I still don't understand your question. I'm sorry, Judge.
Q. Very good. I'll ask the question a different way.
JUDGE: What counsel is putting to you is that you're making it up. That's — that's the essence of what he's putting to you, and I want to —
A: No, that's not true.
JUDGE: I see.
Q. Well, Judge, you really got to the essence of the question. […]”
At another point on the same day, the following exchange took place:
“Q. And if they went to take the soiled clothes out of the basket in the bathroom, wouldn't they have absolutely, with certainty, noticed a pair of your knickers that had blood on them, and also ejaculation?
Mr Delaney: Well, sorry, I don't think the witness said – –
Judge: Well, the witness has – –
Mr Delaney: Yes.
Judge: There has been no evidence that somebody has ejaculated, that I recall, in relation to matters. The witness has simply given evidence that she noticed blood.
Q.: All right, I'll stay with blood. That there was blood on your knickers?
A. I don't think that that would be pointed out or obvious, given that there was five women in the household.
Q. See, you're only a little girl....
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