DPP v Limen

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 19 December 2019
• Neutral Citation: [2019] IECA 318
• Date: 19 December 2019
• Docket Number: [10/2018]
• Court: Court of Appeal (Ireland)

[2019] IECA 318

THE COURT OF APPEAL

Birmingham P.

McCarthy J.

Kennedy J.

[10/2018]

BETWEEN

THE PEOPLE [AT THE SUIT OF THE DIRECTOR OR PUBLIC PROSECUTIONS]

RESPONDENT

AND

CLEMENT LIMEN

APPELLANT

Conviction – Sexual offences – Charge to the jury – Appellant seeking to appeal against conviction – Whether the trial was unsatisfactory and the verdict unsafe

Facts: The appellant, Mr Limen, was convicted by a jury on two counts of rape and one of sexual assault on 31st of May 2017 in the Central Criminal Court. He appealed to the Court of Appeal against conviction. He advanced as grounds of appeal that the trial judge erred: (i) in law or in principle in failing to give directions and warnings in his charge to the jury in relation to System Evidence; (ii) in law and in fact by ruling that the arrest of the appellant was lawful and by not excluding evidence obtained consequent upon that arrest; (iii) in law or in fact in ruling that there was no constitutional right to have a solicitor present during interview; (iv) in law and in fact in ruling that the appellant was fit for interview in respect of the first period of detention and deeming the first interview admissible while excluding the second interview; and (v) having regard to all of the circumstances relating to the charge to the jury, the trial was unsatisfactory and the verdict was unsafe.

Held by the Court that there was no reason for concern that the jury would have fallen into the error of thinking that there was cross corroboration on a supposed “similar fact” basis because the modus operandi was said to be similar; the terms are terms of art, but when used in their ordinary and natural meaning could not give rise to any injustice in the conclusion reached by the jury or render the trial unsatisfactory. The Court held that the proposition that the appellant’s arrest was unlawful was based upon the untenable proposition that the entry into the dwelling was unlawful and, in turn, since the arrest was lawful there was no basis for contending that evidence obtained consequent upon it should not have been admitted. The Court held that the judge was right to reject the submission that there was any invasion of the appellant’s rights by virtue of the fact that the solicitor was not present during interview, ignoring the point that it was not sought to exercise any such supposed right. The Court held that the conclusion reached by the judge on the evidence that he was fit to be interviewed in respect of the first interview and therefore was admissible was well justified.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 19th day of December, 2019 by Mr. Justice McCarthy

1 This is an appeal against the conviction of the appellant. The appellant was convicted by a jury on two counts of rape and one of sexual assault on 31st of May 2017 in the Central Criminal Court. The injured parties were Ms B. and Ms Q. The offences occurred at the appellant's home in Sligo on the 2nd of June 2014. One count of rape was preferred in relation to each complainant with an additional count of sexual assault in respect of Ms Q.

2 The complainants returned to the appellant's apartment with him having met him in a nightclub and in the company of others who left the apartment in due course. They had drinks there and what is described as a “puff” of a joint of cannabis. Ms Q recalled dancing with Ms. B and thereafter her next memory was awakening in a bed to find that the appellant was having intercourse with her. Her next memory thereafter was of Ms B standing beside her and informing her that she had been raped. Ms B. had no recollection of what occurred after she had consumed the alcohol provided by the appellant and her next memory thereafter was of awaking to find the appellant on top of her rubbing one of her legs with his penis and kissing her roughly. She found that her knickers had been removed. When she spoke to Ms Q the latter informed her of what had occurred so far as she was concerned. Ms B was in an extremely distressed state and when she came upon Ms Q the latter was described by her as being very incoherent and disorientated. They left the apartment barefoot and carrying their shoes. A short time afterwards, and at her request, Ms B's husband collected them and took them to a Garda station. When he saw them they were squatting, hugging each other, shaking and crying. They had been seen also by a security officer. The appellant was arrested later that day, detained and interviewed. He denied any rape or sexual assault but said that he had had sexual conduct contact with Ms Q, though consensual. He asserted that an advance had been made to him by Ms B but that he had rebuffed it. Medical evidence following examination of the complainants, particularly in relation to genital injuries was of modest assistance to the prosecution. Certain DNA evidence was adduced consistent with what might be described as the immediate circumstances of the offences as narrated by the complainants but not going directly to proof of the offences.

Grounds of Appeal

3 The appellant advances as grounds of appeal that the trial judge erred: -

(i) In law or in principle in failing to give directions and warnings in his charge to the jury in relation to System Evidence;

(ii) In law and in fact by ruling that the arrest of the appellant was lawful and by not excluding evidence obtained consequent upon that arrest;

(iii) In law or in fact in ruling that there was no constitutional right to have a solicitor present during interview;

(iv) In law and in fact in ruling that the appellant was fit for interview in respect of the first period of detention and deeming the first interview admissible while excluding the second interview;

And;

(v) Having regard to all of the circumstances relating to the charge to the jury, the trial was unsatisfactory and the verdict was unsafe.

Grounds one and five are closely linked and will be dealt with together.

Grounds One and Five:-

The trial judge erred in law or in principle in failing to give directions and warnings in his charge to the jury in relation to System Evidence;

and

Having regard to all of the circumstances relating to the charge to the jury, the trial was unsatisfactory and the verdict was unsafe.

5 In closing the prosecution case to the jury, prosecuting counsel inter alia made the following submission: -

“ Now, I'd also ask you to consider ladies and gentlemen the fact that elements of the testimony of each girl is so similar. Now, there are very stark similarities in the evidence given I say independently by these girls to you. Independently of each other. It was never put to these girls in cross-examination, it was never put to either of them that they were colluding with each other, that they had got together to make up a story. That for some reason two of them together decided to make this up. Now, I submit to you that there are very striking similarities in what each girl alleges happened to them separately and that this is capable of supporting their testimony, one of them to the other to you. Both girls had fine clear recollections up to a certain point of the night. Then they were given a drink. Both of them were given a drink by the accused. Then both of them have similar experiences of remembering nothing. Then each of them wakes up to the accused having vaginal intercourse with them. Both of them are still dressed according to their evidence apart from their underwear. Now, whether you find that any of these things does in fact support their evidence is a matter for you. But, I submit that the medical evidence, the evidence of their demeanour and the similarities in their testimony is capable of doing so and again Mr Justice Coffey will correct me if I'm wrong in relation to the applicable law.

Now, as I said the Judge will address you in relation to the law and you must take your directions in relation to the law from the Judge. Now, you're fully entitled to reject anything I say or anything the defence put forward to you but you must accept directions in relation to the law from the Judge.”

6 Defence counsel submitted to the judge that the passage in question raised the issue of similar fact or system evidence when of course there was no basis for any suggestion that it arose on the evidence. He further complained that no application had been made to the trial judge nor no notice given in relation to it. Prosecuting counsel disclaimed any intention to raise or rely upon the evidence as falling into this category. No one is in any doubt but that no such evidence exists.

7 Earlier, the judge had indicated that he did not propose to give a corroboration warning and since there was evidence capable of being corroborative it is unsurprising that no application was made to him on behalf of the accused to do so. The judge appears to have conceived that by her impugned submission prosecuting counsel was raising the issue of corroboration when he had decided not to give any warning; she was of course perfectly entitled to do so should she have seen fit whether a warning was to be given or not. This is a separate question; the issue here is whether or not the passage could have created the impression in the mind of the jury that similar fact evidence existed when it did not, and if it did whether or not the manner in which the perceived difficulty was dealt with by the judge when raised by defence counsel was correct. The following exchange took place: -

“MR GREHAN: There is one matter which I'm going to mention to the Court at this stage. It relates to what Ms O'Leary has told the jury where effectively she's introduced into the case the concept of similar fact evidence or striking similarity I think was the phrase that she used. That's very much a legal term of art. As I understand it if you're going...