DPP v M.G.
| Jurisdiction | Ireland |
| Judge | Birmingham P. |
| Judgment Date | 29 July 2019 |
| Neutral Citation | [2019] IECA 241 |
| Docket Number | [245/18] |
| Court | Court of Appeal (Ireland) |
| Date | 29 July 2019 |
[2019] IECA 241
THE COURT OF APPEAL
The President
McCarthy J.
Kennedy J.
[245/18]
Conviction – Rape – Corroboration – Appellant seeking to appeal against conviction – Whether the Judge was wrong in declining to accede to a request to give a corroboration warning
Facts: The appellant, on 18th May 2018, was convicted following a trial, on two counts of having anally raped his wife on the night/early morning of 18th/19th December 2015. Subsequently, on 20th July 2018, he was sentenced to a term of nine years imprisonment. He appealed to the Court of Appeal against his conviction. The live issues on this appeal related to the question of corroboration. There were also a number of sub-issues canvassed. It was said that the Judge was wrong in declining to accede to a request to give a corroboration warning. It was said that a corroboration warning was not only desirable, but necessary, having regard to identified frailties in the evidence of the complainant and the unusual circumstances of their ongoing relationship. The Judge was further criticised for referring to aspects of the evidence as potentially corroborative, while refusing to direct the jury as to the apparent limitation of such evidence at trial.
Held by the Court that it had not been persuaded that the trial was unfair or unsatisfactory or that the verdict was unsafe; the jury returned verdicts which seemed well-justified in the overall context of the case.
The Court held that the appeal would be dismissed.
Appeal dismissed.
On 18th May 2018, the appellant was convicted following a trial, on two counts of having anally raped his wife on the night/early morning of 18th/19th December 2015. Subsequently, on 20th July 2018, he was sentenced to a term of nine years imprisonment. He has now appealed against both his conviction and sentence; this judgment deals with the conviction aspect only.
The appellant had originally stood trial on an indictment which contained eight counts of rape, anal rape, and oral rape. The evidence at trial was that in the aftermath of the events that occurred in the early hours of 19th December 2015, the complainant made her way to a friend's house, and from there to her local Garda station where, with the assistance of that friend, she made a complaint that she had been anally raped by her husband. The trial court heard evidence from friends who encountered the complainant, from the Garda with whom she dealt, and from a doctor from the local Sexual Assault Treatment Unit to which she was brought. The indictment also contained rape charges relating to events alleged to have occurred on 29th August 2015, the day after the birthday of the complainant, and events that occurred on a date in October 2015, being the date of the wedding anniversary of the complainant and appellant. The final count, a count of oral rape, was laid as having occurred between 1st November 2015 and 17th December 2015.
The complainant's evidence in relation to the events of 18th/19th December 2015, was that the accused returned home in a drunken condition, that she told him that she would not be sleeping with him that night and that she made up a bed in the living room. At a later stage, the appellant came downstairs to the living room and the complainant thought that he “would want to make love”. She did not want to do so because she was having her period and she told him this. However, he tore off her underwear and engaged in digital penetration of her anus and then put his penis inside her anus. In addition to shouting, she defended herself and at one stage bit him on the hand. She referred to the appellant strangling her. He then told her to go to the bedroom and he was counting. She gave evidence that he told her if he counted to three and she did not go upstairs, “it would be very bad”. There was no counting to two on this occasion: she went upstairs because “I didn't want to risk [it]”. Having made her way upstairs as ordered, she was again anally penetrated. The appellant wanted her to put his penis into her mouth, but she told him to go and take a shower to give her “a little bit of time, I was waiting for [my son: P] to come home and I wanted to get out of the house”. P, who had been at a youth disco, came back home and, after he had awoken his sister: A, the complainant, P, and A left the house after the complainant had initially phoned a friend: BP. Various witnesses gave evidence in relation to the distressed condition of the complainant; they were BP, IS, and Garda Anne Hogan; who also took photographs of injuries on the body of the complainant which were pointed out to her.
When interviewed by Gardaí while giving direct evidence and undergoing cross-examination, the appellant maintained that all his sexual relations with the complainant were at all times consensual.
The Notice of Appeal initially raised a number of grounds, including a complaint that the appellant was improperly restricted when he applied to cross-examine the complainant on her prior sexual history, however, this aspect has not been pursued. The live issues on this appeal relate to the question of corroboration. There are also a number of sub-issues canvassed. It is said that the Judge was wrong in declining to accede to a request to give a corroboration warning. It is said that a corroboration warning was not only desirable, but necessary, having regard to identified frailties in the evidence of the complainant and the unusual circumstances of their ongoing relationship. The Judge is further criticised for referring to aspects of the evidence as potentially corroborative, while refusing to direct the jury as to the apparent limitation of such evidence at trial.
As indicated at trial, the defence requested a corroboration warning. The request was advanced on a number of grounds. It was said that there was no corroboration of any of the offences. The response of the Trial Judge was to point out that there would appear to him to have been evidence capable of amounting to corroboration in respect of the offences alleged to have occurred on 18th/19th December. This Court is in no doubt that the Trial Judge was quite correct in that regard and that, indeed, there was quite an amount of evidence in relation to that incident which was capable of amounting to corroboration.
In support of the application for a warning, it is said that there were aspects of the complainant's evidence which...
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The People [At the Suit of the DPP] v Alan Hanley
...not strong corroboration at all.” 20 . The most significant decision, however, in the present context is that of this court in DPP v M.G [2019] IECA 241 where Birmingham P., for the Court, addressed the issue of a failure by the trial judge to tell the jury that if the jury considered that ......