DPP v MA

• Jurisdiction: Ireland
• Judgment Date: 11 July 2002
• Date: 11 July 2002
• Docket Number: [C.C.A. No.121 of 2000]
• Court: Court of Criminal Appeal

Court of Criminal Appeal

[C.C.A. No.121 of 2000]

The People (Director of Public Prosecutions) v. M.A.

The People (Director of Public Prosecutions)

Prosecutor

and

M.A.

Accused

Cases mentioned in this report:-

The People (Attorney General) v. Cradden [1955] I.R. 130.

The People (Director of Public Prosecutions.) v. Brophy [1992] I.L.R.M. 709.

The People (Director of Public Prosecutions) v. Sweetman (Unreported, Court of Criminal Appeal, 23rd October, 2000).

R. v. Lillyman [1896] 2 Q.B. 167.

R. v. Osbourne [1905] 1 K.B. 551.

Criminal law - Sexual offences - Rape - Evidence - Charge to jury - Doctrine of recent complaint - Admissibility of evidence of third parties of complaint made to them by complainant - Admissible to show consistency of account not to prove fact of alleged rape - Whether charge unsatisfactory as purpose upon which complaint evidence admissible not explained - Whether such direction by trial judge desirable practice or mandatory rule.

Criminal law - Appeal - Requisitions - Whether failure to raise requisition after trial judge had charged jury precludes appeal on that basis.

Application for leave to appeal.

The facts are summarised in the headnote and are more fully set out in the judgment of the court delivered by Murray J., infra.

The accused was convicted of the rape of the complainant on the 10th March, 2000, and sentence was passed by the Central Criminal Court (Barr J.) on the 27th June, 2000.

An application for leave to appeal was lodged by the accused on the 20th July, 2000. The matter was heard by the Court of Criminal Appeal (Murray, Kearns and O'Neill JJ.) on the 11th March, 2002.

The accused was convicted of rape contrary to s. 2 of the Criminal Law (Rape) Act, 1981. At the trial, two witnesses had given evidence that the complainant had complained to them shortly after the alleged rape that she had been raped by the accused. The evidence of these two witnesses was tendered by the prosecution as evidence of complaints made by the complainant to third parties when the accused was not present. The accused was convicted in the Central Criminal Court and he appealed on the basis that the trial judge's charge to the jury was unsatisfactory by virtue of the fact that the judge omitted to explain the purpose upon which the complaint evidence was admissible in a rape trial - to show consistency of account, and not for the purpose of proving the fact of the complaint itself nor for the purpose of proving the fact of the alleged rape. After the trial judge had charged the jury, no application was made to him by the defence nor prosecution in relation to that aspect of the charge.

Held by the Court of Criminal Appeal, (Murray, Kearns and O'Neill JJ.), in allowing the appeal, setting aside the verdict and ordering a retrial, 1, that, where evidence of a complaint made by a complainant to third parties in the absence of the accused was admitted in a trial of a sexual offence to establish the consistency of the complaint with the evidence of the complainant, the purpose of the evidence should be explained to the jury in all cases and it should be made clear to it that such evidence was not evidence of the facts on which the complaint was based but could be considered by them as showing that the victim's conduct in so complaining was consistent with her testimony.

• R. v. Lillyman [1896] 2 Q.B. 167; R. v. Osborne [1905] 1 K.B. 551; The People (Attorney General) v. Cradden[1955] I.R. 130 followed.

2. That it should also be explained to the jury that such evidence did not constitute corroboration, in the legal sense of that term, of the evidence of the complainant.

3. That, where the court was satisfied that an issue of relative insignificance had not been raised as a requisition after the trial judge's charge to the jury, the court could overlook a defect in the charge and could take into account the failure to raise a requisition. But where the issue was a central and critical part of the prosecution case, the failure of the defence to raise the issue at the conclusion of the trial judge's charge would not be a bar to an application.

The People (Director of Public Prosecutions) v. Sweetman (Unreported, Court of Criminal Appeal, 23rd October, 2000) followed.

Cur. adv. vult.

In accordance with the provisions of s. 28 of the Courts of Justice Act, 1924, the judgment of the court was delivered by a single member.

Murray J. 11th July, 2002

The appellant appeals against his conviction on the 10th March, 2000, at the Central Criminal Court, after trial by jury, of the offence of rape. The offence of which he was convicted was the rape of L.C. (hereafter the complainant) on the 12th May, 1999, 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) Act, 1990.

At the appellant's trial two witnesses were called who gave evidence that the complainant, later in the day on which the rape was alleged to have taken place, complained to them that she had been raped by the appellant. The first of these two witnesses Ms. C.D. lived in the flat where the complainant was staying at the time. Ms. C.D. gave evidence that on the evening of the 12th May, 1999, the complainant told her that she had been raped by the appellant in his flat to which they had gone after a night out in a nightclub. The witness gave an account of what the complainant had told her concerning the course of events of the evening she had spent with the appellant leading up to the time when, as she complained, he had forcible sexual intercourse with her and the events immediately following. The evidence included a description given by the complainant as to how the appellant had held her on the bed in his flat before he had sexual intercourse with her. The complainant was distressed when giving her account to the witness and she noticed bruising on the complainant's chin. The second witness was a brother of the complainant whom she met later that same evening and to whom she also gave an account of her night out with the appellant and the events in his flat. This witness gave evidence as to the complaint made to him by the complainant that the accused had held her down on the bed in his flat. She complained to him that she had been raped by the accused. She showed distress on giving this account and he also noticed bruising on her chin. The evidence of these two witnesses, which it is not necessary to recite in detail, was tendered by the prosecution as evidence of complaints made by the complainant to third parties when the appellant was not present.

The appeal is based on a single ground which is stated to be as follows:-

"The learned trial judge's charge to the jury was unsatisfactory by virtue of the fact that the learned trial judge omitted to explain the purpose upon which the complaint evidence was admissible in a rape trial, viz. to show consistency of account, and not for the purpose of proving the fact of the complaint itself"

or as also stated:

"not for the purpose of proving the fact of the alleged rape."

After...