DPP v McDonagh
| Jurisdiction | Ireland |
| Judge | FINLAY C.J. |
| Judgment Date | 24 July 1990 |
| Neutral Citation | 1990 WJSC-CCA 1635 |
| Docket Number | 56 & 57/88 |
| Court | Court of Criminal Appeal |
| Date | 24 July 1990 |
1990 WJSC-CCA 1635
THE COURT OF CRIMINAL APPEAL
Finlay C.J.
Carroll J.
Murphy J.
Synopsis:
CRIMINAL LAW
Rape
Trial - Complainant - Cross-examination - Restrictions - Discretion of trial judge - Exercise - Procedure at trial - Credibility of witness - Verdict of jury - Function of appellate court - Criminal Law (Rape) Act, 1981, s. 3 - (56,57/88 - Court of Criminal Appeal - 24/7/90)
|The People v. McDonagh|
EVIDENCE
Admissibility
Restriction - Trial judge - Leave - Rape - Complainant - Previous sexual experience - Application for leave - Procedure at trial - (56,57/88 - Court of Criminal Appeal - 24/7/90)
|The People v. McDonagh|
COURT OF CRIMINAL APPEAL
Appeal
Jurisdiction - Exercise - Jury - Verdict - Basis - Credibility of prosecution witness - Jury properly charged by trial judge - Principles to be applied by appellate court - (56, 57/88 - Court of Criminal appeal - 24/7/90)
|The People v. McDonagh|
JUDGMENT OF THE COURT delivered on the 24th July 1990 by FINLAY C.J.
These are two applications for leave to appeal against convictions for rape and other offences arising out of the same incident. The charges against the two accused arose out of what was alleged to be a concerted action and conduct on their part. They were tried together in the Dublin Circuit Criminal Court. The grounds of their appeals to this Court were for practical purposes identical, and the appeals were heard together. The Court does not identify any difference between the position of the two Applicants for leave toappeal and, accordingly, will decide both these cases in this singlejudgment.
The grounds of appeal argued before this Court fell into three broad categories. They were:
(1) That the learned trial Judge erred in rulings made by him on applications made on behalf of each of the Applicants pursuant to Section 3 of the Criminal Law (Rape) Act 1981for leave to question the Complainant about sexual experience of hers with persons other than the accused.
(2) That by reason of evidence adduced during the course of the trial indicating that the Complainant had in the course of her evidence, in respect of certain topics, perjured herself, the verdict of the jury finding each of the Applicants guilty was perverse and should not be allowed to stand.
(3) In the alternative, it was submitted that the learned trial Judge in the course of his charge failedadequately to warn the jury of the consequences and effect of what is submitted was the proven perjury on the part of the Complainant.
The complaint made against each of the accused may very briefly be summarised as consisting of an allegation on behalf of the Complainant that having met her during the course of a day, both in her own flat and in a public house, that after she had retired to her flat at the end of the evening they forcibly entered it against her will and raped her and assaulted her and, in addition, stole money, her property.
Broadly speaking, the defence of each of the Applicants was a complete denial of forcibly entering the premises, of any assault on the Complainant and of stealing any money, her property. Each of them asserted as part of their defence that they were invited into the Complainant's flat and with her agreement had sex with her for money which they paid her, and that,accordingly, no offence had been committed.
The first application under Section 3 of the Act of 1981 was made prior to the commencement of the cross-examination of the Complainant on behalf of the first-named accused, Cawley. The application was based on the dual purpose of impugning the credit of the Complainant as a witness and as directed towards the issue of consent. At the same time a similar application was made on behalf of the second-named accused. The general nature of the questioning was indicated to be that the Complainant had accepted from the first-named accused, over a period, payment for sex, and that that also applied "to many other people, not only himself". It was also suggested that there would be evidence adduced on behalf of the accused of the fact that the Complainant was known to others as being a prostitute. At that stage the learned trial Judge indicated that he would not allow cross-examination inrelation to past sexual experience, either with the accused or with anyone else. Counsel indicated that the application would be renewed. The learned trial Judge indicated that he would hear any evidence with regard to the matters which might be put, and when he had done so that the application could be renewed. Cross-examination of the Complainant then proceeded, and the application was renewed on behalf of the first-named accused during the course of the cross-examination, still on behalf of the first-named accused and was ruled by the learned trial Judge, being on this occasion largely based on a desire to cross-examine the Complainant with regard to the source of her monies so as to establish prostitution, and it was ruled expressly by the learned trial Judge in the following words:
"I am not satisfied that to disallow questioning in relation to the fact that she had been a prostitute in the past or has received money from men before for sex will deprive the accused of any defence that would lead the jury; I am not satisfied that the exclusion of this would leavethe jury in a situation where they would be satisfied beyond reasonable doubt of the guilt of...
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DPP v GK
... ... 24 There is a dearth of decided authority in this jurisdiction as to how a trial judge should exercise his discretion under s.3 of the Act of 1981. The issue was considered by this Court in D.P.P. v. McDonagh and Cawley (Unreported, Court of Criminal Appeal, 24 th July, 1990) and in the course of his judgement, Finaly CJ. had the following to say about the construction of the section:- "Upon the true construction of this Section it would appear necessary for the Judge, ... ...