DPP v McDonagh

 
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1990 WJSC-CCA 1635

THE COURT OF CRIMINAL APPEAL

Finlay C.J.

Carroll J.

Murphy J.

56 & 57/88
DPP v. MCDONAGH
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
v.
MARTIN McDONAGH AND JOHNNIE CAWLEY
Applicants

Citations:

CRIMINAL LAW (RAPE) ACT 1981 S3

DPP, PEOPLE V EGAN UNREP SUPREME 30.5.90 1990/2/360

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|

FINLAY C.J.
1

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 to appeal and, accordingly, will decide both these cases in this single judgment.

2

The grounds of appeal argued before this Court fell into three broad categories. They were:

3

(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) Act1981for leave to question the Complainant about sexual experience of hers with persons other than the accused.

4

(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.

5

(3) In the alternative, it was submitted that the learned trial Judge in the course of his charge failed adequately to warn the jury of the consequences and effect of what is submitted was the proven perjury on the part of the Complainant.

6

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.

7

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.

8

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...

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