DPP v McGuinness

• Jurisdiction: Ireland
• Court: Court of Criminal Appeal
• Judge: KENNY J.
• Judgment Date: 03 July 1978
• Neutral Citation: 1978 WJSC-CCA 2249
• Docket Number: No 64 /1977,[C.C.A. No. 64 of 1977]
• Date: 03 July 1978

PEOPLE (D.P.P.) v. McGUINNESS

(MR. JUSTICE KENNY, MR.JUSTICE GANNON

AND MR. JUSTICE McWILLIAM)

THE PEOPLE

v.

PHELIM McGUINNESS

1978 WJSC-CCA 2249

No 64 /1977

COURT OF CRIMINAL APPEAL

KENNY J.

1 The Judgment of the Court was delivered by 3rd July 1978

2 The accused, Phelim McGuinness, was tried in the Central Criminal Court by a judge of the High Court and a jury on a charge that, on the 1st of May 1976, he raped Margaret Byrne. He was represented at the trial, which lasted three days, by Mr. Marcus Daly, Senior Counsel. The judge charged the jury who subsequently returned to ask two questions. One of these was "if the jury has power to find the defendant guilty of an offence other than that which is charged in Count I of the indictment". Count 1 was the charge of rape. The trial judge gave the jury a correct direction in relation to the question and no complaint whatever has been made about this part of the trial. The jury ultimately found the accused guilty of rape and the Judge sentenced him. The question by the Jury Indicates that they did not regard the guilt of the accused on the charge of rape as being obvious. A certificate for leave to appeal was refused and the accused has now applied to this Court for leave to appeal.

3 The first and main ground of appeal argued was that "the persistent interruptions of the learned trial Judge of counsel for the defence rendered the trial unsatisfactory and the verdict of the Jury unsustainable". All the members of this Court enter on the examination of the way in which a Judge of the High Court conducted a trial before him with considerable reluctance but it is our duty to hear the appeal and to consider the grounds put forward by the accused' s counsel.

4 When the defence to a charge of rape is that the complainant consented to sexual Intercourse with the accused, the task of counsel for the defence is particularly difficult. The complainant will never admit that she consented and counsel must seek to show that at the time of the offence her character and behaviour were such that she would be likely to have consented or that she has invented the evidence which she is giving. Both of these are extremely difficult to establish but counsel must try. He often seeks to do so by cross-examining her about events in the past so that he can introduce doubts into the Binds of the jurors about her character or her credibility and he nay have to cover many aspects of her past life. He has probably carefully planned his cross-examination before the trial and past be allowed to follow this without unnecessary interruption. "The very gist of cross-examination lies in the unbroken sequence of question and answer" (Lord Justice Denning in Jones t. Rational Coal Board 1957 2 All E.R. 155 at p. 160). Counsel for the accused will be severely handicapped if he is diverted from his plan, When the defence to such a charge is consent, the cross-examination of the complainant is the most important evidential part of the trial. It may be long and counsel should be allowed to return to matters he has already dealt with if he has succeeded in showing that on other matters the witness is not to be believed. The Judge must be patient and confine his interventions to the minimum necessary for a fair trial. He should intervene only when cross-examining counsel misstates evidence already given or asks a question which the witness may not understand or when he thinks that the witness has misunderstood the question. When the defence is consent he must allow unpleasant charges to be made against the complainant in connection with her past and should not indicate to the jury that he disapproves of this being done.

5 In this case the defence was that the complainant had consented to the intercourse and, in support of this, the charge...