DPP v Moloney
| Jurisdiction | Ireland |
| Judge | Lynch J. |
| Judgment Date | 08 November 1999 |
| Neutral Citation | 2000 WJSC-CCA 2816 |
| Judgment citation (vLex) | [1999] 11 JIC 0801 |
| Court | Court of Criminal Appeal |
| Date | 08 November 1999 |
2000 WJSC-CCA 2816
THE COURT OF CRIMINAL APPEAL
Lynch, J.
McGuinness, J.
Quirke, J.
Citations:
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S4
DPP V BROPHY 1992 ILRM 709
DPP V ROUGHAN 1998 2 IR 106
Criminal law - Evidence - Sexual Offences - Appeal against conviction - Whether trial judge had given adequate warnings regarding corroboration of evidence - Whether conviction unsafe.
The applicant had been charged and convicted of a number of sexual offences. The applicant claimed that the prosecutrix should not have been permitted to give evidence of the complaint. In addition it was claimed that the trial judge failed to charge the jury correctly and the warnings given in regard to the corroboration of evidence were inadequate. Lynch J, delivering judgment, rejected the arguments made and dismissed the application.
EX TEMPORE JUDGMENT delivered the 8th day of November1999by Lynch J.
In the first instance an application has been made to us for liberty to withdraw the appeal insofar as it relates to sentence and accordingly we will now accede to that application and accordingly in so far as this application for leave to appeal is against sentence that will bedismissed.
Regarding the appeal against conviction, the Applicant was charged initially with 12 counts of various sexual offences. He was convicted by the jury of 6 of these counts being counts 2, 3, 5 6, 9 and 11. Some of the others were not put to the jury and there was a disagreement in relation to Count no 1 which was a count of rape contrary to section 4 of the 1990 Act. Now the first ground of appeal is that the learned trial judge erred in law and was wrong in permitting the Prosecutrix to give evidence of complaint, being the complaint made to Patricia O'Connell. It is alleged in support of that ground that the complaint was not made at the first reasonable opportunity and that it was not a voluntary complaint but was more or less extracted from her by Patricia O'Connell. So far as the suggestion that the complaintwas not made at the first opportunity is concerned and which relates to the failure to complain to the mother, the learned trial judge explained his reasoning behind that, that the mother was not an appropriate person in the circumstances of this case to whom one could expect the Complainant to make a complaint and he gave his ruling at page 22 of Volume 1 where he said:
"The question that concerns me is the phrase that Patricia O'Connell has used, "drawing and drawing and drawing out of her until I got the whole lot". An unacceptable exhortation? I think not. It's not an inducement. In my view it's what, how one might expect an older person to behave to obtain a story from a child who is obviously upset as Patricia O'Connell said that the Prosecutrix was. In my view and the particular circumstances of this case, the complaint was made as speedily as one could reasonably expect in the circumstances and that the conversation which Patricia O'Connell had with the Prosecutrix did not amount to an unacceptable exhortation and accordingly I think the complaint ought to be admitted".
That was the ruling of the learned trial judge and on foot of that he allowed evidence of the complaint.
Now we have been referred to Brophy's case and of course that lays down the law and that is the law and also we have been referred however to the case of D.P.P. vD.R. All of these cases must to some extent depend upon their own facts and the learned trial judge is of course in the best position to decide the facts. The decision which I have quoted just now is one arrived at by the learned trial judge having heard the...
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