DPP v Nolan [Central Criminal Court]
CENTRAL CRIMINAL COURT
Criminal law - Practice and procedure - Evidence - Sexual offences - Application that case be withdrawn from jury - Role of jury - Right to fair trial - Whether case should be left to jury.
Facts: The accused had been charged with alleged rape. At the conclusion of the case for the prosecution an application was made that the case be withdrawn from the jury and a verdict of not guilty be directed. It was submitted that the quality of the State’s evidence was poor and unreliable owing to inconsistencies in the evidence given by the complainant.
Held by Mr. Justice Herbert in refusing to accede to the application. Notwithstanding the apparent inconsistencies it was still a matter for the jury to determine. It was not just a borderline case. A mild direction would be given to the jury that given the inconsistencies should only convict after assessing the complainant’s evidence with great care.
MR. JUSTICE HERBERT DELIVERING A RULING ON NOVEMBER 27th, 2001.
The evidence on behalf of the State having concluded, Mr. White, leading counsel for the accused, has submitted to me that the quality of the State’s evidence is so poor, so slender and so unreliable by reason of inconsistencies in the account given by the complainant that I should withdraw the case from the jury, and direct a verdict of not guilty.
The legal basis for Mr. White’s submission is the well-known decision of Lord Lane, in the case of Regina versus Galbraith, which is reported variously, but at any account in 1981, 1 Weekly Law Reports, page 1039, at 1042, paragraphs B to D, where the learned Lord Justice said, and I quote:
“1. If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case.
2. The difficulty arises where there is some evidence, but it is of a tenuous character, for example, because of inherent weakness or vagueness, or because it is inconsistent with other evidence.
A. Where the judge comes to the conclusion that the prosecution evidence taken at its highest is such that a jury properly directed could not properly convict upon it,
it is his duty, upon a submission being made, to stop the case.”
B. Where, however, the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness’ reliability, or other matters which are generally speaking within the province of the jury, and where, on one possible view of the facts there is evidence upon which a jury can properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury. It follows that we think the second of the two schools of thought is to be preferred. There will of course, as always in this branch of the law, be borderline cases. They can safely be left to the discretion of the judge.”
Now, this statement of the law was accepted by Mr. Justice Flood in the case of the Director of Public Prosecutions versus Geoffrey Barnwell, a decision given in the Central Criminal Court on the 24th of January 1997, as also reflecting the state of the law in this jurisdiction.
Mr. Justice Flood adopted the statement of Lord Justice Lane without extending, or in any way amending it.
I think it is very important to note in the passage, which I do not think is referred to by Mr. Justice Flood, the sentence which says: “It follows that we think the second of the two schools of thought is to be preferred.”
I think it is also important to note that Lord Justice Lane
described the necessity for this statement of principle as follows: “A balance must be struck between, on the one hand, a usurpation by the judge of the jury’s functions, and on the other hand the danger of an unjust conviction.”
When Lord Justice Lane said, “It follows that we think the second of the two schools of thought is to be preferred,” he is referring to the dispute, if one may so describe it, which gave rise to the decision in that case, and that was in effect an apparent contradiction between the decision of Lord Widgery, Chief Justice, in a case of Barker, which is reported 1997, 65 Criminal Appeal Report, 287, and a decision of Lord Justice Lawton, in the case of Mansfield, which is also reported in 1997, 65 Criminal Appeal Reports, 126 -276.
When Lord Lane said, “We think the second of the two schools of thought ought to be preferred,” he is referring then to those cases, and he says in his judgment, “We have come to the conclusion that if and insofar as the decision in Mansfield is at variance with that in Barker, we must follow the latter.”
Now, in Barker, Lord Widgery states as follows: “Even if the judge has taken the view that the evidence could not support a conviction because of the inconsistencies, he should nevertheless have left the matter to the jury. It cannot be too clearly stated that the judge’s obligation to step the case is an obligation which is concerned primarily with those cases where the minimum evidence to establish
the facts of the crime have not been called. It is not the judge’s job to weigh the evidence and to stop the case merely because he thinks the complainant is lying. To do that is to usurp the functions of the jury.”
Now, in the present case, Mr. White has indicated in his usually careful and succinct manner inconsistencies in the evidence of the complainant, which he says renders the case inherently weak. If I may summarise these inconsistencies, they are as follows. Properly, I think I should do this in order of importance, but in any event in the order in which Mr. White presented them.
There was the inconsistency with regard to the panties which the complainant was wearing on the night in question. She gave a statement that after the alleged incident she could not find them, and then she gave another statement saying that she threw them away. That latter statement is the account in which she has persisted in her evidence.
She then said that she was dragged off the porch of this club building by the sleeve of her cardigan; later she said that she remembered that what she was wearing on the porch was a white top which she identified in court as a white sleeveless top.
Then there are the inconsistencies with regard to the manner in which she is alleged to have broken free from the alleged assault of the accused. She said when he attempted to turn her over with the intention of having anal sex with
her, she got away. What she told a member of An Garda Síochána was that after the accused had left she got up, put on her trousers and went back inside. She gave Dr. Harty yet another account; that she made two attempts to get away, only one of which was successful.
Then there was the issue as to the kissing. First she said that the accused kissed her against her will in the porch. There was an uncertainty as to how often and how long this went on. However, she said on another occasion that she kissed him back, having on the first occasion said she was unwilling to be kissed.
Then Mr. White pointed out the inconsistencies with regard to what she said about how she sustained the alleged injuries, at least to her face, and the alleged presence of grass and nettles in her hair and clothing. She told Dr. Harty that she told her friends she had fallen; that is, her friends in the club on the occasion. It appears that a woman, Theresa Lowe, made a statement to the Garda Síochána that a lady who seemed to be in distress in a cubicle in the ladies’ toilet on that night, in answer to a question from her, said, “I’m all right, I just fell.”
Then Mr. White points out that there are inconsistencies as to when she is alleged to have first complained about the alleged rape. She said that she immediately told Róisín, her friend, and also Rose or Rosemary Mooney, that “Tallaght Head” had raped her. This was in the ladies toilet at the club. Róisín, on the other hand, says the
first she heard that there had been an...
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