DPP v Onumwere
| Jurisdiction | Ireland |
| Judge | FINNEGAN J. |
| Judgment Date | 24 May 2007 |
| Neutral Citation | [2007] IECCA 48 |
| Docket Number | [CCA No. 256 of |
| Court | Court of Criminal Appeal |
| Date | 24 May 2007 |
[2007] IECCA 48
THE COURT OF CRIMINAL APPEAL
Finnegan J.
MacMenamin J.
Feeney J.
BETWEEN
and
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2
R v NAGRECHA 1997 CAR 401
CROSS & TAPPER ON EVIDENCE 8ED 1995 341
CROSS & TAPPER ON EVIDENCE 8ED 1995 335
DPP v C (A) UNREP CCA 11.5.2005 2005/19/3833 2005 IECCA 69
CHILDREN ACT 2001 PART VI
CHILDREN ACT 2001 S58(1)
CHILDREN ACT 2001 S61(1)
CHILDREN ACT 2001 S66(2)
CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990
CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990 S2(4)
CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990 S2(6)
CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990 S2(7)
CRIMINAL JUSTICE (FORENSIC EVIDENCE) ACT 1990 REGS 1992 SI 130/1992 REG 8
Judgment of the Court delivered on the 24th day of May 2007 , by FINNEGAN J.
The applicant seeks leave to appeal against conviction and sentence. He was convicted of one count of sexual assault contrary to the Criminal Law (Rape) (Amendment) Act, 1990 section 2 as amended by the Sexual Offences Act, 2001 section 37. He was sentenced to six years imprisonment.
On the evening of 17th June, 2004 the complainant met a friend after work in Fitzsimons Hotel, Temple Bar, Dublin. At about 11 pm the complainant and her friend went to the hotel nightclub. They met a group of four or five Nigerian men and went back to their flat. The complainant retired to a bed fully clothed and fell asleep. She woke to find one man holding her down by the shoulders while the other was "pushing her from behind". She screamed and a third man entered the room, turned on the light, whereupon the two within the room left. The complainant felt wetness on her upper thigh and also on the bed sheets next to her. She reported these events to the gardai and samples for the purposes of DNA testing were taken from her.
The gardai attended at the men's flat. Five men were present. Four of these agreed to give DNA samples. The applicant refused.
There are ten grounds of appeal. Of these, three were not pursued at the hearing. Grounds two and three were dealt with together, as were grounds four and five and accordingly the appeal can be dealt with under five grounds.
Ground 1 - The learned trial judge erred in law in refusing to permit the accused examine the witness Werner Brown as to the nature of his recollection of the conduct of the complainant and her friend while in the hotel nightclub.
The complainant was cross-examined about her ability to recollect the events of the night in question having regard to the amount of alcohol which she had consumed and the circumstance that she was taking prescription anti-depressant medication. Her evidence was that while she had a poor recollection of the events of the evening this was due to her desire to put those events behind her and specifically this was not attributable to the consumption of alcohol or the taking of medication. She was asked did she kiss any of the males with whom she was dancing while in the nightclub and she replied that she did not. Mr Brown was a doorman at the nightclub. She was asked:
Question: So again if Mr Werner Brown comes into court and says that he witnessed you kissing and hanging around the necks of three of the men in the company he would be lying?
Answer: Yes. There is something not right about that, definitely not.
The only witness called on behalf of the applicant was Mr Brown. Before he gave evidence counsel for the prosecution objected that if Mr Brown's evidence went to credit only then it was not admissible and that the replies given in evidence by the complainant on matters collateral to matters in issue and in particular matters going to credit were binding. Counsel for the applicant gave as the reason for calling Mr Brown the introduction of evidence in relation to the complainant's ability to recollect the events of the evening, her conduct in the nightclub and her truthfulness as a witness. Counsel was asked by the learned trial judge if these were not matters as to credit and he replied:-
"There could be nothing more important in a sexual assault case than credibility. It is a question of both sides effectively telling their story and for the jury to determine whether or not the complainant's story is capable of belief beyond a reasonable doubt. Now if their credibility is undermined by them having been shown to the jury to have misrepresented facts collateral to the issue then I would have to be entitled to do that".
From this it is clear that the basis upon which it is was sought to introduce Mr Brown's evidence was one collateral to the matter in issue namely the complainant's credibility.
In R v Nagrecha [1997] CAR 401 the appellant had been conviction of indecent assault. The defence had a statement from a Mr Lee which contained the following -
"I found her very difficult. She suffered from what appeared to be severe mood changes ... She also made allegations of a sexual nature against me when I told her to shape up at work or she would have to go. She reported this to my boss who did not believe her. Due to bad work standards she left shortly after this. She told work colleagues she had been sexually assaulted on one occasion by a taxi driver or at least there had been an attempt to do so. Also she told us a building worker had attempted to sexually assault her. No one believed what she said".
Counsel for the defence sought permission to cross-examine the complainant about the matters contained in Mr Lee's statement and depending on the answers which she gave be permitted to call Mr Lee to give evidence. The complainant denied that she had made any of the allegations of a sexual nature. The trial judge had held that although the defendant was entitled to ask the complainant whether she made the allegations and whether they were true as they went entirely to credit if she denies them the defence may not call witnesses to contradict her.
The Court of Appeal reviewed the authorities and held that rebuttal evidence should be admitted where such evidence goes to an issue. The court referred with approval to a passage from Cross and Tapper on Evidence (8th Ed) at p.341:-
"It has also been remarked that sexual intercourse, whether or not consensual, most often takes place in private and leaves few visible traces of having occurred. Evidence is often effectively limited to that of the parties, and much is likely to depend upon the balance of credibility between them. This has important effects for the law of evidence since it is capable of reducing the difference between questions going to credit and questions going to the issue to vanishing point. If the only issue is consent and the only witness is the complainant, the conclusion that the complainant is not worthy of credit must be decisive of the issue".
A further passage from Cross and Tapper on Evidence (8th Ed) at p.335 was also quoted with approval:-
"There are now signs of a more liberal approach to rebuttal certainly in criminal cases. A modern example is Busby where it was suggested that a police witness for the prosecution had fabricated an oral confession and threatened a potential witness for the defence so as to prevent him from testifying. Both allegations were denied by the police officer and the defence proposed to call the man who had been threatened to rebut the denial of a threat. The judge refused to permit the rebuttal applying the traditional collateral matter rule, but the Court of Appeal quashed the conviction on the basis that the defence should have been allowed to rebut the denial because it went to a fact in issue. This seems quite contrary to the decision in Harris v Tippett, and to most tests for the distinction between credit and issue, in effect, substituting substantial relevance as a test for allowing rebuttal"
Thus where consent is an issue credibility is of such importance that rebuttal evidence going to credibility may be admitted. In the present case consent is not an issue.
In the course of Mr Brown's evidence counsel for the prosecution was asked by the learned trial judge what was the purpose of the questioning and he replied "to discredit". He went on to say that " No My Lord it is not to discredit it is to establish credibility of one set of facts over the other". The only facts to which this comment could relate was the alleged conduct of the complainant in the nightclub and the court is satisfied that this conduct was not a fact in issue. Accordingly, the evidence of Mr Brown was properly excluded.
Ground 2 - The learned trial judge erred in law in refusing to discharge the jury when the prosecution served additional disclosure on the defence after the prosecution had closed its case, where such disclosure pertained to the evidence given by Mr Burrington, witness for the prosecution and where the prosecution was not purporting to recall that witness.
Ground 3 - The learned trial judge erred in law and in fact in determining that the accused was not prejudiced by the fact that it was only disclosed by the prosecution after it closed its case that at least two other people, previously unknown to the defence, had been involved in the DNA evidence adduced by the prosecution during the trial where the procedures and methods used in obtaining and analysing that evidence had been challenged by the defence.
DNA evidence was central to the prosecution case. The evidence was given by Mr Mike Burrington, a scientist from the Forensic Science Laboratory, Dublin. During...
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