DPP v P.K.

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 08 April 2020
• Neutral Citation: [2020] IECA 94
• Docket Number: Record No: 157/17
• Court: Court of Appeal (Ireland)
• Date: 08 April 2020

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

-V-

P. K.

APPELLANT

[2020] IECA 94

Birmingham P.

Edwards J.

Kennedy J.

Record No: 157/17

THE COURT OF APPEAL

Conviction – Rape – Corroboration – Appellant seeking to appeal against conviction – Whether the trial judge erred in determinations, rulings and directions in respect of corroboration

Facts: The appellant, on the 6th of April 2017, in the course of a re-trial, was convicted by the unanimous verdict of a jury in the Central Criminal Court of two counts of rape, being one count of rape contrary to common law, s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981 (as amended by s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 (s. 2 vaginal rape), and one count of rape contrary to s. 4 (1)(a) of the 1990 Act (s. 4 anal rape). The appellant had originally been charged on the one indictment with three charges of sexual assault in addition to the aforementioned rape charges. At a previous trial which had commenced on the 22nd of November 2016 and which had concluded on the 16th of December 2016, the jury had convicted the appellant of the three sexual assault counts but had disagreed on the rape counts. On the 6th of February 2017 the appellant received concurrent sentences of seven and a half years’ imprisonment in respect of the three sexual assaults, all sentences to date from the 19th of December 2016 to take account of time spent in custody. On the 24th of May 2017 the appellant was sentenced in respect of the rape offences. A sentence of seven years’ imprisonment was imposed for the s. 2 vaginal rape, and a sentence of ten years imprisonment was imposed for the s. 4 anal rape, both sentences to run concurrently inter se and to date from the 19th of December 2016 so as to also run concurrently with the sentences imposed earlier on the sexual assault counts. The final two years and six months of the ten year sentence for the s. 4 anal rape was to be conditionally suspended for a period of two years from the date of his release. The appellant appealed to the Court of Appeal against his conviction for the rape offences. The appellant’s grounds of complaint were as follows: (i) the trial judge erred in refusing to postpone the trial due to adverse publicity; (ii) the trial judge erred in determinations, rulings and directions in respect of corroboration; (iii) the trial judge erred in his ruling concerning the admissibility of the appellant’s interviews; (iv) the trial judge erred in his rulings, determinations and directions in respect of complaint evidence; (v) the trial judge erred in failing to withdraw the charges from the jury following an application to so do by the defence; (vi) the trial judge erred in his rulings, determinations and directions in respect of the requisitions raised; (vii) the cumulative effect of the errors made by the trial judge rendered the verdict unfair in all the circumstances.

Held by the Court that, having seen fit to uphold the complaints made by the appellant concerning a misdirection with respect to what was capable of amounting to corroboration, in circumstances where the trial judge had decided in the exercise of his discretion to give a corroboration warning, the appeal would be allowed on that sole ground. The Court rejected all other grounds of appeal.

The Court invited submissions in writing as to the appropriate orders that should follow from its decision to allow the appeal, including concerning whether it should direct a retrial. The respondent, the Director of Public Prosecutions, was directed to file her submissions within nine days i.e., by close of business on the 17th of April 2020, and the appellant was directed to file his replying submissions within a further seven days, i.e., by close of business on the 24th of April 2020.

Appeal allowed.

Judgment of the Court delivered on the 8th of April, 2020 by Mr Justice Edwards

Introduction

1 On the 6th of April 2017, in the course of a re-trial, the appellant was convicted by the unanimous verdict of a jury in the Central Criminal Court of two counts of rape, being one count of rape contrary to common law, s.48 of the Offences Against the Person Act 1861 and s.2 of the Criminal Law (Rape) Act 1981 (as amended by s.2 of the Criminal Law (Rape)(Amendment) Act, 1990 (“s.2 vaginal rape”); and one count of rape contrary to s.4 (1)(a) of the Criminal Law (Rape)(Amendment) Act, 1990 (“s.4 anal rape”).

2 The appellant had originally been charged on the one indictment with three charges of sexual assault in addition to the aforementioned rape charges. The s.2 vaginal rape was charged as count no 1, the s.4 anal rape was charged as count no 2, and three sexual assaults were charged as counts 3, 4, and 5 respectively. At a previous trial which had commenced on the 22nd of November 2016 and which had concluded on the 16th of December 2016, the jury had convicted the appellant of the three sexual assault counts but had disagreed on the rape counts.

3 On the 6th of February 2017 the appellant received concurrent sentences of seven and a half years' imprisonment in respect of the three sexual assaults, all sentences to date from the 19th of December 2016 to take account of time spent in custody.

4 On the 24th of May 2017 the appellant was sentenced in respect of the rape offences. A sentence of seven years' imprisonment was imposed for the s.2 vaginal rape, and a sentence of ten years imprisonment was imposed for the s.4 anal rape, both sentences to run concurrently inter se and to date from the 19th of December 2016 so as to also run concurrently with the sentences imposed earlier on the sexual assault counts. The final two years and six months of the ten year sentence for the s.4 anal rape was to be conditionally suspended for a period of two years from the date of his release.

5 The appellant has appealed against his conviction and sentences for the rape offences. This judgment deals solely with the appeal against conviction.

The Circumstances of the Case.

6 The appellant was in a relationship with the complainant, AMB, dating back around three and a half years prior to the alleged offences. At the relevant time, the couple had one child together and the complainant was pregnant with their second child, due in late December 2014. They did not share a residence, however they frequently spent nights together.

7 The complainant alleged that the appellant would often have sexual intercourse with her as she slept, and she would often awaken to find the appellant penetrating her. She had communicated to him several times that she did not consent to this and did not want it.

8 The complainant alleged that on the night of the 22nd of December 2014 and into the morning of the 23rd of December 2014 she was asleep and awoke to find the appellant raping her vaginally. She further alleged that on the night of the 23rd of December 2014 and into the morning of the 24th of December 2014 she was again asleep and on this occasion awoke to find the appellant raping her anally. The accused accepted at interview, and testified at trial, that vaginal intercourse had occurred on the 22nd /23rd December but claimed this was consensual. He denied entirely the alleged anal penetration on the 23rd /24th December. It was accepted by both sides that the parties had engaged in consensual anal sex on previous occasions.

9 The complainant attended in person and in distressed state at a Garda station on Christmas Day 2014 looking to speak with a female garda, and then reported the rapes to a Sergeant Geraldine Browne who subsequently testified at trial that at the time of her presentation at the garda station the complainant was “very upset, she was distraught, she was heavily pregnant, she was in a fragile state”. Following her report of the matter to An Garda Siochána an investigation was commenced. During that investigation a mobile phone belonging to the appellant was recovered and examined. That phone was found to contain three video clips, taken on various dates in November 2014, showing the appellant penetrating the anus of the complainant in a bed whilst she was ostensibly asleep. The complainant maintained that she knew nothing of these videos and had not consented to the activity recorded on these videos. She maintained that she had not been conscious when they were made, but that the appellant had told her that unawares to her he had drugged her in the past without her consent. Whether she was asleep or drugged during the videos, it was manifest from the recording that the complainant was insensate at the time and unaware of what was happening. The activity recorded on these videos gave rise to the preferment of the three sexual assault counts in respect of which the appellant was convicted during the first trial. During subsequent interviews, and at trial, the appellant had maintained that the videos were made with her consent, that she was aware of them and that nothing untoward had happened. Further, he denied drugging the complainant.

The Grounds of Appeal

10 The appellants Notice of Appeal which was filed on the 20th of June 2017 merely indicated “[u]ndue process by An Garda etc. I need to go over these grounds with a solicitor. I don't have one as of today”.

11 Subsequently, a document entitled “Grounds of Appeal” was filed with the Court of Appeal on the 15th of January 2019, which listed seventeen individual grounds of complaint with respect to the appellant's conviction. However, not all of those complaints were ultimately proceeded with. By the time the appellant filed his written submissions on the 27th of May 2019 those seventeen grounds had been reduced to just seven, namely:

i. The trial judge erred in refusing to postpone the trial due to adverse publicity;

ii. The trial judge erred in determinations, rulings and directions in...