DPP v P.R
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 09 December 2020 |
| Neutral Citation | [2020] IECA 347 |
| Docket Number | Record Number: 178/19 |
| Court | Court of Appeal (Ireland) |
| Date | 09 December 2020 |
[2020] IECA 347
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 178/19
THE COURT OF APPEAL
This is an appeal against conviction. The appellant was found guilty of one count of sexual assault contrary to section 2 of the Criminal Law (Rape)(Amendment) Act 1990, as amended.
On the night of the 26 th November 2016 the complainant, who was at the time 10 years old, and her parents were staying over in the appellant's family home along with the appellant's parents-in-law. The adults in the house attended a table quiz in a nearby pub that evening. A babysitter was hired to look after the children in the house. The appellant left the pub at around 1:43 am with the father of the babysitter to return home to relieve the babysitter. The complainant described how the appellant came into the bedroom when she was asleep, that she woke up and felt him rubbing her back and then her bottom, and then he digitally penetrated her.
The other adults arrived home from the pub shortly thereafter and the complainant made a complaint to her mother that she had been touched by the appellant.
The following morning the appellant was confronted with the allegation and he denied it. The complainant was taken to hospital and the gardaí were notified. An investigation ensued and a video interview was conducted with the complainant on the 6 th December 2016 pursuant to the Criminal Evidence Act of 1992.
The appellant was arrested on the 6 th January 2017 and he denied the allegations put to him. The trial commenced on the 15 th January 2019 and the appellant was convicted by a majority verdict and sentenced to a term of imprisonment of seven years with three years suspended on terms.
The appellant sets out the following grounds of appeal:-
(1) The learned trial judge erred in law in failing to correctly direct the jury in respect of the standard of proof applicable in a criminal trial.
(2) The learned trial judge erred in law in failing to correctly direct the jury in respect of reasonable doubt.
(3) The learned trial judge erred in law in giving the jury an imbalanced and inaccurate charge.
(4) The learned trial judge erred in law in undermining the defence in his charge to the jury.
(5) The learned trial judge erred in law in not properly putting the defence case to the jury.
(6) The learned trial judge erred in law when directing the jury by reading out, in their entirety, transcripts of the interviews with the complainant, which represented in effect the examination-in-chief, but not referring to the cross-examination.
(7) The learned trial judge erred in law in misdirecting the jury as to the circumstances in which they might acquit, by stating that the jury should not be “afraid to acquit if feeling under pressure” (or words to that effect).
(8) The learned trial judge erred in law in refusing to accede to requisitions from defence counsel.
(9) The learned trial judge erred in law in declining to hear submissions from the prosecution on all but one matter arising out of the requisitions of defence counsel.
The appellant has grouped these grounds into three broad submissions set out hereunder.
The central criticism levelled regarding the trial judge's charge is that it presents an imbalanced view of the evidence as the trial judge read verbatim from a transcript of interview with the complainant conducted by the child specialist interviewer and did not refer to the cross-examination of the complainant. Mr Cody SC for the appellant argues that the judge not only failed to advert to any inconsistencies which it is said arose in cross-examination but failed to refer to the cross-examination at all.
The appellant submits that the obligation to ensure fairness and balance dictates that the trial judge ought to have referred to the cross-examination of the complainant, particularly where the judge recited verbatim the content of the transcript of the DVDs of interview with the child.
The trial judge was requisitioned on this point by the defence, which requisition was refused. In essence, it is argued that it was essential that the judge instruct the jury to consider, at a minimum, all of the evidence and in failing to do this, he fell into error.
The appellant accepts that there was no obligation on the trial judge to list all the points which arose on cross-examination but once the trial judge had taken it upon himself to read the transcript of interview which took up most of the charge, he should have referred to the cross-examination in order to ensure fairness and balance.
The appellant refers to The People (DPP) v. Hardiman [2011] IECCA 69 where the Court rejected a ground of appeal concerning a failure of the trial judge to mention something said in a garda statement in the charge. The Court said as follows:-
“A charge does not have to include every single comment or material adduced on behalf of the defence or indeed the prosecution, but must fairly draw the jury's attention to the important elements in the case, including the defence being put forward, and by reference to specific evidence. The charge of the learned trial judge in the present case met all the appropriate criteria applicable to a trial of the type in issue here was complete and detailed, and dealt with all legal requirements, as well as giving a fair synopsis of the evidence of the various parties. Moreover, it is clear that the words mentioned by the judge as being part of the cross-examination, which did not appear in the statement of evidence, clearly implied an allegation of lack of credibility on the part of the witness.”
It is said that Hardiman can be contrasted with this case as there was simply no mention of the cross-examination at all and the trial judge did not therefore meet his obligation to fairly draw the jury's attention to important elements in the case by reference to specific evidence.
The appellant further draws attention to the contrast between the circumstances of this case and the judgment of McGuinness J. in The People (DPP) v. DO'S [2004] IECCA 23:-
“In the course of his lengthy charge to the jury the learned trial judge surveyed the evidence which had been led by both prosecution and defence in some detail. He did not in specific terms summarise either the prosecution case or the defence case for the jury, the jury had, after all, recently heard the speeches of both counsel. However, in his survey of the evidence the learned trial judge was most careful to include the points made in cross-examination by the defence. He also drew the jury's attention to a number of inconsistencies in the evidence of the complainant and of other prosecution witnesses, and highlighted clashes of evidence as between various witnesses.”
The respondent contends that the charge was fair and balanced. In relation to the broad assertation that the charge was unfair and imbalanced the respondent submits that the charge must be assessed with regard to substance rather than form. The respondent refers to The People (DPP) v. Piotrowski [2014] IECCA 17 at para 3.1:-
“This Court, on appeal, is, however, required to assess whether the substance of the judge's charge dealt adequately and appropriately with all of those matters. It is a question of substance rather than one of form. Indeed, it is worth noting that, in certain other jurisdictions (the United States is a particular example), a judge's direction to a jury is in exact accordance with precise wording applied in each like case. The view in this jurisdiction is that there may be an advantage to allowing the judge to convey the required substance in a more freestyle form which avoids the risk of a jury being less well informed in practice by the repetition of well-worn formulas.”
When the trial judge concluded his charge, counsel for the appellant raised several requisitions. Specific to these grounds, it was submitted at trial that once the judge read the entire transcript of the interviews with the child, that the judge ought to have specifically adverted to the fact that the complainant was cross-examined by the defence and that the jury should have regard to all the evidence of the witness.
The argument could be advanced that juries are robust and every member of a jury would be aware that the evidence of a witness is not limited to direct testimony, and quite obviously includes the cross-examination, which in the present case was very lengthy indeed and may have presented somewhat of a challenge to the judge to summarise the salient features.
It is certainly the position that a trial judge is not required to rehearse the cross-examination of a witness in detail, but this is not the contention advanced on the part of the appellant. Rather, it is said that in this case, having read the interviews with the child in their entirely, it was incumbent on the judge, at a minimum to remind the jury that this was not the entire evidence of the witness and that it was necessary to assess all the evidence, which of course, included the cross-examination.
We note from written and oral submissions, in support of these grounds that it is contended on the part of the appellant that the defence had significantly engaged with and tested the evidence of various witnesses throughout the trial. The submissions point to 17 factors to which the trial judge did not refer during the charge and the appellant uses this list in order to underline the significance of the cross-examination. It is said that many of the factors pointed out in submissions relate to inconsistencies...
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DPP v M.Q.
...is no suggestion that the defence was not put to the jury. The respondent refers to the following passage from The People (DPP) v. PR [2020] IECA 347 where the Court considered what is required by a trial judge in summarising the evidence:- “In our view, in the present case, where the judge......