DPP v PC
|22 April 2002
|22 April 2002
|[C.C.A. No. 114 of 2000]
|Court of Criminal Appeal
Court of Criminal Appeal
Cases mentioned in this report:-
(Unreported, Court of Criminal Appeal, 27th July, 1993).
Criminal law - Corroboration - Independent testimony -Whether evidence sufficiently particular and material as to be capable of amounting to corroboration - Whether constituting independent testimony - Whether connecting accused with crime - Criminal Law Rape (Amendment) Act, 1990 (No. 32), s. 7.
Criminal law - Appeal court - Credibility of witness - Evidence - Burden of proof - Whether jury had due regard to the presumption of innocence - Whether jury acted perversely in treating the complainant as credible witness - Whether appeal court should set aside jury verdict as being perverse.
Application for leave to appeal.
The facts are summarised in the headnote and more fully set out in the judgment of the court, infra.
The defendant was convicted of unlawful sexual intercourse by O'Hagan J. and a jury at Monaghan Circuit Court on the 12th May, 2000. By notice of application for leave to appeal dated the 19th June, 2000, he sought leave to appeal against the conviction.
The matter was heard by the Court of Criminal Appeal (Murray, Barr and Kinlen JJ.) on the 26th November, 2001.
The defendant was tried on indictment in respect of various counts of indecent assault upon a female contrary to s. 10 of the Criminal Law (Rape) Act, 1981, and unlawful sexual intercourse with a female under the age of fifteen years contrary to s. 1(1) of the Criminal Law Rape (Amendment) Act of 1935, on diverse dates. The defendant was convicted of the offence contrary to s. 1(1) of the Act of 1935, was found not guilty by direction of the trial judge in respect of one count and the jury failed to agree on their verdict in respect of six other counts.
With regard to the count on which he was convicted, it was stated that the defendant met the complainant with his car outside the local school. She got into the car and they drove to his house where sexual intercourse took place in what was stated to be his bedroom.
The defendant argued that the conviction should be quashed. It was argued first that the jury did not have due regard to the charge, in particular in relation to the presumption of innocence and the burden of proof. It was argued that the complainant, in her evidence either had been proven wrong, contradicted herself or was so vague as to what occurred that the jury acted perversely in treating the complainant as a credible witness. It was also argued that the trial judge erred in directing the jury that the evidence of the complainant in relation to the defendant's bedroom was capable of amounting to corroboration of her evidence.
Held by the Court of Criminal Appeal (Murray, Barr and Kinlen JJ.) in allowing the appeal, setting the verdict aside and in ordering a retrial, 1, that the prosecution case depended entirely on the credibility of the evidence of the complainant. There was nothing extraneous or otherwise impugning the character or integrity of the complainant. The assessment of the credibility of the witness and the weight to be attached to such evidence was manifestly within the province of a jury in the trial. The verdict of the jury was not perverse.
2. That corroboration was independent testimony which affected the defendant by connecting him or tending to connect him with the crime. It must be evidence which confirmed in some material particular not only the evidence that the crime had been committed but also that the defendant committed it. Evidence of a feature which was so commonplace that it was not of sufficient particularity nor of a sufficiently material nature independent of the complainant's version of events, was not corroboration.
Cur adv. vult.
In accordance with the provisions of s. 28 of the Courts of Justice Act, 1924, the judgment of the court was delivered by a single member.
22nd April, 2002
This is an application for leave to appeal by the defendant against his conviction for the offence of unlawful sexual intercourse contrary to s. 1(1) of the Criminal Law (Amendment) Act, 1935, on the 12th May, 2000, at Monaghan Circuit Criminal Court.
The defendant had been indicted before a judge and jury on eight counts. He pleaded not guilty to each of them. Counts 1 to 5 concerned five offences of indecent assault upon a female contrary to s. 10 of the Criminal Law (Rape) Act, 1981. Counts 6, 7 and 8 concerned unlawful sexual intercourse with a female under the age of fifteen years contrary to s. 1(1) of the Act of 1935. All of the offences were alleged to have been committed against the same person, (hereafter"the complainant"). At the conclusion of the prosecution case the defendant was found "not guilty" by direction of the trial judge in respect of count 3. At the conclusion of the trial the jury found the defendant guilty on count 7 and failed to agree on their verdict in respect of counts 1, 2, 4, 5, 6 and 8. The verdict of guilty on count number 7 was a majority verdict in which ten jurors decided in favour of a conviction.
The offences set out on the indictment were variously alleged to have occurred between the 1st September, 1982 and the 12th December, 1984.
The particulars of offence concerning the count on which the defendant was convicted stated that "You, P.C., a male person, did, on a date unknown between the 1st September, 1984, and the 30th September, 1984, in the County of Monaghan, have unlawful canal knowledge of [the complainant], a girl under the age of 15 years."
Over the period during which the offences were alleged to have occurred, the defendant ran what may be described as a small transport business. He had a coach and a minibus. One of the things which he did was to bring children to a local swimming pool. Counts 1, 2 and 4, which consist of charges of indecent assault by the defendant of the complainant, were alleged to have occurred in circumstances connected with or related to these runs to the swimming pool. The complainant would have been twelve years old at the time of the first offence. Counts 6, 7 and 8, which concern the charges of unlawful carnal knowledge, were alleged to have occurred when the defendant met up with the complainant and went with her to particular locations where the offence was alleged to have taken place. As regards count 7, which is the only count with which this court is directly concerned, it was stated that the defendant met the complainant with his car outside the local school. She got into the car and they drove to his house where sexual intercourse took place in what was stated to be his bedroom. Further reference will be made to the relevant facts surrounding this particular event later in the judgment.
The defendant stated that the first time he became aware that the complainant was complaining of such offences on his part was on his first encounter with the gardaí concerning them on the 21st August, 1995.
Grounds of appeal
The notice of application for leave to appeal set out numerous grounds of appeal all of which effectively were concentrated into one ground of appeal at the hearing. The first ground of appeal was summarised by counsel for the defendant in his submissions as concerning the credibility and reliability of the complainant's evidence and whether, having regard to the evidence in the case and the charge of the trial judge, this court could be "satisfied that the jury had due regard to the charge, in particular in relation to the presumption of innocence, the burden of proof and the obligation, where questions of fact could be resolved either in favour of or against the defendant, to draw such inference in favour of the accused unless it would have been unreasonable so to do." In effect, it was submitted that the complainant, as regards a whole range of details in her evidence, had either been proven wrong, contradicted herself or been so vague as to what occurred that the jury acted perversely in treating the complainant as a credible witness.
At the hearing of the application, the defendant was allowed to rely on a further ground of appeal which was that the trial judge erred in law in directing the jury that the evidence of the complainant that the window in the defendant's bedroom in which she alleged unlawful sexual intercourse took place was opposite the door and had curtains was capable of amounting to corroboration of the complainant's evidence.
Counsel for the defendant first of all made reference to the fact that prior to the trial this prosecution had been the subject of an application for judicial review seeking to prohibit the...
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