DPP v R.A. (No. 1) & (No. 2)

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Birmingham
Judgment Date04 Mar 2016
Neutral Citation[2016] IECA 110
Docket Number176/14

[2016] IECA 110

THE COURT OF APPEAL

Birmingham J.

176/14

Birmingham J.

Sheehan J.

Mahon J.

The People at the Suit of the Director of Public Prosecutions
Respondent
V
R.A.
Appellant

Conviction ? Sexual offences ? Corroboration warning ? Appellant seeking to appeal against conviction ? Whether the trial judge should have given a corroboration warning

Facts: The complainant and the appellant, in 2007, both lived at an address in Togher, Cork. At the time the complainant was twelve years old and the appellant was in a relationship with the complainant?s mother. In the course of her evidence the complainant described a number of specific incidents of sexual abuse perpetrated by the appellant against her between 2007 and 2010. ?One such incident was said to have occurred over the Christmas holidays at a sleepover when she had a friend staying. On the 2nd May 2014, the appellant was convicted in the Central Criminal Court of a count of attempted rape, a number of counts of sexual assault and one count relating to the restriction of the personal liberty of a child for the purposes of sexual exploitation contrary to s. 3(2) of the Child Trafficking and Pornography Act 1998. The judge did not give a corroboration warning during the course of his charge in response to the request. The only mention of the corroboration issue was when he was dealing with the recent complaint evidence and made the point to the jury that the complaint evidence was not independent corroborative evidence and gave as an example by way of contrast of evidence of bruising or of injuries in the immediate aftermath of an alleged sexual assault or rape which would be independent corroborative evidence. In the course of that section of charge the judge said that there was no evidence of that type, that is to say corroborative evidence, in this case. Subsequently on the 18th June, 2014, the appellant was sentenced to eleven years imprisonment on the attempted rape count and to four years imprisonment on the other counts with the final two years of the sentence suspended. The appellant appealed to the Court of Appeal against conviction claiming that this was a case where a corroboration warning was required. That contention was put primarily in the context of the conflict between the evidence of the complainant and the statement of her friend that was read into evidence in relation to the sleepover incident. The appellant said that the judge when deciding not to give a warning seemed to have felt that the case had to be exceptional before a warning would be given. The appellant argued that if that was so he applied the wrong test and in a sense wrongly fettered his own discretion. The appellant said that this was a case where there should have been a warning and as a fall?back position he said that as a minimum it was a case where the appellant was entitled to have the application for a warning carefully considered by reference to the correct test.

Held by Birmingham J that there was no basis for saying that the case was such that the discretion that a judge had could be exercised only one way. Birmingham J held that if the Court was to conclude that the circumstances of the case mandated a warning, then the cases where a warning was not required would be few and the legislative policy would be set at nought. Birmingham J held that the issue was by statute a matter for the trial judge?s discretion. Birmingham J noted that the authorities indicated that the Court should be slow to intervene, interfering only when the decision was made on an incorrect legal basis or was clearly wrong in fact. Birmingham J held that that had not been established in this case; the matter remained one for the trial judge?s discretion.

Birmingham J held that in the circumstances the Court must dismiss the appeal. An appeal against the severity of the sentence was also dismissed.

Appeal dismissed.

Judgment of the Court (ex tempore) delivered on the 4th day of March 2016, by Mr. Justice Birmingham
1

On the 2nd May 2014, the appellant was convicted in the Central Criminal Court of a count of attempted rape, a number of counts of sexual assault and one count relating to the restriction of the personal liberty of a child for the purposes of sexual exploitation contrary to s. 3(2) of the Child Trafficking and Pornography Act 1998. Subsequently on the 18th June, 2014, he was sentenced to eleven years imprisonment on the attempted rape count and to four years imprisonment on the other counts with the final two years of the sentence suspended.

2

The appeal against conviction relates to the decision of the trial judge not to give a corroboration warning.

3

The background to this case is that in 2007, the complainant JC and the appellant RA both lived at an address in Togher in Cork. At the time Mr. A was in a relationship with the mother of JC and indeed, during the period that the incidents in with which the case is concerned, are alleged to have occurred, they got married. They married in 2008. In 2007 when the incidents that are the subject matter of the charges, are alleged to have commenced, JC was aged twelve years. In the course of her evidence Ms. JC described a number of specific incidents.

4

She told the jury that in 2007 she was sharing a room with bunk beds with her sister NC who was approximately a year and a half older than her. On one occasion RA entered the bedroom went to the bunk where she was, she was on the bottom bunk and whispered to her to be a good girl and then handed her a ?10 note. He placed his hand inside her pyjamas and knickers and rubbed her vagina and then rubbed her breasts. She describes another incident which she dates as occurring in May 2008, when she was watching an episode of CSI Miami in the downstairs of the house. Her evidence was that RA asked her ?give us a rub? and that he then pulled down his trousers and took her hand and placed it on his penis and caused her to masturbate him.

5

A further incident was said to have occurred over the Christmas holidays. On this occasion there was a sleep over. Her elder sister NC had a friend staying and she herself had a friend CD. NC and her friend went to bed and the complainant and CD stayed on the couch downstairs in a room where RA was. Ms. JC's evidence was that RA asked her friend CD for a kiss and that CD said no and that he then came over to her, that is to say the complainant and kissed her and attempted to put his tongue into her mouth, but that she kept her mouth closed.

6

She describes a further incident as occurring in the following October. On that occasion she went downstairs to have a shower when RA said to her ?give us a ride? and she said no. Having showered she went upstairs and was engaged in drying herself off when he entered her room and said ?I am going to ride you?. He then attempted to rape her on the bed.

7

A further incident in April 2010 was described. On this occasion she was upstairs working on a French project and also doing her nails. RA entered the room, took a belt off a hanger that was on the back of the door and tied her wrists together with the belt, put them over her head and the proceeded to pull up her top and down her pants and sat there looking at her for some five or ten minutes.

8

At trial the main prosecution evidence came from the complainant. There was, though evidence in the nature of recent complaint evidence from a young man who is the same age as JC about what she had told him on one occasion.

9

As part of the prosecution case, the statement of evidence of CD was read to the jury. That statement was brief and was in these terms:-

?My name is CD, when I was younger, my friend JC was...

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4 cases
  • DPP v K.M.
    • Ireland
    • Court of Appeal
    • 13 Octubre 2016
    ...might legitimately be exercised, was most recently re-stated by this Court in The People (Director of Public Prosecutions) v R.A. (No1) [2016] IECA 110 (Court of Appeal, ex tempore, 4th March 2016). 38 Giving judgment for the Court, Birmingham J. stated that: 'Since the enactment of the Cr......
  • DPP v K.C.
    • Ireland
    • Court of Appeal
    • 6 Octubre 2016
    ...case at all echoes to some extent the language used in the judge's charge that was considered by this Court in the case of DPP v. R.A. [2016] IECA 110. In that case, the judge in refusing an application for a warning, which was first made at the requisition stage commented:- 'I think in re......
  • DPP v D.N.
    • Ireland
    • Court of Appeal
    • 31 Julio 2018
    ...clearly wrong in fact’ The court's discretion in relation to corroboration warnings was again upheld by the Court of Appeal in DPP v R.A [2016] IECA 110, which stated that a judge's discretion in the matter should only be interfered with where the decision not to give a warning was made on ......
  • DPP v K.C.
    • Ireland
    • Court of Appeal
    • 30 Mayo 2016
    ...case at all echoes to some extent the language used in the judge's charge that was considered by this Court in the case of DPP v. R.A. [2016] IECA 110. In that case, the judge in refusing an application for a warning, which was first made at the requisition stage commented:- ?I think in rel......

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