DPP v Reid

• Jurisdiction: Ireland
• Judgment Date: 01 January 1993
• Date: 01 January 1993
• Docket Number: [C.C.A. No. 121 of 1989]
• Court: Court of Appeal (Ireland)

The People (Director of Public Prosecutions) v. Reid

The People (at the suit of The Director of Public Prosecutions)

and

Paul Reid

[C.C.A. No. 121 of 1989]

Court of Criminal Appeal

Criminal law - Rape - Indecent assault - Corroboration - Warning to jury - Whether trial judge should direct jury's attention to aspects of evidence capable of corroborating complainant's version - Whether accused prejudiced by agreement to leave matter to counsel - Whether trial judge obliged to review an evidence - Whether evidence capable of corroborating complainant's account - Whether point of law of exceptional public importance involved.

Criminal law - Trial - Question from counsel interrupted - Question designed to elicit certain evidence - Evidence subsequently ruled inadmissible - Whether jury prejudiced by interrupted question.

Criminal law - Trial - Evidence - Rebuttal - Whether trial judge erred in exercise of discretion by permitting prosecution to call evidence in rebuttal.

The applicant sought leave to appeal against his conviction for rape, indecent assault and false imprisonment. The complainant had testified that she had met the applicant by chance, and that he had forced her to come back to his house and to have oral and vaginal intercourse. She alleged that the intercourse had taken place in a room in which a television had been turned on at high volume, to drown any protest she might have made. The applicant admitted that vaginal intercourse had taken place, and claimed that the complainant had consented. The gardai who had arrested the applicant testified that they had found him asleep in the room with the television, which was turned to a high volume, and that the applicant had stated that he had been at home all evening.

The complainant's parents testified to her distress on returning home, and to finding blood on her under-clothes. A medical examination had disclosed no evidence of assault on the upper body, but did reveal swelling, rupture and bleeding of the vaginal walls and recent rupture of the hymen. The medical examiner testified that the condition of the complainant's vagina gave rise to the conclusion that a considerable amount of force had been used.

Counsel for the applicant had indicated at the outset of the trial that objection would be taken to the introduction of evidence concerning the complainant's mental capacity; in the course of the trial, he interrupted a question from counsel for the prosecution which he correctly anticipated was designed to elicit such evidence, and sought the discharge of the jury. In the absence of the jury, the evidence was ruled inadmissible, but the request for the discharge of the jury was not renewed.

A witness called on behalf of the accused testified to his friendship with the complainant's family; the prosecution was allowed to call evidence in rebuttal.

In the course of his charge to the jury, the trial judge warned them of the danger of convicting on the charges of rape and indecent assault in the absence of corroborating evidence, which he explained as "evidence . . . which makes the matters alleged against the accused more certain that he did it." By agreement it was left to the prosecution to identify the evidence which might be corroborative, and to the defence to counter those submissions; but the trial judge did explain inter alia that the prosecution case was "that because of the condition of her vagina she couldn't have consented to having sexual intercourse with the accused man."

No requisition was raised concerning the trial judge's charge as to corroboration. The trial judge recharged the jury on all the matters raised but one.

Held by the Court of Criminal Appeal (O'Flaherty, Keane and Lavan JJ.), in refusing to grant leave to appeal, 1, that prior to the enactment of the Criminal Law (Rape) (Amendment) Act, 1990, while a jury could convict on charges of rape or indecent assault without corroborative evidence, they had to be warned of the danger of doing so, whether or not there was corroborative evidence; and that the warning as to corroboration did not require to be given in any particular form.

The People (Attorney General) v. Cradden [1955] I.R. 130, The People (Attorney General) v. Williams[1940] I.R. 195, The People (Attorney General) v. Linehan[1929] I.R. 19, The People (Director of Public Prosecutions) v. Egan [1990] I.L.R.M. 780 and R. v. Baskerville[1916] 2 K.B. 658 approved.

2. That the evidence of the medical examiner, the evidence as to the complainant's distressed condition, the evidence as to the setting of the volume of the television and the defendant's statement to the gardai that he had been in all evening were all matters which the jury had been entitled to treat as corroborative evidence i.e. evidence of concurring circumstances which gave greater probability to the evidence of the complainant.

3. That the trial judge's charge could not have left the jury in any doubt as to the danger of convicting on uncorroborated evidence; and that in view of what had been agreed between counsel and the trial judge, it was not surprising that the trial judge had not dealt in any detail with the matters which the jury might have treated as being corroborative of the complainant's account; and that in any event, the applicant had not been prejudiced.

Semble: That in cases under s. 7 of the Criminal Law (Rape) (Amendment) Act, 1990, where the trial judge gave a warning as to the danger of convicting on the complainant's uncorroborated evidence, it might be of assistance to direct the jury's attention to those aspects of the evidence which were capable of corroborating the complainant's version.

4. That with regard to the interrupted question from the prosecution designed to elicit evidence subsequently ruled inadmissible, there had been no significant risk of the jury suspecting the existence of inadmissible evidence which was possibly prejudicial to the applicant.

5. That with regard to the evidence called in rebuttal, it was entirely a matter for the discretion of the trial judge to decide whether the prosecution should have been allowed to rebut evidence which could not reasonably have been foreseen, and that there was no suggestion that the trial judge had erred in any way in the exercise of that discretion.

6. That it had not been incumbent on the trial judge to review all the evidence following requisitions from counsel for the applicant.

7. That there had been ample evidence on which the jury could have reached its verdict.

On the applicant's application for leave to appeal to the Supreme Court in relation to the trial judge's charge as to corroboration, held by the Court of Criminal Appeal, that there was no point of law of exceptional public importance involved.

Cases mentioned in this report:—

The People (Attorney General) v. Cradden [1955] I.R. 130.

The People (Attorney General) v. Linehan [1929] I.R. 19; (1928) 63 I.L.T.R. 30.

The People (Attorney General) v. Williams [1940] I.R. 195.

The People (Director of Public Prosecutions) v. Egan [1990] I.L.R.M. 780.

R. v. Baskerville [1916] 2 K.B. 658; (1916) 115 L.T. 453; 12 Cr. App. R. 81.

R. v. Henry & Manning (1969) 53 Cr. App. R. 158.

Application for leave to appeal.

The facts are summarised in the headnote and are fully set out in the judgment of Keane J., post.

The applicant was tried before the Dublin Circuit Criminal Court (His Honour Judge O'Connor and a jury) on the 8th, 9th and 10th November, 1989, and was convicted on the latter date. On the 4th December, 1989, the applicant was sentenced, and leave to appeal against the conviction and sentence was refused by the Circuit Court. The applicant sought leave to appeal against sentence and conviction from the Court of Criminal Appeal, and grounds of appeal were lodged on the 9th December, 1989.

The application was heard by the Court of...