DPP v Roger Ryan

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 20 April 2010
• Neutral Citation: [2010] IECCA 29
• Court: Court of Criminal Appeal
• Date: 20 April 2010

[2010] IECCA 29

THE COURT OF CRIMINAL APPEAL

Geoghegan J.

Budd J.

de Valera J.

Appeal No. 46/09

DPP v Ryan

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

ROGER RYAN

Applicant

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7(1)

DPP v DOLAN UNREP CCA 3.5.2007 2007/17/3572 2007 IECCA 30

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7

DPP v M (J E) 2001 4 IR 385 2000/8/3053

CRIMINAL LAW

Sexual offences

Corroboration warning - Discretion of trial judge re corroboration warning - Timing of decision re corroboration warning - Whether trial judge must give reasoned ruling when deciding whether to give corroboration warning - People (DPP) v Dolan [2007] IECCA 30 (Unrep, CCA, 3/5/2007) considered; People (DPP) v JEM [2001] 4 IR 385 explained - Criminal Law (Rape)(Amendment) Act 1990 (No 32), s 7(1) - Appeal refused (46/2009 - CCA - 20/4/2010) [2010] IECCA 29

People (DPP) v Ryan

1 Judgment of the Court delivered by Mr. Justice Geogheganon the 20th day of April 2010

2 This was originally set down as an application for leave to appeal against conviction and sentence in a rape trial. On paper there were ten formal grounds of appeal. Shortly in advance of the hearing of this application, eight of the grounds were abandoned leaving the remaining two which were 7 and 8 still standing. Not only was it then accepted by Mr. Anthony Sammon, S.C., counsel for the applicant, that the two grounds were effectively the same, but he further refined them and indeed reduced them in a manner which I will explain.

3 The two grounds as contained in the formal grounds of appeal read as follows:

4 2 "7. That the learned trial judge erred in principle in failing and/or refusing to give a corroboration warning in respect of the evidence of the complainant as provided for by section 7(1) of the Criminal Law (Rape) (Amendment) Act 199032 ,, and providing no explanation for the said refusal.

5 8. That the learned trial judge erred in principle in exercising his discretion and refusing to give the jury a warning of the dangers of convicting the appellant in the absence of any corroboration."

6 At the oral hearing of this application, Mr. Sammon, confined his complaint to the "refusal" by the learned trial judge (Carney J.) to give an explanation for his unwillingness to give the said warning which "refusal" in the submission of counsel was unlawful. Counsel in his argument relied on a judgment of this court in DPP v. Dolan (unreported judgment [2007] IECCA 30 delivered by Kearns J.). The quotation marks on either side of the word "refusal" in this connection are deliberate because the court is of the view that in the particular context of what happened at the hearing, the word "refusal" is somewhat misleading.

7 Before explaining that context, it is necessary to summarise the facts of the case. The applicant was convicted of a rape committed in the complainant's own house and in rather unusual circumstances. The complainant had met a man while she was on holidays in another county. They decided to keep contact and after the complainant went home she contacted that man again and arranged a meeting place. He arrived witha friend of his and the three of them congregated on the evening of the alleged offence in a public house. They then later that night went back to the complainant's house and drank beers in a front sitting-room. Though there was some inconsistent evidence about this, the main thrust of the evidence was that for about twenty minutes or so the complainant talked out the window to some friends while the two men sat and drank. She then closed up the window and invited the friend she had met on the holiday up to her bedroom. The other man remained below drinking. That man made it perfectly clear in his evidence that he had sex that night with the complainant and using a condom. In the complainant's various statements to the gardaí she vacillated between admitting that that man slept with her but denying she had sex with him and saying that she did not remember whether she had sex with him to in the end more or less admitting she did have sex with him. A thong which she was wearing and a condom were found on the floor the following morning. The evidence suggests there would have been a substantial amount of drink taken. That could have led to confusion of memory. During the course of the night there was noise downstairs and it then emerged that the applicant had broken into the house by the downstairs window with the aid of a screwdriver. The complainant's new friend went downstairs to sort out what was happening. Shortly after that, aggressive threats wereissued to him and his companion by the applicant with the result that they left the house for their own protection.

8 The complainant's evidence (and there was no inconsistency in her testimony about this) was that she woke up from sleep in the bed. Expecting to find the man she had already brought up to the bedroom in the bed with her she found instead the applicant. She gave clear evidence that she had not wanted to have sexual intercourse with the applicant but her evidence was that the applicant forced himself on to her, using the screwdriver as a threatening weapon. The complainant, in some, but not all statements, claimed that the applicant had worn a condom when having sex with her. In the context of forcible rape, this seems surprising and she was heavily cross-examined by counsel for the applicant, Mr. Nix, S.C. in that connection. On one view of the evidence at least, there might have been an element of assumption in this regard on her part because although aware of the condom, she was, at times, in denial and, at times, in doubt as to whether she ever had sex with the man she had originally brought up to the bedroom. It was not in dispute that only one condom was found on the floor.

9 It was clear from the evidence that the complainant already knew the applicant before these events and furthermore that she had had sex with him. She claimed she had sex with him only once. In his first statement to the gardaí he said he had sexual intercourse only once butthat he had sex in the form of a "blow job" on another occasion. In a later statement, however, he said he had had sex with her "loads of times".

10 In summary, it can be said that both the complainant and the applicant made various statements to the gardaí which in matters of detail were not always consistent. The outline of facts so far given is merely a summary of the relevant evidence but is sufficient for the purpose of determining this application.

11 I now turn to the context in which the corroboration issue raised its head. In the absence of the jury and immediately before the closing speeches, Mr. Nix raised two matters with the court. He, first of all, indicated that he would not be going into evidence. He then said the following:

"The second matter is this, My Lord, I wonder, considering the question of corroboration, My Lord, I would submit that there is no evidence of any corroboration in this matter, to the material fact of rape and in those circumstances I would ask you, I wonder if Your Lordship would intend giving the warning that there is no corroboration."

12 Mr. Coffey, S.C., counsel for the Director of Public Prosecutions spoke as follows:

"There is evidence...