DPP v S.Q.

• Jurisdiction: Ireland
• Judge: Ms. Justice Baker
• Judgment Date: 31 March 2023
• Neutral Citation: [2023] IESC 8
• Court: Supreme Court
• Docket Number: Supreme Court Record No. S:AP:IE:2022:000026 Central Criminal Court Record No. CCDP0078/2017

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

S.Q.

Appellant

[2023] IESC 8

Dunne J.

Charleton J.

O'Malley J.

Baker J.

Woulfe J.

Supreme Court Record No. S:AP:IE:2022:000026

Court of Appeal Record No. 11/2019

Central Criminal Court Record No. CCDP0078/2017

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Crime & sentencing – Sexual offences- Rape – Appeal against conviction – Alleged failure by Gardaí to take statements

Facts: The appellant had been convicted on a count of rape in the Central Criminal Court, having entered a defence that any sexual activity was consensual. The Court of Appeal had dismissed an appeal from that verdict, but leave to appeal was granted by the Supreme Court in 2022 on whether the trial was unfair as the Gardaí had allegedly failed to take statements from relevant witnesses.

Held by the Court, that the appeal would be dismissed. The Court was able to take an objective view of the possible evidence alleged to have been not collected and considered it would have been of limited value to the appellant. As such, the trial could not be said to have been unfair.

Appeal dismissed.

JUDGMENT of Ms. Justice Baker delivered on the 31st day of March, 2023

Introduction

1 . This is the appeal of S.Q. (“the appellant”) against the judgment of the Court of Appeal (Edwards, McCarthy and Keane JJ.) delivered by McCarthy J., which dismissed the appeal against his conviction in the Central Criminal Court on the offence of rape: [2021] IECA 347.

2 . At the trial in the Central Criminal Court, the appellant's defence was that any sexual activity between himself and the complainant was consensual. The complainant gave evidence that she had not consented. The evidence was heard over two days, the jury was charged on the third day and on the fourth day returned with a guilty verdict. The evidence amounted to the testimony of the complainant, forensic evidence from the sexual assault treatment unit, interviews with the accused, and evidence of Gardaí, as well as text messages sent by the appellant to the complainant very shortly after the incident, including one in which he described himself as a “stupid man” and asked for her forgiveness.

3 . Leave to appeal from the judgment of the Court of Appeal was granted by Determination of this Court ( [2022] IESCDET 88) on the following point:

“[…] whether, on the facts of the case and the applicable law, the trial of the applicant should be found to have been unfair by reason of the failure of the Gardaí to take statements or contact details from, and the further failure to disclose the existence of, the two persons who could potentially have given evidence as to the complaint.”

4 . This point concerns the circumstances in which the complainant made her initial statement to the Gardaí. The evidence given during the trial was that the complainant had presented at a Garda Station the evening after the incident which gave rise to the charge. It was not until the complainant gave a victim impact statement for the purpose of the sentencing hearing that it became apparent that before she attended the Garda Station and reported the incident, she had, some 20 or 22 hours after the incident, contacted by phone, and then met with, a male work colleague “R” (whom she identified by name), and his girlfriend. They accompanied her to the station and R's girlfriend remained in attendance while the complainant made her statement to the Gardaí. None of this had been disclosed to the defence before the delivery to the defence solicitor of the victim impact statement, and prosecution counsel and solicitor were also unaware of the facts surrounding the attendance of the complainant at the Garda Station or of the identity of the two persons. Statements were not taken from R or R's girlfriend at the time of the original complaint or in the process of preparation for trial, nor were they interviewed by the Gardaí during this period. The Gardaí had not taken any details of their names, addresses or contact information.

5 . The appellant's new solicitor, who was instructed for the purpose of an appeal, raised a concern in correspondence that commenced on 10 June 2019. A further six letters were sent. This Court noted the following in its Determination at paragraphs 7–8:

“apart from acknowledgements and one inaccurate letter to the effect that the relevant information had been included in the statement of a garda, the inquiry was not properly answered until October 2020. It was then confirmed that the complainant had been accompanied to the garda station by her work colleague and his girlfriend, and that the girlfriend had sat with the complainant while she made her statement. They both left when the complainant was taken for medical examination. No statement was taken from either of the two individuals in question.

Further, it also appears clear that their names and contact details were not requested on the occasion of their attendance at the garda station, and that the complainant was not asked about her engagement with them at any stage either during the investigation or after the conviction.”

6 . At a case management conference on 4 October 2022, counsel for the respondent requested an adjournment and indicated she might seek to bring an application to adduce further evidence on the appeal should evidence be available from the two persons. On 27 October 2022, the case management judge was sent the affidavit of Anne Catherine Ralph, Assistant Principal Legal Executive, Solicitor's Division, Office of the Director of Public Prosecutions, sworn on the 27 October 2022, which contained two exhibits: the statement of R, taken on 14 September 2022, and the statement of Detective Garda Marie Connelly, the Garda who took R's witness statement, dated 28 September 2022.

7 . A subsequent case management conference was held on 1 November 2022, where counsel for both the appellant and the respondent confirmed that no application would be brought to seek to introduce at the hearing of the appeal the affidavit relating to new evidence, or to seek liberty to adduce new evidence at the appeal.

8 . The argument on this appeal ran on the basis that the evidence of R and his girlfriend was now unavailable.

The Judgment of the Court of Appeal

9 . The judgment of the Court of Appeal concluded that a significant issue had been raised and that evidence from R and/or R's girlfriend might have been admissible as evidence of recent complaint (at paragraph 9). However, McCarthy J.'s view was that it was a matter of speculation whether anything they might have said would have assisted one side or the other.

10 . At paragraph 18, the Court of Appeal considered the applicable principles were those arising from the case law relating to so-called “lost evidence”. The Court accepted a submission made on behalf of the prosecution that the fact that potentially relevant evidence or information was not known or was unavailable did not necessarily mean that unfairness or potential unfairness arose. It regarded it as essential that an accused person engage with the facts and identify how that evidence might have assisted the defence. The conclusion was that there had been no such engagement by the appellant and no attempt by him to obtain or seek that the Gardaí procure evidence, or any suggestion as to what it might contain, and how it might have impacted upon the verdict.

11 . In paragraph 20, the Court noted that the complainant had not mentioned to the Gardaí that she had told those who accompanied her to the station anything about what had occurred, which, the Court commented, meant that: “[i]n strictness, accordingly, the Gardaí had no reason to suppose that she had done so.”

12 . The Court of Appeal ultimately determined that the Gardaí should have sought out evidence, approached the individuals and ascertained whether they had had any engagement with the complainant about what had occurred, and, if so, invited them to make statements, and that there was a departure from that duty in this case.

13 . The Court of Appeal then addressed the question whether the trial was unfair. It concluded that the argument of unfairness was entirely speculative, in that it was not possible to know what the persons might have said. No effort had been made by the accused to obtain any information about them and there had been no real engagement with the prosecution about either their absence or their identity. The Court of Appeal accepted that the appellant had been deprived of the opportunity to make enquiries that might or might not have yielded fruit, but it was speculative to say that this impacted the fairness of his trial.

14 . Dismissing the appeal, the Court rejected the argument that the absence of the information regarding the attendance of R and R's girlfriend with the complainant or speculation as to what they might have said, could give rise to any risk of unfairness or render the trial unsatisfactory. It was highlighted that the determination of such issues is a matter of judgment on a case-by-case basis on the particular facts (para. 23).

Grounds of appeal

15 . The grounds of appeal are short and precise:

• (a) That the Court of Appeal erred in finding there was no engagement by the defence with the prosecution about the absence or identity of the missing witnesses in circumstances where the defence on appeal initiated the enquiry into the actual presence or absence of such witnesses and where the prosecution in conceding the presence of the witnesses had been omitted from the investigation in error failed to rectify such error by obtaining the identity of and statements from such witnesses.

• (b) That the Court of Appeal erred in finding that the burden of proof and the onus of establishing what in fact the missing witnesses would have said rested on the defence on appeal

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