DPP v Stokes
| Jurisdiction | Ireland |
| Judge | O'Donnell Donal J.,McKechnie J.,Dunne J. |
| Judgment Date | 25 October 2017 |
| Neutral Citation | [2017] IESCDET 105 |
| Court | Supreme Court |
| Date | 25 October 2017 |
[2017] IESCDET 105
THE SUPREME COURT
DETERMINATION
O'Donnell Donal J.
McKechnie J.
Dunne J.
This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal (Birmingham, Sheehan and Mahon JJ.) delivered on the 20th December, 2016, and from the resulting Order of that Court made on the 3rd March, 2017, and perfected on the 9th March, 2017.
Martin Stokes, referred to in this Determination as ‘the accused’ or ‘the applicant’, seeks leave to appeal to this Court from the said judgment and Order of the Court of Appeal.
The Director of Public Prosecutions, who opposes the application, is referred to in this Determination as ‘the DPP’ or ‘the respondent’.
The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3° thereof and from the many determinations made by this Court since the enactment of the Thirty-third Amendment, it is necessary, in order for this Court to grant leave to appeal from a decision of the Court of Appeal, that it be established by the applicant that the decision sought to be appealed involves a matter of general public importance, or that it is otherwise necessary in the interests of justice that there be an appeal to this Court.
Any ruling in a determination is between the parties. It is final and conclusive as far as the parties are concerned, and is a decision in relation to that application only. The issue determined on the application for leave is whether the facts and legal issues meet the constitutional criteria to enable this Court to hear an appeal. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in the application will in due course be disposed of in the substantive decision of the Court.
The Central Criminal Court
The full facts and background of the case are more fully recited in the judgment of the Court of Appeal and the parties' respective documents on this application for leave, and accordingly what is presented here is a summary version only. On the 5th August, 2015, following a seventeen day trial, the accused was convicted by a unanimous jury verdict of rape contrary to section 2 of the Criminal Law (Rape) Act 1981 (Count 1), the defilement of a child under the age of fifteen years contrary to section 2 of the Criminal Law (Sexual Offences) Act 2006 (Count 2), and two counts of sexual assault contrary to section 2 of the Criminal Law (Rape)(Amendment) Act 1990, as amended (Counts 3 and 4).
The offences were alleged to have occurred on Friday the 3rd June, 2011, at the Old Tuam Road, Monkstown, Co. Roscommon. It was the prosecution's case that sometime between 6.45pm and 7.00pm that day, the complainant, CS, who was fourteen years old at the time, was on her way from her home to her friend's house when she met the accused, who was then twenty years of age. CS vaguely knew the accused, having been at school with his younger brother and having met him once before. She told the Court that he asked her to go with him for a few minutes as they walked down the road, on the pretext of retrieving something from a green area adjacent to the road. He directed her to climb over a wooden fence and after telling her to sit down, he pushed her onto the ground, whereupon he proceeded to sexually assault and rape her. CS gave evidence that she pleaded with him to get off of her, that she was crying and said ‘no’, and that she told him that she was only fourteen. In the aftermath the accused warned her not to tell anyone.
That night she attended a teenage disco with her friends. Evidence was given that she seemed upset at the disco and that she had told a friend that she was afraid she might be pregnant as she had had unprotected sex with a lad. She did not disclose at this point that she had been raped, and some of her friends wrongly assumed that she was referring to a local teenage boy as it was believed that she and he were interested in one another. CS, who gave evidence that she was upset and afraid at the time, did not dispel her friends' mistaken impression at the time or in text message and Facebook communications the next day.
The following day, Saturday the 4th June, 2011, the accused arrived at her family home on several occasions on the pretext of seeking a phone number for her uncle, for whom he had previously done some work. Following these visits, the complainant disclosed to a neighbour that the accused had raped her the previous night; the neighbour immediately told CS's mother. The accused was arrested and detained for questioning. He denied the allegations or knowing the complainant, and went further and denied being in the locality on Friday evening or Saturday afternoon, even when it was put to him by the gardaí that numerous persons, including his own brother, local teenagers, and the complainant's mother, stepfather, uncle and neighbour, had made statements confirming his presence in the area at the relevant times. DNA samples were obtained during the course of this detention and the accused was released without charge.
Following forensic analysis, the accused's DNA sample was found to match DNA samples obtained from the complainant's underwear. He was again arrested, detained and interviewed in November, 2011, on which occasions he again denied any sexual contact. He was ultimately charged and remanded on High Court bail, though this was revoked for a failure to adhere to the conditions and he was subsequently remanded in custody.
After two previous trials in March, 2014 and February, 2015 had been aborted, a third trial was set for July, 2015. It was at this stage that the accused first raised the issue of consent, having previously maintained at all times that he had had no sexual contact with CS, consensual or otherwise. This was the defence advanced on his behalf at trial. His case was made through cross-examination of the complainant, and the accused himself did not give evidence. It was put to CS that she had arranged earlier in the day to meet the accused and that she was the dominant sexual partner; she was also cross-examined on her previous sexual history in light of her texting and social media interactions. The defence also contended that CS often looked and dressed older than her years. This defence of consent was manifestly entirely inconsistent with the position previously adopted by the accused at interview. Evidence was given that in his garda interviews he had denied sexual contact with CS and had even denied knowing her.
As above stated, the accused was found guilty on Counts 1-4 by a unanimous jury verdict. He was sentenced to twelve years of imprisonment on each of Counts 1 and 2, with the final two years suspended for a period of twelve years on conditions. Such sentences were to be concurrent and to date from the 16th December, 2013. Counts 3 and 4 were taken into consideration. The accused was certified as a sex offender for life.
The Court of Appeal
The accused appealed his conviction and sentence to the Court of Appeal. He raised fourteen separate grounds in his Notice of Appeal. However, the only grounds of continuing relevance on this application are those relating to the conduct and behaviour of the investigating gardaí, including alleged breaches of the Custody Regulations, and the admissibility of certain memoranda of interview (grounds (a) and (b) in the judgment of the Court of Appeal) and those concerning the trial judge's failure to direct the jury as to how it should attach weight to answers given in cross-examination, in that it is alleged that the manner in which he directed the jury on this point undermined the accused's right to silence (grounds (h) and (i) in the judgment of the Court of Appeal). The accused also submitted that even if no particular ground of appeal was sustained they should be looked at cumulatively, and the appeal should be upheld on that basis. He also appealed against the sentence imposed, alleging that it was disproportionate and excessive.
The Court's judgment in the appeal against conviction ( [2016] I.E.C.A. 402) was delivered by Sheehan J., with whom Birmingham and Mahon JJ. concurred, on the 20th December, 2016. The Court went through each of the grounds of appeal raised by the accused. In relation to grounds (a) and (b), concerning garda conduct, alleged breaches of the Custody Regulations, and the admissibility of certain memoranda of interview, the Court held that there was a clear implication in the trial judge's ruling that there had been a breach of Regulation 3(1) of the Custody Regulations but that such breach was not of such seriousness as to render the memoranda inadmissible. The Court was satisfied that the judge had given careful consideration to the matters raised. It acknowledged the improper behaviour of the gardaí at certain points and noted that different considerations might have arisen if the will of the accused had been overborne thereby; however, here the accused had remained robust and defiant, and...
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