DPP v E (T)

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 30 July 2015
• Neutral Citation: [2015] IECA 218
• Court: Court of Appeal (Ireland)
• Date: 30 July 2015

[2015] IECA 218

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

Record No: CCA 61/2014

DPP v E (T)

The People at the Suit of the Director of Public Prosecutions

Respondent

V

T. E.

Appellant

Conviction – Rape – Error in law – Appellant seeking to appeal against conviction – Whether the trial judge erred in law and/or in fact

Facts: The appellant, on the 22nd May, 2013, was convicted on a count of rape, contrary to s.2 of the Criminal Law (Rape) Act 1981, by the unanimous verdict of a jury at his trial before the Central Criminal Court. He had earlier been acquitted by direction of the trial judge of a second count on the indictment that had charged him with sexual assault. On the 17th February, 2014 the appellant was sentenced to seven years and six months imprisonment, with the final three years and six months of the said sentence suspended upon conditions, the sentence to date from the 17th February, 2014. The appellant appealed to the Court of Appeal against his conviction only. The Notice of Appeal filed on behalf of the appellant advanced five grounds of appeal. However, only two of the grounds pleaded were ultimately relied upon: the trial judge erred in law and/or in fact at the trial of the applicant in 1) not withdrawing the case from the jury and directing a verdict of not guilty at the close of the prosecution case on the basis of the complainant's evidence, and 2) failing to adequately charge the jury in relation to matters of law as they pertained to the defence case, in particular the issues of recklessness and knowledge as to whether or not the complainant was consenting to sexual intercourse. In addition, although not included in the Notice of Appeal filed, the appellant sought in written and oral submissions to argue an additional ground of appeal based upon the trial judge”s instruction to the jury, in giving them a corroboration warning in the exercise of his discretion, that ‘A distressed state is capable of amounting to corroboration, but it is considered by the courts to be weak corroboration.’ It was contended by the appellant that this instruction, in the circumstances and context in which it was given, and coupled with a failure to specifically instruct the jury that the evidence of one Mr V.S.S. could not amount to corroborative evidence of distress because it lacked the required quality of independence, amounted to a misdirection.

Held by Edwards J that it could not be said that the state of the evidence was so infirm that no jury, properly directed, could convict upon it. Edwards J held that the decision to refuse a direction was within the trial judge”s legitimate range of discretion, and was the correct decision. The Court agreed with the respondent, the DPP, that the appellant must be regarded as being precluded from raising criticisms of the trial judge”s charge with respect to recklessness, in circumstances where no complaint was made at the time and the trial judge was not requisitioned either as to the correctness or adequacy of his charge, applying DPP v Cronin (No 2) [2006] 4 IR 329. The Court considered that, while the judge did misdirect the jury with respect to recklessness, in suggesting to them that recklessness could arise even where a risk was not adverted to, it was a misdirection as to a hypothetical state of affairs that simply would not have arisen for their consideration on the run of the case. In the circumstances the Court did not consider that the misdirection created any appreciable risk of an injustice being done. The Court was satisfied that the jury were told in terms that corroborative evidence had to be independent; while it was the judge”s function to tell the jury what evidence was capable of amounting to corroboration, it was for the jury to determine whether any such evidence was in fact corroborative. In all the circumstances of the case, the Court was satisfied that the jury was adequately directed on the issue of evidence of distress as potential corroboration.

Edwards J held that, in circumstances where the Court had not seen fit to uphold any of the grounds of appeal relied upon, or sought to be relied upon, the appeal against conviction should be dismissed.

Appeal dismissed.

Introduction

1 1. In this case, on the 22 ^nd May, 2013 the appellant was convicted on a count of rape contrary to s.2 of the Criminal Law (Rape) Act 1981 (hereinafter the Act of 1981) as amended by s. 37 of the Sex Offenders Act 2001, by the unanimous verdict of a jury at his trial before the Central Criminal Court. He had earlier been acquitted by direction of the trial judge of a sccond count on the indictment that had charged him with sexual assault.

2 2. On the 17 ^th February, 2014 the appellant was sentenced to seven years and six months imprisonment, with the final three years and six months of the said sentence suspended upon conditions, the sentence to date from the 17 ^th February, 2014.

3 3. The appellant appeals against his conviction only.

The evidence before the jury

4 4. The case was concerned with events alleged to have taken place on the 5 ^th July, 2010. The complainant in the case was a Ms. F.M., a Brazilian national who had come to Ireland a month and eight days earlier and was working as a nanny/au pair for a family in Co. Galway. The complainant has limited English but told the jury that one of her reasons for coming to Ireland was to improve her English. She had been doing a degree in education in Brazil with a view to training as a teacher, but had temporarily dropped out for the purpose of improving her English and had travelled to Ireland with that in mind. She came to Co. Galway in circumstances where she knew another Brazilian person then living there, a Mr V.S.S., who became her fiancée for a time.

5 5. The complainant told the jury that from about 9.30am on the day in question she had been cleaning at the private house of her employer, and having finished that task, was driven into the town in Co. Galway in which she was residing by the said employer and, at her own request, was dropped off by him opposite the Catholic church, which was a short distance from where she lived.

6 6. Her evidence was that as she was proceeding towards her house, she passed a fast food premises. As she was passing it, a man who was outside of a nearby bar called out to her and spoke to her in English.

7 7. The appellant has at all stages accepted that he was that man.

8 8. The complainant told the jury that she stopped and the man enquired if she did cleaning, and she responded that she didn't understand. She then started walking again and informed the man that she was going home, that she did not understand him, and that she had to go because it was late and she was tired. She then proceeded in the direction of her home. Before she had quite got there the man caught up with her in a car. The man persisted in trying to talk to her. The complainant said the only word she could understand was "clean". This caused her to initially think that he was offering a cleaning service but then she realised that he wanted her to do cleaning, and as she heard "one, two, three" being mentioned, with gesturing by the man, she got the impression that he wanted her to do a cleaning at 3 o'clock.. At this point it was approximately 1.30pm. The complainant said she thought it would be worth it to do it, and she decided to do the cleaning.

9 9. The complainant got into the man's car and he then drove off. She was initially calm but as time passed she began to get concerned and asked him twice "Is it going to take long?" to which he responded "Yes, yes, we are getting there." She said that after 20, or may be 30 minutes, the car stopped at a house and they went inside.

10 10. The complainant said that she was offered some cleaning products by the man but they were not enough, and he had no suitable gloves to give her. The man then showed the complainant the places she was expected to clean, and she started work.

11 11. The complainant began to realise that the man did not really want a cleaning service. She arrived at this realisation when he touched her hand at one point and said she was very beautiful, and he started rubbing her hair. She then asked for a Coca Cola and while he was gone to get it she attempted to leave. She tried opening a door but found it was locked. She then tried another door, the front door, opposite which there was another house in which she had seen a woman occupant, but found it was also locked.

12 12. At this point the man returned with the Coca Cola. The complainant stated that she made no further attempt to leave as she was afraid. The complainant stated that after receiving the drink she then engaged in cleaning a window. The man then told her "No no, it's not like that", and purported to explain to her how to clean, and then held the complainant's hand. He then asked her to go to another room. They left the room they were in and the complainant then asked the man at what time would he bring her back, in response to which he said nothing but gave the complainant €50. The complainant stated that she thought at that point that she was going home, but the man held her hand and they went upstairs. When the complainant went to clean a window in one of the upstairs rooms the man started touching her on the hand and asked her about her family, about whether or not she had children, and whether or not she was married.

13 13. The complainant stated that the man then held her hands and brought her to yet another room. He then kissed the complainant on the neck following which he took off her blouse/shirt and then removed his own clothes. The complainant told the jury that he then kissed her on the mouth and she added "When he kissed me, I imagined that...