DPP v to'r

• Jurisdiction: Ireland
• Judge: Finnegan J.
• Judgment Date: 14 March 2008
• Neutral Citation: [2008] IECCA 38
• Judgment citation (vLex): [2008] 3 JIC 1412
• Court: Court of Criminal Appeal
• Date: 14 March 2008

[2008] IECCA 38

COURT OF CRIMINAL APPEAL

Finnegan J.

Feeney J.

McGovern J.

240 of 03

DPP v O'R (T)

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.v.

TO'R

APPLICANT

CRIMINAL LAW (RAPE) ACT 1981 S2

PEOPLE, DPP v BROPHY 1992 ILRM 709

R v OSBORNE 1905 1 KB 551

DPP v GAVIN 2000 4 IR 557

DPP v ACHEAMPONG (ORSE A (M)) 2002 2 IR 601 2002/8/1810

AG, PEOPLE v BYRNE 1974 IR 1

DPP v KIELY UNREP CCA 21.3.2001 2001/8/1883

DPP v CRONIN UNREP SUPREME 3.3.2006 2006 IESC 9

CRIMINAL LAW

Rape

Inconsistency between direct evidence and statement - Evidence of observation of bruising - Whether complaint evidence - Whether recent complaint - Corroboration - Warning to jury - Failure to requisition trial judge - Conflict of evidence - Warning to jury regarding weight to be attached - Charge to jury regarding onus of proof and standard of proof - Inferences - Failure to raise at trial issue sought to be raised on appeal - People (DPP) v Brophy [1992] ILRM 709, R v Osborne [1905] 1 KB 551, People (DPP) v Gavin [2000] 4 IR 557, People (DPP) v MA [2002] 2 IR 601, People (Attorney General) v Byrne [1974] IR 1, People (DPP) v Kiely (Unrep, CCA, 21/3/2001) and People (DPP) v Cronin [2004] 4 IR 329 considered - Criminal Law (Rape) Act 1981 (No 10), s 2 - Application for leave treated as hearing of appeal and dismissed (240/2003 - CCA - 14/03/2008) [2008] IECCA 38

People (DPP) v O'R(T)

1 Judgment of the Court delivered on the 14th day of March 2008 by Finnegan J.

2 The applicant was charged before the Central Criminal Court with one count of rape contrary to section 2 of the Criminal Law (Rape) Act 1981. The particulars of the offence were that he, on a date between the 1st day of May 1996 and the 1st day of July 1996 at Mallow, Co. Cork, had sexual intercourse with P.D., a woman, who did not consent to it, and at the time he knew that she did not consent and was reckless as to whether she did or did not consent. He seeks leave to appeal against his conviction for that offence.

3 Of the grounds of application only the following were pursued at the hearing:-

4 1. The trial was unsatisfactory and the verdict unsafe having regard to the fact that the jury did not hear evidence in accordance with the statement of Ms. S.D. contained in the Book of Evidence that on the day following the alleged rape the complainant had informed Ms. S.D that the applicant had tried to rape the complainant by grabbing her by the throat and trying to pull down her pants.

5 2. The learned trial judge erred in law and in fact:

6 (a) in refusing to discharge the jury following:

7 (i) the admission in evidence of the complainant's complaint to Ms. S.D. in circumstances where the complaint was neither consistent nor recent;

8 and

9 (ii) prosecution counsel's question to the complainant immediately thereafter as to whether the complainant discussed the relevant events with any other members of the complainant's family;

10 (b) in failing to discharge the jury when the prosecution did not adduce the evidence of Ms. S.D. as to the said complaint.

11 3. The learned trial judge erred in fact and in law in failing adequately to warn the jury as to the absence of corroboration of the prosecution case in particular having regard to the delay by the complainant in reporting the allegations to the Gardai and a subsequent passage of time to the date of the trial.

12 4. The learned trial judge erred in fact and in law in recharging the jury:

13 (a) by directing the jury that the learned trial judge had been in error in stating that there was a conflict of evidence in the case, that the jury could attach such weight to the applicant's statements in Garda custody as the jury saw fit and that it was inappropriate to describe such statements as "evidence";

14 and

15 (b) by failing to direct the jury that exculpatory statements made by the applicant amounted to evidence in the case upon which the jury was obliged to acquit the applicant if, despite believing that the complainant was telling the truth the jury found that the applicant's exculpatory statements could reasonably be true.

16 5. The learned trial judge erred in fact and in law in charging the jury in dealing with the issue of "belief" as to the respective contentions of the complainant and the applicant and in refusing to reply to the question asked by the foreman on behalf of a juror by stating that if the juror believes that the accused is guilty, but does not think that the prosecution proved this conclusively, then the jury should go on to aquit.

17 6. The learned trial judge erred in law and in fact in failing to direct the jury that where two reasonable inferences can be drawn from a particular fact, one favouring the accused and the other favouring the prosecution, the inference favourable to the accused should be relied upon unless on considering the evidence as a whole, the jury is satisfied beyond reasonable doubt to the contrary.

18 The court proposes to deal with each of these grounds in turn.

Ground 1 - The trial was unsatisfactory and the verdict unsafe having regard to the fact that the jury did not hear evidence in accordance with the statement of Ms. S.D. contained in the Book of Evidence that on the day following the alleged rape the complainant had informed Ms. S.D that the applicant had tried to rape the complainant by grabbing her by the throat and trying to pull down her pants.

19 The events complained of occurred between midnight and 1 a.m. on the 1st June 1996. At 3 p.m. that afternoon P.D. met S.D. In relation to this she was examined as follows:

20 Q. Did you tell her anything?

21 A. Well, she noticed the marks on my neck. When she asked me I just started to cry. At first I was saying "Oh, it is nothing, it is nothing" but when she saw me to cry, she said "Paula you have to tell me what is on your neck, what happened". So I told her that when I was babysitting, Thomas O'Regan had come in and tried to kiss me but I resisted and he marked my neck and used his fingers. I said he was very drunk, but he just went home.

22 Q. That was the sum of what you told her?

23 A. Uh-huh.

24 Counsel for the applicant applied to have the jury discharged upon the basis that the account of P.D. of what she said to S.D. was inconsistent with the account which she gave in direct examination which was of a series of rapes. Reliance was placed on the decision of this court in The People (Director of Public Prosecutions) v Robert Brophy [1992] I.L.R.M. 709. It is not suggested that the complaint was not made as speedily after the acts complained of as could reasonably be expected nor that it was not voluntary. In that case the law on admissibility of complaints was recapitulated as follows:

25 (a) Complaints may only be proved in criminal prosecutions for sexual offences.

26 (b) The complaint must be made as speedily as could reasonably be expected and in a voluntary fashion, not as a result of any inducements or exhortation. Once evidence of the making of a complaint is admissible then particulars of the complaint may also be proved.

27 (c) It should always be made clear to the jury that such evidence is not evidence of the facts on which the complaint is based but to show that the victim's conduct in so complaining was consistent with her testimony.

28 (d) While there is mention in one of the older cases, R v Osborne [1905] 1 K.B. 551, of a complaint being "corroborative of the complainant's credibility" this does not mean that such a complaint amounts to corroboration of her testimony in the legal sense of that term but is pointing to the consistency of her testimony. Corroboration in the strict sense involves independent evidence, that is evidence other than the complainant's evidence.

29 (e) The law on complaint should not be confused with what takes place once the police institute their enquiries.

30 Relevant here is (c) above. In The People (Director of Public Prosecutions) v Gavin [2000] 4 I.R. 557 at 563 having cited The People (Director of Public Prosecutions) v Brophy McGuinness J. said:-

"It is very clear from the passages quoted above that the purpose of allowing in the evidence of complaint is to demonstrate the consistency of the complainant - in other words that he or she gave the same account in the immediate aftermath of the incident complained of as was given in evidence at the trial. In this case the complaint meets the criteria of being voluntary and made at an early stage. If the complaint is admissible at all, its terms are also admissible. But here the complaint does not meet the primary criterion of being consistent with the complainant's evidence at the trial. We do not accept the contention of the prosecution that it is sufficiently consistent because both descriptions are of sexual assault. The description of a hand on the groin is crucially different from the account given by the witness at the trial. If the complaint evidence did not meet the primary criterion of demonstrating consistency, should it have been admitted at all? I think not."

31 In The People (Director of Public Prosecutions) v M.A. [2002] 2 I.R. 601 complaint was made to two persons and it was accepted that certain parts or significant parts of the complainant's evidence were not in accordance with what she said in her complaints. However there were significant elements in the evidence of both witnesses concerning the complaints which were consistent with the testimony of the complainant at the trial. She had complained that she had been raped and that the applicant had forcibly held her on the bed and that she had bruising on her chin. The court held that these elements of consistency made evidence of the fact of the...