DPP v V.E.

• Jurisdiction: Ireland
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 20 April 2021
• Neutral Citation: [2021] IECA 122
• Date: 20 April 2021
• Court: Court of Appeal (Ireland)
• Docket Number: CCA Ref: CCAOT0105/2019

Between/

The Director of Public Prosecutions

Respondent

and

V.E.

Appellant

[2021] IECA 122

Birmingham P.

Kennedy J.

Ní Raifeartaigh J.

CCA Ref: CCAOT0105/2019

Bill No CCP0002/2018

THE COURT OF APPEAL

Conviction – Sexual offences – Corroboration warning – Appellant seeking to appeal against conviction – Whether the trial judge erred in refusing the defence application to give the jury a warning as to the dangers of convicting on the uncorroborated evidence of the complainant

Facts: The appellant was convicted of rape, sexual assault and “s. 4 rape” (anal rape). He was convicted on the 1 March 2019 following a trial in the Central Criminal Court which had commenced on the 19 February 2019. He was sentenced in May 2019 to 13 years imprisonment on the rape and anal rape counts, and 3 years and 6 months on the two sexual assault counts, to run concurrently. He appealed to the Court of Appeal against conviction. The grounds of appeal were as follows: (i) the trial judge erred in refusing the defence application to give the jury a warning as to the dangers of convicting on the uncorroborated evidence of the complainant; (ii) the trial judge erred in reading out in full during his charge the evidence of the complainant in this case; (iii) the verdict of the jury went against the evidence and the weight of the evidence; and (iv) the verdict of the jury was perverse in all the circumstances.

Held by the Court that the various issues raised by counsel as demonstrating that there were “special and unusual” circumstances of the case which necessitated the giving of a corroboration warning, did not withstand scrutiny. The Court failed to see any difference of substance between a judge reading out his notes of live evidence and a judge reading out his notes of a video-recorded interview. The Court noted that it has long been permitted for a trial judge to recapitulate the evidence of witnesses, including the complainant in a trial involving sexual offences. The Court held that it is not uncommon in sexual offence cases for a defence to be run on the basis that the mother ‘put the child up to’ making the allegations, and the mere assertion of such a matter together with other aspects of the case highlighted by the appellant did not bring the case into the ‘special and unusual’ category envisaged by Wooldridge [2018] IECA 135. The Court held that those matters did not give rise to any particular concern about the jury verdict and did not give the Court any ground for interfering with the verdict on the basis that it was perverse and/or against the weight of the evidence.

The Court held that in all of the circumstances, each ground of appeal having been rejected, the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 20th day of April, 2021 by Ms. Justice Ní Raifeartaigh.

1 This is an appeal against conviction in which the primary ground of appeal relates to the trial judge's decision not to give a corroboration warning in a case where the complainant was a child with a learning disability and where certain parameters had been laid down by the trial judge, on the advice of an intermediary, with regard to the child's cross-examination. The appellant was convicted of rape, sexual assault and “s.4 rape” (anal rape). He was convicted on the 1 March 2019 following a trial in the Central Criminal Court which had commenced on the 19 February 2019. He was sentenced in May 2019 to 13 years imprisonment on the rape and anal rape counts, and 3 years and 6 months on the two sexual assault counts, to run concurrently. The appellant also appeals against sentence but this judgment deals with the conviction appeal only.

2 At the material time, the appellant was in a relationship with the complainant's mother. The offences were alleged to have occurred between 13 April 2015 and 30 September 2016 when the complainant was between the ages of eleven and twelve. I will refer to the complainant throughout the judgment as N, and I have also made redactions accordingly in excerpts from the transcript which are quoted below. The name of the appellant's sister has likewise been redacted and she will be referred to as G in the text of this judgment and in quotations from the trial transcript. At the material time, the complainant was living with her mother, her two sisters (C and G), and her half-sister (L). The latter is the child of N's mother and the appellant. The relationship between N's mother and the appellant is no longer in existence.

3 The charges consisted of one count of rape contrary to s.2 of the Criminal Law Rape Act 1981, one count of sexual assault contrary to s.2 of the Criminal Law Rape Amendment Act 1990, and five counts of rape contrary to s.4 of the Criminal Law Rape (Amendment) Act 1990. Four of the “s.4 rapes” consisted of anal intercourse and one of them consisting of penetration of the vagina with fingers.

4 The complainant made the allegations to her mother in November 2016 and her mother contacted the Gardaí. A child specialist interview was carried out and recorded on the 26 November 2019. At the time of trial, the appellant was fourteen years of age. She has a mild learning disability.

5 The appellant was arrested on the 6 January 2017 and detained at a Garda station where he was interviewed. He denied all of the allegations during the Garda interview.

Relevant Legislation

6 A number of mechanisms which are made available by the Criminal Evidence Act 1992 were employed in the trial of the appellant. These were:

• • the use of an intermediary (pursuant to s.14(1)(b) of the 1992 Act);

• • the playing of a video-recorded statement of the complainant (pursuant to s.16(1)(b) of the Act);

• • the giving of unsworn evidence by the complainant (pursuant to s.27 of the Act); and

• • the use of a live video-link for the taking of evidence from the child during the trial (pursuant to s.13(1)(a) and (b) of the Act).

7 The use of an intermediary is provided for by s.14 of the Criminal Evidence Act 1992, which was commenced in 1997 1. As amended by the Children Act 2001 and the Criminal Justice (Victims of Crime) Act 2017, it now reads:-

“(1) Where –

• (a) a person is accused of a relevant offence, and

• (b) a person under 18 years of age is giving, or is to give, evidence through a live television link, the court may, on the application of the prosecution or the accused, if satisfied that, having regard to the age or mental condition of the witness, the interests of justice require that any questions be put to the witness be put through an intermediary, direct that any such questions be put.

(1A) Subject to s.14AA, where

• (a) a person is accused of an offence, other than a relevant offence, and

• (b) a victim of the offence who is under 18 years of age, is giving, or is to give, evidence through a live television link,

  the court may, on the application of the prosecution or the accused, if satisfied that the interests of justice require that any questions to be put to the victim be put through an intermediary, direct that any questions be so put.

(2) Questions put to a witness through an intermediary under this section shall be either in the words used by the questioner or so as to convey to the witness in a way which is appropriate to his age and mental condition the meaning of the questions being asked.

(3) An intermediary referred to in subsection ( 1) or (1A) shall be appointed by the court and shall be a person who, in its opinion, is competent to act as such.”

A “relevant offence” for this purpose is: (a) a sexual offence; (b) an offence involving violence or the threat of violence to a person; (c) an offence under s.3,4, 5, or 6 of the Child Trafficking and Pornography Act 1998; (d) an offence under s.2, 4, or 7 of the Criminal Law (Human Trafficking) Act 2008; (e) an offence under ss.33, 38 or 39 of the Domestic Violence Act 2018; (f) an offence of aiding, abetting etc, any of the foregoing offences.

8 The complainant's statement to the Gardaí had been video-recorded and was played in evidence at the trial as evidence-in-chief in accordance with s.16(1)(b) of the Criminal Evidence Act 1992, which provides:

“Subject to subsection (2)—

…

(b) a videorecording of any statement made by a person under 14 years of age (being a person in respect of whom such an offence is alleged to have been committed) during an interview with a member of the Garda Síochána or any other person who is competent for the purpose,

shall be admissible at the trial of the offence as evidence of any fact stated therein of which direct oral evidence by him would be admissible:

Provided that, in the case of a videorecording mentioned in paragraph (b), either—

…

(ii) the person whose statement was videorecorded is available at the trial for cross-examination.”

This procedure was introduced by the 1992 Act following recommendations of the Law Reform Commission Reports on Child Sexual Abuse and Sexual Offences against the Mentally Handicapped, published in 1990. However, these particular provisions were not commenced until October 2008 and the first trial in which a videorecorded statement was permitted in evidence as a substitute for examination-in-chief did not take place until 2010. 2 The procedure was extended in 2013 to persons under 18 years of age in relation to certain additional offences under the Child Trafficking and Pornography Act 1998 and the Criminal Law (Human Trafficking) Act 2008.

9 S.27 of the 1992 Act provides:

• “(1) Notwithstanding any enactment, in any criminal proceedings the evidence of a person under 14 years of age may be received otherwise than on oath or affirmation if the...