J.S. v DPP

• Jurisdiction: Ireland
• Judge: Mr. Justice MacMenamin
• Judgment Date: 17 July 2013
• Neutral Citation: [2013] IECCA 41
• Court: Court of Criminal Appeal
• Date: 17 July 2013

S (J) v DPP

Between/

J.S.

Appellant

and

The Director of Public Prosecutions

Respondent

[2013] IECCA 41

MacMenamin J.

Herbert J.

McGovern J.

[Record No: CCA/96/11]

THE COURT OF CRIMINAL APPEAL

Crime – Sexual offences – Rape – Sexual Assault – Testimony – Judge misdirection – Lucas warning – Corroboration - Conviction – Appeal against sexual assault charge

Facts: The appellant was convicted of sexual offences committed against his niece occurring between May 2002 and April 2004 by the Central Criminal Court. He received seven years imprisonment for rape, and two years for each of fourteen counts of sexual assault to run sequentially. The complainant (the niece) was between thirteen and fifteen years old when the offences were carried out. The appeal related to the niece”s testimony regarding a count of sexual assault alleged to have occurred in the summer of 2002. The two central contentions were that the trial judge misdirected the jury on a ‘Lucas warning’ concerning the evidence of the 2002 summer assault; and secondly that the judge”s charge wasn”t satisfactory in respect of certain aspects of the prosecution evidence.

The appellant denied that he carried out any baling in 2002, and therefore could not have been involved in the sexual assault as told by the complainant, which indicated that the assault occurred whilst he was collecting bales on his farm which was being visited by the complainant at that time. Gardaí interviews with the appellant”s co-worker and son confirmed that the appellant was wrong, and that bales were in fact made in the summer of 2002.

The Lucas warning arose where an accused had made statements out of court which have been ascertained to be untrue, which can then be taken as corroboration in certain circumstances. The appellant contended in this case that the judge failed to provide a proper Lucas warning in his charge to the jury. The appellant contended that the warning was not ‘sufficiently contextualised’. Moreover, it was contended that the use of the word ‘lies’ in relation to the statements consistently by the judge biased his provision of the Lucas warning in such a way as to favour the prosecution and harm the defence – as the judge failed to qualify the word ‘lies’.

The court held that the warning given to the jury was thorough; had correctly identified that if the statements were held to be corroborative of guilt; and that this would only be applicable to that one count. The judge had properly warned that the statements did not necessarily mean that such lies were corroborative, identifying alternative reasons that people lie. Moreover, on the question of an imbalanced characterisation of evidence, the court held that nothing in the judge”s charge could be perceived as approving the evidence one way or another. The judge was held to have carefully and impartially directed the jury on all relevant matters. Both grounds of appeal were rejected.

The appeal was therefore dismissed.

DPP v BRADY UNREP CCA 5.5.2005 2007/6/1135

DPP v CLEARY UNREP CCA 3.3.2006 2006/17/3534 2006 IECCA 25

DPP v MASSOUD UNREP CCA 24.7.2009 2009/17/4133 2009 IECCA 94

DPP v CURRAN 2011 3 IR 785

R v LUCAS 1981 QB 720

1 1. The appellant was convicted in the Central Criminal Court on one count of rape and 14 counts of sexual assault of his niece, the complainant, between the months of May 2002 and April 2004. He was sentenced to seven years on the count of rape, and two years on each of the counts of sexual assault, the latter sentences to run concurrently, but consecutive to the sentence for rape. The events in question occurred either at the home of the complainant, whose family are involved in farming, or the home of her uncle, the appellant, also a farmer, who lived nearby. At the relevant times, the complainant was aged between 13 and 15 years. The main focus of this appeal relates to the complainant's testimony on one of the counts of sexual assault which, she said, occurred in the summer of 2002.

2 2. Two issues lie at the centre of this appeal. First, it is said that the learned trial judge misdirected the jury in relation to what is termed a "Lucas warning" regarding the evidence of this assault in the summer of 2002. Second, it is contended that the charge was unsatisfactory and misled the jury through an alleged disparity or imbalance in the manner in which the judge characterised certain prosecution evidence by contrast to his description of parts of the defence case.

The Lucas Warning

3 3. That false statements made by an accused, if they are found to be lies, may, in certain circumstances be corroborative of guilt is now well-established as part of our law (see The People D.P.P. v. Brady, (Unreported, Court of Criminal Appeal, 5 ^th May, 2005); The People D.P.P. v. Cleary (Unreported, Court of Criminal Appeal, 3 ^rd March, 2006); The People D.P.P. v. Massood (Unreported, Court of Criminal Appeal, 24 ^th July, 2009)).

4 4. In this case, counsel for the appellant raises issues on both the nature and extent of the warning given to the jury. It is said that the judge misdirected the jury by failing adequately to warn them that, when an accused has made statements out of court, which are shown to be false, such statements may be treated as corroboration, but that there may other circumstances which explain or excuse such conduct which may not be consistent with guilt.

5 5. The Lucas warning was a subject of discussion in the judgment of this Court in Director of Public Prosecutions v. Curran [2011] IECCA 95. The general format of the "Lucas warning" is by now well known. As will be seen, in this appeal, there was a strong resonance between the actual words used by Lord Lane L.C.J. in the case of R. v. Lucas [1981] QB 720, and the characterisation deployed by the trial judge in his charge to the jury.

6 6. In Lucas, Lord Lane L.C.J. put matters this way:

"Statements made out of court, for example, statements to the police, which are proved or admitted to be false may in certain circumstances amount to corroboration. There is no shortage of authority for this proposition … It accords with good sense that a lie told by a defendant about a material issue may show that the liar knew if he told the truth he would be sealing his fate…"

The judge then outlined the nature of the warning to be given:

"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by admission or by evidence from an independent witness."

Background

7 7. It is necessary now to consider some further background to this case. The complainant testified as to the circumstances of the first sexual assault upon her. This was said to have taken place in the summer of 2002. The complainant was able to identify specifically the time and circumstance by reference to the activity which was going on in the appellant's farm which she was visiting. She testified that the first occurrence was after the school holidays. There was baling going on on the farm.

8 8. The complainant testified that the appellant was picking up bales from one of the top fields on his farm and bringing them down to a bottom field which she identified. The bales were to be cut and wrapped. She identified family members who were there. These were her own brother and two of her cousins, children of the appellant.

9 9. What follows is a summary of the complainant's narrative of events in evidence. She said that she and her cousins were all taking spins on the tractor. She testified that the appellant got on the tractor, and she stayed there, on a small seat to the left of the main driver's seat. The appellant went to go and pick up a bale from the top field when the other children were back down in the lower fields. As the appellant was driving the tractor, he asked the complainant "what would you do if I placed my hand high up on your leg?", and claimed that it would be "no harm" as he was her uncle. She described the assault. The complainant said she lifted his hand away. She said the appellant repeated these actions as he was going back down towards the field to drop off the bale. Again, the complainant lifted his hand off. She testified to the jury that she was bewildered, embarrassed and questioning herself as a result of what happened.

10 10. Three years later, the appellant was interviewed in the course of an investigation which began in August 2005. He denied each and every one of the allegations. At interview he suggested that complaints had been made against him because the complainant's family were trying to blackmail him and because they had a grudge against him for having sold a field. No evidence in relation to these claims was adduced at the trial.

11 11. The appellant was asked at interview about the first incident of sexual assault. It was put to him that this had occurred while hay was being baled in May or June, 2002. The appellant point blank denied having made any bales at all in 2002. He specifically distinguished that year from other years. By way of distinction to 2002, he gave an account of his farming activities in the years 2001 and 2003. Some of his words are set out below. It must be noted that the appellant (as was his right) did not testify at the trial. However, at interview he denied...