People (Attorney General) v Cradden

• Jurisdiction: Ireland
• Judgment Date: 20 June 1955
• Date: 20 June 1955
• Court: Court of Criminal Appeal

Court of Criminal Appeal.

The People (Attorney General) v. Cradden

THE PEOPLE (at the Suit of the Attorney General)

and

MICHAEL CRADDEN (1)

Criminal law - Indecent assault - Evidence - Admissibility - Corroboration - Independent testimony required - Necessity of warning jury - Terms of warning - Deposition - Inconsistency between witness's evidence at trial and statements in deposition - Complaints by prosecutrix - Criminal Procedure Act, 1865 (28 Vict., c. 18), ss. 4, 5.

Criminal Appeal.

Application for leave to appeal against conviction and sentence.

The applicant, Michael Cradden, was, on the 4th May, 1955, tried in the Central Criminal Court and was convicted on a count of indecently assaulting one, Margaret Drew, a girl of eleven years of age, contrary to s. 6 of the Criminal Law Amendment Act, 1935. He was sentenced by the trial Judge, Mr. Justice Murnaghan, to three calendar months' imprisonment without hard labour. In consequence of their finding on the count of indecent assault, the jury did not go on to consider the second count on the indictment, one of common assault arising from the same incident.

The trial Judge refused to grant the applicant a certificate that the case was a fit one for an appeal to the Court of Criminal Appeal, and the applicant now applied to the Court of Criminal Appeal for leave to appeal.

The application for leave to appeal was made on the following grounds:—

"(a) that the learned trial Judge misdirected himself in law by refusing to allow counsel for the defence to put in evidence the deposition made by the prosecutrix, Margaret Drew, in the District Court or to cross-examine her on her evidence appearing in the said deposition;

(b) that the learned trial Judge misdirected the jury by failing adequately and sufficiently to instruct them on the law regarding corroboration, and in particular by failing to inform them that evidence of fresh complaints made by the prosecutrix could not constitute corroboration;

(c) that the trial was unsatisfactory."

The trial Judge in the course of his charge said that"where a girl is assaulted by a man, and there is no other evidence other than the girl's evidence, clearly that is a case which the jury must regard with the utmost suspicion. That is not this case. There is, gentlemen, I tell you, quite a lot of evidence in this case which is capable of supporting the girl's evidence." He referred to evidence of complaints made by the prosecutrix to three people immediately after the incident as evidence which did not establish the facts, but continued:—"If you are to believe that the girl told them what she said she told them, if you think that is consistent with the story she herself tells you, then you can take it into account"; and, later, "But, if you believe that evidence, then she named the man within minutes of it happening, if you believe it happened at all."

The trial Judge at no time in his charge gave the jury a definition of corroboration, but, in response to objections made to his charge, recalled the jury and defined corroborative evidence as "a piece of evidence that tends to support the girl's evidence on a material issue and which is inconsistent with the innocence of the accused; and the material issue in this case would be the question whether or not the accused assaulted Margaret Drew."

The further facts appear sufficiently from the judgment of the Court of Criminal Appeal, delivered by Maguire C.J.post.

On the hearing of the application for leave to appeal, the Court of Criminal Appeal, on the 26th May, 1956, granted leave to appeal, and treating the hearing of the application as the hearing of the appeal, quashed the conviction and ordered a new trial. The Court gave its reasons for its decision on the 20th June, 1956.

It is a rule of practice, where an accused is standing trial upon a charge of indecent assault, for the trial judge to warn the jury of the danger of convicting the accused upon the uncorroborated evidence of the prosecutrix; such warning should be given, in cases where evidence is offered as corroborative of the story of the prosecutrix, together with the admonition that if the jury find corroboration in the other evidence they should ignore the warning.

So held by the Court of Criminal Appeal.

Held further by the Court of Criminal Appeal 1, that evidence of complaints made by the victim of a sexual offence are admissible as evidence of the consistency of the conduct of the victim with the story told by her in the witness-box and (where the consent of the victim is material) as negativing consent on her part, but not as evidence of the facts complained of.

R. v. Lillyman [1896] 2 Q. B. 167 followed.

2, It is proper for counsel in cross-examination of a witness who does not recall having made a deposition, or having made certain statements in a deposition, to press the witness with the object of inducing him positively to admit or to deny having made the deposition or the statements. The propriety of such a course is not affected by the tender years of the witness. The deposition in such cases should be admitted in evidence, but solely as evidence of the credibility or otherwise of the witness, and not as evidence of the facts deposed to therein.

Cur. adv. vult.

The judgment of the Court was read by Maguire C.J.

Maguire C.J. :—

The appellant was tried before Mr. Justice Murnaghan and a jury at the Central Criminal Court on an indictment charging him with indecent assault contrary to s. 6 of the Criminal Law Amendment Act of 1935 on Margaret Drew, a girl under the age of fifteen years. On a second count he was charged with common assault. He was convicted and sentenced to three months' imprisonment. His application for a certificate giving him leave to appeal to this Court...