The People (at the suit of the Director of Public Prosecutions) v M.S

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 28 January 2025
• Neutral Citation: [2025] IESC 4
• Court: Supreme Court
• Docket Number: S:AP:IE:2023:000160

Between/

The People (at the suit of the Director of Public Prosecutions)

Respondent

and

M.S.

Appellant

[2025] IESC 4

Charleton J.

O'Malley J.

Woulfe J.

Collins J.

Donnelly J.

S:AP:IE:2023:000160

AN CHÚIRT UACHTARACH

THE SUPREME COURT

JUDGMENT ofMs. Justice Donnellydated this 28 ^th day of January, 2025

Introduction

1 . Two issues arise in this appeal. First, the extent of defence counsel's obligation to put their case to the prosecution witness if they intend to comment on the absence of evidence given by a witness. This raises for consideration the application of what is commonly termed ‘the rule in Browne v Dunn’. Second, if there has been no breach of any such obligation, whether, and to what extent, a trial judge may draw the attention of the jury to the fact that the issues were not raised with the witness.

2 . This is an appeal arising from the judgment of the Court of Appeal ( [2023] IECA 208; Birmingham P., McCarthy and Kennedy JJ.) dismissing the appellant's appeal against his conviction of six counts of rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law (Rape) Act, 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act, 1990.

Background

3 . Mr. S (“the appellant”) was indicted on 81 counts of sexual assault in relation to his three granddaughters (who were minors), at various locations over the period of 2009 to 2019. He was also indicted on six counts of rape in respect of one of those granddaughters (when she was aged from about 10 years to 14 years old). Before the trial judge at the Central Criminal Court, the appellant entered pleas of guilty to every count of sexual assault in relation to two of the grandchildren. Before the jury panel, he pleaded guilty to 51 counts of sexual assault and not guilty in respect of the rape offences in respect of his third grandchild who, for the purpose of this judgment, will be referred to as the complainant. After a contested trial by jury, at which he gave evidence, the appellant was convicted on each of the counts of rape. The Court imposed a sentence of 10 years imprisonment with one year suspended in respect of the six offences of rape and imprisonment for five years concurrent in respect of the 81 sexual offences. He appealed against conviction for the rape offences.

The Trial

The Evidence of the Injured Party

4 . At the time of the Central Criminal Court trial the complainant was 17 years old. Her evidence in chief was provided by way of a DVD recording of an interview conducted on 10 December 2019, when she was aged 14 years, by specialist garda interviewers pursuant to s. 16 of the Criminal Evidence Act, 1992. In the interview, the complainant recounted the first time she was raped. This occurred, she said, in the home of the accused when she was aged “ like ten”. He removed her clothing, put her on a bed, penetrated her vagina with his penis and told her not to move. She alleged that he restrained her by holding her hands above her head by her wrists. She stated that she felt scared and sick. She alleged that this happened in his home on other occasions when he was babysitting and nobody else was there. She referred to one sister going to music lessons. She referred to it happening in the sitting room. She was asked about the time on the couch and whether she noticed anything about herself. She said that she was sore. The specialist interviewer asked the complainant where she felt sore to which the injured party stated her “ hands”. When asked “ Ok ok anything else?” the injured party shook her head.

5 . The complainant was briefly cross-examined by counsel for the defence on a live television link before the jury. It was put to her that the rapes never happened, that the appellant absolutely denied the allegations, that he had never engaged in sexual intercourse with her, and that he never removed the complainant's clothing as alleged.

Closing Speech for the Defence

6 . During her closing speech to the jury, counsel for the defence suggested that, upon careful consideration, there were concerns as to whether the complainant's account of rape satisfied the threshold of reasonable doubt. Counsel raised various criticisms of the complainant's evidence or lack of it. She said that the complainant gave no evidence as to the location of her family during the rapes, having referred only to one sister going to music lessons. She went on to submit to the jury:

“Mr. S is in the unfortunate position where all he can do is say, this did not happen, I did not do these things. What more can he do? But look very carefully at the mechanics of the alleged act and the account that is given by [the complainant]. There is no reference to pain from the rape. When she is asked about being sore, she references her hands and when she is asked about anywhere else, she says no. When she is asked, she does say she could feel it in her. But there's no reference to his weight on top of her, there's no reference to an erect penis and there's no reference to any ejaculation. And as I say, I am not trying to be crude, but these are features that you would expect to hear when someone is describing this act, particularly when you're dealing with a child who isn't familiar with these things. And I'd suggest to you that if you carefully examine the evidence, it flies in the face of what [counsel for the prosecution] describes to you as a vivid account being given.”

7 . Prior to the judge's charge and in the absence of the jury, prosecution counsel objected to the defence closing speech. Counsel identified matters which had not been put to the complainant during cross-examination, namely, the lack of reference to pain other than her hands, the appellant's weight, or erection and ejaculation. Counsel for the defence replied that her case was that “ these things simply didn't happen” and that there was no further obligation on her to rectify any deficiencies in the injured party's evidence.

8 . The trial judge took time to consider the transcript and the authorities and ruled as follows:

“I'm of the view that I should tell the jury that they decide on the weight to attach to the evidence, that it has been submitted to them on behalf of [the appellant] that the complainant's account did not make reference to pain or to the weight of [the appellant] on top of her. And that it was not put to the complainant that she had referred to sexual assault in her letter to her mother. These are all matters for the jury, but they were not put to the complainant. But it's entirely a matter for the jury to consider all the evidence and what weight should be attached to the evidence”.

Charge of Trial Judge

9 . In her charge to the jury, the trial judge noted that the jury will consider the closing speeches of counsel for the prosecution and defence but that the speeches “ are not evidence”. The trial judge included the following in her charge to the jury:

“you saw [the complainant's] evidence by way of DVD and then you saw her cross-examination. One matter I want to bring to your attention is that it was submitted to you on behalf of [the appellant] on Friday that [the complainant's] account made no reference to pain or to the weight of [the appellant] and how it felt to have the weight of [the appellant] who's been described as a big man on top of her. And that her account to her mother in her note was of sexual assault. And that she did not use the word rape, she referred to sexual assault.

Ladies and gentlemen, you weigh up all of the evidence you have heard in the trial. These were not put to [the appellant], these submissions which I have referred to were not put to [the appellant] and it will be a matter to weigh up all of the evidence in relation to what you have heard during the course of the trial and to consider the significance you attach to any of the evidence which you have heard during the course of the trial. Consider all of the evidence and the significance you attach to it.”

Decision of the Court of Appeal

10 . In his appeal, the appellant submitted that the trial judge erred in law in instructing the jury that a lesser weight should be attached to matters put to the jury by counsel for the defence as they had not been put to the relevant witness during the trial. The Court of Appeal affirmed that the defence counsel said nothing to the jury that was impermissible. The Court noted that while prosecution counsel had hoped for a stronger intervention by way of reprimand or otherwise, such an action might well have given rise to difficulty in the context of the trial in circumstances where defence counsel had not overstepped the line. The Court of Appeal said that the judge's remarks could scarcely have been more restrained. The Court went on to say that it was “beyond doubt that the judge was entirely within her rights to draw the attention of the jury to the fact that the criticisms of the complainant for not dealing with certain matters in her narrative were in the context that those were not issues raised with her” (para 14). It was, the Court said, not an answer to point out, as defence counsel did, that these were issues canvassed during the course of the specialist interview. The appeal was dismissed.

Issue 1: The Obligation on Defence Counsel to Put Their Case to the Witness

Submissions

11 . The appellant, citing Powles, Waine and May, May on Criminal Evidence (6th edn, Sweet & Maxwell 2015), submitted that the object of cross-examination is twofold; first, to destroy or weaken the effect of the evidence furnished by the witness-in-chief, and second, to elicit from the witness information favourable to the cross-examining party. The appellant highlighted two rules of evidence, first, cross-examination is not confined to issues raised in evidence-in-chief but must relate to either the issues in the case or the...