The People (at the suit of the DPP) v Clement Limen
| Jurisdiction | Ireland |
| Court | Supreme Court |
| Judge | Ms. Justice Iseult O'Malley,Mr Justice Peter Charleton |
| Judgment Date | 18 February 2021 |
| Neutral Citation | [2021] IESC 8 |
| Date | 18 February 2021 |
| Docket Number | Supreme Court appeal number: S:AP:IE:2020:000016 Court of Appeal record number 2018/10 [2019] IECA 318 Central Criminal Court bill number: CC DP 0074/2015 [Supreme Court Appeal No: 16/2020],[S.C. No. 16 of 2020] |
[2021] IESC 8
Clarke CJ
McKechnie J
Charleton J
O'Malley J
Baker J
Supreme Court appeal number: S:AP:IE:2020:000016
[2020] IESC 000
Court of Appeal record number 2018/10
Central Criminal Court bill number: CC DP 0074/2015
[Supreme Court Appeal No: 16/2020]
An Chúirt Uachtarach
The Supreme Court
Conviction – Rape – Corroboration – Appellant seeking to appeal against conviction – Where there are two or more alleged victims in an alleged sexual violence case, can the account of one support the evidence of any other?
Facts: Two complainants alleged that the appellant, Mr Limen, raped each of them in his home within a very short period of time, in what the parties at the trial were agreed could be regarded as one incident. A dispute giving rise to an appeal centred on the position taken by counsel for the prosecution in her closing speech, when she urged the jury to have regard to the “stark” or “striking” similarities between the accounts given by each complainant and said that in the circumstances the jury could find that those similarities gave support to the evidence of each. It was contended by the appellant that the trial judge should have directed the jury that this was not a permissible approach. As formulated in the determination granting leave to appeal to the Supreme Court, the questions for consideration were: (i) Where there are two or more alleged victims in an alleged sexual violence case, can the account of one support the evidence of any other? (ii) Can this occur only when the accounts are so similar as to be such as to otherwise admit their evidence under the similar fact principle, or is it enough that broadly concurring accounts are given? (iii) What, if any, direction ought a trial judge give to the jury as to cross-support or as to corroboration where there are two or more alleged victims in a sexual violence case?
Held by the Court that the following principles were intended as guidance to trial judges, subject at all times to the overriding requirement to ensure a fair trial: (a) a judge may in any case sever the indictment if of the opinion that it would be unfair to the accused to proceed with the indictment as drafted; (b) where the accused is charged with multiple offences of the same nature against several individuals, some probative value may be found in the inherent unlikelihood that several people have made the same or similar false accusations; (c) the inherent unlikelihood of multiple false accusations, and therefore the probative value, rises in situations where the complainants are independent of each other and there is no reason to fear collusion or mutual contamination; (d) where an application is made to sever the indictment (or, indeed, if the trial develops in such a way as to give rise to the issue), the judge will have to consider whether or not the complainants are independent of each other, and whether there are any grounds for concern that there may have been either collusion or innocent mutual contamination; (e) depending on the judge’s assessment of the situation either at the outset (based on the statements of proposed evidence), or during the trial (if the evidence raises concern) it may be necessary to either sever the indictment or give the jury an appropriately tailored warning about the possibility of collusion or contamination; (f) in a case involving multiple complainants, if it is determined that the evidence of each complainant is admissible in respect of counts relating to other complainants, there is no requirement to explain that ruling to the jury other than in general terms; (g) where any material part of the evidence can be regarded as admissible only in respect of an individual complainant, the jury should be instructed to take it into consideration in respect of that complainant only; (h) the weight to be attached to supportive evidence of this nature is a matter for the jury, but they should be warned that they can convict on any individual count only if satisfied beyond reasonable doubt that the accused committed the offence charged, and that they must not reach that conclusion solely on the basis that there are multiple accusers; (i) it is unnecessary, and may be unhelpful, to direct the jury in relation to the rules about corroboration unless the trial judge decides to give a corroboration warning.
The Court held that the evidence of each of the two complainants in this case was admissible in respect of each count on the indictment, under the principles set out above. The Court held that the appeal would be dismissed.
Appeal dismissed.
Judgment of Mr Justice Peter Charleton delivered on Thursday 18 February 2021
When a jury is hearing from one person testifying to repeated sexual violence, perhaps over years, or is presented with multiple accounts from two or more individuals claiming to be the victims of the same accused, issues arise as to how such allegations may cross-relate in terms of proof. This raises the question of the relevance of the account of each such alleged victim to the allegations of the others. The purpose of this judgment is to concur with O'Malley J and, in so doing, to analyse the complex legal network of interlocking rules of evidence and procedure through which a necessarily simple path should be found for general application in future criminal trials of multiple allegations from several persons. Particularly often, multiple allegations characterise sexual violence trials. Those who perpetrate sexual predation on children rarely stop at one incident or with one victim. Serial incidents of sexual violence on adults can also occur. But, since adults can less easily be cowed into silence, that pattern is much less common and the perpetrator is often quickly reported after the first crime, though many incidents can be held back because of misplaced shame or because of worry about going to court. In the sphere of sexual violence, joint trials of several incidents and often involving several individuals recur in the criminal courts. Hence, the resolution of the issues posed by the conviction of this accused at a joint trial for raping two adult women in his apartment, after a party in June 2014, become of wider application.
Two ladies in their 30s went for a night out in a large rural town. While at a venue they met the accused, who invited several people to a party at his home. There was music, dancing and the imbibing of alcohol and what is described as taking a puff of cannabis. How strong that cannabis was is not known but the plants yielding that drug have been selectively bred over the several decades of its popularity to strengthen the potency in its psychoactive components, tetrahydrocannabinol and cannabidiol. The ladies did not return home but camped there, one in a bedroom and the other on a couch. One woke up to find the accused raping her and on finding her friend she, in turn, related that the accused had sexually attacked her as well. Both ladies were brought to make complaints, by the husband of one, to a local Garda station.
They shared a suspicion that they had both been doped, that something had perhaps been slipped into a drink. Toxicology reports, however, gave no such indication. More likely was the interaction of drugs and alcohol producing a soporific state entirely accidentally. This was taken advantage of by the accused. The trial proceeded in an orderly way. Only at the end was any potential issue canvassed. In her closing address to the jury, counsel for the prosecution mentioned how the accounts of the two ladies were strikingly similar. For those familiar with the law of evidence this would have been a term of art, enabling evidence that the accused had committed a prior crime to be introduced to prove the accused's guilt; but for the jury it would have been no more than a piece of rhetoric. Here, in reality, two victims had given similar accounts of a sexual attack. It may be questioned as to why that does not strengthen the case against the accused? In reality, supposing that different accounts had been given, it was entirely open to the defence to turn that into an argument to the jury as undermining the soundness of the victims' individual complaints. Drawing a distinction here between a legal submission, which this is not, and a train of argument in a jury address, which this is, this might be a persuasive argument since the accused had told interviewing gardaí that one of the ladies had consented to sexual relations and that he had needed to repel the amorous attentions of the other. While the reference by counsel for the prosecution to striking similarity caused disquiet to counsel for the defence, in the end nothing was made of it and the trial judge did not touch on or analyse cross-support of evidence, corroboration or any relevance there might be to two separate complaints of a similar kind being given in the same trial against the same accused. In giving leave, this Court considered that analysis of the following issues to be important both to future trials and to considering the soundness of this conviction of the accused on two counts of rape and one of sexual assault:
1. Where there are two or more alleged victims in an alleged sexual violence case, can the account of one support the evidence of any other?
2. Can this occur only when the accounts are so similar as to be such as to otherwise admit their evidence under the similar fact principle, or is it enough that broadly concurring accounts are given?
3. What, if any, direction ought a trial judge give to the jury as to cross-support or as to corroboration where there are two or more alleged victims in a sexual violence case?
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