The People [At the Suit of the DPP] v Alan Hanley

• Jurisdiction: Ireland
• Judge: Mr Justice McCarthy
• Judgment Date: 04 February 2021
• Neutral Citation: [2021] IECA 27
• Docket Number: [85/2019]
• Court: Court of Appeal (Ireland)
• Date: 04 February 2021

Between

The People [At the Suit of the Director of Public Prosecutions]

Respondent

and

Alan Hanley

Appellant

[2021] IECA 27

Birmingham P.

McCarthy J.

Donnelly J.

[85/2019]

THE COURT OF APPEAL

Conviction – Rape – Corroboration – Appellant seeking to appeal against conviction – Whether the trial judge erred in his rulings, determinations and directions with regard to the issue of corroboration

Facts: The appellant, Mr Hanley, after a trial in the Central Criminal Court, was convicted on the 22nd of February 2019 of one count of rape, contrary to s. 2 of the Criminal Law (Rape) Act 1981, as amended. The appellant appealed to the Court of Appeal against this conviction. The appellant submitted that the trial judge erred in his rulings, determinations and directions with regard to the issue of corroboration; in particular, the appellant submitted that the trial judge erred in refusing to accede to the defence request to warn the jury that evidence of the complainant’s distress, as witnessed by members of the public, amounted only to weak corroboration in the circumstances of the case.

Held by the Court that the judge was right to tell the jury that evidence of distress can be strong corroboration and to emphasise their role. The Court did not think that the ground advanced was well founded.

The Court held that the appeal would be dismissed.

Appeal dismissed.

UNAPPROVED

JUDGMENT of the Court delivered by Mr Justice McCarthy on the 4 ^th day of February 2021:

1 . After a trial in the Central Criminal Court the appellant was convicted on the 22nd of February 2019 of one count (count no 1) of rape, contrary to s.2 of the Criminal Law (Rape) Act, 1981, as amended by s.21 of the Criminal Law (Rape) (Amendment) Act, 1990. The appellant had been arraigned on three such counts. The jury failed to agree on counts 2 and 3. This judgement concerns his appeal against this conviction. That trial was his third on those counts arising out of the same event or sequence of events. A charge of assault causing harm contrary to section 3 of the Non-Fatal Offences against the Person Act, 1997 was also laid arising from the same circumstances and the appellant had pleaded guilty to that offence at the first of the three trials. The first the jury disagreed. At the second the appellant was convicted of all three counts of rape, but the convictions were quashed by this Court on appeal. The appellant now appeals against conviction arising from the third trial.

2 . The appellant met the complainant at a social gathering in approximately April 2012 and they continued to spend time together afterwards. At that time the complainant was suffering from problems relating to addiction to alcohol and prescription medication. The complainant had previously been prescribed Xanax but continued to take it by purchasing it from street dealers. As a result of her addiction she attended a treatment centre in the west of Ireland. While she was there the appellant stayed in the house in which the complainant resided with her brother. This arrangement was agreed between the parties.

3 . On Wednesday the 2nd of May 2012 she had been drinking with the appellant and others at a park in Limerick city. The appellant and the complainant then proceeded to Dunnes Stores to purchase more alcohol when an incident arose about alleged shoplifting of some food items. As a result of this the complainant was briefly brought to Henry Street Garda Station. The appellant was waiting for her outside the station when she was released. She said she was intoxicated at this point. She asked the appellant if he had put the food into her bag as she said she did not take the items. This resulted in an argument between the two parties. The appellant became abusive, he was hitting the complainant, shouting at her and pulling her bag. Two young people came to her assistance. The complainant then returned to her house without the appellant but the appellant later returned to her house. She described him as being angry. The appellant and the complainant's brother had a physical engagement which resulted in the attendance of Gardaí.

4 . The following day, the 3rd of May 2012, the appellant attempted to call the complainant a number of times. After rejecting his calls she spoke to him on the telephone and told him to leave her alone. On the following evening, the 4th of May 2012, the complainant was in her home when she sent a message to the appellant asking him to phone her. He did so and she again asked him to leave her alone. She described him as being calm during the phone call. The complainant later went to an off-licence and purchased wine — she was expecting a friend of hers to visit that evening. At approximately 11.00p.m there was a knock on her door; she believed this to be her friend but when she opened the door she was confronted by the appellant who was angry and abusive, both physically and verbally. The appellant knocked her backwards, kicked her and punched her. She said she was “terrified” and that she thought he would kill her. The appellant had a bottle of vodka and he began to drink it. After hitting her head on a table she fell on to the living room floor where the appellant continued to assault her. The appellant tore off her clothing (she was wearing a grey top, leggings and underwear) and he proceeded to rape her on the rug in the living room. She said that the appellant raped her twice in such circumstances, further grabbed her by the hair, dragged her upstairs after each offence, and hosed her down in the shower in an upstairs bathroom. The complainant was bleeding at this time. She said the appellant did not ejaculate on these occasions. He dragged her downstairs again (for a second time) where the third rape occurred on the living room rug. She had said originally that, on this occasion, the appellant ejaculated inside her and onto the rug (an issue to which we will make further reference below). The appellant then threatened her with a knife, and then cut up the rug, which he proceeded to attempt to burn in the fireplace, along with her outer clothing and underwear. He did this in her understanding in order to destroy evidence of the rape; he also cleaned the bannisters of the staircase for a similar purpose. After the appellant started the fire the fireplace began to smoke and caused a smoke alarm to sound upstairs. While the appellant went upstairs to manage this the complainant was able to flee the house via the front door. She was wearing a blanket from the living room couch and a black towel. The complainant ran up the street and approached persons on the street in a state of distress and raised the alarm. She was brought into a house nearby and emergency services were called. The Gardaí were called and the complainant was brought to a Sexual Assault Treatment Unit; an examination was carried out: inter alia her vaginal area was swabbed with a view to recovery of forensic evidence. During the subsequent Garda investigation the appellant was arrested and interviewed in the course of which he admitted what amounted in law to assault causing harm but denied the allegations of rape. Medical evidence presented at trial was consistent with the complaint of assault without sexual implications – it was not in debate but that the complainant suffered extensive injury. On examination of the swabs of the vaginal area no semen was found — the latter fact led to issues of credibility of the complainant.

5 . The appellant was sentenced on the 9th of May 2019 to twelve years imprisonment, back-dated to the 5th of May 2012, with six years post-release supervision. It is necessary to refer relatively briefly to the factual or evidential background touching on issues of credibility against which the criticism of the charge on the topic of corroboration is based.

6 . The background in legal and evidential terms which the appellant says is relevant to his case here and which rendered a corroboration warning essential in the first instance (and when not given meant the conviction was quashed) can be seen shortly from a portion of the judgment of Birmingham P. in the appellant's earlier appeal as follows:-

“The evidential basis for a warning was very strong. The complainant, into statement to the Gardaí made soon after the incident, was unequivocal that the appellant had ejaculated inside her vagina. Ordinarily, there would be an expectation that she would give evidence at the trial thing effect. Instead her, her direct evidence that the first time, where she use the formula “I'm not fully convinced whether it [ejaculation] was inside me” represented a retreat from that position. The defence, of course were aware that the forensic evidence did not support the suggestion of my vagina ejaculation, were quick to probe the issue. In particular, the defence was keen to explore whether the complainant was modifying evidence to take account of what she had learnt of the outcome of the forensic examination stop her position is that at that stage with that she was unaware of the state of forensic evidence, yet at the October 2015 trial [second trial] she accepted that she had been aware that no traces of semen had been found and had middleware well before the first trial. In those circumstances, in the courts view, the points raised about tailoring or modifying evidence to accord with the forensic were points of substance. Indeed, the court has concluded that they were points of sufficient substance as to require, as distinct from yearly warranty, a corroboration warning.”

7 . The appellant asserts that certain evidence given at the trial giving rise to this appeal strengthens the case for a warning; that which the appellant submits is of most relevance appears to be that at the third trial, in February 2019, the complainant reiterated her allegation of three successive rapes and on this occasion,...