Court of Criminal Appeal quashes rape convictions due to unfair denial of limited cross-examination on complainant's sexual history.

THE COURT OF CRIMINAL APPEAL

Kearns J.

Budd J.

Gilligan J.

[76/05]

BETWEEN

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

G.K.

APPLICANT

JUDGMENT of the Court delivered by Mr. Justice Kearns on the 5th day of July, 2006.

This is an application for leave to appeal brought by the applicant from various convictions of a sexual nature brought in by

a jury on the 3rd March, 2005 following a trial in the Central Criminal Court. On that date the applicant was convicted of

various sexual offences perpetrated against the complainant, L.S., between the years 1991 – 1997. The complainant was

born on the 18th April, 1981, and was nearly 24 years of age at the time of trial. She was aged between ten and fifteen

years during the years when the offences occurred. The applicant had been charged with one count of indecent assault

under s. 10 of the Criminal Law (Rape) Act, 1981(in respect of which he was found not guilty), four counts of sexual

assault contrary to s. 2 of the Criminal Law (Rape) Amendment Act, 1990 (in respect of all of which he was found guilty),

three counts of unlawful carnal knowledge contrary to s.1(1) of the Criminal Law Amendment Act, 1935 (in respect of one

of which he was found guilty and in respect of two of which the jury disagreed), one count of unlawful carnal knowledge

contrary to s. 2(1) of the Criminal Law Amendment Act, 1935 (in respect of which he was found guilty) and three counts of

rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990 (in respect of two of which he was found guilty

and in respect of one of which he was found not guilty).

The trial in the Central Criminal Court in February, 2005 was the third trial to which the applicant was subjected arising out

of the offences in question. In the first trial, the jury failed to agree a verdict on any count. At his subsequent re-trial, the

applicant was convicted on a number of counts but appealed his conviction on various grounds, one of which was that he

was entitled for the purpose of the second trial to have had a transcript of the proceedings in the first trial. There were other

grounds of appeal, but as this Court allowed the appeal in respect of the trial court’s refusal to direct the provision of a

transcript, those other grounds were not the subject matter of any ruling.

In the course of the third trial, the subject of this appeal, the applicant gave evidence in which he strenuously denied any

improper or inappropriate sexual contact with the complainant, but was nonetheless convicted on eight counts as outlined

above. He was sentenced to eight years imprisonment in respect of the more serious offences, with shorter periods of

imprisonment for the less serious offences, all such sentences to run concurrently. The Court was informed during the

course of the hearing of this appeal that the applicant has to date spent approximately three and a half years in prison on foot

of his various convictions arising out of these offences.

While a number of grounds were argued in the course of this appeal, this judgment is directed to the ground of appeal

founded upon the learned trial judge’s refusal to allow cross-examination of the complainant in respect of a matter which

emerged only at the sentencing hearing which followed the second trial. The development was, to say the least of it, both

unexpected and unusual.

Following the conviction of the applicant at the second trial, a Victim Impact Report was prepared for the sentencing hearing

by a clinical psychologist who had counselled the complainant after she had reported the incidents of sexual abuse to the

Gardai. The complainant participated in ten sessions with the psychologist between August, 1998 and January, 1999, with a

final assessment taking place in January, 2000. The psychologist’s report, which was prepared and furnished for sentencing

purposes in February, 2000, indicated that the complainant had in the course of her therapy disclosed that she “became

sexually active with boys when she was twelve years old”. In her report the psychologist did not indicate whether this

disclosure was made during one of the ten sessions referred to or in the final assessment in January, 2000. It was the

psychologist’s opinion that the disclosed behaviour was explicable by reference to the early sexualisation of the complainant

as a result of her abuse by the applicant. In the course of her report, the psychologist stated as follows:-

“In L.S.’s case, traumatic sexualisation has been a feature of her early adolescence. Traumatic sexualisation

refers to distorted ideas and behaviours regarding sexuality which are caused by sexual abuse. As the child’s

first sexual experience happens in a distorted and inappropriate way, at a time of immature development,

inappropriate sexual behaviours can result. In L.S.’s case, already sexualised by her abuse at the age of 8 and

9 years, she became sexually active with boys when she was 12 years old. In this psychologist’s opinion and in

line with the research, this was a direct effect of having sexual behaviour imposed on her as a child. While L.

had no control as a young adolescent, she became aware that this behaviour was abnormal and a way of

helping her feel powerful. Fortunately, she took control of this aspect of traumatic sexualisation and no longer

engages in inappropriate sexual behaviours.”

The psychologist also noted that the complainant “is able to discuss her abuse openly and has never shown avoidance or

an inability to examine her abuse in detail while in therapy.”

The importance of the disclosure of sexual activities with other boys lies in the fact that the defence were completely

unaware of these activities until the report was produced at the sentencing hearing which followed the second trial. It is

unclear whether prior to this report the Gardai were aware of the fact that the complainant was engaging in inappropriate

sexual activity with other boys during some of the years, notably from age twelve onwards, when she stated she was being

abused by the appellant. It would be a matter of some concern if they were and made no further inquiries arising therefrom.

It certainly seems that no further steps were taken by the Gardai between the second and third trials to investigate further

the complainant’s disclosure. There was no information either as to the name or names of the boys concerned or any

indication as to how long these activities continued or when they ceased.

A physical examination of the complainant in September, 1997, some six months after she had made complaint to the

Gardai, revealed that the complainant’s hymen was broken and evidence to this effect was given by a doctor, Dr Grainne

Courtney, retained by the prosecution for the purpose of carrying out such examination, at the third trial. However, it seems

the complainant made no reference during the course of this examination to any prior sexual activities with other boys. The

importance of this evidence will be referred to later.

Before any evidence had been given in the most recent trial, Patrick McCarthy, senior counsel for the applicant, sought a

ruling from the trial judge that he be given leave to cross-examine the complainant arising out of the disclosures made by the

complainant to the psychologist. The application was framed as follows:-

“It was canvassed by the gardaí in a second interview (i.e., with the appellant) as to why the complainant

would be making a complaint of this nature of sexual assault and rape. My client said he did not know, was

she pregnant and did she have other boyfriends, but he did not know. That previous sexual history was not

pursued in the absence of information because we had no information to give an explanation to the jury as to

why she would be making that complaint.”

Mr McCarthy argued that the revelation in the Victim Impact Report provided an explanation as to why the complainant

might have made a false complaint against the applicant and it was a matter which the jury were entitled to consider in

determining the guilt or innocence of the accused. Secondly, Mr. McCarthy argued that the complainant had “misled” the

police medical examiner in that the doctor was not given any history of sexual activity by the complainant other than that

involving the applicant. Mr. McCarthy argued that these were matters of particular significance, given that the complainant

had not disclosed her other sexual activity in either of the two trials which had already taken place. Mr. McCarthy further

relied on alleged inconsistencies in the complainant’s evidence in the previous trials, notably in relation to the description of

the applicant’s van and in relation to certain locations where sexual intercourse was stated to have occurred.

In ruling on the application, the learned trial judge decided against allowing cross-examination for two reasons. Firstly, he

held that the Victim Impact Report was a privileged document of a confidential nature which had been brought into being

solely for the purpose of sentencing after conviction. Secondly, the trial judge ruled that an application of this nature was

more appropriate to a case where consent was an issue. Given that consent was not an issue in the present case, the learned

trial judge relied upon that consideration as an additional reason for refusing the application. A further application for leave

to cross-examine the complainant about her sexual history was made immediately after the complainant had completed her

evidence though no new grounds were advanced and this second application was similarly refused.

The kernel of this appeal, therefore, is to determine whether the refusal to permit such cross-examination was a proper

exercise of judgment or discretion by the learned trial judge. Before proceeding to consider the provisions of the relevant

legislation, it is perhaps appropriate to note that Gerard Clarke, senior counsel for the respondent, did not seek to rely on

any finding that the report in question was privileged in the hearing before this Court.

Restrictions on evidence and cross-examination at trials for rape offences were introduced by the Criminal Law (Rape) Act,

1981. Section 3 of the Act provided as follows:-

“3. (1) If at a trial any person is for the time being charged with a rape offence to which he pleads not guilty,

then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-

examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience of a

complainant with a person other than that accused.

( 2 ) ( a ) The judge shall not give leave in pursuance of subsection (1) for any evidence or question

except on an application made to him, in the absence of the jury, by or on behalf of an accused

person.

( b ) The judge shall give leave if, and only if, he is satisfied that it would be unfair to

the accused person to refuse to allow the evidence to be adduced or the question to be

asked, that is to say, if he is satisfied that, on the assumption that if the evidence or

question was not allowed the jury might reasonably be satisfied beyond reasonable doubt

that the accused person is guilty, the effect of allowing the evidence or question might

reasonably be that they would not be so satisfied.

(3) If, notwithstanding that the judge has given leave in accordance with this section for any

evidence to be adduced or question to be asked in cross-examination, it appears to the judge that

any question asked or proposed to be asked (whether in the course of so adducing evidence or of

cross-examination) in reliance on the leave which he has given is not or may not be such as may

properly be asked in accordance with that leave, he may direct that the question shall not be asked

or, if asked, that it shall not be answered except in accordance with his leave given on a fresh

application under this section.

(4) Nothing in this section authorises evidence to be adduced or a question to be asked which

cannot be adduced or asked apart from this section.”

Section 3 of the Act of 1981 was amended by s.13 of the Criminal Law (Rape) (Amendment) Act, 1990, so that s. 3 now

reads:-

“If at a trial any person is for the time being charged with a sexual assault offence to which he

pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no

question shall be asked in cross-examination at the trial, by or on behalf of any accused person at

the trial, about any sexual experience (other than that to which the charge relates) of a complainant

with any person….(emphasis added).”

Section 1 of the Act of 1981 (as amended by s. 12 of the Act of 1990) defines “sexual assault offence” as meaning:-

“a rape offence and any of the following, namely, aggravated sexual assault, attempted aggravated sexual

assault, sexual assault, attempted sexual assault, aiding, abetting, counselling and procuring aggravated

sexual assault, attempted aggravated sexual assault, sexual assault or attempted sexual assault, incitement to

aggravated sexual assault or sexual assault and conspiracy to commit any of the foregoing offences.”

Although the Act of 1990 widened the scope of s.3 to include a range of offences of sexual assault, the Court notes that s. 3

does not appear to have extended the definition of “sexual assault offence” to offences of unlawful carnal knowledge as

defined in s.1 (1) and s. 2(1) of the Criminal Law Amendment Act, 1935. This may give rise to a difficulty in relation to the

ruling made in relation to the offences under the Act of 1935, but the Court is satisfied it can resolve the main issue in this

case without pursuing that distinction to any degree.

There is a dearth of decided authority in this jurisdiction as to how a trial judge should exercise his discretion under s.3 of

the Act of 1981. The issue was considered by this Court in D.P.P. v. McDonagh and Cawley (Unreported, Court of

Criminal Appeal, 24th July, 1990) and in the course of his judgment, Finlay CJ. had the following to say about the

construction of the section:-

“Upon the true construction of this Section it would appear necessary for the Judge, in the absence of the jury,

to hear all the necessary material which will permit him to reach a conclusion either with regard to

questioning or with regard to the tendering of evidence concerning sexual experience of a complainant with

persons other than the accused, and that it is a matter for his discretion in what form that information would

be put before him, whether by way of sworn testimony or by way of a proof of evidence. It is obviously

desirable where it is practicable for a ruling to be made at an early stage in the trial on any such application.

It may not, however, always be possible to rule it on one occasion only, and there is nothing inconsistent with

the provisions of the Section in a further or different application at a later stage in the trial or with the

renewal of an application or the postponement of a decision on it. The grounds on which the learned trial

Judge shall exercise his discretion are very clearly set out at section 3(2)(b), and solely consist of the question

as to whether he is satisfied that if the evidence or question was not allowed, the jury might reasonably be

satisfied beyond a reasonable doubt that the accused person is guilty, whereas, the effect of allowing the

evidence or question might reasonably be that they would not be so satisfied.”

As the complaint of the applicants in that case was confined to the timing of the granting of leave to cross-examine, the

ruling of the Court did not specifically address circumstances such as those which arise in the present case.

Counsel for the prosecution has referred this Court to a number of English authorities in relation to analogous provisions set

out in Section 2 of the Sexual Offences (Amendment) Act, 1976 (which said section has since been replaced by ss. 41-43 of

the Youth Justice and Criminal Evidence Act, 1999 in that jurisdiction).

It seems clear that the statutory provisions in this jurisdiction were drawn almost entirely from the corresponding provisions

set out at s.2 of the Sexual Offences (Amendment) Act, 1976 in England. The relevant section of the 1976 Act provided

that:-

“… the judge shall give leave if and only if he is satisfied that it would be unfair to that defendant to refuse to

allow the evidence to be adduced or the question to be asked.”

The Irish provision differs in that it provides by way of addition that the trial judge who has given leave to cross-examine

may direct that certain questions be not put or answered. However, the test in the both Acts is one of “fairness”. The 1976

Act does not limit the judge’s discretion in the specific manner in which a judge is confined under the Irish statutory

provision, although the wording of s.3 (2)(b) in the Irish Act draws heavily on the interpretation of the English section to be

found in the judgment of May J in R. v. Lawrence [1977] Crim. L.R. 492 where he stated (at p.493):-

“..in my judgment, before a judge is satisfied or may be said to be satisfied that to refuse to allow a particular

question or a series of questions in cross-examination would be unfair to a defendant he must take the view

that it is more likely than not that the particular question or line of cross-examination, if allowed, might

reasonably lead the jury, properly directed in the summing-up, to take a different view of the complainant’s

evidence from that which they might take if the question or series of questions was or were not allowed.”

In R. v. Viola, 75 Cr App Rep 125, CA, it was common ground that it was wrong to speak of a judge’s “discretion” in this

regard. The trial judge must make a “judgment” as to whether he is satisfied or not in terms of s.2. Once he reaches his

judgment of the facts, he has no discretion. If he concludes that it would be unfair to exclude the evidence or question, it has

to be admitted and allowed.

In R. v. Viola, the Court of Appeal said that the first question the judge has to ask himself is whether the proposed questions

are relevant according to the ordinary common law rules of evidence and relevant to the case being put against the

defendant. If they are not relevant in this way, that is the end of the matter. The second question is, of course, whether the

questions should be allowed or not.

Archbold (2000 Ed.) par. 8-123 m states at 1081:-

“The section was clearly aimed primarily at excluding questions which went merely to credit and no more. If

the proposed questions merely sought to establish that the complainant had sexual experience with other men

to whom she was not married so as to suggest that, for that reason, she ought not to be believed on oath, the

judge would exclude the questions or evidence. On the other hand, if the questions were relevant to an issue in

the trial in the light of the way the case was being run – for example, consent as opposed merely to credit –

they might as a general rule be admitted.”

At par. 8-1230, Archbold further states at 1082:-

“Questions which really do go to the issue of consent should, it is submitted, never be excluded under the Act

of 1976. Questions which do not go to that issue and which relate to the complainant’s previous sexual

experience should be excluded, unless they are such as might reasonably lead the jury to take a different view

of the complainant’s evidence. Clearly, if the complainant has lied about her previous sexual experience, this

is a matter which may affect the weight to be attached to her evidence. The mere fact that the complainant has

previous sexual experience, however, is of no significance whatsoever. Suppose, in the instant case, that the

truth was that the girl had previously had intercourse with her boyfriend, aged 15, on a number of occasions;

if she had said in her witness statement that she was a virgin, or her evidence was given in such a way as to

suggest that this was the case, it would obviously be right to permit cross-examination, as affecting the weight

of her evidence. In the absence of such features, or any other particular feature, it is submitted that such

questioning should not be permitted: the apparent suggestion in this case was that the eliciting of such

information would be relevant to the issue of consent. It is submitted that any such argument should be

formally resisted.

In R. v. Elahee [1999] Crim. L.R. 399, CA, the defence involved a denial of the act of intercourse with a 13

year old girl. It was held that medical evidence having been adduced that the victim’s hymen was not intact, a

defence application for leave to cross-examine her about the fact that she had previously had intercourse with

her boyfriend should have been granted. Disallowing such cross-examination gave rise to the clear risk that

the jury would regard the medical evidence as confirmation of the complainant’s evidence.”

The case of R. v. Elahee [1999] Crim. L.R. 399, involved a complainant who was aged 13 years and who alleged that the

appellant, an older man, had led her into a lobby and raped her. The appellant contended that the complainant had followed

him into a restaurant and initiated a sexual advance. He contended that no sexual intercourse had taken place and that the

allegations were a complete fabrication. A police doctor, who examined the complainant, gave evidence that her hymen had

not been intact. In fact, the complainant told the police surgeon that some 12 months before the incident she had had full

sexual intercourse with her boyfriend, but that explanation had been edited out of the statement of the police surgeon that

was read to the jury. Counsel for the appellant applied to the judge under s.2 of the Sexual Offences (Amendment) Act,

1976, for leave to elicit that fact from the complainant when she came to give evidence. The judge asked counsel what the

relevance was of the evidence that was sought to be introduced. Counsel explained that the relevance was that the

complainant was a person who, contrary to outward appearance, was at least capable of engaging in the behaviour that the

appellant alleged. The judge refused leave to cross-examine.

In allowing the appeal, the Court of Appeal held that where the issue in a case was not one of consent, but rather who had

made an improper approach to whom, the evidence of a complainant’s previous sexual experience was a matter which was

relevant to an issue in the trial and therefore one which the jury could properly take into account; not to assess credit, but to

assess the plausibility of the account given by the defendant. In that situation the evidence had to be admitted unless there

was a strong reason not to. The Court of Appeal ruled that the application to admit the evidence should have been granted,

since it was unfair, once the matter of the broken hymen had properly been put before the jury, for that matter not to be

carried through and the evidence of the complainant’s previous sexual experience to be put before them. It followed in those

circumstances that the conviction was unsafe and a retrial was ordered.

The revelation in the instant case that the complainant had engaged in inappropriate sexual behaviour with other boys may

well have been, as was suggested by the psychologist, the consequence of early sexualisation brought on by the actions of

the applicant. However, the disclosure in the particular context of the complainant’s age was an important one. Mr.

McCarthy has pointed out that prosecuting counsel closed the case to the jury by referring to the account given by the

complainant of her experiences at the hands of the applicant and had then told the jury that “there has not been one

suggestion as to why she might do that. Not one.” Indeed the interrogation of the appellant in the Garda station was in part

premised on questions as to why the applicant thought the complainant would advance such allegations, what possible

reason could she have. Mr. McCarthy argued that, taken in conjunction with the medical evidence, the presentation of the

complainant to the jury as a young girl with no other sexual experience resulted in a real unfairness to the applicant, because

the jury was deprived of the opportunity of considering the proper weight to be attached to the complainant’s evidence

against a background where inappropriate sexual activity with other boys was taking place. At the very least, Mr. McCarthy

argued, such activity was capable of raising a reasonable doubt in the minds of the jury, both as to the plausibility or

otherwise of the account offered by the complainant and because it was capable of providing a motive for bringing a false

allegation against an adult who was a regular visitor to the complainant’s family home and on friendly terms with her

parents.

In the ordinary course one might begin by stating that it is well settled law that discretionary orders should not lightly be

interfered with by appellate courts given that the trial judge is obviously in the best position to assess the demeanour of the

witness. However, as R v Viola demonstrates, the issue is as much about making a judgment on reasoned grounds as it is

about exercising a discretion. This is a case where the trial judge ruled on the application for leave to cross-examine for

reasons which had no relevance to the statutory test. One of those reasons, namely that the psychologist’s report was

privileged, has been abandoned by the prosecution and manifestly any question of consent was in no way germane to the

facts of this case. The defence of the applicant was that he never had sexual relations with the complainant, not that she

consented to such relations. It falls therefore to this Court to determine whether the ruling made is capable of being upheld

for reasons other than those identified by the learned trial judge.

Having regard to the severely restrictive terminology of the statutory provision, the Court is of the view that, in general, a

decision to refuse to allow cross-examination as to past sexual history may more readily be justified in most cases than the

converse. Indeed the Act is quite explicit in so providing. Furthermore, the younger the age of a complainant, the less

desirable it is to ever allow cross-examination which may well be extremely traumatic for a complainant of tender years.

Where a form of questioning is allowed, it should be confined only to what is strictly necessary and should never be utilised

as a form of character assassination of a complainant.

Moving from the general to the particular, however, it can not be denied that the admission of a history of sexual activity

with other boys of her own age commencing at the age of twelve and concurrent with the time of alleged sexual abuse by

the applicant passes the test of relevance. To begin with, the Court would take the view that the jury in this case would have

been unlikely to surmise any other possible sexual activity on the part of a girl of such tender years, even allowing for the

huge changes in adolescent sexual behaviour in recent years. Had this information been disclosed at the outset it might in

fact have fortified the complainant’s credibility, because it would appear from the psychologist’s report that there may have

been a ready explanation available to account for this behaviour. Unfortunately the manner in which the information

ultimately emerged might have struck the jury as highly significant in the case of a girl of her age, not least because it gave

rise to the possibility of some other motive for identifying the applicant as the only person with whom she had sexual

relations. The sense of unease arising from the manner of the revelations can only be heightened by the knowledge that the

complainant withheld the information from her parents, her family GP, from Dr. Courtney and also from the members of

the Gardai to whom she first brought her complaint against the applicant. Yet the complainant had apparently no difficulty in

openly discussing her abuse by the applicant with the clinical psychologist, to whom she presented as a confident and self-

assured girl who showed no indicators of depression or anxiety. It is unclear when exactly these activities with other boys

ceased, given that the report states only that – as of the date of the report –the complainant was no longer engaging in

inappropriate sexual behaviour. If the activity continued until shortly before the making of the complaint – something only

the complainant could confirm or deny – the risk of some other element in this case can only be seen as a more substantial

possibility. Nonetheless, the jury were left with only “one suspect” in circumstances where the evidence of the ruptured

hymen could only be seen as providing significant corroboration of the complainant’s evidence which, because of her age,

effectively conveyed to the jury the impression that the applicant was the only party with whom she was ever involved.

In reaching its decision the Court wishes to stress that, even if the complainant was engaging in inappropriate sexual activity

with other boys of her own age or nearly her own age, that fact, if fact it be, does not of itself undermine the complainant’s

evidence that she was sexually abused by the applicant. It is the non-disclosure or concealment of the other behaviour in the

particular context which obtains in this case which gives rise to an anxiety that the applicant may not, in the absence of some

limited questioning to clarify this issue, have received a fair trial in accordance with due process.

The Court notes that at the time of this trial the complainant was nearly 24 years of age and there is nothing in the transcript

of the trial or in the complainant’s evidence to suggest that she would have been unfairly or unduly traumatised by a limited

form of cross-examination confined to testing the plausibility of her account and the weight to be attached to same by

reference to the sexual activities with other boys. The medical evidence of the police doctor further warranted such a ruling,

given that without the cross-examination there was every reason for the jury to accept from the medical evidence that the

complainant had indeed had sexual relations with someone but no reason whatsoever to suspect that anyone other than the

applicant might be involved.

It is the view of the Court therefore that the decision or ruling not to permit a limited and carefully monitored form of cross-

examination of the complainant (which in any event the trial judge may not have been able to preclude in relation to the

charges under the Act of 1935) was unfair to the applicant in that the history in question could have materially affected the

jury’s deliberations whether to find him guilty or not guilty. In other words, to adopt the terminology of s.3(2)(b) of the

Criminal Law (Rape) Act, 1981, the Court is satisfied that the effect of allowing the evidence or question might reasonably

have been that the jury would not have been satisfied beyond reasonable doubt of the guilt of the applicant.

The Court would stress that its decision is not one which impugns the character of the complainant in any way. Had she

been given the opportunity of responding to limited questioning about her sexual activity with other boys the jury may have

been completely satisfied that those activities were totally unrelated to the bringing of her complaint against the applicant,

save in the sense described by the psychologist in her report, and had ceased long before the bringing of her complaint to the

authorities. However, both the jury and the applicant were deprived of relevant evidence which clearly could have affected

the outcome of the case.

The Court will accordingly quash the convictions herein and, given that the applicant has been through three trials with two

appeals to this Court, will not direct a retrial.