Court of Criminal Appeal allows appeal against conviction where trial judge failed to give a reasoned ruling on corroboration warning refusal.

[2010] IECCA 29

THE COURT OF CRIMINAL APPEAL

Appeal No. 46/09

Geoghegan J.

Budd J.

de Valera J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

and

ROGER RYAN

Applicant

Judgment of the Court delivered by Mr. Justice Geoghegan on the 20th day of April 2010

1. This was originally set down as an application for leave to appeal against conviction and sentence in a rape trial. On paper there

were ten formal grounds of appeal. Shortly in advance of the hearing of this application, eight of the grounds were abandoned leaving

the remaining two which were 7 and 8 still standing. Not only was it then accepted by Mr. Anthony Sammon, S.C., counsel for the

applicant, that the two grounds were effectively the same, but he further refined them and indeed reduced them in a manner which I

will explain.

2. The two grounds as contained in the formal grounds of appeal read as follows:

“7. That the learned trial judge erred in principle in failing and/or refusing to give a corroboration warning in respect of the

evidence of the complainant as provided for by section 7(1) of the Criminal Law (Rape) (Amendment) Act 1990, and

providing no explanation for the said refusal.

8. That the learned trial judge erred in principle in exercising his discretion and refusing to give the jury a warning of the

dangers of convicting the appellant in the absence of any corroboration.”

3. At the oral hearing of this application, Mr. Sammon, confined his complaint to the “refusal” by the learned trial judge (Carney J.) to

give an explanation for his unwillingness to give the said warning which “refusal” in the submission of counsel was unlawful. Counsel in

his argument relied on a judgment of this court in DPP v. Dolan (unreported judgment [2007] IECCA 30 delivered by Kearns J.). The

quotation marks on either side of the word “refusal” in this connection are deliberate because the court is of the view that in the

particular context of what happened at the hearing, the word “refusal” is somewhat misleading.

4. Before explaining that context, it is necessary to summarise the facts of the case. The applicant was convicted of a rape

committed in the complainant’s own house and in rather unusual circumstances. The complainant had met a man while she was on

holidays in another county. They decided to keep contact and after the complainant went home she contacted that man again and

arranged a meeting place. He arrived with a friend of his and the three of them congregated on the evening of the alleged offence in

a public house. They then later that night went back to the complainant’s house and drank beers in a front sitting-room. Though

there was some inconsistent evidence about this, the main thrust of the evidence was that for about twenty minutes or so the

complainant talked out the window to some friends while the two men sat and drank. She then closed up the window and invited the

friend she had met on the holiday up to her bedroom. The other man remained below drinking. That man made it perfectly clear in his

evidence that he had sex that night with the complainant and using a condom. In the complainant’s various statements to the gardaí

she vacillated between admitting that that man slept with her but denying she had sex with him and saying that she did not

remember whether she had sex with him to in the end more or less admitting she did have sex with him. A thong which she was

wearing and a condom were found on the floor the following morning. The evidence suggests there would have been a substantial

amount of drink taken. That could have led to confusion of memory. During the course of the night there was noise downstairs and it

then emerged that the applicant had broken into the house by the downstairs window with the aid of a screwdriver. The

complainant’s new friend went downstairs to sort out what was happening. Shortly after that, aggressive threats were issued to him

and his companion by the applicant with the result that they left the house for their own protection.

5. The complainant’s evidence (and there was no inconsistency in her testimony about this) was that she woke up from sleep in the

bed. Expecting to find the man she had already brought up to the bedroom in the bed with her she found instead the applicant. She

gave clear evidence that she had not wanted to have sexual intercourse with the applicant but her evidence was that the applicant

forced himself on to her, using the screwdriver as a threatening weapon. The complainant, in some, but not all statements, claimed

that the applicant had worn a condom when having sex with her. In the context of forcible rape, this seems surprising and she was

heavily cross-examined by counsel for the applicant, Mr. Nix, S.C. in that connection. On one view of the evidence at least, there

might have been an element of assumption in this regard on her part because although aware of the condom, she was, at times, in

denial and, at times, in doubt as to whether she ever had sex with the man she had originally brought up to the bedroom. It was not

in dispute that only one condom was found on the floor.

6. It was clear from the evidence that the complainant already knew the applicant before these events and furthermore that she had

had sex with him. She claimed she had sex with him only once. In his first statement to the gardaí he said he had sexual intercourse

only once but that he had sex in the form of a “blow job” on another occasion. In a later statement, however, he said he had had sex

with her “loads of times”.

7. In summary, it can be said that both the complainant and the applicant made various statements to the gardaí which in matters of

detail were not always consistent. The outline of facts so far given is merely a summary of the relevant evidence but is sufficient for

the purpose of determining this application.

8. I now turn to the context in which the corroboration issue raised its head. In the absence of the jury and immediately before the

closing speeches, Mr. Nix raised two matters with the court. He, first of all, indicated that he would not be going into evidence. He

then said the following:

“The second matter is this, My Lord, I wonder, considering the question of corroboration, My Lord, I would submit that

there is no evidence of any corroboration in this matter, to the material fact of rape and in those circumstances I would

ask you, I wonder if Your Lordship would intend giving the warning that there is no corroboration.”

9. Mr. Coffey, S.C., counsel for the Director of Public Prosecutions spoke as follows:

“There is evidence of her distress within an hour and a half of the event, which is capable of constituting evidence of,

albeit weak evidence of, corroboration, should the jury accept that evidence. Otherwise I am in agreement with my

friend.”

10. By that last sentence, Mr. Coffey, was clearly conveying that he agreed there was in fact no corroboration except possibly

the“weak evidence” he referred to. The learned trial judge then said the following: “Its not my intention to give a corroboration

warning.” Mr. Nix responded “Very good, My Lord.” In accordance with the judge’s intention, there was, of course, no warning then

given in the judge’s charge and there was no requisition made in relation to such failure.

11. That last observation is made merely with a view to setting out a summary of the relevant facts. The court is expressing no view

as to whether it would ever be appropriate to make such a requisition after a judge’s charge where the judge had previously clearly

stated that he would not be exercising his discretion in favour of giving the warning. Such an issue does not arise in this case as

there was in fact no requisition. What is of importance, however, is the dialogue between counsel and the trial judge immediately

before the speeches. First of all, it is not at all clear that Mr. Nix was in any way either pressing for a warning about corroboration or

making any submission to the judge as to why he should exercise his discretion in favour of such a warning. From the wording used,

the court sees no reason not to interpret Mr. Nix’s question according to its natural meaning, that is to say, a query as to the judge’s

intention and nothing more. There was no attempt either before or after the response of the judge to put forward any reasons why it

might have been appropriate for the judge to exercise his discretion in favour of giving the warning. After all, the concept of the

warning was not abolished by section 7 of the Criminal Law (Rape) (Amendment) Act, 1990 but as a consequence of that section, the

warning no longer became mandatory. It was left to the discretion of the trial judge. Normally, an appellate court would not interfere

with that discretion but, as in the case of all discretionary orders, an appellate court may interfere if, on the facts of any particular

case, a failure to give the warning was manifestly a wrong exercise of the discretion. It would normally be helpful to counsel for the

defence to know in advance of his or her closing speech whether the judge had an intention to give the warning or not. There could

be quite substantial additions to the speech if the warning was being given. Corroboration in the broad sense would obviously be dealt

with in such a speech irrespective of whether the warning was going to be given or not but the wording would be different. In more

recent case law, the principle, laid down in the early days of the Court of Criminal Appeal though not always adhered to, has been

strongly reiterated, that is to say that in the absence of special circumstances, the court will not accept a ground of appeal based on

the judge’s charge if no requisition has been raised by counsel. As already mentioned, the issue of the warning or absence of warning

is somewhat different. It should more appropriately be dealt with before the speeches. If counsel for the defence, however, has not

pressed for the warning then its absence should not be entertained as a ground of appeal apart, as always, from exceptional

circumstances. It has been pointed out by this court in other judgments that in relation to requisitions, for instance, counsel for the

defence may, in some cases, make a tactical decision not to raise it if otherwise satisfied with the judge’s charge. By the same token,

counsel for the defence might not always want a warning to be given as to corroboration where that would entail a much more

detailed review of the evidence by the judge to the perceived detriment of the defence. In this particular case, the learned trial judge

could not have been clearer. He said that it was not his intention to give a corroboration warning. There were no arguments put up to

him in this connection. The court, therefore, has no hesitation in refusing the application for leave to appeal. The court, however,

reserved its judgment because of the wide proposition put forward by Mr. Sammon that a trial judge who refuses to give the warning

must always set out his reasons for such refusal. It is appreciated that anything which the court says on this matter might be

technically regarded as obiter dicta given that the court, for the reasons indicated, does not consider there was an actual request

backed by submissions leading to a refusal in this case.

12. The argument that reasons must always be given is based on what the court considers, to be an over literal interpretation of the

judgment of this court in DPP v. Dolan cited above. In that particular case, there was an express request by counsel for the defence

to the learned trial judge for the warning to be given. The judge gave the surprising answer “Well, Mrs. Justice McGuinness has said

that the warning is demeaning of women.” Counsel, nevertheless, pressed the application, indicating to the judge that his experience

was that the Court of Criminal Appeal in a case in which he had been involved had taken quite a different view from that of Mrs.

Justice McGuinness (if that was her view). At that point, the judge gave another unusual answer “Well, if the Court of Criminal Appeal

want to overrule the laws passed by the Oireachtas that is entirely their business.” The judge then enquired as to the composition of

the particular Court of Criminal Appeal and he was told it had consisted of Mr. Justice Frank Murphy, Mr. Justice O’Donovan and Mr.

Justice O’Leary. The judge, however, conceded that there was in fact no corroboration. He was again asked to exercise his discretion

in favour of granting the warning. The judge’s ruling was in the following terms:

“Well I am exercising my discretion by not doing it. If the Court of Criminal Appeal wants to reverse the Oireachtas that is

entirely their business.”

13. The judge then asked counsel for the prosecution, Mr. Comyn, if he wanted to say anything and at that point, Mr. Comyn

conceded in the light of some case law which he had read “that anything that might be corroborative – it would be dangerous to

accept it as being corroborative.” The following passage then appears in the judgment of the court delivered by Kearns J.:

“Before proceeding further, it must be said that the transcript record of this submission may contain some omissions or

inaccuracies. Nonetheless the essential grounds upon which the learned trial judge appears to have relied in making his

ruling consisted only of:-

(a) his belief that Mrs. Justice McGuinness had, in some prior judgment, indicated that to give such a warning was

‘demeaning’ of women and/or

(b) that the Court of Criminal Appeal, in some judgment delivered by it in relation to the warning issue, was seeking

to ‘overrule the laws passed by the Oireachtas’.”

14. After Irish and English authorities were opened by the prosecution in this court including the important judgment of Denham J. in

The People (DPP) v. JEM [2001] 4 I.R. 385 Kearns J. in the judgment of the court said the following:

“While a number of other authorities were referred to by counsel on both sides, both in oral and written submissions,

counsel for the respondent did not quarrel with or take exception to the suggestion that no legally valid reason was given

by the learned trial judge for the particular ruling which he made. Neither counsel was in a position to assist the court in

relation to any prior case or judgment where Mrs. Justice McGuinness is alleged to have made the comments attributed to

her by the trial judge. The members of the court are also unaware of any such utterance by the distinguished judge in

question.

15. Equally, the remarks of the trial judge to the effect that this court in the present, or indeed in any prior case, may have sought to

‘overrule the laws passed by the Oireachtas’ can only be described as remarks which are inappropriate and without foundation, and

indeed remarks which counsel for the respondent has not sought to justify in any way.

16. This court is therefore left in the position that, while a ruling of considerable significance was made in the course of this case, it

cannot deduce from anything in the ruling of the learned trial judge that there was a reasoned basis for his decision not to give the

warning. The court would stress that during the course of a trial it cannot be expected that the trial judge will give an elaborate

judgment on every legal issue which arises for his ruling, but every important ruling must at least disclose a decision judicially made,

that is to say, one which is reasoned and based on legal principles. Regrettably, the ruling in the present case cannot be seen as

meeting either requirements. Furthermore, the ruling was one of considerable significance in the context of the trial as a whole, given

that the verdict of the jury was to convict the applicant of anal rape but to acquit him of the other rape charges. As counsel for the

applicant pointed out, if it was the view of counsel on both sides and of the judge himself that there was no corroboration in this

case (and the court is expressing no view of its own on this point), the charge to the jury should have made this clear. Failure in that

regard gave rise to an apprehension that the jury treated the evidence of bleeding has providing corroboration sufficient to convict.

17. In the circumstances, this court cannot regard the conviction as safe…”.

18. The court does not believe that that judgment was laying down a universal rule that if the judge is asked to give the warning, he

must always give a reasoned ruling. In most instances, the arguments for and against a warning will be obvious to all concerned. In

those instances, it should be acknowledged that it is a matter for the discretion of the judge and no further probing would be

necessary. But in the Dolan case, a ruling of sorts had in fact been made by the trial judge with two express reasons given, one of

which was no legal reason at all and the other leading to a natural and wholly wrong inference that discussion about the

appropriateness of how the judge should exercise his discretion as to warning constituted an overruling of “the laws passed by the

Oireachtas”. Furthermore, as the judgment went on to point out there were very special facts in the case which gave rise to a worry

as to the safety of the conviction.

19. Even if the trial judge in this case had been pressed to exercise his discretion in favour of the warning, the court does not

consider that a reasoned ruling would have been necessary given that a valid argument could not have been made that it would have

been improper to exercise the discretion in any way other than by giving the warning. It would be wrong for this court to give any

theoretical examples of cases where the discretion could only be properly exercised in favour of a warning as each case depends

entirely on its own particular and peculiar facts. There were so many surrounding facts in this case and, to some extent, conflicts of

evidence on both sides that it was appropriate that it should be left to the unfettered judgment of the jury to decide where the truth

lay. There was nothing special or peculiar in the evidence which could give rise to “the danger of convicting the person on the

uncorroborated evidence of that other person.”

20. As already indicated, the court will refuse the application for leave to appeal against the conviction. There was also an application

for leave to appeal against sentence but that was withdrawn.