Court of Criminal Appeal quashes indecent assault convictions due to jury direction failures regarding delay and family death.

COURT OF CRIMINAL APPEAL

[CCA No. 110/2012]

MacMenamin J.

Moriarty J.

Herbert J.

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

D

APPLICANT/ACCUSED

JUDGMENT of the Court of Criminal Appeal delivered the 20th day of May, 2014, by MacMenamin J.

1. The appellant was tried in the Central Criminal Court between the 23rd and 27th January, 2012, on a number of different counts

involving indecent conduct towards a young male person, then a minor. He was arraigned, and pleaded not guilty to 18 counts of

indecent assault, and two counts of sexual assault, alleged to have taken place on dates between the 14th October, 1988, and the

30th June, 1991. The appellant was acquitted by direction of the trial judge in respect of three counts which were the earliest in

time, dating between 14th October, 1988, and 31st March, 1989. He was convicted by majority jury verdict of 10:2 in respect of four

counts ranging from dates between 1st April, 1989, and 30th September, 1989, and convicted of two further counts of indecent

assault on two dates between 16th February, 1990, and the 15th May, 1990. Finally, the appellant was also convicted by a majority

jury verdict in respect of a single count of sexual assault committed between 1st March, 1991, and the 30th April, 1991. The

appellant was acquitted by jury verdict on all remaining counts of indecent assault and sexual assault. In total, therefore, the

appellant was convicted of six counts of indecent assault and one count of sexual assault. He was acquitted on 12 counts of

indecent assault and one count of sexual assault.

The Background

2. The assaults are said to have taken place in a house where the appellant lived with his elderly mother. It is said that while the

complainant was an adolescent, he came to stay in the house on a number of occasions and the assaults took place in the appellant’s

bedroom over a number of years. No other person was resident in the house save, at one point, a visiting student from abroad.

3. The main element of the prosecution case was the testimony of a single witness, namely the complainant, Mr. D.F, who was aged

37 years at the date of trial and was the nephew of the appellant. D.F.’s evidence was not corroborated, and the matters of which

he complained were alleged to have taken place some 24 years prior to the date of trial, the first complaint having been made by him

to the Gardaí on 28th August, 2009. This was eighteen years after the date of the last count on which he was convicted. Upon

conviction, the appellant was remanded in custody, and was sentenced on 20th March, 2012. On each of the counts of indecent

assault, a sentence of eight years was imposed, with the final two years suspended; on the count of sexual assault the appellant was

sentenced to a maximum sentence of five years imprisonment.

The Main Points in the Appeal

4. Three fundamental issues arise in this appeal. The first relates to the question of whether the trial judge should have given the jury

a caution or warning in relation to the dangers of conviction on corroborated evidence. The second issue relates to the nature of the

caution or warning which the jury should have received in relation to cases where there has been a significant lapse of time. The third

issue relates to whether or not there was sufficient evidence to allow the case go to the jury. This last point is considered more

briefly.

The Statutory Position

5. Section 7(1) of the Criminal Law (Rape) (Amendment) Act 1990 provides:-

“7(1) “Subject to any enactment relating to the corroboration of evidence in criminal proceedings, where at the trial on

indictment of a person charged with an offence of a sexual nature evidence is given by the person in relation to whom

the offence is alleged to have been committed and, by reason only of the nature of the charge, there would, but for this

section be a requirement that the jury be given a warning about the danger of convicting the person on the

uncorroborated evidence of that other person, it shall be for the judge to decide in his discretion having regard to all the

evidence given, whether the jury should be given the warning: and accordingly any rule of law or practice by virtue of

which there was such a requirement as aforesaid is hereby abolished.”

(2) If a judge decides, in his discretion, to give such a warning as aforesaid, it shall not be necessary to use any

particular form of words to do so.”

The Appellant’s Submissions

6. The appellant makes a number of points. First, it is said the trial judge did not make clear, prior to the charge to the jury, whether

or not it was intended to give a warning, and, if so, what the terms of the warning might be. Next, it is said that if the trial judge did

decide to give a warning (a matter said to be not clear), he nonetheless failed to adequately caution the jury in relation to the

dangers of convicting in the absence of corroborating evidence, having regard to all the circumstances of the case. It is then said the

trial judge erred in refusing to recharge the jury in a more comprehensive manner on the issue of corroboration, having been

requisitioned to do so. It is said that in this trial, the position in relation to whether or not a corroboration caution or warning had

been given became confused when both counsel for the prosecution and defence believed a warning had been given, but the trial

judge stated in response to requisition that no corroboration warning had been given at any stage. The appellant says that this crux

led to a situation where it was unclear, both to defence and prosecution, whether there was to be a corroboration caution or

warning, any indication as to the phraseology thereof, and whether or not the words which the trial judge used were sufficient to

alert the jury to the necessity of the need for special care in the circumstances of the case.

7. At the closing of the prosecution case, the defence did not go into evidence. Prior to closing speeches, there is no doubt that

defence counsel very fully set out his position on the need for a warning. He drew the court’s attention to the judgment of this Court

in Director of Public Prosecutions v Robert Gentleman (Unreported, Court of Criminal Appeal, 25th February 2002). Counsel quoted a

passage from Keane C.J.’s judgment in Gentleman, wherein can be discerned the striking resemblances between the facts of that

case (where this Court concluded there had been an insufficient warning) and the circumstances of the instant case.

8. Prior to further discussion, it is important to emphasise that, as a result of the 1990 Act, a trial judge now has discretion as to

whether or not to furnish a warning. As subsection (2) of the section points out, it is not necessary to use any particular form of

words in giving the warning or caution, even though subsection (1) does use the terminology “the warning”. Quite clearly, the true

meaning of the section is that no specific formula of words is necessary. This does not absolve the trial judge, however, from ensuring

that any such caution or warning given is sufficient and adequate in the circumstances.

Corroboration Warnings

9. Here, defence counsel actually drew attention to the fact that the circumstances of the case mirrored in all principal matters the

case of Director of Public Prosecutions v Gentleman save the distinguishing feature that there was less reason why no complaint had

been made at the time in the absence of any evidence as to dominion. In this case, the former Chief Justice stated that in a case

where the evidence consisted of the testimony of the complainant with no corroboration, and a very long elapse of time:

“…one would not be in the least bit surprised to find a trial judge who would find it necessary to give a warning…”.

10. For the purposes of this judgment, it is necessary to identify what Keane C.J., speaking on behalf of the Court in Gentleman,

considered were certain deficiencies in the judge’s charge. Referring to the charge, the then Chief Justice said that the trial judge:

“ …does not indicate in any way to the jury why the law considers it dangerous or has in its experience found that it

may be dangerous to convict on the uncorroborated evidence of a complaint in relation to a matter of sexual assault.

He does not draw the jury’s attention to the fact that the reason the law has always exercised caution in this area is

because it is so much a case of one person’s word against the other and the jury therefore has to exercise especial care

in deciding whether they believe the complainant or whether they are not satisfied beyond reasonable doubt of the truth

of the complainant’s allegation, bearing in mind that this was a case in which the accused also gave evidence”.

It must of course be borne in mind that the instant case is distinct from Gentleman as, here, the appellant did not testify. But, in the

view of this Court, this does not detract from the thrust of Keane C.J.’s observations or, the elements of warning or caution which

was necessary in a case on facts which were remarkably similar to the instant case.

11. The resemblances were, first, that there had been no corroboration of the victim’s story; second, the incidents almost all were

alleged to have occurred over 20 years before the trial and time can do strange things to people’s memories so long in the past; and,

third, there was no complaint made at the time. The Court was quite clear that all of these were points to which the jury’s attention

should be drawn:

“…once the trial judge had quite properly come to the conclusion that this is a case in which, clearly, a warning should

be given”.

12. In The People (Director of Public Prosecutions) v J.E.M. [2001] 4 I.R. 385, Denham J., as she then was, speaking for this Court,

emphasised that it was a matter for the judge’s discretion as to what, if any, warning should be considered in respect of such a

witness. She also pointed out that if a judge chooses to give a warning, the nature of the warning would depend on the

circumstances of the case, the issues raised, and the content and quality of the witnesses’ evidence. In J.E.M., this Court went on to

point out that, in some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting on the

unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence, nor will it be

necessarily be so because a witness is alleged to be an accomplice; there needs to be an evidential basis for suggesting that the

evidence of a witness may be unreliable and that such basis does not include mere suggestions from cross-examining counsel.

13. In J.E.M., this Court quoted with approval excerpts from the judgment of Lord Taylor C.J. in R v Makanjuola [1995] 1 W.L.R. 1348.

In that judgment, Taylor L.C.J. emphasised that attempts to re-impose the strait jacket of the ‘old’ corroboration rules were strongly

to be deprecated, and that it was unnecessary to return to the old “florid regime”.

14. As can be discerned from this Court’s judgment in J.E.M., some care must be taken in relying on United Kingdom authority in

relation to the issue of corroboration in this area. Denham J. drew attention to the fact that Taylor L.C.J. opined that appeal courts

would be disinclined to interfere with the trial judge’s exercise of a discretion, save in a case where that exercise was unreasonable in

the Wednesbury sense (see Association Provincial Picture Houses Ltd. v. Wednesbury Corporation [1948] 1 K.B. 223). That is not part

of our law, as was pointed out. Makanjuola is useful, however, in that it emphasises (as does subsection (2) of s. 7) that the

corroboration warning need not now follow any particular format, as was previously the case. But this does not absolve a court from

make a decision one way or the other and ensuring that, if a warning must be given, that warning is clear, unmistakable and

contextualised, as Keane C.J. emphasised in Gentleman.

15. Reliance on authority from the neighbouring jurisdiction on this issue must also be guarded, having regard to the fact that, under

s. 32(1) of the United Kingdom Criminal Justice and Public Order Act 1994, the requirement to give the “old” corroboration warning in

sexual offence cases, and cases involving accomplices, was entirely abolished. In that jurisdiction, therefore, the trial judge’s

discretion, as to whether to give a warning at all subsequent to the 1994 Act, springs from the judgment in Re Makanjuola, and not

from some statutory provision. As a result, where a trial judge acting in that jurisdiction exercises his or her discretion to give a

warning in a sexual offences case, the terms of the warning are not to be found within a statutory framework or terms of reference.

16. In The People (DPP) v P.J. [2003] 3 I.R. 550, this Court emphasised that if it is decided to give a warning, although it need not be

a set format of words, it must be clear and emphatic (see also The People (Attorney General) v. Cradden [1955] I.R. 130; and The

People (Attorney General) v. Williams [1940] I.R. 195, where this Court drew attention to the requirement, when a warning is given,

to ensure that the jury are aware of the danger of acting upon unconfirmed or uncorroborated testimony, and that such evidence

should be weighed with great care.)

Explaining the Meaning

17. In P.J., this Court also pointed out that, in giving the warning, the judge should explain the meaning of the term as being

independent evidence of material circumstances which tends to implicate the accused in the commission of the crime with which he

was charged. A warning may, of course, also contain the addendum that, having borne the precautionary element in mind and having

given due weight to it, if the evidence is nonetheless so clearly acceptable that the jury is satisfied beyond doubt on the guilt of the

accused then they may act on it.

18. It is also necessary to advert to the judgment of this Court in The Director of Public Prosecutions v Peter Dolan [2007] IECCA 30.

There, Kearns J., speaking on behalf of this Court, stressed that during the course of a trial, it cannot be expected that a trial judge

would give an elaborate judgment on every legal issue which arises for his ruling. However, he went on to point to the proviso that:

“But every important ruling must at least disclose a decision judicially made, that is to say, one which is reasoned and

based on legal principle”.

This observation was made in circumstances where this Court had expressed concern that a trial judge decided a ruling not to give a

corroboration warning in circumstances where it was not possible to deduce any rationale for the decision. This Court would again

emphasise that, of course, it is unnecessary for a trial judge to deliver an elaborate ruling. But, whatever decision is made, it must be

one which is susceptible to analysis on the basis of whether it is, indeed, a decision judicially made.

What Occurred at the Trial

19. With these considerations in mind, it is now necessary to consider what happened at this trial. In response to defence counsel’s

submission that a corroboration warning must be given because of the resemblance of the instant case to the Gentleman case, the

trial judge’s response was:

“I shall undoubtedly refer to the fact that there is no corroboration. What I shall say precisely, I don’t know until I say

it”.

20. This Court is not persuaded that this statement made clear what was in the judge’s mind. It would have been entirely unsurprising

if the judge had ruled a warning was warranted, containing all the elements described in Gentleman. In fact, it left both prosecution

and defence counsel uncertain as to whether or not a corroboration warning would be given. While this Court does not consider that

it is necessary for a trial judge to test out precisely a form of words which he or she intends to use, nonetheless, it is highly desirable

that counsel should at least know the position as to how the judge’s discretion will be expressed and the reasons therefore, prior to

embarking on their closing speeches.

21. In his charge, the judge dealt with the question of corroboration in the following terms:

“Now you have heard counsel mention the word corroboration. Corroboration is something independent of the person

making the complaint, which supports his story and implicates the accused. It is a function of a trial judge to rule

whether there is any evidence capable of amounting to corroboration, and is then the function of the jury to consider

whether any such evidence that he rules is so capable to decide whether it in fact corroborates the complaint being

made. Now I am telling you that in this case there is no evidence capable of amounting to corroboration and you must

bear that direction in mind. Now the law is notwithstanding an absence of corroboration, having carefully considered the

warning that there is not any, you would be entitled, if all 12 of you were satisfied of the guilt of the accused to the

standard beyond reasonable doubt, to convict, but I am telling you that there is nothing capable of amounting to

corroboration and you should bear that in mind”.

22. It is not the function of this Court to pick over, parse or analyse every word of a trial judge’s charge to the jury. But what is

necessary is that it contains sufficient elements so that the jury has a clear understanding of its duties. This was not a situation

where the matter could be addressed by reliance on counsel’s closing speeches. Part of the charge here does indeed resemble Keane

C.J.’s words in Gentleman in the sense that it reflects that there was no corroboration of the complainant’s account. However, there

was no mention of the fact that the alleged incidents happened approximately 20 years prior to the trial. The charge did not draw

attention to the view that experience has demonstrated that the passage of time can do strange things to people’s recollection of

events so long in the past. Nor did the charge advert to the fact that the complaint was made many years after the date of the

alleged offences. It cannot be said in the circumstances, therefore, that the warning which was given was “clear and unmistakable”.

23. Indeed, on requisitions afterwards, the learned trial judge criticised both counsel for implying that a “warning” had been given and

denied that he had given any warning to the jury. There was no explanation to the jury of the function that corroborating evidence

may serve in any given case, or that it might be dangerous to convict in the absence of such evidence. There was no indication that

the jury might be slower, or more careful, to convict, on the basis of an uncorroborated account given by the complainant, nor was

the jury informed that the absence of corroboration was a factor which they should consider in deciding whether or not it was safe to

convict the accused. Having mentioned the fact that there was no such evidence, the learned trial judge went straight to the

statement that the jury might convict if satisfied of the accused’s guilt, even though there was nothing capable of amounting to

corroboration.

24. The nature of the charge and the reasons for the ruling do not accord with the authorities with set out the applicable principles.

In all the circumstances, this Court must conclude that the charge was deficient in that regard, and, on that basis, it will be

necessary to quash the conviction and direct a re-trial.

The Delay Warning

25. The Court is fortified in its view as to the order necessary as regards a second aspect of the case. It is hardly necessary to

reemphasise that a distinction is to be made between a corroboration warning, and the warning that is necessary in cases where

there has been a considerable elapse of time. In Director of Public Prosecutions v R.B. (Unreported, Court of Criminal Appeal, 12th

February 2003), Denham J., on behalf of this Court, quoted the full text of an exemplary judge’s charge on the difficulties caused by

delay. That trial judge, His Honour Judge Kevin Haugh (later Mr. Justice Kevin Haugh), went into considerable detail concerning the

difficulties caused in a case where there had been a long delay between the events alleged to have occurred and the making of a

complaint. What Judge Haugh said can be found in the judgment of this Court in R.B., and it was repeated in the judgment of this

Court in P.J. (cited earlier). It is unnecessary therefore to repeat it here.

26. What is necessary to emphasise, however, is that the charge quoted in these judgments falls into two parts. First, it consists of

general illustrations as to the difficulties which may generally arise in dealing with cases where there has been a long elapse of time.

But, second, there is a direct contextualisation; that is to say that the general illustrations of the difficulties which can arise in

defending such cases were not only explained, but brought home to the jury by illustrating how those difficulties arose in the case

before it. Just as in the case of corroboration, contextualisation is highly important in order to ensure that the jury understands not

only the principle, but also its application in the case before it.

Contextualisation

26. There is no doubt that, in the instant case, the learned trial judge did, in fact, read out fully the passage to which reference has

been made. However, having read out the passage as an illustration of the difficulties, there was no contextualisation. The charge did

not seek to identify any of the circumstances of the case at hand, which might have had a bearing in the jury’s mind on a delay

issue. There were such circumstances; the complainant was in his mid-thirties but was talking about issues which were said to have

taken place when he was aged between 13 and 17; there was no suggestion of dominion between the appellant and complainant

which might explain the delay in making a complaint; the appellant’s mother had died in 1998 and the defence suggested she would

have been in the house at the time the alleged offences were occurring.

28. In Director of Public Prosecutions v L.G. [2003] 2 I.R. 517, Keane C.J., giving the judgment of this Court, drew attention to the

fact that a charge was deficient in circumstances where a trial judge had not given specific indications to the jury of the problem

which the elapse of time would inevitably create, including the death of one of the members of the family, and the elapse of time of

more than 20 years between the date of the alleged incident and the date of complaint. In L.G., this Court allowed the appeal on the

ground that the trial had not given any indication of specific problems which the delay had caused to the defence, and that the trial

court had failed to point out to the jury that members of the complainant’s family who might have witnessed the events in question

have since died and could not therefore give evidence. It is necessary to tailor the warning in any given case to the circumstances of

the case at hand. The fact that it is necessary to contextualise such warnings was also emphasised in the decision of this Court in

The People (Director of Public Prosecutions) v E.C. [2007] 1 I.R. 749. As the charge lacked these elements, the charge must be

quashed on this ground also. This Court fully understands that a trial judge may wish to avoid anything which may amount to a

comment on the facts of the case, or the credibility of witnesses, but for a jury to understand the issues before them, they cannot

approach legal principles in the abstract or in isolation from the context.

Failure to Grant a Direction

29. It is said, finally, that the trial erred in failing to grant a direction at the conclusion of the prosecution case on the basis of alleged

frailty of, and contradictory elements in, the evidence. Quoting R. v Galbraith [1981] 1 W.L.R. 1039, counsel for the appellant submits

that the evidence in the case was of a tenuous nature because of inherent weakness or vagueness, or because it was inconsistent

with other evidence. It is said that the judge should have ruled that the prosecution evidence, taken at its highest, was not such

that a jury, properly directed, could properly convict upon it, and, consequently, he should have acceded to the submission to stop

the case.

30. This Court is not persuaded that this was an appropriate case for the prosecution to be withdrawn from the jury. There was

sufficient evidence before the court upon which, if accepted, a jury, properly directed could have convicted.

31. Having regard to the first two of the issues which have been identified, however, the Court considers that the charge to the jury

was deficient in law, and considers it is necessary to quash the conviction and order a re-trial.