Court of Criminal Appeal sets aside rape conviction due to lack of jury warning on uncorroborated complainant evidence.

COURT OF CRIMINAL APPEAL

Kearns J.

McKechnie J.

Hanna J.

[CCA No: 118/2006]

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V

PETER DOLAN

APPLICANT/APPELLANT

JUDGMENT of Mr. Justice Kearns delivered on the 3rd day of May, 2007.

This is an appeal brought by the applicant following his conviction in the Central Criminal Court on 30th March, 2006, on one count of

rape of M.G., which said rape included anal rape, contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990 and one further

offence of assault against the said M.G. contrary to s. 3 of the Non-Fatal Offences against the Person Act, 1997. Both offences are

alleged to have occurred during the course of the same incident which occurred in the early hours of the morning in a hostel in Dún

Laoghaire on 13th March, 1999.

By way of background, the complainant alleged that she lived in Limerick and had travelled to Dublin by train the previous afternoon.

It was her intention to visit her sister who lived in London and, for that purpose, she intended boarding the ferry in Dún Laoghaire on

the evening of 12th March, 1999. Being unsure of directions when she arrived at Heuston Station, she approached the applicant to

ask for assistance. In the course of the conversation, the applicant informed her that he was also going to Dún Laoghaire and would

accompany her there. She decided to go for a few drinks with the applicant at Heuston Station as a consequence of which, by the

time they arrived in Dún Laoghaire the complainant had missed the ferry and the next sailing was not until the following morning. At

the instigation of the applicant, they checked into a nearby hostel for the night. The complainant gave evidence that the applicant

made the arrangements at the hostel and informed her there was only one room available. Both parties went up to the room for a

short period and then went to a local pub, from which they returned some hours later. On returning to the hostel, the keys of the

room were collected at the desk and they both went upstairs. The complainant gave evidence that as she was about to go asleep in

a separate bunk, the applicant appeared naked before her, proceeded to take her clothes off, and then forced both oral, vaginal and

anal sex upon her, notwithstanding violent resistance on her part. A member of staff who was working in the hostel on the night in

question gave evidence of hearing shouting and screaming emanating from the room and, on entering the room was requested to

contact the gardaí by the complainant who at that time was alleging that she had been raped. The gardaí were duly called and the

court heard evidence from various members of the gardaí who attended at the scene. Part of that evidence included testimony from

Garda Orla Cooper, who conducted a physical examination of the complainant in the bathroom of the hostel and who told the court

that she observed bleeding in the region of the anus of the complainant and extensive bruising on both buttocks. However, the

complainant declined to make a complaint, or to permit a formal medical examination at that stage. She also initially furnished a false

name. The following morning the complainant continued her journey to England from where she returned the following day, apparently

heavily under the influence of alcohol. She then made a complaint to the gardaí and was medically examined. Some bruising in and

around the anal area was noted.

In the course of the trial, the learned trial judge acceded to an application made by the defence, pursuant to s.3 of the Criminal Law

(Rape) Act, 1981, to permit cross-examination of the complainant in relation to her prior sexual history.

At the conclusion of the case for the prosecution, counsel for the applicant indicated that he did not propose going into evidence. He

then invited the learned trial judge to give the “corroboration warning” in respect of the complainant’s evidence, as provided for by s.

7(1) of the Criminal Law (Rape) (Amendment) Act, 1990.

In the course of making this application, counsel for the applicant, Mr. John Phelan SC, advised the learned trial judge that there was

agreement between the prosecution and the defence, that there was no material in the case capable of amounting to corroboration

such as is required in Irish Law. This Court is not concerned with any issue as to whether such agreement was appropriate on the

state of the evidence and the appeal is solely concerned with the manner in which the trial judge dealt with the application to give

the warning to the jury.

The submission and ruling were as follows:-

Mr. Phelan: “Just to advise your Lordship, number 1, I do not propose going into evidence, my Lords; number 2, I have

had this brief discussion with Mr. Comyn and I would submit in this matter that there is no corroboration in the

proceedings and I would be asking your Lordship in the fullness of time to give the warning, in fact, which is discretionary

of course, to the jury on the question of accurate corroboration.

Judge: Well, Mrs. Justice McGuinness has said that the warning is demeaning of women.

Mr. Phelan: Mrs. Justice McGuinness may say that, but I had a very interesting experience before the Court of Criminal

Appeal two years ago, my Lord, where they took a very different view on the matter.

Judge: Well, if the Court of Criminal Appeal want to overrule the laws passed by the Oireachtas that is entirely their

business.

Mr. Phelan: I hear what your Lordship says, however, having regard to the judgment of Mr. Justice Murphy in that

particular matter.

Judge: Who was on the Court?

Mr. Phelan: Mr. Justice Murphy, if memory serves me correctly

Judge: Which Mr. Justice Murphy?

Mr. Phelan: The ex, retired (Mr. Justice Murphy) and Mr. Justice Diarmuid O’ Donovan and Mr. Justice- he is from Cork but

his name slips my mind for the moment, my Lord- O’ Leary, Mr. Justice O’ Leary and they were all very strong in their view

that even though a judge …the facts of the case were very simple. I appealed at an early stage to the High Court at the

request of the trial judge Mr. Justice O’ Caoimh, that I would be asking him to give a discretionary warning at the

appropriate time; it’s absolutely not and didn’t arise as far as he was concerned. Taking his word, I left it at that and I

was wrongly criticised for raising the matter yet again at the appropriate time and in fact they went so far as to say that

in the event that defence counsel didn’t do it, the prosecution should. So that is how it stands. Having regard to that

fact and particularly, I submit there is no corroboration in this matter whatsoever.

Judge: I am not taking issue with you on that, there is no corroboration.

Mr. Phelan: I would ask your Lordship to exercise your discretion in this matter.”

Ruling

Judge: “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.

Mr. Phelan: May it please your Lordship. Very good.

Judge: Do you want to say anything about this Mr. Comyn?

Mr. Comyn: I concede that I looked over some case law, my Lord, since yesterday and I am satisfied that anything that

might be corroborative- it would be dangerous to accept it as being corroborative.”

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”.

Decision

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

“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 is such a requirement as aforesaid is hereby abolished.”

Counsel for the prosecution submitted that the intent and effect of s. 7(1) of the Criminal Law (Rape) (Amendment) Act, 1990 was to

abolish any rule of law or practice which imposed an obligation on a trial judge in sexual offences to warn the jury of the dangers of

convicting where there was no corroboration of the complainant’s evidence. In consequence, counsel submitted that, since the

passing of the statute, cases of this nature should be treated the same as any case which does not require a corroboration warning

so that the omission of a warning should be the norm.

In so submitting, counsel placed considerable reliance upon the judgment of Keane C.J. and Director of Public Prosecutions v. Wallace

(unreported, Court of Criminal Appeal,, 30th April 2001) when he stated (at p 6):-

“…as this court has point out in the judgment delivered by Mrs Justice Denham on 1st February 2000 in the case of People

(DPP) v. J.E.M., the express legislative provision for the abolition of the mandatory warning, if I can call it that, must not

be circumvented by trial judges simply adopting a prudent or cautious course of giving the warning in every case where

there is no corroboration or where the evidence might not amount, in the view of the trial judge, to corroboration. That

would be to circumvent the clear policy of the legislature and that, of course, the courts are not entitled to do.”

In the People (Director of Public Prosecutions) v. William Ferris, unreported, CCA, 10th June, 2002), Fennelly J., having cited the

above passage, noted that the court in Director of Public Prosecutions v. Wallace had:

“also referred with approval to the judgment of Lord Taylor CJ in Re Makanjuola [1995] 3 All ER 730 laying down guidelines

for the exercise by trial judges of their discretion. The following, taken from p.732, appears useful for the purposes of the

case:-

‘Whether as a matter of discretion, a judge should give any warning and, if so, its strength and terms must depend

upon the content and manner of the witness’s evidence and the circumstances of the case and the issues raised

the judge will also consider that no special warning is required at all. Where, however, the witness has been shown

to be unreliable, he or she may consider it necessary to urge caution. In a more extreme case, if the witness is

shown to have lied, to have made previous false complaints, or to bear the defendant some grudge, a stronger

warning may be thought appropriate and the judge may suggest it would be wise to look for some supporting

material before acting on the impugned witness’s evidence’

The question of whether a jury should be warned about the danger of convicting on the uncorroborated evidence of a

complainant being, as already stated, a matter for the exercise of discretion by the trial judge, this court should not

intervene unless it appears either that the decision was made upon an incorrect legal basis or was clearly wrong in fact.”

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.

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.

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 principle. Regrettably, the ruling in the present case can not be seen as

meeting either requirement. 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. The failure in

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

convict.

In the circumstances, this court cannot regard the conviction as safe. It will accordingly set aside the conviction and direct a retrial.

The Court will dismiss the appeal against the assault conviction but will consider an appeal against severity of sentence in early

course.