Court of Criminal Appeal dismisses rape conviction appeal regarding jury directions and failure to discharge jury.

COURT OF CRIMINAL APPEAL

240 of 03

Finnegan J.

Feeney J.

McGovern J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

.V.

TO’R

APPLICANT

Judgment of the Court delivered on the 14th day of March 2008 by Finnegan J.

The applicant was charged before the Central Criminal Court with one count of rape contrary to section 2 of the Criminal Law (Rape)

Act 1981. The particulars of the offence were that he, on a date between the 1st day of May 1996 and the 1st day of July 1996 at

Mallow, Co. Cork, had sexual intercourse with P.D., a woman, who did not consent to it, and at the time he knew that she did not

consent and was reckless as to whether she did or did not consent. He seeks leave to appeal against his conviction for that offence.

Of the grounds of application only the following were pursued at the hearing:-

1. The trial was unsatisfactory and the verdict unsafe having regard to the fact that the jury did not hear evidence in

accordance with the statement of Ms. S.D. contained in the Book of Evidence that on the day following the alleged rape

the complainant had informed Ms. S.D that the applicant had tried to rape the complainant by grabbing her by the throat

and trying to pull down her pants.

2. The learned trial judge erred in law and in fact:

(a) in refusing to discharge the jury following:

(i) the admission in evidence of the complainant’s complaint to Ms. S.D. in circumstances where the

complaint was neither consistent nor recent;

and

(ii) prosecution counsel’s question to the complainant immediately thereafter as to whether the

complainant discussed the relevant events with any other members of the complainant’s family;

(b) in failing to discharge the jury when the prosecution did not adduce the evidence of Ms. S.D. as to the said

complaint.

3. The learned trial judge erred in fact and in law in failing adequately to warn the jury as to the absence of corroboration

of the prosecution case in particular having regard to the delay by the complainant in reporting the allegations to the

Gardai and a subsequent passage of time to the date of the trial.

4. The learned trial judge erred in fact and in law in recharging the jury:-

(a) by directing the jury that the learned trial judge had been in error in stating that there was a conflict of

evidence in the case, that the jury could attach such weight to the applicant’s statements in Garda custody as the

jury saw fit and that it was inappropriate to describe such statements as “evidence”;

and

(b) by failing to direct the jury that exculpatory statements made by the applicant amounted to evidence in the

case upon which the jury was obliged to acquit the applicant if, despite believing that the complainant was telling

the truth the jury found that the applicant’s exculpatory statements could reasonably be true.

5. The learned trial judge erred in fact and in law in charging the jury in dealing with the issue of “belief” as to the

respective contentions of the complainant and the applicant and in refusing to reply to the question asked by the foreman

on behalf of a juror by stating that if the juror believes that the accused is guilty, but does not think that the prosecution

proved this conclusively, then the jury should go on to aquit.

6. The learned trial judge erred in law and in fact in failing to direct the jury that where two reasonable inferences can be

drawn from a particular fact, one favouring the accused and the other favouring the prosecution, the inference favourable

to the accused should be relied upon unless on considering the evidence as a whole, the jury is satisfied beyond

reasonable doubt to the contrary.

The court proposes to deal with each of these grounds in turn.

Ground 1 - The trial was unsatisfactory and the verdict unsafe having regard to the fact that the jury did not hear evidence

in accordance with the statement of Ms. S.D. contained in the Book of Evidence that on the day following the alleged rape

the complainant had informed Ms. S.D that the applicant had tried to rape the complainant by grabbing her by the throat

and trying to pull down her pants.

The events complained of occurred between midnight and 1 a.m. on the 1st June 1996. At 3 p.m. that afternoon P.D. met S.D. In

relation to this she was examined as follows:

Q. Did you tell her anything?

A. Well, she noticed the marks on my neck. When she asked me I just started to cry. At first I was saying “Oh, it is

nothing, it is nothing” but when she saw me to cry, she said “Paula you have to tell me what is on your neck, what

happened”. So I told her that when I was babysitting, T O'R had come in and tried to kiss me but I resisted and he

marked my neck and used his fingers. I said he was very drunk, but he just went home.

Q. That was the sum of what you told her?

A. Uh-huh.

Counsel for the applicant applied to have the jury discharged upon the basis that the account of P.D. of what she said to S.D. was

inconsistent with the account which she gave in direct examination which was of a series of rapes. Reliance was placed on the

decision of this court in The People (Director of Public Prosecutions) v Robert Brophy [1992] I.L.R.M. 709. It is not suggested that the

complaint was not made as speedily after the acts complained of as could reasonably be expected nor that it was not voluntary. In

that case the law on admissibility of complaints was recapitulated as follows:

(a) Complaints may only be proved in criminal prosecutions for sexual offences.

(b) The complaint must be made as speedily as could reasonably be expected and in a voluntary fashion, not as a result

of any inducements or exhortation. Once evidence of the making of a complaint is admissible then particulars of the

complaint may also be proved.

(c) It should always be made clear to the jury that such evidence is not evidence of the facts on which the complaint is

based but to show that the victim’s conduct in so complaining was consistent with her testimony.

(d) While there is mention in one of the older cases, R v Osborne [1905] 1 K.B. 551, of a complaint being “corroborative of

the complainant’s credibility” this does not mean that such a complaint amounts to corroboration of her testimony in the

legal sense of that term but is pointing to the consistency of her testimony. Corroboration in the strict sense involves

independent evidence, that is evidence other than the complainant’s evidence.

(e) The law on complaint should not be confused with what takes place once the police institute their enquiries.

Relevant here is (c) above. In The People (Director of Public Prosecutions) v Gavin [2000] 4 I.R. 557 at 563 having cited The People

(Director of Public Prosecutions) v Brophy McGuinness J. said:-

“It is very clear from the passages quoted above that the purpose of allowing in the evidence of complaint is to

demonstrate the consistency of the complainant – in other words that he or she gave the same account in the immediate

aftermath of the incident complained of as was given in evidence at the trial. In this case the complaint meets the criteria

of being voluntary and made at an early stage. If the complaint is admissible at all, its terms are also admissible. But here

the complaint does not meet the primary criterion of being consistent with the complainant’s evidence at the trial. We do

not accept the contention of the prosecution that it is sufficiently consistent because both descriptions are of sexual

assault. The description of a hand on the groin is crucially different from the account given by the witness at the trial. If

the complaint evidence did not meet the primary criterion of demonstrating consistency, should it have been admitted at

all? I think not.”

In The People (Director of Public Prosecutions) v M.A. [2002] 2 I.R. 601 complaint was made to two persons and it was accepted that

certain parts or significant parts of the complainant’s evidence were not in accordance with what she said in her complaints. However

there were significant elements in the evidence of both witnesses concerning the complaints which were consistent with the

testimony of the complainant at the trial. She had complained that she had been raped and that the applicant had forcibly held her on

the bed and that she had bruising on her chin. The court held that these elements of consistency made evidence of the fact of the

complaints and the details of the complaints admissible.

In opening the case counsel for the prosecution dealt with this aspect of the evidence which the jury would hear in the following

terms:-

“She met a friend the following day and you will hear from her friend, a young female friend that she apparently had

according to her – P.D. confirmed that she had bruises on her neck the following day.”

It was not intended to lead evidence of complaint but merely that on the following day P.D. had bruises on her neck. The learned trial

judge refused to discharge the jury. He dealt with this passage of evidence in his charge as follows:-

“You remember the marks that were on P.D.’s neck on the day following the alleged incident. Her friend, S.D., spotted

them, apparently, the following afternoon at the Spar Shop in M. and asked about them. P.D. says she told S.D. that T

O'R had come into the house while she was babysitting the night before and had tried to kiss her.

Again it is evidence of something happening to her neck. But it does not implicate the accused in a crime of rape, save

that his name was used. We know from other evidence that she says she did not tell her friend the full story but if you

are satisfied in any event that T O'R was in the house that night, then it could confirm there was evidence of a struggle

to some extent. But not of rape itself. To that extent you can have regard to the marks in assessing her credibility as to

the witness generally.”

The passage of evidence under consideration is not complaint evidence. It did not concern a complaint made by P.D. of rape but

merely that S.D. observed marks to her neck and her attributing the marks to her neck to the applicant. The learned trial judge

properly directed the jury to the significance of the evidence as supporting P.D.’s account that her neck was bruised. It was not

evidence of a complaint that she had been raped. In these circumstances the court is satisfied that it was a correct exercise of the

judge’s discretion not to discharge the jury. When S.D. gave evidence this related exclusively to her observation of the bruising and

nothing in the way of complaint evidence was led either in examination or cross-examination. Counsel for the applicant had available

to him the statement of evidence of S.D. and had he considered the same to be inconsistent with P.D.’s testimony so as to be

damaging to P.D.’s testimony could have cross-examined S.D. as to the contents of her conversation with P.D. on the occasion but

chose not to do so. The applicant fails on this ground.

Ground 2 – The learned trial judge erred in law and in fact:

(a) in refusing to discharge the jury following:

(i) the admission in evidence of the complainant’s complaint to Ms. S.D. in circumstances where the complaint was neither

consistent nor recent;

and

(ii) prosecution counsel’s question to the complainant immediately thereafter as to whether the complainant discussed the

relevant events with any other members of the complainant’s family;

(b) in failing to discharge the jury when the prosecution did not adduce the evidence of Ms. S.D. as to the said complaint.

In terms of consistency the observations in relation to the first ground apply. However complaint is now also made in relation to the

passage of the evidence of P.D. that it was not recent. However, this court is satisfied that if the passage of evidence was in truth

evidence of a complaint in the sense that that term is employed in The People (Director of Public Prosecutions) v Brophy in the light

of the evidence of P.D. it was made as speedily as could reasonably be expected. While she did not tell the applicant’s sister for

whom she was babysitting on her return nor did she tell her mother or any of her sisters when she got home she explained this by

reference to her own sense of shame and her unwillingness to upset her mother and to a threat made to her by the applicant. She

arose at midday the following day and met with S.D. at about 3 p.m. when the conversation which she described in evidence

occurred. The court is satisfied that this would meet the criterion set down in The People (Director of Public Prosecutions) v Brophy.

However as the evidence which she gave was not evidence of recent complaint but rather evidence of the existence of bruising, this

issue does not arise.

As to ground (a) (ii) this was not pursued. As to ground 2 (b) S.D. gave evidence and it was open to the applicant’s counsel to elicit

evidence of the terms in which P.D. spoke to S.D. but the decision was made not to do so.

For the foregoing reasons the applicant fails on this ground.

Ground 3 - The learned trial judge erred in fact and in law in failing adequately to warn the jury as to the absence of

corroboration of the prosecution case in particular having regard to the delay by the complainant in reporting the

allegations to the Gardai and a subsequent passage of time to the date of the trial.

This court has carefully considered the learned trial judge’s charge in relation to corroboration. The issue was dealt with by him in

detail and with clarity. The learned trial judge correctly set out the meaning of corroboration, the dangers of convicting on the

uncorroborated evidence of a complainant and that in this case there was no evidence which could amount to corroboration. It is not

surprising that there was no requisition on this issue. The applicant fails on this ground.

There was a delay of two years between the offence and the complaint to the Gardai. The learned trial judge dealt with the

explanation for this. There was further delay thereafter due to an earlier trial resulting in a disagreement. In his speech to the jury

counsel for the applicant pointed out in considerable detail the consequences of the failure to make prompt complaint to the Gardai

particularly stressing that it resulted in the non-availability of DNA and other forensic evidence: this the learned trial judge did not

deal with in his charge. However he was not requisitioned in relation to not so doing. Having regard to this the applicant fails on this

ground.

Ground 4 - The learned trial judge erred in fact and in law in recharging the jury:-

(c) by directing the jury that the learned trial judge had been in error in stating that there was a conflict of evidence in the

case, that the jury could attach such weight to the applicant’s statements in Garda custody as the jury saw fit and that it

was inappropriate to describe such statements as “evidence”;

and

(d) by failing to direct the jury that exculpatory statements made by the applicant amounted to evidence in the case upon

which the jury was obliged to acquit the applicant if, despite believing that the complainant was telling the truth the jury

found that the applicant’s exculpatory statements could reasonably be true.

There is a requisition by counsel for the prosecution in the following terms;

“Judge, you told them that there was a complete conflict of evidence in the case and that somewhat concerned me

because there is no evidence from the accused. You have the uncontradicted sworn evidence of P.D. and then you have

an unsworn statement from the accused or statements made in regard to the station which are exculpatory. Again the

jury are entitled to attach such weight as they think fit to those statements having regard to all the evidence in the

case.”

The learned trial judge readdressed the jury in the following terms:-

“Another matter that has been raised is that I said to you at some stage in my address that there was a complete

conflict of evidence in the case. I used the word ‘evidence’ and of course there has been no evidence as such given by T

O'R so my use of the word ‘evidence’ is perhaps – well, it is inaccurate. What there is is the sworn evidence on behalf of

the prosecution and there are the unsworn statements which you have which were made to the Gardai. It is up to you to

attach such weight to those statements as you think fit but my use of the word ‘evidence’ was inappropriate in describing

it.”

Counsel for the applicant asked the judge to readdress the jury to make it clear that while the statements are not sworn evidence

they are evidence nonetheless and the judge declined to do so.

This court is satisfied tat the learned trial judge in distinguishing evidence given on oath before the jury and statements made to the

Gardai by the applicant made it quite clear that such statements were evidence and that it was a matter for the jury the weight that

they would attach to the same. The learned trial judge was not in error. The applicant fails on this ground.

Grounds 5 and 6 - The learned trial judge erred in fact and in law in charging the jury in dealing with the issue of “belief” as

to the respective contentions of the complainant and the applicant and in refusing to reply to the question asked by the

foreman on behalf of a juror by stating that if the juror believes that the accused is guilty but does not think that the

prosecution proved this conclusively, then the jury should go on to aquit.

The learned trial judge erred in law and in fact in failing to direct the jury that where two reasonable inferences can be

drawn from a particular fact, one favouring the accused and the other favouring the prosecution, the inference favourable

to the accused should be relied upon unless on considering the evidence as a whole, the jury is satisfied beyond

reasonable doubt to the contrary.

Before this court ground 5 was relied upon only in the context of ground 6.

The learned trial judge correctly charged the jury on the burden of proof. However in the next passage of his charge he said:-

“You have to ask yourselves who do you believe.”

Counsel for the applicant raised a requisition in relation to this and expressed a concern that the jury might be led to believe that the

standard was that in civil rather than in criminal proceedings. The learned trial judge readdressed the jury and made it clear beyond

doubt that the standard of proof was the criminal standard of beyond all reasonable doubt.

Thereafter at 4.15 the jury retired and considered their deliberations until 7 p.m. At that point the foreman asked a question on behalf

of a juror as follows:-

“What if I believe that he did it but I don’t think that the prosecution proved it conclusively?”

In response the learned trial judge readdressed the jury on the onus of proof and the standard of proof.

The court is satisfied that, in so far as the jury may have been misled by the learned trial judge’s reference to belief in his charge,

this was fully corrected and clarified on two occasions when he readdressed the jury. The applicant fails on this ground also.

As to the sixth ground the learned trial judge did not direct the jury that where two reasonable inferences can be drawn from a

particular fact, one favouring the accused and the other favouring the prosecution the inference favourable to the accused should be

relied upon unless satisfied beyond a reasonable doubt that the inferences against him should be accepted. Counsel for the

prosecution did not deal with inferences in his opening neither did counsel for the prosecution or the defence deal with the same in

closing. This may be explained by the central conflict in the case in that the applicant denied in his statements to the Gardai that he

had been in his sister’s house at all on the night in question. Thus the jury had the oral evidence of P.D. and the evidence of the

statements made by the applicant. The question of inferences for that reason did not arise on the facts of the case or the evidence

before the jury on the core issue. Essentially the issue was one of credibility. The learned trial judge’s charge must be read in the light

of this. The applicant relied upon The People (Attorney General) v Byrne [1974] I.R. 1. In that case the learned trial judge in the

course of his charge told the jury that the onus on the prosecution was to satisfy them of the guilt of the accused and was held to

be in error in so doing. However in the course of the judgment Kenny J. said:-

“The correct charge to a jury is that they must be satisfied beyond reasonable doubt of the guilt of the accused, and it is

helpful if that degree of proof is contrasted with that in a civil case. It is also essential however that the jury should be

told that the accused is entitled to the benefit of the doubt and that when two views on any part of the case are

possible on the evidence they should adopt that which is favourable to the accused unless the State has established the

other beyond reasonable doubt.”

Juries are almost invariably charged in terms of the second sentence of that quotation. In The People (Director of Public Prosecutions)

v Kiely, unreported, Court of Criminal Appeal, 21st March 2001 the learned trial judge at considerable length explained that the onus

of proof lay at all times on the prosecution and that the standard of proof was that beyond reasonable doubt. He stressed the

importance of the presumption of innocence. He did not specifically refer to the principle that where two views on any part of the

case are possible on the evidence the jury should adopt that which is favourable to the accused. The court held that the omission of

the specific words concerning the benefit of the doubt where there are two views on any part of the case could not have led to any

miscarriage of justice. In the course of the judgment McGuinness J. said in relation to The People (Director of Public Prosecutions) v

Byrne:-

“These two paragraphs contain the main ratio of the judgment. It is clear from this that the main issue before the court

was whether it was sufficient for the judge in his charge to tell the jury that they must be ‘satisfied’ of the guilt of the

accused and the principal ratio of the judgment was that the correct standard to be adopted was that of proof ‘beyond

reasonable doubt’. The standard ‘beyond reasonable doubt’ must be clearly explained to the jury. The explanation should

include a contrast between the civil standard of proof on the balance of probabilities in the criminal standard, and should

also include an explanation of the principle of the ‘benefit of the doubt’.”

However as to the second sentence in the paragraph quoted from the judgment of Kenny J. the court had this to say:-

“Byrne’s case however, was the only authority opened to this court which includes as an essential ingredient in the

judge’s charge the particular explanation of the ‘the benefit of the doubt’ as defined by Kenny J. As a matter of practice

this explanation concerning ‘the benefit of the doubt’, or some very similar explanation is included in the charge to the

jury in very many trials. However, it should be borne in mind that in Byrne’s case, as in the other cases to which I have

referred above it is the judge’s charge as a whole which is being considered by the appellate court. The issue in each

case is whether in his charge as a whole the trial judge has correctly instructed the jury as to the burden and standard of

proof.”

The court went on to hold that the omission of the specific words concerning the benefit of the doubt could not have led to any

miscarriage of justice having regard to the terms in which the jury were in fact charged and the appeal was dismissed.

Here the learned trial judge correctly set out the principles of law as to the presumption of innocence, the onus of proof, the

standard of proof and the benefit of the doubt in his charge, in a recharge in response to a requisition and in answer to a question

from the jury. He was not requisitioned to deal with inferences. The judge’s charge taken as a whole appropriately and adequately

conveyed to the jury the true meaning of the phrase “beyond reasonable doubt” and the nature of the onus resting on the

prosecution. It would, however, have been preferable to include a reference along the lines of the second sentence in the passage

from the judgment of Kenny J. quoted above.

Specifically as to directing the jury on inferences the court has been referred to The People (Director of Public Prosecutions) v Mark

Cronin [2004] 4 I.R. 329. In that case the trial judge conveyed to the jury that the obligation to draw the inference more favourable

to the accused only arises where the adverse and favourable inferences are equal rather than that a reasonable inference favourable

to the accused must always be acted upon even though such inference is not as likely as an adverse inference. A requisition was

raised in relation to the misstatement of the law. The error occurred when the learned trial judge was addressing the jury in response

to a requisition and in fact complied with the terms of the requisition. In the course of his judgment at page 238 Geoghegan J. said:-

“I am satisfied that the applicant cannot now be heard to complain in the light of the requisition which was made and the

compliance with that requisition, but at any rate, it must be assumed that counsel for the defence was quite happy that

a jury would have understood all aspects of the ‘reasonable doubt’ principle from the impeccable general directions given

to the jury in the charge of the trial judge. I would dismiss this ground of appeal.”

In the course of his judgment Kearns J. dealt with the failure to raise at the trial an issue sought to be raised on appeal:-

“It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has

occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There

must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore it is

noted above the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made thereat, and

not with other suggested errors or oversights which may predate the trial or have been amenable to remedy in some other

manner. Without some such limitations, cases will continue to occur where a trawl of a judge’s charge years after the

event will be made to see if a point can be found which might have been argued or been the subject matter of a

requisition at the end of the judge’s charge at the original trial, even though competent lawyers at the trial itself did not

see fit to do so. It is an entirely artificial approach to a review of a trial and one totally disconnected from the reality of

the trial itself. For these reasons and for the reasons offered by Hardiman J. when this case was in the Court of Criminal

Appeal this court should abhor the practice and strongly discourage it.”

In the present case the applicant was represented by experienced counsel. He raised a requisition in relation to the manner in which

the learned trial judge dealt with the standard of proof and as no further requisition was raised it must be assumed that he was

satisfied that the manner in which the learned trial judge recharged the jury.

Both on the sufficiency of the manner in which the learned trial judge charged the jury taken as a whole and on the basis that no

requisition was raised on the issue now sought to be raised the applicant fails on this ground also.

Having regard to the foregoing the court proposes to treat the application for leave as the hearing of the appeal and to dismiss the

same.