Court of Criminal Appeal allows appeal against conviction for sexual assault due to lack of proper corroboration warnings.

[2012] IECCA 76

THE COURT OF CRIMINAL APPEAL

245/10

Hardiman J

Hanna J.

White J.

Between:

MARTIN McCURDY

Appellant

and

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

JUDGMENT of the Court delivered the 27th day of July, 2012 by Hardiman J.

1. This is the appeal of the appellant against conviction and sentence. After a trial lasting six days, the appellant was found guilty on

the 17th day of May, 2010 on three counts of sexual assault against three separate girls. On the 14th October, 2010 he was

sentenced to two years and three months imprisonment in respect of counts 1 and 2, and three years imprisonment in respect of

count 3, all sentences to run consecutively. It appears that the learned trial judge had considered that a total sentence of ten years

imprisonment was appropriate to the offences but reduced the sentence in each case to take account of the totality principle. The

actual sentences total seven and a half years.

Issues.

2. The appellant complains of the type of corroboration warning given by the judge to the jury and in particular complains that the

learned trial judge told the jury “that the evidence of one complainant necessarily corroborated the evidence of the other two in each

case”. He further complains “that no application had been made by the prosecution to have ‘similar fact’ or ‘system evidence’ as it is

sometimes called admitted”.

3. The appellant also complains that the judge understated, or failed to state, the risk that a process of contamination as between

the complainant witnesses, all of whom were young girls and close neighbours, might undermine the required independence of the

evidence of each respectively, and thereby disqualify it from constituting corroboration.

Factual background.

4. The defendant resided at all material times in a housing estate in or near a town in rural Ireland. All of the assaults are said to have

taken place there. In the case of one of the girls, she was in the house to baby sit a child; in the case of the other two they were

simply attending a “sleep over”, as friends of the appellant’s daughter.

5. In each case it was alleged that the indecent assault consisted of getting each of the girls to touch him in an indecent way and

with similar results. The offences are closely related in time, the first being alleged to have occurred in December 2006, the second on

the night of the 6/7th of January, 2007 and the third in February, 2007. The girls were all thirteen or fourteen years old. There was

evidence of a complaint in April, 2007.

6. There was originally a fourth count in respect of a fourth girl which however was not proceeded with.

Opening of the case.

7. Prosecuting counsel in opening the case to the jury referred to the existence of multiple counts, three in all. In the circumstances

of the case it is necessary to consider what was said at that time and we therefore set it out. We wish to say, however, that every

transcript of an oral hearing will contain certain infelicities in language and oddities of grammar which reflect simply the difference

between an oral and a written presentation. This will appear later in the statements of other speakers as well and generally does not

affect the understanding of what is said.

8. Counsel said:

“Now, they’re related in that each of these girls, they were friends of [the appellant’s daughter] and that was the reason

they were staying over and the similarities, as I say, are there in that each case the type of sexual assault that occurred

was of a specific type. It was of a man taking the girls hands to him - to his penis - rather than going and touching up

the girls or anything like that. So there is a certain similarity in the way each of these girls was actually assaulted in that

there was a particular way that [the appellant] did this. There is the other element there of the drink involved, but these

were all matters that, as I say, you’ll be hearing in evidence. I’ve just outlined the facts there, but you’ve got to

remember, these are three individual cases. They have, as I say, connections. There are similarities, but in fact they are

three separate cases. There’s a separate count of sexual assault in relation to each of these girls and you approach each

of these cases looking to see is there evidence on these cases - in this the particular case, that satisfied you beyond

reasonable doubt as to what happened there and that does not mean, of course, that you have to ignore what the other

cases are about, but you have to satisfied that on the evidence that you hear on that particular case there is sufficient

that you can be satisfied of [the appellant’s] guilt beyond reasonable doubt on that case against him”.

9. After the case had been opened on behalf of the prosecution defence counsel made certain complaints about the opening but

these did not extend to the reference to similarities in the way each girl was assaulted.

10. On the fourth day of the trial, after the prosecution case had finished, defence counsel raised the issue of whether the judge

proposed to give a corroboration warning and referred to the case of D.P.P. v. JEM.

11. The judge indicated that “it’s in my mind to give a form of warning but I have not decided [it] and I’m going to hear both sides

before doing so”. He then continued:

“I will also telling them obviously, which I don’t think could be in controversy, that they’re entitled to consider on each

charge the evidence of the other complainants which, of course, would perhaps dilute the risk which might arise in as

much as it would mean that there was more evidence than merely the bare word of a complainant, even if it didn’t

constitute corroboration, that’s the form of charge I’ve given in one or two other cases of this type”.

12. The Court then adjourned for lunch.

13. After lunch, the defence counsel, Mr. Finlay S.C., first sought a direction, which was refused. He then returned to the topic of a

corroboration warning (Day 4, p.32) and the judge indicated that it could be dealt with at the end of the defence evidence. It was

taken up again at p.46 of the same volume of transcript.

14. Defence counsel opened the leading authorities in his submissions. He referred to the statement the learned trial judge had made,

quoted above, and submitted that if the judge was of the view:

“that while there is an absence, if you like, [of] corroborative testimony or evidence that would support or tend to

corroborate the allegations of each one of them independently, you nevertheless would be entitled to draw attention to

the fact that each complaint is made in circumstances where another minor has made another complaint. I respectfully

disagree with that because it seems to me that the whole logic of the corroboration warning is to warn a jury of a danger

impending and if there is an impending danger that they would convict - and the warning is that they would convict

wrongly, not that they would correctly convict, but that they would wrongly convict and if the court is asked by the

defence, as is usually the case, to consider giving a warning, it’s hardly the function of the prosecution to do so, it is that

there isn’t independent evidence tending to support the commission of a crime other than that spoken by the complainant

witness…

If it were to be done in such a way as to suggest that, well, there may not be independent corroborative testimony but

you have other people saying the same thing this case is not delivered to you on the basis of similar fact evidence [that]

the evidence that an offence has been committed has to be believed because we have evidence of other offences having

been committed by a person which tend to show a certain modus operandi, that’s not the case here”.

15. Counsel went on to say:

“I could understand the caveat your Lordship proposes to enter if it all happened on the one night or over the same

weekend but they’re separated in time. The only thing that draws them together is the location and the fact that they

were minors or friends of [the appellant’s daughter].”

16. In the course of the discussion which followed this submission prosecuting counsel, Mr. O’Kelly S.C., said at pages 56 - 57 of the

transcript for Day 4:

“Now, the only other matter is I want to make it absolutely clear that the prosecution case is that this is a similar fact

case we say there’s the clearest system here”.

Complaint about the prosecution’s opening speech.

17. The appellant complains, in the first instance, that counsel for the prosecution failed to make it clear in opening the case that he

would be relying on system evidence.

18. The learned trial judge certainly was of the view that such evidence would be relied upon, and said at p.48 of the transcript for

Day 4:

“It was certainly my understanding from the commencement, that the reason the cases are being heard together is

because the evidence does constitute evidence of system within the concept as is elaborated I think in a number of

cases firstly by Mr. Justice Barron […].”

19. The defence complaint in this regard is that the prosecution should have sought leave to adduce the evidence of such system, or

at least should have referred to it expressly in opening the case so that the defence would be on notice of it and:

“If such a course had been taken the defence would have had an opportunity before the jury to dislodge the suggestion

that one complainant’s evidence was capable of corroborating the other owing to conclusion or contamination”.

20. In making this submission the defence rely upon a dictum of Lord Cross in the case of Harris v. D.P.P. [1952] AC 694 which was

cited with approval by the Court of Criminal Appeal in D.P.P. v. B.K. [2000] 2 IR 199:

“When in a case of this sort the prosecution wishes to adduce similar fact evidence which the defence say is inadmissible

the question whether it is admissible ought, if possible, to be decided in the absence of the jury at the outset of the trial

and if it is decided that the evidence is inadmissible and the accused is being charged in the same indictment with

offences against the other [complainants’] the charges relating to the different persons ought to be tried separately”.

21. In this case, of course, the defence were fully aware of the evidence to be relied on because it was set out in the Book of

Evidence. No application to sever the Indictment appears on the transcript. Nor does any suggestion that the evidence of the

witnesses was inadmissible. It might be argued that the evidence of each complainant was clearly admissible in relation to the count

relating to her, but not in relation to the counts about the other complainants. But, whatever might be said about the opening of the

case, the passage quoted above seems to us quite inconsistent with any view that the counts in relation to the several complainants

were being tried, as it were, in watertight compartments. It is not appropriate, and would in any event be pointless, to address the

jury on legal issues but it seems very clear that the defence were fully on notice that the prosecution case was that the evidence on

each count was relevant to the other counts as well, and that the evidence showed that the type of assault in each case “was of a

specific type”.

22. The difficulty from the defence point of view in relying on the dictum of Lord Cross is that in this case the defence did not “say”

that the evidence was inadmissible before it was given. Nor did the defence apply to sever the indictment, which would have been

the logical step to take if it was considered that the evidence of each of the girls was admissible only in relation to the count alleging

assault on her.

The basis of admissibility.

23. It is important, and will shorten the subsequent discussion, to say that evidence of the kind in question here might be admissible

on a number of grounds.

24. At para. 9 - 71 of Mr. McGrath’s book on Evidence it is said:

“It can be seen that the probative force of multiple accusations is not dependent on any particular degree of similarity

between the accusations. In circumstances where there are a large number of accusers, who have independently made

allegations of a similar type of conduct against the accused, sufficient probative force might derive from the number of

complainants alone without need for their allegations to be very similar in substance. As the number of accusers falls, so

the level of similarity required to maintain the required level of probative force based on the unlikelihood of coincidence

arises, until the point is reached in which there are only two accusers and the similarity must be very great indeed”.

25. Accordingly, it seems that evidence of multiple accusers may be admissible or “cross-admissible” on ordinary principles in order to

show system or rebut accident. It may, if the accusations are accepted as being independent of each other, also have a

corroborative effect. Such evidence may in certain cases exhibit both of those characteristics, quite separately. It is very important

that the law of evidence should be realistic according to the ordinary instincts of mankind. This aspect is very well put by Budd J. in

B. v. D.P.P. [1997] 3 IR 140 at p.157/8 where he said:

“It seems that the underlying principle is that the probative value of multiple accusations may depend in part on their

similarity, but also on the unlikelihood that the same person would find himself falsely accused on various occasions by

different and independent individuals. The making of multiple accusations is a coincidence in itself, which has to be taken

into account in deciding admissibility”.

26. In our view, this statement of Mr. Justice Budd is sound law and sound commonsense, which we would disregard at our peril. The

learned judge was not, of course, ignorant of the risks of collusion or contamination because he also said:

“Whether the accounts of each of several complainants are corroborative and also the risk of collusion, as or by

conspiracy or where one witness has been unconsciously influence by another, may well be relevant factors at the trial”.

27. At a trial, of course, it is for the trial judge to determine, and instruct the jury, whether particular evidence is capable of being

corroborative. It is then for the jury, having been so instructed, to decide, as a matter of fact, whether the evidence is actually

corroborative in the circumstances of the particular case. This latter decision will naturally involve various factual issues including, in

an appropriate case, the question of conspiracy or contamination.

Corroboration.

28. At para. 2.1 of his written submissions the appellant says:

“The net issue in this appeal concerns the type of corroboration warning given by the learned trial judge in his charge to

the jury and, more particularly, his finding that the evidence of one complainant necessarily corroborated the evidence

of the other two in each case”. (Emphasis added)

29. I do not believe that the learned judge actually said that the evidence of each of the girls was necessarily corroborative of the

evidence of the other two. On the contrary, in charging the jury on the fifth day of the trial he discussed the dangers of dealing with

a case where the issue came down to one person’s word against another. He referred to the “trap, so to speak, of convicting a

person where there isn’t corroboration”. He pointed out that “corroboration is evidence which must be independent evidence of the

person whose evidence is to be corroborated”. Very importantly, he told the jury:

“I decide whether as a matter of law evidence is allowed to be or capable of being corroborative”.

On the other hand:

“What is or is not corroborative, whether evidence is corroborative or not, is a matter of fact and that’s a matter for

you”.

30. On that basis the learned trial judge held that the evidence of each of the girls was capable of being corroborative of the other

that he left it to the jury to say whether it was or not. Mr. Finlay, of course, both in cross-examination and in addressing the jury

referred in an exhaustive manner to various features of the evidence which might make the jury doubt its accuracy or its

corroborative effect, as he was entitled and indeed obliged to do.

Conclusion on conviction issues.

31. It appears, accordingly, that the evidence of each of the complainant was available to be considered as system evidence and

also, to the extent of which it was accepted, as evidence corroborative of the other accounts. It would appear from the decision of

this Court in The People (D.P.P.) v. B.K. that the relevant evidence was not available as “similar fact evidence”: see the dicta of

Barron J. at p.203 of the Report. Since confusion sometimes arises on this issue it may be helpful to set out the whole of Mr. Justice

Barron’s remarks:

“While there may be cases where the trial judge may be able to charge a jury so that an accused is not unfairly

prejudiced where evidence admissible on one count is inadmissible on another, in most cases the real test whether several

counts should be heard together is whether the evidence in respect of each of several counts to be heard together,

would be admissible on each of the other counts.

For such evidence to be so admissible, it would be necessary for the probative value of such evidence to outweigh its

prejudicial effect. In practice, this test is applied where there is a similarity between the facts relating to the several

counts. On the one hand, there is system evidence which is so admissible; and, on the other hand, there is similar fact

evidence, which is inadmissible. In the latter case, the reason is that, just because a person may have acted in a

particular way on one occasion does not mean that such person acted in the same way on some other occasion. System

evidence on the other hand is admissible because the manner in which a particular act has been done on one occasion

suggests that it was also done on another occasion by the same person and with the same intent.

There is a clear line of division between these two types of evidence even though it may be difficult in an individual case

to say which side of the line the particular case falls. While the court uses the expressions ‘system evidence’ and ‘similar

fact evidence’ to distinguish the two types of evidence, in some of the authorities to which we refer the words ‘similar

facts’ are used to describe what we refer to as ‘system’. This in itself does not affect the reality of the distinction.

The basic test is applied to ensure that the effect of the natural prejudice which will arise from similarity of allegation is

overborne by the probative effect of the evidence.

In Attorney General v. Duffy [1931] I.R. 144, the accused was charged with four separate counts of indecent assault and

gross indecency against four different male persons on four different occasions. All the counts were heard together. It

was held that the convictions could not stand and that a retrial would be ordered. The basis of the decision was that to

try the four offences together was in effect to supply corroboration for each of them when in law there was no such

corroboration. As Kennedy C.J. put it at p.149:

‘Human nature, however, is too strong to have allowed the jury to disregard the cumulative effect of evidence given at

the same trial in respect of four distinct offences of almost precisely the same character’.

The need for corroboration is no longer necessary in such cases, but the sentiment expressed is still the basis for

excluding similar fact evidence. A similar sentiment was expressed by Goddard C.J. in Rex v. Sims [1946] 1 K.B. 531.”

32. It is true that prosecuting counsel in the present case appeared, in a passage quoted above, somewhat to confuse the separate

concepts of system evidence and of similar fact evidence but this was in the absence of the jury. The evidence was also available as

corroborative evidence on the basis explained by the learned trial judge after all of the relevant authorities had been opened to him.

33. In those circumstances, the Court will decline to quash the convictions.