Court of Criminal Appeal dismisses appeal regarding jury misdirection on Lucas warning and charge imbalance.

THE COURT OF CRIMINAL APPEAL

[Record No: CCA/96/11]

MacMenamin J.

Herbert J.

McGovern J.

Between/

J.S.

Appellant

and

The Director of Public Prosecutions

Respondent

Judgment of the Court delivered by Mr. Justice MacMenamin on the 17th day of July, 2013.

1. The appellant was convicted in the Central Criminal Court on one count of rape and 14 counts of sexual assault of his niece, the

complainant, between the months of May 2002 and April 2004. He was sentenced to seven years on the count of rape, and two years

on each of the counts of sexual assault, the latter sentences to run concurrently, but consecutive to the sentence for rape. The

events in question occurred either at the home of the complainant, whose family are involved in farming, or the home of her uncle,

the appellant, also a farmer, who lived nearby. At the relevant times, the complainant was aged between 13 and 15 years. The main

focus of this appeal relates to the complainant’s testimony on one of the counts of sexual assault which, she said, occurred in the

summer of 2002.

2. Two issues lie at the centre of this appeal. First, it is said that the learned trial judge misdirected the jury in relation to what is

termed a "Lucas warning" regarding the evidence of this assault in the summer of 2002. Second, it is contended that the charge was

unsatisfactory and misled the jury through an alleged disparity or imbalance in the manner in which the judge characterised certain

prosecution evidence by contrast to his description of parts of the defence case.

The Lucas Warning

3. That false statements made by an accused, if they are found to be lies, may, in certain circumstances be corroborative of guilt is

now well-established as part of our law (see The People D.P.P. v. Brady, (Unreported, Court of Criminal Appeal, 5th May, 2005); The

People D.P.P. v. Cleary (Unreported, Court of Criminal Appeal, 3rd March, 2006); The People D.P.P. v. Massood (Unreported, Court of

Criminal Appeal, 24th July, 2009)).

4. In this case, counsel for the appellant raises issues on both the nature and extent of the warning given to the jury. It is said that

the judge misdirected the jury by failing adequately to warn them that, when an accused has made statements out of court, which

are shown to be false, such statements may be treated as corroboration, but that there may other circumstances which explain or

excuse such conduct which may not be consistent with guilt.

5. The Lucas warning was a subject of discussion in the judgment of this Court in Director of Public Prosecutions v. Curran [2011]

IECCA 95. The general format of the “Lucas warning” is by now well known. As will be seen, in this appeal, there was a strong

resonance between the actual words used by Lord Lane L.C.J. in the case of R. v. Lucas [1981] QB 720, and the characterisation

deployed by the trial judge in his charge to the jury.

6. In Lucas, Lord Lane L.C.J. put matters this way:

"Statements made out of court, for example, statements to the police, which are proved or admitted to be false may in

certain circumstances amount to corroboration. There is no shortage of authority for this proposition … It accords with

good sense that a lie told by a defendant about a material issue may show that the liar knew if he told the truth he would

be sealing his fate…"

The judge then outlined the nature of the warning to be given:

"To be capable of amounting to corroboration the lie told out of court must first of all be deliberate. Secondly it must

relate to a material issue. Thirdly the motive for the lie must be a realisation of guilt and a fear of the truth. The jury

should in appropriate cases be reminded that people sometimes lie, for example, in an attempt to bolster up a just cause,

or out of shame or out of a wish to conceal disgraceful behaviour from their family. Fourthly the statement must be

clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, that is to say by

admission or by evidence from an independent witness."

Background

7. It is necessary now to consider some further background to this case. The complainant testified as to the circumstances of the

first sexual assault upon her. This was said to have taken place in the summer of 2002. The complainant was able to identify

specifically the time and circumstance by reference to the activity which was going on in the appellant's farm which she was visiting.

She testified that the first occurrence was after the school holidays. There was baling going on on the farm.

8. The complainant testified that the appellant was picking up bales from one of the top fields on his farm and bringing them down to

a bottom field which she identified. The bales were to be cut and wrapped. She identified family members who were there. These

were her own brother and two of her cousins, children of the appellant.

9. What follows is a summary of the complainant’s narrative of events in evidence. She said that she and her cousins were all taking

spins on the tractor. She testified that the appellant got on the tractor, and she stayed there, on a small seat to the left of the main

driver’s seat. The appellant went to go and pick up a bale from the top field when the other children were back down in the lower

fields. As the appellant was driving the tractor, he asked the complainant “what would you do if I placed my hand high up on your

leg?”, and claimed that it would be “no harm” as he was her uncle. She described the assault. The complainant said she lifted his

hand away. She said the appellant repeated these actions as he was going back down towards the field to drop off the bale. Again,

the complainant lifted his hand off. She testified to the jury that she was bewildered, embarrassed and questioning herself as a result

of what happened.

10. Three years later, the appellant was interviewed in the course of an investigation which began in August 2005. He denied each

and every one of the allegations. At interview he suggested that complaints had been made against him because the complainant's

family were trying to blackmail him and because they had a grudge against him for having sold a field. No evidence in relation to these

claims was adduced at the trial.

11. The appellant was asked at interview about the first incident of sexual assault. It was put to him that this had occurred while hay

was being baled in May or June, 2002. The appellant point blank denied having made any bales at all in 2002. He specifically

distinguished that year from other years. By way of distinction to 2002, he gave an account of his farming activities in the years 2001

and 2003. Some of his words are set out below. It must be noted that the appellant (as was his right) did not testify at the trial.

However, at interview he denied having made round bales in any of the three or four years prior to the interview in 2005. He said the

last time that he collected bales, his nephew helped him. He was specifically asked at interview:

“Q. When did you last cut round bales in your fields?

A. 2001 in one field.”

Later, he was asked at interview:

“Q. If she (the complainant) made up this story, why?

A. I don't know why this story was made up against me. It was said to me I put my hands up her leg when I [sic] taking

bales in 2002. I made no bales in 2002. I bought in bales in 2003. I made bales in 2001.”

Later, the appellant reiterated he had “reseeded the ground in 2003” and, specifically, that he “made no bales in 2002”, as in that

year he ploughed the fields.

12. Clearly an issue of credibility arose. Was there any corroborative evidence on either side? The appellant was asked by the gardaí

at interview who had made bales for him. He identified two people. He said one of these two, a Mr. P.D., made bales only in one year

for him. This information was provided in the context of a specific denial that the appellant had not made any bales in the year 2002.

13. The gardaí interviewed Mr. P.D. His evidence showed that the appellant was wrong in what he had said. Mr. P.D. in his statement

had said that he had checked his records, and that in fact he had mowed, baled and wrapped 42 round bales for the appellant on the

17th July, 2002. He produced business records to the gardaí to bear this out. Mr. P.D. was not asked to testify in court but his

evidence was accepted, read out to the jury and was not subject to any challenge.

14. As outlined, the complainant identified the first incident as having occurred in the summer of 2002 when baling was going on. It

may be added that the appellant's son also testified in the case that he recalled baling silage in 2002. However, his evidence was that

on the date the complainant was there, he, and not his father, the appellant, had been driving the tractor. Clearly then, an issue

arose as to the appellant’s statement which had transpired to be false on this important “island of fact”. Could this statement be

taken as corroboration? Neither prosecution nor defence demurred that the circumstances were such as to warrant a warning to the

jury that the false statement might be explicable for a number of reasons.

15. Before counsel's speeches, the trial judge asked for submissions on the issue of the appellant's claim in the interview that he had

not made any bales in the year 2002. Counsel for the appellant asked that, if there was to be any comment on the point, that it

should be placed in context, including a comment from the judge that the interview had taken place some three years after the first

allegation, and that the defence evidence (from the appellant’s son) was that bales had actually been made in 2002. Counsel

submitted that the judge should charge the jury that the statements should be seen in the context of a man who made bales on and

off for years and that what he had told the gardaí was as likely to be a mistake as a lie, and could be seen as an example of an area

where the accused should be given the benefit of the doubt.

The judge’s charge

16. The judge’s charge was very meticulous. When he directed the jury on the question of the first sexual assault, he correctly

pointed out that if they were to hold that what the appellant had told was lies, that it was corroborative only in relation to that one

count. He stated that whether or not such lies were actually corroborative was a matter for them. He indicated that the jury must be

satisfied that the reason for the lies was a realisation of guilt and a fear of the truth. He went on to point out that people lie for other

reasons. He instanced shame, a desire to conceal disgraceful behaviour from one's family or “out of panic or out of misjudgement or

out of confusion or out of indignation that the suggestion one had done wrong”.

17. He specifically stated to the jury:

“And of course especially in the case of interviews with Gardai an accused might have failed merely to recollect something

which upon his memory being jolted in cross examination he subsequently does recollect or subsequently recollects

afterwards; not necessarily in the witness box.”

The judge instanced circumstances where an accused might tell lies or be under great stress. He concluded by saying:

“So these are factors which are to be borne in mind when weighing up the issue of whether or not things which are

capable of corroboration.”

Self-evidently then, the warning he gave was redolent in its terms of precisely the illustration given by Lord Lane L.C.J.

18. However, counsel for the appellant makes the case that the warning was not sufficiently contextualised. It is said that the judge

should have specifically warned the jury that the appellant may have been mistaken in identifying the year and that, in this, they

should give the appellant the benefit of the doubt.

19. In response to this, the court would observe that among the circumstances where the judge indicated that a person might or tell

untruths were out of “panic” or “misjudgement” or “confusion” or “indignation”. He specifically stated there might have been failure

“merely to recollect something”. In the court’s view, there is no real distinction between what counsel contends should have been

said and what the judge actually stated. It is difficult to avoid the conclusion that what is in issue here is a matter of phraseology or

the precise terms used by the judge. It is not the function of this court to parse and analyse the statements of a judge in his or her

charge to the jury with the benefit of hindsight. What must be in issue is whether the judge erred in a statement of law or misled the

jury as to facts. Otherwise, a trial judge must enjoy a discretion as to the words he uses.

20. The Court has not been convinced that there was anything untoward in relation to the warning which was given by the trial judge

in this case. We would observe that there was actually no evidence put before the jury that the appellant had actually been mistaken

in his identification of the year. Second, it is difficult to avoid the conclusion that what is being contended for is, in fact, simply a

choice of words more favourable to the appellant. In the view of the court, there is no substantial distinction to be made between

the concept of the appellant having made a “mistake”, or (as the judge identified) having made a misstatement out of panic,

misjudgement, confusion or failure of recollection. The accused has no entitlement to words of his counsel’s choosing. It is impossible

for the court to conclude that the warning, as phrased, contained an error.

21. One of the issues counsel for the appellant raised on requisition was the nature of the Lucas warning. The requisition was

couched in careful terms. It cannot be said that the submission was that he had committed any error in law. What was in question

was emphasis. But it was not submitted the charge was generally unfair, biased, or that the judge held the scales unevenly. It

appears all parties were at the time under the misapprehension that the judge specifically mentioned the question of “mistake”, albeit

only once. In fact, he did not use the word at all. Be that as it may however, counsel submitted that the idea of “mistake” had only

been mentioned in the context of an entire list, to which the judge responded that this was sufficient. We are not persuaded he erred

in this.

22. The Court would again emphasise that it is not its function to lay down precise or definitive terms in which a Lucas warning, if

required to be given, should be given. This must be a matter for the trial judge to decide on the facts of each case. Obviously, it

should be contextualised to the degree that is necessary. It might be said that the question as to the appellant's untruths went to

his credibility rather than guilt or innocence. However, on an issue of this type, there may be a thin line to be drawn between

credibility on the one hand, and the question of guilt or innocence on the other. Here, the issue could have been the word of one

person against another. The appellant had been very explicit indeed in his denial of carrying out any baling in 2002, even to the

extent of advancing reasons why it could not have occurred in that year. This was not a passing comment in the interview. His

assertion was repeated more than once. The issue was specifically put to him in circumstances where there could have been no

misapprehension on his part as to its nature or importance. No evidential basis was established as to how or why the appellant might

have been mistaken. The judge very specifically addressed the issue of the benefit of the doubt in the course of his charge. It is not

necessary for each point to be repeated by a judge in a manner which would favour the accused over the prosecution.

23. In the circumstances, the Court concludes there has been no error in principle or misdirection to the jury in this regard.

Characterisation of evidence

24. However, the appellant make another point, which is somewhat more nuanced. It is said that not only was there insufficient

emphasis on the possibility of a mistake in the Lucas warning, but that, in the context of that warning, the judge went on to use the

word “lies” on a substantial number of occasions in the context of explaining that persons may sometimes tell lies for reasons

unrelated to a realisation of guilt and fear of the truth, as indeed did Lord Lane L.C.J, because the Lucas warning is solely concerned

with the issue of lies and corroboration. It is quite true that the judge did use the word on a significant number of occasions. The

contention here is whether it can be said that the Lucas warning given by the trial judge, taken in its entirety, was unbalanced or

favoured the prosecution over the defence, because each time he used the word “lies”, he did not add, “provided you are satisfied

beyond reasonable doubt by the prosecution that they were lies”, or some similar formula.

25. The court considers this to be unnecessary and inappropriate in the course of a Lucas warning. It is however incumbent on the

trial judge in the course of his charge to the jury to instruct them that the prosecution must satisfy them beyond reasonable doubt

that the particular utterances were lies – deliberate falsehoods – and were not due to some erroneous but nonetheless legitimate and

genuine belief on the part of the accused, e.g. mistake, misjudgement, confusion, etc.

26. A number of points arise here. By way of further background, while the complainant was of a young age, it emerged she had been

subjected to sexual assaults by a cousin, who had later died. But it then emerged that she had also been the subject of sexual

assaults by her own father. All this came out after her complaint about the appellant. She was subject to cross-examination on the

basis that the information regarding the appellant had first been volunteered a number of months prior to the information about her

father (who subsequently pleaded guilty) and her cousin.

27. This was put to the complainant. She responded on cross-examination that the manner in which the information emerged was

very much as a result of obeying the wishes of her mother, and that, the absence of any mention of her father until a later time was

as a result of pressure from her mother. The judge is criticised for having characterised the fact that the first statement from the

complainant in 2004 did not reveal this latter information as being “a half truth to put it no higher than that”.

28. Counsel for the appellant submits that, on only one further occasion in the charge, did the trial judge raise the question that the

complainant and her mother had not fully informed the health authorities and the gardaí for at least a year and a half about the full

picture. This was at a time when the offences were being investigated. Counsel for the appellant submits the charge was flawed in

that the judge characterised this conduct as being “something in the nature of a half truth”, and described these as being matters

which the jury might regard as “relatively minor inconsequential matters” and that the jury should bear in mind that the complainant

was young.

29. The Court is not persuaded that these are issues of substance. There is nothing which could be properly characterised as being

an error in principle, a misdirection, or an imbalance. At risk of repetition, the phraseology adopted in a judge's charge to the jury

need not always be euphemistic. The words a judge uses need not always be those which are most favourable to the accused

provided there is an accurate summation to the jury as to the law and the facts. As the court has already indicated, the Lucas

warning only arises in the context of lies – deliberate falsehoods - and whether they can amount to corroboration. It is solely

concerned with reminding a jury in an appropriate case that the accused may have told a lie or lies for a motive other than a

realisation of guilt and a fear of the truth. The warning is concerned solely with an alternative motive for lying. The necessity for such

a warning will not arise in every case.

30. A trial judge may not, of course, comment on evidence in a manner which may unfairly influence the jury’s determination on a

matter of fact. However, it cannot be said that there was anything in the judge's conduct here which could be said to constitute

“approval” of one view of the evidence over another. As the court has already pointed out, the trial judge clearly and unambiguously

reminded the jury that persons might tell untruths out of poor recall, panic, misjudgement, confusion or indignation. A “mistake” is an

error in judgment and a “misjudgement” is an erroneous opinion of something. This court is satisfied that the trial judge made the

matter sufficiently clear in his charge to the jury and a charge cannot be considered insufficient or unbalanced because the trial judge

failed to advert to some other possible motive for the untruth which then or subsequently came to mind. This court is also quite

satisfied that the trial judge clearly directed the attention of the jury to the important consideration that what the appellant stated

to members of the gardaí at interview might not be a deliberate falsehood – a lie - and the onus was on the prosecution to prove

beyond reasonable doubt that it was a lie. The trial judge gave sufficient examples of possible alternative explanations for the

untruth, and these were clearly not accepted by the jury. A trial judge may, in fact, comment on evidence and arguments put

forward, but he cannot comment to a degree which imperils a fair and proper trial. The acid test is whether, taken as a whole, the

summing up is balanced and fair. But that is not to say that when directing a jury, a judge is disentitled to express his opinions on the

facts of a case, provided that he leaves the issues of fact to the jury to determine. A judge is, of course, not entitled to use

language such as to lead a jury to lead them to think that they must find the facts in a particular manner.

31. This is not a situation where it can be said the judge in any way “commended” a witness or bolstered credit through comment.

What arose here, rather, is a situation where the judge used particular terminology which it is now suggested went insufficiently far in

its criticism of the conduct of the complainant.

32. The court is not persuaded that any of these concerns could in any sense be seen as constituting an unbalanced charge, or an

unfairness to the accused. Over a number of hours, the judge carefully charged the jury as to the law, the burden and standard of

proof, and the necessity to give the accused the benefit of the doubt. He went through the facts and evidence in very great detail.

As always, the essential test is whether there was unfairness. The court has not been persuaded that there was any unfairness in

the trial and, consequently, will reject this ground also. The appeal must therefore be dismissed.