Court of Appeal quashes rape conviction due to trial judge's failure to give a mandatory corroboration warning.

THE COURT OF APPEAL

[270/15]

Birmingham P.

Mahon J.

Edwards J.

THE PEOPLE AT THE SUIT OF THE DPP

RESPONDENT

V. ALAN HANLEY

APPELLANT

JUDGMENT of the Court delivered on the 11th day of June 2018 by Birmingham P.

1. On 14th October 2015, the appellant was convicted in the Central Criminal Court by a unanimous jury of three counts of rape. At

an earlier stage in the proceedings, he had pleaded guilty to a single count of s.3 assault, assault causing harm. Subsequently, he

was sentenced to a term of 12 and a half years imprisonment in respect of the rape offences and to a term of 5 years imprisonment in

respect of the s. 3 assault. He has appealed the convictions and appealed also the severity of the sentences. This judgment deals

solely with the appeal against convictions.

2. The background to the trial was that the complainant and appellant had met at a party in April 2012. A relationship developed

which became intimate. At one point, the appellant was staying in a house that the complainant shared with her brother at an

address in Limerick. On 2nd May 2012, there was a falling out between the complainant and the appellant and between the

complainant’s brother and the appellant. The trial was concerned with events that occurred two days later, on 4th May 2012. The

complainant’s version of events is that at approximately 11pm, the appellant came to the house, at a time when she was alone there.

According to this account, she opened the door, to be confronted by the appellant who was angry and abusive. She says that he

assaulted her, knocking her back, kicking and punching her. The complainant says that she ended up on the floor in the living room

and was physically assaulted again. While this was going on, the appellant was drinking from a bottle of vodka. The complainant says

that matters then escalated with the appellant ripping off her clothes and raping her. The rape took place on a rug in the sitting

room. The complainant alleges that the appellant did this on two occasions, dragging her upstairs after each rape and hosing her

down in a shower. She says that the appellant did not ejaculate on these two occasions. The complainant says there was a third and

final rape on the rug. Whether the appellant ejaculated on this occasion, or more precisely, what the complainant was saying as to

whether he ejaculated or not is central to this appeal. The complainant was not brought upstairs after the third rape, rather, she

says, that the appellant threatened her with a knife, proceeded to cut up the rug and then proceeded to burn it in the fireplace along

with the clothing that he had ripped off her. The complainant says that the appellant said that he was doing this so as to ensure that

no evidence would be found. The complainant says that the fire alarm was activated in the upstairs area of the house by smoke as a

result of the objects being burnt and that she was able to escape from the building while the appellant went upstairs to deal with the

alarm. The complainant escaped from the building wearing only a throw rug from the living room couch and a black towel. In this

state, she approached members of the public. Gardaí were alerted and the complainant was brought to hospital for treatment.

Statements of complaint were made by her to Gardaí on 5th and 8th May 2012. The appellant was arrested and detained. In the

course of detention, he admitted the physical assault, but denied the acts of rape.

3. The appellant was charged with three counts of rape and one count of sexual assault. The trial came on, first, before Sheehan J.

in April 2014, but the jury failed to agree a verdict, leading to a retrial before Murphy J. which resulted in the convictions which are

now the subject of this appeal. That the convictions followed a retrial is a point of some significance in the context of the present

appeal.

4. The grounds of appeal that have been raised are as follows:

(i) That the judge erred in refusing to warn the jury in respect of corroboration evidence;

(ii) that the verdict of the jury was perverse and should not be allowed to stand;

(iii) that the judge failed to adequately address and warn the jury of what is alleged to be serious credibility concerns

raised in respect of the complainant;

(iv) that the judge erred in refusing to permit the defence to cross-examine the injured party in respect of a previous

complaint of sexual assault.

5. The central issue in the appeal relates to the request at trial for a corroboration warning and the decision of the trial judge not to

accede to the request. In substance, the appellant says that the circumstances of the case were such that there was only one way

in which the discretion as to whether or not to give a warning could be exercised, it said that the circumstances of the case

mandated the giving of a warning. The basis on which it is said that the circumstances mandated the giving of a warning related to

what the complainant had said as to whether the appellant had ejaculated inside her or not. In the course of her statement to Gardaí

on 5th May, she had said:

“[h]e didn’t use a condom when he raped me. I do know he ejaculated inside me. He raped me three times and the last

time he ejaculated inside me. He raped me three times and the last time he ejaculated. He had his penis inside my vagina

when he ejaculated.”

In the course of the statement of 8th May 2012, she said:

“[h]e didn’t take off his clothes this time either. I felt his penis in my vagina again and he came, as in ejaculated inside

me. It didn’t last long, again, and he tried to pull his penis out of me before he came, but he didn’t. I could feel it inside

me and he also got some on the rug which he was angry over.”

At the first trial, held in April 2014. in the course of her direct evidence while dealing with the third alleged rape, she told the jury:

“[t]his time, he ejaculated inside me and some – I’m not fully convinced whether it was inside me, but it went all over the

mat and he went mad and started cutting up the mat with a knife.”

In cross-examination, the defence raised the issue of whether the witness had adopted or tailored her evidence in light of the fact

that no trace of semen was found inside her vagina, nor was there any indication of the presence of the appellant’s DNA. Counsel for

the defence asked her the following questions:

“Q: You are aware, aren’t you, that there was no trace of semen found in any way whatsoever in relation to any of these

samples?”

A: No, I wasn’t aware of that.

Q: You weren’t aware of that?

A: No.

Q: Well, I have to suggest to you that you must have gleaned from somewhere that there was a problem in relation to

your account and version of events, in that the forensic science work did not support your allegations and that’s why you

came up today with this formula: I’m not fully convinced if he ejaculated inside me’?

A: I was not aware of that. Nobody – I have no reports.

Q: No reports and you say you haven’t spoken to anybody?

A: No

Q: And that nobody suggested to you that you might have gone a bit further than you ought to with ejaculation?

A: The only thing that was said to me was a letter coming from the prison from your client stating that there were no

tears or lacerations. It was forwarded to my mother’s address. That’s the only contact.”

6. Later in the trial there was a request for a corroboration warning and Sheehan J. agreed to give same. He made clear that his

reasoning for doing so on the basis of the inconsistency in the complainant’s evidence.

7. At the second trial, which resulted in convictions, in direct evidence, the complainant dealt with the third rape she was alleging as

follows: “I seemed to feel like he ejaculated because he got very angry and went for a knife”. The issue was raised by defence

counsel in the course of cross-examination. Counsel focussed on the formula of words “I seemed to feel like he ejaculated”. Her initial

response when the subject was raised by defence counsel was to say “I presume he did, because that’s when he started cutting up

the mat and burning it and he got very angry”. When she was questioned in relation to what it was suggested were very positive

allegations of ejaculation contained in the statements of complaint of 5th and 8th May 2012, she replied “obviously, from the water

and the shower, I felt like there was something inside me. It was an error on my part”. It was put to her that she was seeking to row

back from her earlier definitive statements, which had alleged ejaculation by the appellant, because she knew that the forensic

reports that were available did not provide support for her allegations. It was put to her that she was now tailoring her evidence to fit

with the scientific findings or the lack thereof. The complainant rejected this suggestion, saying that she was not trying to deceive

the jury:

“. . .because he made sure of that, he made sure to leave no evidence. I believed it to be true when I was giving my

statement until the forensic evidence came back that he left no evidence inside of me. I’m not telling lies about it . . . I

believe that he did. He obviously didn’t by the result of the test. That’s what I’m saying.”

When she was subsequently probed as to when she first became acquainted with the findings of the forensic scientist, she responded

“before the first trial took place”. There followed an exchange:

“Q. When I was asking you when did you become aware that the forensic scientist had found that there were no traces

of semen to be found within the terms of the samples taken from you in the Sexual Assault Treatment Unit, and you said

in answer to the question I put to you in that regard that you became so aware just before the last trial?

A: Not just before, well before.

Q: Well before?

A: Mm hmm.”

8. At that stage, the complainant was reminded of the evidence that she had given at the original trial in April 2014 when she had

firmly denied any prior knowledge of the forensic findings. Counsel asked:

“Q: That’s what you told the previous jury, yet you’re telling this jury here today that you were aware, and have been for

some time – or you were aware for some time prior to that trial in April 2014 - of what the forensic scientist would say,

and yet you told that jury that you were not. Now, that – that’s two positions – cannot lie together in the same bed of

truth Ms. F. Can you explain?

A: No.

Q: Well, I’m putting it to you that you are trying to steer your evidence around the rock that is caused for your false

claims by the forensic scientist’s findings. What do you say to that?

A: It’s not true.”

9. Counsel on behalf of the appellant sought a corroboration warning. In doing so, he referred to the fact that the trial judge, at the

earlier inconclusive trial, had agreed to give such a warning. He submitted that the case for a warning now was much clearer than in

the first trial. Counsel noted that the complainant, in the course of the second trial, had stated that she was aware prior to the first

trial that there was no forensic evidence supportive of ejaculation having occurred, something that she had denied during the course

of the first trial. The application for a warning was resisted by the prosecution, which pointed to the discretionary nature of the

decision required to be made. It was submitted that the Court was not bound to follow the approach of the judge at the earlier trial.

It was also argued that the giving of a warning would give rise to “an unnecessary degree of technicality”. The prosecution also went

on to point to aspects of the evidence, which, it is said, were capable of amounting to corroboration, while acknowledging that it

would be for the jury to decide whether the identified aspects of the evidence did in fact amount to corroboration. Having heard

argument, the judge ruled on the issue by declining to give a warning. In so ruling, she indicated that the giving of a warning would

make “matters unnecessarily complex for the jury”. It would require her to explain to them what might or might not constitute

corroboration.

10. The Court has previously, notwithstanding its belief that a significant margin of appreciation must be afforded to trial judges on

this issue, quashed a conviction on the basis that the trial judge improperly exercised their discretion. DPP v. TOD [2017] IECA 160

was a case involving historic sexual abuse at a boarding school. The trial judge refused to give a corroboration warning given that the

facts grounding the allegation were “secretive” and “surreptitious” in nature. He went on to elaborate that a corroboration warning

would only serve to confuse the jury, would be impossible to contextualise, and bring nothing additional to the jury’s charge. The

Court allowed the appeal and quashed the conviction for three reasons. First, the allegation was such that it was one person’s word

against another. The very fact that the allegation was “secretive” and “surreptitious” without independent corroborating evidence

placed it in a category of cases which suggested that corroboration warning would be appropriate. Secondly, the question was not

whether the assault happened, but whether the appellant was the culprit [DPP v. K.M. [2005] IECCA 93]. Thirdly, it was wrong for

the trial judge to suggest that a corroboration warning would only serve to confuse the jury. The Court emphasised that the concept

of a corroboration warning is not overly complex for lay persons to understand in that it is simply an admonition for them to exercise

care in their deliberations. Moreover, a corroboration warning where properly constructed can be of considerable benefit to a jury.

11. In this case, the reasons given by the trial judge, the avoidance of complexity and the avoidance of the necessity of addressing

aspects of the evidence which might or might not amount to corroboration, could not be described as compelling. Undoubtedly,

avoiding complexity is desirable and certainly the avoidance of unnecessary complexity is to be applauded. However, on the other

hand, it must be recognised that for generations, judges have dealt with the issue of corroboration, and as part of that exercise have

taken on the task of identifying the evidence in the case which was capable of amounting to corroboration. There is no real evidence

that judges have found that task particularly difficult or that juries have had difficulty in taking the warning on board.

12. The evidential basis for a warning was very strong. The complainant, in two statements to Gardaí made soon after the incident,

was unequivocal that the appellant had ejaculated inside her vagina. Ordinarily, there would be an expectation that she would give

evidence at trial to the same effect. Instead, her direct evidence at the first trial, where she uses the formula “I’m not fully

convinced whether it [ejaculation] was inside me” represented a retreat from that position. The defence, who of course were aware

that the forensic evidence did not support the suggestion of vaginal ejaculation, were quick to probe the issue. In particular, the

defence was keen to explore whether the complainant was modifying her evidence to take account of what she had learnt of the

outcome of the forensic examination. Her position at that stage was that she was unaware of the state of forensic evidence. Yet, at

the October 2015 trial, she accepted that she had been aware that no traces of semen had been found and had been aware well

before the first trial. In those circumstances, in the court’s view, the points raised about tailoring or modifying evidence to accord

with the forensics were points of substance. Indeed, the court has concluded that they were points of sufficient substance as to

require, as distinct from merely warranting, a corroboration warning.

13. The Court has concluded that, in the circumstances of this case, the judge erred in not providing a warning. We cannot be

convinced that this did not affect the outcome of the trial.

14. In the circumstances, we must quash the conviction. This Court will hear submissions on whether there should be a re-trial.