Court of Appeal dismisses rape conviction appeal regarding evidence, corroboration warnings, and jury foreman role.

THE COURT OF APPEAL

Record No. 188/2016

Birmingham J.

Mahon J.

Edwards J.

The People at the Suit of the Director of Public Prosecutions

Respondent

V

B.V.

Appellant

JUDGMENT of the Court delivered on the 29th day of January 2018 by

Mr. Justice Birmingham

1. On the 11th July, 2016, the appellant was convicted of one count of rape, one count of s. 4 rape and 27 counts of sexual assault.

The conviction relates to offences which were alleged to have been committed by the appellant against his step-daughter, S. This is

his appeal of that conviction.

2. By way of background, it should be explained that S. was born in 1984. In 1990 her mother, M.P., married the appellant and they

moved to Ireland and lived in the south east. While the house in which they were to live was being renovated, the family lived in a

caravan nearby. In 1994, M., a half-brother of S. was born and two further half-brothers were born in 1995 and 1996. At trial, S.

gave evidence that the appellant began by trying to touch her whenever they were alone. Shortly after the birth of M. in 1994, he

would try to sexually assault her at times when there were others in the house as well. She gave evidence of being raped under s. 4

of the Criminal Law (Rape) Amendment Act 1990 in 1997 and later raped in 2000 at a time when her mother was visiting China.

Grounds of appeal

3. Three grounds of appeal have been argued as follows:-

(i) That the judge erred in allowing evidence of a confrontation between S., her mother and the appellant.

(ii) That the judge erred in failing to exercise his discretion to give a corroboration warning.

(iii) That the judge erred in telling the foreman of the jury that it was his function to chair the deliberations of the jury.

The confrontation issue

4. This issue arises in circumstances where a notice of additional evidence had been served indicating that the complainant would

give evidence that on the night before Christmas Eve, she thinks it was in 2005, she was in the family home with her mother and her

step-father B.V. Her statement reads as follows:-

“The boys were in bed. We were all drinking wine. (…) We had words and I remember telling him he disgusted me. He was

squaring up to me as if he was going to hit me. I said, ‘I dare you.’ I said to him, ‘You abused me,’ and he said ‘You’re a

crazy bitch like your mother.’ I was afraid of him but I said it. I left the house then and I went up to [a friend’s] house,

this might have been around 6 a.m. in the morning.”

Counsel for the accused intervened during the course of the evidence of the complainant to indicate that there would be an objection

to this evidence being adduced. Initially, he made his objection on the basis that he anticipated that the prosecution would contend

that the evidence was admissible by reference to the doctrine of recent complaint. However, prosecution counsel made it clear that

he was not in fact seeking to introduce this evidence as recent complaint evidence. He wanted to adduce evidence of the

confrontation because he said that B.V.’s reaction was relevant. His interest was in the fact that Mr. B.V. did not say “That’s a lie, I

never touched you.” He referred to the following statement of principle which appears in McGrath, on Evidence, 2nd ed., (Dublin,

2014) at para. 4-69:-

“The issue of what can constitute an admission is examined in detail in Chapter 5, but it should be noted that apart from

express or implied oral admissions by the accused, corroboration may also be provided by an admission by conduct. For

example the silence of an accused in the face of an accusation of wrongdoing may provide corroboration that the

accused is guilty of the wrongdoing alleged in circumstances where the accused will reasonably be expected to deny the

accusation.”

5. Counsel for the prosecution indicated that how far this evidence would take him would depend on how the cross examination of the

complainant proceeded. In the course of the debate that followed, the judge raised the issue of the rule against narrative,

commenting that narrative typically involves someone going around telling twelve people that such and such a person had stolen his

or her wallet, but that that was not what was in issue here. The situation here did not involve someone going around and telling other

people that she had been wronged in some way by a person she was accusing. On the contrary, it was a situation in which she was

confronting the accused directly (in this instance the appellant) with her accusation.

6. The judge ruled on the matter as follows:-

“Clearly this is not what would classically be regarded as a complaint situation because as everybody seems to agree it is

not recent enough but it's not a complaint to a third party which is what that doctrine is principally directed towards. It is

a direct confrontation, albeit it in a general sense, that there was previous abusive conduct and on the account of [the

complainant], which is all I can presumably go on at the moment at this point in the case, this evoked a reaction and

certainly there's much to be said that it's an ambiguous reaction and indeed may not be ambiguous, it might, in fact, fairly

be construed as a denial, but how can it be said that it's not at least potentially relevant for a Tribunal of fact where

somebody is making an allegation that over a long number of years an abusive course of conduct was followed? Can it be

said to be entirely irrelevant that at some subsequent point, albeit in social circumstances, to use a neutral term, that

the matter was raised and moreover that the matter was reacted to. It seems to me, of course, that it is capable of

being relevant, although how relevant or how significant is classically within the department of the jury. But it is, on the

face of it, a confrontation type situation and where an allegation was made and moreover an allegation was, in some form

or fashion, responded to. I don't really think there's very much in the argument about interviews. In fact, the matter is

clearly raised with him and Mr. V. said well, insofar as he could remember, he—this incident didn't happen at all and it

seems to be that both of the other parties are characterised as being untruthful in relation to it. So, that appears to me

to be quite clear.

But to come back to the initial situation, it's not whether something is capable of being prejudicial, that is no doubt the

intention of the prosecution in leading evidence. The question is on the balance raised by Mr. Cody [senior counsel for the

accused] whether the prejudicial effect is so slight that it ought not to be admitted at all. Well, I don't know about it

being directly prejudicial in terms of directly incriminating Mr. V., but it certainly, on [the complainant’s] account, is

something that happened. It is germane to the general issues in the case and I'm satisfied that it is sufficiently relevant

that it doesn't fail any balancing test and is capable of being admitted for the consideration of the jury and let me

emphasise that it's not part of my function as a gate keeper to prevent juries hearing facts that may be regarded as

awkward or inconvenient from one point of view or the other. Defence counsel are usually great proponents of the

institution of jury trial because it takes matters out of the hands of stale and cynical judges such as myself. So be it, but

that remains the case, even when the going gets a little bit tough or a little bit inconvenient. Juries are presumed to be

capable of dealing with much more complicated and difficult propositions than the one currently at hand. So, it's both

admissible and relevant and goes to the jury and there can be cross examination in terms of challenging of the basic facts

and there can be argument based on what interpretations the jury should draw from the facts, but they're the Tribunal of

fact and that's what they're there for. So that’s the position.”

7. The defence say that their unhappiness with the situation is compounded by the way the issue was dealt with in the closing

speech of counsel for the prosecution. The appellant draws attention to a passage in the course of the closing when counsel said:-

“By the time she was 18 she was out of there and then when her relationship with [her boyfriend] came to an end and

she found herself in a difficult situation with regard to housing, she went back and stayed in the caravan, as their mother

said, over the winter until she got herself sorted out and you've heard how, at that time, on the night before Christmas

Eve, there was this blow up, this confrontation. Everyone appears to have had too much drink and, as she said, [the

appellant] became belligerent and she blew up and she accused him and she said you abused me and how did he respond?

He said ‘You're a crazy bitch like your mother.’ He is -- when he was asked about this, he just said he has no memory of

it.

Now, all that is a matter for you, ladies and gentlemen, to place in context when you come to assess credibility of [the

complainant], because her evidence is the evidence in this case.”

8. The appellant says that the prosecution changed its approach during the course of the trial. The appellant submits that the

prosecution originally argued for the admissibility of the evidence on the basis that it was relevant in relation to the appellant’s

reaction and that the prosecution later pointed to this evidence as bolstering the complainant’s credibility because of the doctrine of

recent complaint. However, the paragraph on which the appellant places emphasis comes immediately after counsel for the

prosecution traced the situation from when the complainant was aged ten. The escalation was outlined as starting with touching

under clothes, touching her breasts, then touching her genitals, masturbations, escalating in seriousness to a s. 4 rape timed as

occurring around the period when Princess Diana died in August, 1997 to a rape at the end of May/beginning of June, 2000. It seems

that the reference to “all that is a matter for you” was an invitation to the jury to have regard to all the evidence when assessing the

credibility of the complainant.

9. In relation to the original ground of objection, the Court agrees with the approach taken by the trial judge. The confrontation

between the complainant and the person she says was abusing her was relevant and admissible evidence.

Corroboration

10. The defence legal team were anxious that the judge should give a corroboration warning. It is clear that the question of whether

to give a corroboration warning was very much to the fore in the judge’s mind. At a very early stage of the trial, when the issue

about the admissibility of the confrontation evidence was being discussed, the judge commented in passing that it was not a case

that called for a corroboration warning as he did not see any reason to give a warning unless counsel suggested one to him. The issue

was first discussed on day five of the trial in advance of the closing speeches when counsel for the defence asked the judge whether

there was going to be a corroboration warning. The judge indicated that he did not propose giving one, as he did not see any reason

to do so, unless counsel suggested one to him. The judge further noted that, as the law now stands, there is no longer a requirement

to apply such a warning to the evidence of a complainant in a sexual assault case, or as a matter of general procedure in this class of

case. He would not generally give a warning unless he could see a specific reason as to why the discretion should be exercised in

favour of giving a warning. He suggested that he might regard a warning as being required, for example, in a situation where people

had departed radically from their previous statements, or something of that kind which would tend to cause alarm bells to ring. The

judge stated that he did not see any features of this case as giving rise to a need for a particular jury warning, apart from

considerations in relation to the passage of time which would be dealt with separately. He said that he did not really see any feature

of the complainant’s evidence which set off alarm bells such that the jury should have their particular attention drawn to her evidence

and the uncorroborated nature of it. Counsel for the appellant drew attention to the fact that there were complaints made in the

second statement that were not present in the first statement. This exchange concluded with the judge saying, “Alright, I’ll think

about it on that basis, yes.”

11. The judge returned to the issue during a break which had occurred during the course of the closing defence speech. On this

occasion, the judge said:-

“I’m still turning over this corroboration thing in my mind Mr. O’Kelly [senior counsel for the prosecution]. I know I reached

a firm view in relation to the matter previously, but there is this position about—and I know it’s not unusual in these cases

for things to come out, not all on the first occasion, but in a second statement, I don’t regard that as particularly unusual

circumstances in itself, nor do I regard the fact that [the complainant] only pinned down a date in cross examination,

that’s not unusual, because we're talking about things when she was relatively young, if they happened they happened a

long time ago, so that doesn't create a problem for me sufficient to regard her testimony as potentially suspect, such as

to trigger the requirement for a corroboration warning. But when you put the two of them together with the

disappearance of counts from the indictment and the fact that this is all a long time ago in a small house, would you not

think it might be safer that Mr. V., if he's convicted, has no cause for complaint?”

Counsel for the prosecution responded by indicating that he remained of the view that it was not a case for a corroboration warning.

12. A little later, the judge returned to the issue once more, commenting on this occasion as follows:-

“Well, I have thought about the matter over lunch. I just wanted to have a last discussion to put my mind firmly at ease

in relation to the matter. Corroboration warnings are given because—were given as a matter of course because witnesses

in the position of [the complainant] were regarded from the get go, in every case, as being potentially suspect. As Mr.

O'Kelly points out, times have moved on. They are not—complainants in sexual cases are not, as a class, regarded as

potentially suspect anymore. There may be individual cases where a witness's evidence is so potentially suspect that a

corroboration warning ought to be given. All of the aspects of concern in this case can be dealt with without the

necessity for a corroboration warning and having had the further discussion it seems to me that there's a line to be drawn

between a witness whose evidence is obviously potentially suspect and the fact that in a criminal case, because of the

presumption of innocence and the high standard of proof, the jury must necessarily look at every witness from the get go

as being potentially suspect. So, the question is, ‘Is there some potential suspicion over and above the scepticism that

must be applied to every witness in relation to [this complainant] that would—is there some feature that would require, as

a matter of discretion, a corroboration warning to be given?’ In my view and having considered the matter with the

benefit of a further exchange, there is not. The matters of concern in the case, and they've been very clearly expressed

by Mr. Cody, would have to be and must be dealt with by me and will be dealt with, but not in the context of giving a

corroboration warning. So, Mr. Cody, for the reader of tea leaves, you may perceive me as having a doubt, I don't have

any longer but I'm grateful for the extra discussion.”

13. It will be evident from what has been said that this was a case where the judge addressed the issue of whether to give a

corroboration warning with particular care after intense consideration. It is also clear that the judge was very alive to the legal

principles. Referring to the role of an appellate court in relation to corroboration warnings, Fennelly J. stated in the case of The People

(DPP) v. Ferris [2008] 1 I.R. 1:-

“The question of whether the 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.”

The Court is quite satisfied that the trial judge in this case was entitled to conclude that this was not a case that required a warning.

The role of the jury foreman

14. This ground arises from certain observations made by the trial judge just before he asked the jury to commence their

deliberations. At that stage, the judge said:-

“I want all of you to participate. A jury of 12 is a jury of 12, it’s not a jury of six or seven. It’s very easy in a gathering of

12, as you’ll all know from attending social or family gatherings or other kinds of gatherings of that size, it’s very easy to

leave it to the person who appears to be articulate or opinionated, that kind of thing. Don’t—don’t do that. Your individual

opinion is important and must be heard and must be part of the challenge and the cross check that’s an essential part of

the deliberations. So, you’ll all participate but [the foreman], just like I’m the chairman out here, amongst the crew that

I’m responsible for, you’re the chairman in there and it’s routed through you, but you don’t have a casting vote or

anything like that, but you chair the deliberations.”

The appellant argues that these comments violated the autonomy of the jury in telling them that their foreman would act as

chairman. The Court can say immediately that it sees no merit in this ground of appeal. The selected foreman of the jury may, and

frequently does, act as chairman of the jury during its deliberations. It is of course true that it is not mandatory that he or she should

do so, and that it is open to a jury to proceed without a chairperson. Equally, there is nothing to prevent a jury deciding that one of

their number other than the person who had been selected as foreman at the start of the case should chair the deliberations. One

could imagine how, particularly in the course of a trial that is going on for some time, it might emerge in the course of discussions by

the jury amongst themselves during breaks in the trial that one juror had a particular expertise in chairing discussions or perhaps

particular experience in that regard. It would be entirely understandable in that situation if he/she was invited by the others to act as

chairman when the jury came to deliberate. However, whether there be a chairman, or not, and if so, whether it be the selected

foreman or not, this Court does not see anything improper in the observations made by the trial judge and regards the criticisms of

him as completely lacking in reality. This ground of appeal fails and is dismissed in limine.

15. In summary, the Court rejects all the grounds of appeal that have been argued and so must dismiss the appeal.