Court of Appeal dismisses appeal regarding admissibility of hearsay evidence for consistency in sexual assault case.

THE COURT OF APPEAL

Record Number 155/17

Birmingham J.

McCarthy J.

Kennedy J.

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

B.D

APpELLANT

Judgment of the Court delivered on 12th day of April 2019 by Mr. Justice McCarthy.

Introduction

1. The accused/appellant (“the appellant”) was convicted in the Central Criminal Court on the 26th January, 2017 of seventeen

counts of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act, 1990 and sixteen counts of rape contrary to

s.4 of the same Act, of his step-daughter K.A.W (formerly K.D). He was subsequently sentenced to terms of imprisonment of twelve

years on each of the rape offences with lesser periods in respect of the sexual assaults simpliciter, all sentences to run concurrently

but with a suspension of the final two years of the sentences of twelve years, on certain terms not immediately relevant to this

appeal.

2. The complainant was born on the 7th April, 1992. Extensive and repeated abuse commenced in or about December 2004 when she

was approximately twelve years old. The overwhelming majority of the offences occurred at the family home with a limited number of

exceptions, when offences were perpetrated when travelling with her step-father in his van and, on one occasion, in a mobile home

located in a shed where the appellant worked. She gave evidence with a greater or lesser degree of specificity of multiple offences

thereafter consisting of what were characterised by the learned trial judge as invasive sexual assaults, primarily extending to vaginal

digital penetration and others which involved touching in her genital area. A telling detail was her evidence to the effect that she put

a pillow over her face whenever possible when being abused. The accused became very possessive of her when she turned seventeen

and the rapes became more frequent. He wished to know where she was, didn’t want any ‘lads’ (as she described them) around her,

frequently sent her “call me” messages and phoned her. On the last occasion upon which he assaulted her (what might be termed a

non-invasive assault) in the kitchen of the family home, he told her that he loved her, that she was gorgeous and enquired of her

whether or not she would ever think of moving out of the family home and he indicated that he was thinking of doing so as he was

not getting on with her mother. He asked her “not to ever tell on him because if she did he would get fourteen years for it”. After

that incident she telephoned her then-boyfriend, N.S, arranging to meet him and her friend A.W either on that day or the next and

thereafter telling her mother. She had not told her before because she was afraid of “ripping the family apart” and tried to believe

that it would eventually stop, although she realised in the end that it would not stop until she told someone. She also stated that she

was afraid to tell anyone because the appellant had told her that he would kill himself and leave a note saying he “didn’t do it”.

3. In the course of cross-examination, she was pressed about her failure to make a complaint to the Gardaí or others. She had at one

stage phoned her friend K.D and in any event, she made the initiating complaint to the Gardaí on the 4th September, 2011, a day or

two after informing N.S (her then boyfriend) and her mother, giving rise to an investigation in the normal way. Whilst she had spoken

to her friend A.W on that occasion also she had, as emerged in evidence later, spoken over time to A.W about the allegations against

the accused. As to her relationship with N.S, she agreed that it had commenced in 2011 and further agreed that the accused had

made it clear to her from the “very start” that he wasn’t happy with the idea of him coming to their house, whereas her previous

boyfriend had been welcome.

4. The judge permitted counsel to re-examine the complainant eliciting evidence to the effect inter alia that attendance at school

was the only escape she had, that she would go to school, do what she had to do and keep her head down. She had not shown that

she was depressed or anything “at first” but she was always so. When asked whether or not she had discussed the events, she

confirmed she had done so “with someone” although for whatever reason counsel did not ask her who it was told even though such

evidence, if given, would have been admissible.

5. The judge, over the appellant’s objection, admitted A.W’s evidence as what the complainant had told her about the accused’s

actions as evidence of prior consistent statements by the complainant to rebut what she held to be an allegation of recent

fabrication.

6. The accused had been arrested on the 18th July, 2012 and detained. During that period, he was interviewed and the prosecution

sought to put the memorandums of interview into evidence, subject to a degree of redaction. In particular, Mr. Burns sought to

exclude portions of what was said to the Gardaí in the first and second interviews which commenced at 13:49 and 17:10 respectively

on that date, an application to which the judge acceded, again over the objection of the appellant.

7. The appellant appeals on the grounds that the trial judge erred: –

(1) in fact and/or in law in the particular circumstances of this case in removing certain questions and answers from the

appellant’s memo of interview (sic) with An Garda Síochána and which were to be seen at pages 86 and 91 of the book of

evidence;

(2) in fact and/or in law in ruling that the cross examination of the complainant and the introduction of certain “Facebook”

pages gave rise to the issue of recent fabrication;

(3) in fact, and/or in law in following on from the issue raised at two above, allowing the prosecution introduce the

evidence of A.W for the purpose of rebutting recent fabrication;

(4) in fact, and/or in law in allowing the prosecution introduce the abuse of the watch as evidence of recent complaint;

(5) in fact, and/or in law, having initially ruled that the evidence of K.D and A.W was inadmissible as evidence of recent

complaint, that in then directing the jury as to why they were entitled to hear the evidence of A.W, the judge’s direction

may have led the jury to give special weight or significance to the evidence of A.W.

Ground 1

The trial judge erred in fact and/or in law in the particular circumstances of this case in removing certain questions and

answers from the appellant’s memo of interview (sic) with An Garda Síochána and which were to be seen at pages 86 and

91 of the book of evidence.

8. The following passage was sought to be excluded from the memorandum of evidence of the interview which commenced at 13:49:

-

"She [Mrs. D] went for a barring order against me. [She] doesn't listen. [She] accused her uncle of abusing her, [T

McC].. [M.W] said that [J.M] touched his girl in Rathangan, that J. was full of drugs, and [M]'s sister, [T. D], accused her

father in law of putting his hands on her."

and from that which commenced at 17:10:-

“A. It never happened. Her mother accused her uncle of abusing her. Her sister made an accusation (discussion about

sex abuse, going to fortune tellers)

…

Q. Was [A-M] sexually abused by her uncle

A. She said she was

Q. By whom

A. [T McC] in…

Q. are you saying there is a fixation with sex assault allegations

A. Yes.”

9. The prosecution sought the redaction on the basis that the references related to third parties added nothing to the case. It was

also pointed out that none of the allegations had been raised with the complainant’s mother, to whom there had been reference,

when she was being cross-examined. The prosecution also argued at trial that the defence had not put to the complainant that she

was making allegations because she was influenced by her mother’s allegation of sexual abuse against another person. It was

conceded that if the defence was proposing to close the case on the basis that (to use prosecuting counsel’s phrase) “these people

were all fixated with sexual assault” that there could be no objection to the matters being left in the memos of interview. The

defence response was to seek to have the memos read to the jury though they conceded that individuals who were not party to the

trial should be referred to only by initials. The argument was made that one cannot simply take something out of an interview because

a witness was not asked about it. At all times the position of the defence was that the supposed allegations by the complainant’s

mother were collateral and hence did not go to the facts in issue in the trial.

10. The appellant says that in considering the appropriateness of the decision to edit, regard should be had to the constraints to

which the appellant was subjected when cross-examining the mother of the complainant: the question of whether she had been

abused, or had made allegations of having been abused, was collateral, and if questions were put, the appellant could find himself

bound by her answers. It is also said that regard should be had to the general tenor of the cross-examination of the complainant. It is

said that the tone of the cross-examination was that allegations had been fabricated because she had been influenced by external

sources, including ‘Fifty Shades of Grey’. Counsel had indicated that the nature of the complainant’s relationship with N.S, by which

was not meant any sexual aspect to the relationship, but rather, “the relationship itself”, might be relevant in “terms of what might

crop up”. When the judge sought clarification, counsel said “I think, very frankly, the defence will ultimately be that there was a

falling out between the complainant and B.D over her relationship with N.S”.

11. The trial judge ruled on the matter as follows: -

“And it seems to me we have situation here where the memos of interviews, which were taken by the Gardaí with the

accused man, form evidence in the case, they're part of the evidence and it is an opportunity given to a defendant to

put, as it were, his side of the story, and it seems to me that these questions to which at pages 86 in the book of

evidence from one interview, and at page 91, form part of an intended defence, as it were, or of [Mr D's] defence, for

those questions to be allowed in, it seems to me that it would have proper and appropriate that those matters certainly

were put [K.A.W] may not have known of them, but certainly [A.M.D] gave evidence in the witness box and none of this

was put to her. And it seems to me unfair to the case that those questions would now be allowed to go to a jury in

circumstances where [A.M. W] had no opportunity to deal with the matter and was given no opportunity to deal with the

matter. And in the further context of an earlier issue in the case, where it was generally suggested that this was a

fabrication, if the defence wanted to rely on those matters, it seems to me that it should have been put to the relevant

witness.”

12. There was no reference in any kind, good bad or indifferent, to the idea at the trial that it was part of the defence case that the

complainant had fabricated her allegations in some sense by reason of allegations of sexual abuse allegedly made by her mother or

that that she was influenced thereby, as is now contended. On this appeal, for the first time, it is submitted that:-

“6.6. While it was not directly put to her in cross-examination that allegations were fabricated as a result of being

influenced by her mother’s sexual abuse allegations, it was put to her that she had been influenced by other external

sources, such as Fifty Shades of Grey and Facebook. It is therefore, submitted that in all the circumstances; given the

way the trial proceeded, and in the interest in fairness, such comments should not have been redacted from the

interview.

and, further: -

“It is submitted, that in the interest of fairness, the appellant should have been able to put forward his reasons for

believing the allegations were fabricated, without placing a positive duty on the accused to give oral evidence in respect

of the same.”

13. We cannot countenance the pursuit of an appeal on a ground which is purportedly based on the latter basis, now introduced for

the first time. There was, in any event, never a question of placing an obligation on the accused to give evidence to make that

defence – it is plain that if he proposed in some way to rely on the supposed allegations (we have no way of knowing whether Mrs. D.

made them or any such events occurred) he could have done so by reference to the memoranda the prosecutor having explicitly

disclaimed any question of redaction if reliance was being placed upon them.

14. In the Court’s view, the contents of memoranda of interview are in no different position to other aspects of the evidence and

issues of admissibility, relevance and the extent to which evidence is probative or prejudicial arise in the ordinary way. Memoranda of

interview are habitually edited to remove material that is irrelevant or impermissibly prejudicial to the defence. Somewhat unusually in

this case, the application to edit or redact was made by the prosecution. We cannot see that the material sought to be redacted was

relevant to any fact in issue; it was never suggested at the trial that it was. So far as consideration was given to the extent to

which the topic had been raised with the complainant or her mother, it seems to us that the significance is not so much as to

whether there had been an obligation to put a case, and a failure to put that case, but rather, that having regard to the nature of

the cross-examination conducted with the complainant and her mother, one is positioned to make an assessment of the extent to

which the material in dispute had any real relevance otherwise. We have not been persuaded that the material in issue was, in reality,

of any real relevance. On the other hand, it involved a discussion of matters of the utmost intimacy involving individuals who were

given no opportunity to comment on or respond to what was being said about them. It seems to us that in those circumstances, the

decision to edit was a proper one. Even if the view was to be taken that the material ought properly to have been put before the

Court in its original un-redacted form, we are quite satisfied that the failure to do so did not impact on the overall fairness of the trial.

15. For these reasons, we would dismiss this ground of appeal.

Ground 2

That the trial judge erred in fact and/or in law in ruling that the cross-examination of the complainant and the introduction

of certain Facebook pages gave rise to the issue of recent fabrication.

16. The background to this aspect is the fact that when the re-examination commenced, the prosecution sought to introduce

evidence designed to rebut an allegation of recent fabrication which they submitted the defence had advanced during the course of

cross-examination. The prosecution submitted that the line of questions that were put to her suggested that she recently fabricated

these events arising from differences or hostility between her then-boyfriend, N.S, and the appellant in the latter part of 2011.

17. In this regard, it was specifically put to her on numerous occasions that she essentially made up the allegations. However, the

defence says that while there were questions put to her in respect of the differences between her boyfriend and the appellant in

2011, at no stage was it put to her that she fabricated the allegations as a result of such a difference. The appellant says that the

function of cross-examination is to test the evidence and that was what occurred here, and that the cross-examination went no

further than testing and at no stage crossed the line and ventured into the realm of recent fabrication. The prosecution say that

raising the spectre of recent fabrication can arise not only by direct specific questions, but also by implications and that that was

clearly done in this case. They point to the case of R. v. Coll [1889] 24 L.R Ir 522 at 530, where Gibson J. had said: -

“There could be no difference in principle where the imputation is made by one straight question, or by skilful circuitry of

interrogation if the same meaning is conveyed.”

18. Some guidance as to how to view the cross-examination is to be found in what was said by junior counsel for the appellant prior

to the commencement of the evidence as to his defence, with respect to a falling out between the accused and the complainant

about N.S. It seems to the Court that no-one listening to the cross-examination or no-one reading the transcript of it could be in any

doubt but that the defence case was that the complainant was fabricating on a grand scale, nor could there be in any doubt that the

suggestion was that the trigger for the deterioration was the worsening relationship between N.S (the defence explicitly referred to

by junior counsel as referred to at para. 10 above). We have not been persuaded that the trial judge was not entitled to conclude

that the defence case was that the appellant had fabricated and had fabricated in a particular context and for a particular reason.

19. We are satisfied that the nature of the cross-examination, and the defence, as referenced by junior counsel for the defence,

raised the proposition that there had been recent fabrication. Accordingly, we reject this ground of appeal.

Ground 3

That the learned trial judge erred in fact and/or in law in following on from the issues raised at Ground 2 above (the recent

fabrication issue) in allowing the prosecution introduce the evidence of A.W for the purpose of rebutting recent fabrication.

20. The background to this issue is that A.W, who was a young woman of 23 years when she came to give evidence, had known the

complainant throughout both primary and secondary school. Her evidence was that when they were in Third Year of secondary

school, that the complainant had discussed with her interaction with her stepfather, the complainant did not go into much detail, but

would talk about it. The complainant told the witness that her stepfather “was at her”. Eventually, the witness was told by the

complainant that he had been raping her. It was in or around Sixth Year when she was given details. She instanced details such as

the use by the complainant of a pillow which she would put over her head when her stepfather was coming in to rape her, the fact

that an incident had occurred in a caravan into which the accused and complainant thought they had got locked in, and that the

stepfather had approached the complainant one day and said that he loved her and wanted to move in with her. She was told that

just before the complaint in 2011. In relation to pornography, the complainant had said to the witness that the accused made her

watch pornography and the complainant had shown the witness the suitcase belonging to the accused containing it.

21. The timeline here is of some significance. The offending was alleged to have commenced in late 2004 when the complainant was

12 years of age and in Sixth Class of primary school. In 2008, the nature of the abuse escalated to rape and continued until

September 4 2011 when the complainant was 19 years old. The complainant sat her Leaving Cert in 2010 and started going out with

her boyfriend, N.S, in July 2011. In a situation where, as the trial judge found, it was being put to the complainant in cross-

examination that she was making up the allegation and was doing so for a particular motive, an ulterior motive, namely, the accused’s

antagonism towards her boyfriend, the timetable becomes very significant. The evidence of A.W was that disclosures of varying

specificity were made between Third Year and Sixth Year of secondary school, while the relationship with N.S commenced only in July

2011, one year after the complainant had sat the Leaving Cert. In the Court’s view, the trial judge was within her rights in taking the

view that the evidence of A.W was relevant to addressing the suggestion of recent fabrication.

22. The Court is reinforced in its view that the question of permitting evidence to be adduced to counter the suggestion of recent

fabrication was an issue that was dealt with by the trial judge with considerable care when it recalls the fact that the prosecution

made a similar application to that made in relation to A.W in the case of another friend of the complaint, K.D. The prosecution had

proposed calling K.D to say that over their Junior Cert year, the complainant had stopped eating and always crying for some two or

three months, was “really skinny” at the time, at one stage, was really upset and broke down. The proposed witness asked her what

was wrong, following up with “you can tell me anything, I won’t judge” to which the complainant responded “I can’t take any more,

he won’t leave me alone” and in response to the would-be witness repeatedly asking “who?”, the complainant eventually told her that

it was her stepfather. The trial judge ruled that she would not permit K.D to give evidence because there was nothing told to her that

was “factual” and there could have been any explanation for any of the things that she observed. She contrasted that with the

situation in relation to A.W where she said there were factual details given over the period which tallied with the evidence given by

the complainant and the information was given to A.W before any complaint was made and so tended to rebut the suggestion that

the evidence was fabricated. It seems to us that judgement as to whether or not an allegation of recent fabrication is being made is

one which a trial judge is particularly best placed to make having regard to the run of the trial.

23. In the Court’s view, the exercise engaged in by the trial judge was an appropriate one, and the decision to admit the evidence of

A.W was justified.

Ground 4

That the judge erred in fact and/or in law in allowing the prosecution introduce the evidence of A.W as evidence of recent complaint.

24. On behalf of the appellant, it is said that while the prosecution did not initially tender the evidence of A.W as recent complaint, in

the course of the trial, the concepts of recent complaint and rebutting recent fabrication became conflated and her evidence was

dealt with not only as evidence to rebut recent fabrication but also as evidence of recent complaint when the judge charged the jury.

It is said, more fundamentally, that the evidence of A.W did not possess the necessary elements to come within the ambit of the

recent complaint doctrine. In particular, it is said it lacks the characteristic of voluntariness and that anything that was said to A.W

was as a result of questioning and prompting. Moreover, it is said that in reality, there is little consistency. It is pointed out, for

example, that the complainant says that when in her Junior Cert year, she was raped by the accused/appellant, but that the account

given to A.W was simply that the complainant’s stepfather was “at her”. The prosecution say that there is no issue at all about

voluntariness. They point to the following exchange with A.W: -

“Q. Did you ask her, did you try to get her to tell you?

A. I didn’t want to upset her, but I – I tried, yes.

Q. Yes. So it’s after your asking her, and how long did that enquiring go on for?

A. No. She would tell me certain things, but I didn’t want to be bothering her with it so I let her come out with it when

she was ready.”

The prosecution say it is absolutely clear that there was no question of the disclosure being as the result of questioning of a leading

or inducing or intimidating character. Again, they point to information that was provided to this witness. It is pointed out that aspects

of what she was told, such as the relevance of the pillow, pornography, rapes, the declaration of love and the request to move in

together, all correlated closely with the evidence of the complainant.

25. In the Court’s view, the trial judge would have been entitled to have taken the view that the evidence of A.W was admissible as

evidence of recent complaint from the outset. The complaints were being made while the abuse was ongoing and we regard this as a

highly relevant consideration. There is no hint of a suggestion of information being fed to the complainant by her friend. On the

contrary, the exchanges were voluntary and the interaction between the two friends was age appropriate. Aspects of what was

communicated to A.W before the formal complaint was initiated are in close accord with her evidence. Accordingly, we are satisfied

that this ground of appeal must also be dismissed.

Ground 5

The trial judge erred in fact and/or in law having initially ruled that of K.D and A.W was inadmissible as evidence of recent

complaint, in then directing the jury as to why they were entitled to hear the evidence of A.W, the judge’s direction may

have led the jury to give special weight or significance to the evidence of A.W.

26. The background to this ground is that the trial judge, when charging the jury, had commented as follows: -

“I just want to explain to you about why the evidence of A.W, normally speaking, a jury doesn't get to hear what one

witness says to another isn't evidence because it's hearsay. If I came in this morning and we'll say I was assaulted as I

came in the door and as I came in the corridor, I met [Ms O'S] and say, "You'll never guess what's happened to me, I've

just been assaulted outside the door. A man hit me over the head with an umbrella, he was about six feet tall, he had a

cap on, he had a beard, dark eyes and so on." Now, assuming the gardaí caught my assailant and he was put on trial.

[Ms O'S] couldn't be called by the prosecution to prove that I had been assaulted because it was hearsay. All she knows

is that I told her that that what's happened. She didn't see the assault so she wouldn't have any relevant evidence to

give that I was -- that I had been assaulted. So the law, generally speaking, doesn't allow hearsay evidence, what one

witness said to another, to be advanced in evidence in court.

But the law makes an exception in sexual offences and I just want to tell you, first of all, how that arises. In the old

days, shall we say, back in the 19th century, if a woman complained she was raped, she wouldn't be allowed even make

the complaint unless she'd raised a hue and cry about it. So that, in other words, as soon as possible after the rape was

said to have occurred, if she was going to make a criminal complaint about it, she'd have had to say to somebody, "he

raped me", so there had to be, before a rape could be prosecuted at all, what was called a recent complaint that

there'd be rape, otherwise the case wouldn't even get into the door of the court.. that rule has evolved over time and

its purpose now, the fact that a girl might tell another girl at the time it happened that she was being sexually interfered

with or raped, is now allowed to be given in evidence as an exception to the hearsay rule. It doesn't prove that the

events occurred, but it is allowed because it tends or can show, if the evidence is accepted, consistency in the account.

It's evidence that -- it's not evidence that the event occurred, but it's evidence that you're entitled to consider because

it may help you to decide whether or not K.A.D has told the truth. The prosecution say that her complaint is consistent

with her account and therefore, she's more likely to be truthful on the defence said, as you've heard and I've just

mentioned again briefly at the end, they say that this all has the characteristics of a fantasy, but it is -- you'll hear it

because if you accept the evidence, it shows consistency in her account.”

And thereafter: -

“Now, in this case, it's admitted for a second purpose because part it has certainly been suggested that this is all a

fabrication that was made up in 2011, at the time after she started going out with N.S in July 2011 and that because Mr.

D was disapproving of that relationship that was, in Mr. D's eyes at least, the genesis of all of this. But if you accept that

the evidence is again admitted for the second purpose, if you accept that between third year and sixth year she was

recounting these events or the events that A.W told you about, then that would tend to rebut or to disprove that it was

a fabrication made up in 2011. So, A. W's evidence is admitted for that limited purpose, the limited purpose of

consistency, it doesn't prove that the crime happened. So I hope that is clear to you. Generally speaking, hearsay isn't

allowed, it's allowed in sexual cases to show consistency. It's limited to that because it may help you in your assessment

of the credibility of the witness.”

27. In the Court’s view, there was nothing inappropriate about the judge pointing out that, in general, hearsay evidence is not

admissible, but that there are exceptions in criminal cases and to provide a degree of historical context. What was important was that

the judge made clear that the evidence was being admitted as going to consistency only and was not proof that the crime had

happened. This is a perfectly normal charge in respect of evidence of this kind. Regardless of whether the evidence was admitted in

the context of recent fabrication or recent complaint, the limited purpose for which the evidence was to be considered by the jury

was the same. This ground of appeal, too, is rejected.

28. Accordingly, the appeal is dismissed.