Court of Appeal quashes sexual assault conviction due to judge's refusal to allow defence counsel to reopen closing speech.

THE COURT OF APPEAL

[199/2017]

Birmingham P.

McCarthy J.

Kennedy J.

BETWEEN

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

E. I.

APPELLANT

JUDGMENT of the Court delivered on the 7th day of March 2019 by Mr. Justice McCarthy

Preliminary

1. This is an appeal by the Appellant against his conviction on the 12th of December 2016 at Waterford Circuit Court on two counts

of sexual assault contrary to Section 2 of the Criminal Law (Rape) Amendment Act, 1990. On the 25th of April 2017 he was sentenced

to three years’ imprisonment with the final year suspended.

Evidence

2. The appellant is the father of the complainant. At trial, the complainant said that she regularly stayed with him, her stepmother

and her brother at weekends. On the weekend of the 30th of January 2015, when she was thirteen, and was staying with the

appellant, he showed her a pornographic video. Following that, when she was lying on her bed, he sexually assaulted her by removing

her shorts and inserting his finger into her vagina. He removed it, licked it, and placed it back inside her again. The complainant said

that he then attempted to penetrate her with his penis but she left the room.

3. On the following day, the 31st of January 2015, the complainant went into the appellant’s room to use the shower in the en-suite

bathroom – the only shower in the house. After using it she re-entered the bedroom to find him sitting on the bed, and following

which he proceeded to sexually assault her for a second time.

4. Her evidence in chief was given in the form of an electronically recorded interview conducted by specialist Gardaí. The prosecution

case was reliant on the uncorroborated evidence of the complainant.

5. The complainant’s mother D. R. said that the complainant rang her on the 31st of January 2015 at approximately 7 or 9 a.m. (she

was abroad and not sure as to the time due to the differences in time zones) and was “quite upset”. She wanted to go home (she

was still in her father’s house) but the witness did not understand why. Her daughter told her she didn’t feel well. She told her that if

she wished to go home she could do so but should wait to be collected (her step-father could not drive). The complainant rang her

again around midday, from home, and then around midnight Irish time. On the latter occasion she was hysterical, crying and could not

sleep. She could not understand what she was saying but told the witness that her dad had touched her. Mrs R. told her to call her

step-father Y. R. She told her that her father had “touched me in my private parts”; the witness became hysterical herself. It was

suggested to her in cross-examination that she had not told the Gardaí that in the course of the first phone call that her daughter

was “upset” in answer to which she said that her daughter was “strange”; the witness was surprised as the complainant liked going

to the accused’s house. The complainant’s step-father Mr. R., in his evidence described the fact that, as we understand it, at the

time of the third phone call, the complainant told him that on the previous night that when they were watching a pornographic film,

the appellant invited her to take off her clothes and, as the witness put it, “tried to touch her everywhere.” Notwithstanding her

protests, the complainant had also told the appellant, the witness said, as to the events after the shower on that morning that the

accused “tried to touch” her. He described her tears and state of upset during the course of that day as well as her desire for her

mother’s company and assistance.

The Error

6. During the course of her speech to the jury, Ms. Morgan counsel for the appellant (as he now is) heavily emphasised what she

understood to be the evidence of the complainant’s mother and step-father and, in the case of her mother, her understanding was

erroneous. The relevant passage from the speech is as follows:-

“The call to mum, "I'm sick." The call to mum later on Saturday afternoon, nothing about what is now alleged. And then

finally the call in the late hours of Saturday evening where the allegation is made. But it's not that allegation that's made

in the evening of Saturday; it's an allegation but an allegation of an entirely different nature. Because what she says to

mam on the phone on Saturday evening is; "He tried to touch me." Very, very different than what's now being alleged.

"He tried to touch me." Now her mum describes that she was upset and distressed and she did a very sensible thing,

she went and she asked that she would talk to her stepdad who was in the house and take it more at a slower pace or

whatever. And he talks to her and he gave evidence as well and he was told that my client had tried to touch her. Not

that he had touched her, not that he had penetrated her, not that he had exposed his penis but that he had tried to

touch her. That was the extent of the allegation. Small beans relative to what is being alleged now. But you see, like all

things the story grows.”

7. This error was pointed out by the judge after counsel’s speech and he referred to the fact that counsel apparently believed that

“the daughter had complained that the dad had simply tried to touch her in her private part” whereas, of course, the mother’s

evidence had been to the effect that her father had actually touched her. The judge further said that he was “puzzled then with the

force with which you emphasised the point to the jury”, referring to the fact that what, in her understanding, the complainant had

said was radically different (as we can see from the quotation above) to the complainant’s version. The judge characterised it as

“quite a serious error” and referred to it as a “very significant issue”, and that:

“...this was such an important feature of your closing speech that the jury may very well have been impressed by it,

and of course it's factually not correct. Do you have views as to how it should be corrected?”

Because of the acknowledged seriousness of the error, its importance in counsel’s closing speech and its significance, counsel applied

for a discharge of the jury “out of concern for the fairness of the trial process” and “that justice for Mr I. in the case requires that.”

This was opposed by Mr. Whelan for the prosecution and rejected by the judge in the following terms:-

“I have to ensure the fairness of the trial from the accused's point of view and this is an application where that is very

much the issue according to defence counsel arising out of an unfortunate error made, I fully accept through genuine

confusion, but made nonetheless. I have also to have concern that it is at a stage where the jury have been told that

the State's case has closed and that is the end of the evidence and indeed both closing speeches have been completed.

I have to bear in mind that the complainant in this case is still a very young person and that it was clearly obvious to

the Court, almost two years after the alleged incidents, that it was a matter that was causing distress to her and that

distress was brought out during the course of the cross-examination. And a retrial would, in those circumstances, be

extremely unfair to the complainant to have to subject her through the what is obviously an ordeal, and her mother who

also got distressed, particularly in circumstances where they would have been told that the evidence was now over and

that the case was closed, to find that they had to go through it all again. The error was in a counsel's speech and it's

open to the Court to tell and the Court tells the jury that it is not evidence but it is persuasive argument. So I feel that I

must refuse the application to discharge the jury.”

8. Ms. Morgan applied to the judge to permit her to rectify the error: whilst at one point the judge seemed to contemplate that he

would permit this course he did not do so. The judge ultimately dealt with the topic as follows:-

“...closing submissions are not evidence. They are persuasive arguments and you're free to accept or reject them. Now

sometimes counsel will say something in a closing speech which is factually incorrect, and then the other side will want

to correct it so that only correct facts are given to the jury. If the error is made by the defence, it is not open to the

prosecution to stand up and correct the error because they have no right to reply, so therefore it falls to the judge to

clarify the matter. And such a clarification is necessary in this case arising out of the closing speech as it related to that

account of evidence that I have just given you. Ms Morgan told you in her summing up and her closing speech to you

that the complaint made by K. to her mother, D. R., was a radically different account. She said it was entirely

inconsistent with what she had told the garda interviewer two weeks later. And she specifically then said to show how

that was so that in relation to the third phone call, around midnight, that K. had told her mother that her father had

tried to touch her, not that he had touched her. And Ms Morgan invited you to consider that as a result of that

inconsistency and the other inconsistencies that she highlighted, that you could conclude that K.’s story was changing.

Now, the consistency of K.'s complaints are entirely a matter for you to assess, and if you find them consistent or

inconsistent that is a matter for you. But I must correct the impression that was given that K. had told her mother that

her father had only tried to touch her. I, as you will have seen, take careful notes during the trial and I have a backup of

a digital audio recording. And I accept of course that because the witness is not speaking in her first language that it's

sometimes difficult to follow what is being said, but D's evidence, which we heard from the box and which you heard,

was that the complaint from K. was that her father had "touched her in private parts.” It was her stepfather Y.'s

evidence to you that K. had explained to him that her dad was trying to touch her in private parts. So, in weighing up

this evidence, you must remember the limited use you can make of it because such evidence is admitted in the trial to

establish the consistency of the complaint with the testimony of the complainant. There is no requirement that the

complainant mentions the matter to the first person that she meets or indeed to the first person that she's acquainted

with, but with whom she may not feel comfortable in discussing such personal matters as sexual assault. Such

testimony from D. R. and from Y. R. is not evidence of the truth of the facts being alleged by K. but it may be

considered by you when you are assessing the credibility of K. Ask yourselves, is she consistent between the very first

time she gave an account to someone else, namely her mother on the telephone in Latvia, and then at her mother's

request to Y., her stepfather and then the account to the gardaí in the formal setting of the garda interview room two

weeks after the incident and then in her cross-examination last Wednesday? Do you find that K. was consistent or

inconsistent in the accounts she gave to different people? And this is a factor that you can consider when you are

assessing her credibility as a witness.”

Application for Direction and Warning

9. During the course of the trial, application had also been made by Ms. Morgan to direct the jury to acquit pursuant to the well know

rule elaborated in R v. Galbraith (1981) 73 Cr. App. R 124 because of the extent of the supposed inconsistencies or unreliability of the

complainant. She had also made an application, effectively on the same basis for a corroboration warning. There was no evidence

adduced capable of amounting to corroboration in the trial.

10. On the first issue, the question for us is whether or not his refusal to withdraw the case from the jury was a legitimate exercise

of his discretion and we are satisfied on the evidence that it was. There was nothing which meant it fell into the category why would

justify the exercise of the discretion to withdraw the case from them – as this type of case goes there was nothing exceptional about

it.

11. On the issue of the judge’s decision refusing to give a corroboration warning, he assessed the evidence and the legal principles.

Again the issue is whether or not on the evidence the decision was a legitimate exercise of his discretion and we find no error in this

regard. The margin of discretion is a wide one. Indeed, on the evidence, we would find it hard to see how it would have been

appropriate to do; discrepancies in the evidence of honest and reliable witnesses, including child witnesses, is unexceptional in cases

of this kind, all, or virtually all of which will be surreptitious or. secretive. The latter factors are the very reasons why corroboration

does not, of course, exist. Reference has been made by the Appellant to, inter alia, D.P.P. v. T O’D in support of the proposition that

such a warning should have been given but this was misplaced as it was a decision very much on its own facts when properly

understood.

12. The real difficulty about this conviction is otherwise, and the only real issue in the appeal centres on the manner in which the

judge dealt with counsel’s error in her speech and, in particular, his refusal to discharge the jury, or, when he refused to do that, to

afford defence counsel an opportunity to rectify it by further addressing them.

Admissibility Issue

13. Although it is not directly in issue, we might also say that the suggestion of the trial judge that defence counsel ought to have

objected to the admissibility of the evidence of Ms R. unfounded; counsel rightly pointed out that there was no basis for her to do so

although the evidence in her (erroneous) understanding was different from what was anticipated by her on the basis of that witness

statement. Counsel are obviously not entitled to what one might describe as a “dry run” and indeed it is only if counsel have some

substantive basis to contest admissibility, outlined to the judge, may he or she do so. There is no reason to think that counsel could

in any way be criticised in the present case.

Grounds

14. Following conviction, and, as a ground of appeal, the appellant has relied on the propositions that the trial judge fell into error in

his:-

(a) Refusal of the application for a direction by the appellant.

(b) The manner in which he exercised his discretion in refusing to give a corroboration warning.

(c) Failure to discharge the jury when requested to do so.

As will appear from out observations above, we reject Grounds (a) and (b) and address only that which has any substance.

Ground C: Failure to discharge jury

15. We hardly need authority for the proposition that counsel’s closing speech is an important aspect of an accused’s right to a fair

trial, as stated by the U.S Supreme Court in Re Winship 397 U.S. 358 (1970) and relied upon by the appellant. On this appeal it is

submitted that the accused’s right to a fair trial ought to have been the Court’s primary consideration and therefore that the jury

ought to have been discharged or if not discharged, counsel should, have been afforded the opportunity to re-address the jury to

rectify the matter.

16. Errors by the judge or counsel about the evidence occur from time to time. They will have a greater or lesser significance. An

error might be of considerable substance per se but of little consequence in the run of the case. Normally, a significant error may be

corrected by the judge if, and whenever, he sees fit (and it will not always be necessary) and, if it happens to have been made in the

charge, whether before or after requisition. Obviously, in general, if counsel makes an error he will have to cope with it as the trial

proceeds whether there is any remedy or not and his client will be fixed with it and any consequences. Counsel will not in general be

entitled to resume a speech which has been concluded for the purpose of a correction or due to omission. It may be, however, that

the judge will, exceptionally, if asked to do so, in his discretion permit counsel to do that having regard to the necessity that the jury

should not be confused as to the evidence. He will exercise caution to ensure that the jurisdiction is not abused. The judge will have

to make a judgment as to the significance of the error and its relevance. In very exceptional cases it may be necessary for the judge

to take the grave and rare step of discharging the jury (something which, indeed, is always wholly exceptional, as repeatedly stated

by this Court); the threshold for discharge is high. A range of options will accordingly be open to the judge in his discretion and he will

be in the best position to judge which course to adopt.

17. In the present case, we think that the judge was right not to discharge the jury. This is because we think that the error was

capable of being remedied by, exceptionally, permitting defence counsel to reopen her speech to address it. Such a course would

have fitted seamlessly into the course of the trial as the last step taken prior to the debate about the error was counsel’s speech.

We think, however, that here the judge fell into error in refusing the application to be permitted to do so because of the seriousness

and significance of the error and the large place it had taken in the defence case as advanced to the jury by counsel. The credibility

of the complainant was fundamental and anything by way of evidence of fresh complaint or inconsistent with her version as given in

evidence took on a particular importance. We think accordingly that the refusal went beyond the undoubtedly wide margin of

discretion vested in the judge. We regard the conviction as unsafe and unsatisfactory and we accordingly quash it.