Supreme Court allows appeal where trial judge's comment on unraised evidence did not render trial unfair.

AN CHÚIRT UACHTARACH

THE SUPREME COURT

[2025] IESC 4

S:AP:IE:2023:000160

Charleton J. O’Malley J. Woulfe J. Collins J. Donnelly J.

Between/

The People (at the suit of the Director of Public Prosecutions)

Respondent

AND

M.S.

Appellant

JUDGMENT of Ms. Justice Donnelly dated this 28th day of January, 2025

Introduction

1. Two issues arise in this appeal. First, the extent of defence counsel’s obligation to put their case to the prosecution witness if they intend to comment on the absence of evidence given by a witness. This raises for consideration the application of what is commonly termed ‘the rule in Browne v Dunn’. Second, if there has been no breach of any such obligation, whether, and to what extent, a trial judge may draw the attention of the jury to the fact that the issues were not raised with the witness.

2. This is an appeal arising from the judgment of the Court of Appeal ([2023] IECA 208; Birmingham P., McCarthy and Kennedy JJ.) dismissing the appellant’s appeal against his conviction of six counts of rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law (Rape) Act, 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act, 1990.

Background

3. Mr. S (“the appellant”) was indicted on 81 counts of sexual assault in relation to his three granddaughters (who were minors), at various locations over the period of 2009 to 2019. He was also indicted on six counts of rape in respect of one of those granddaughters (when she was aged from about 10 years to 14 years old). Before the trial judge at the Central Criminal Court, the appellant entered pleas of guilty to every count of sexual assault in relation to two of the grandchildren. Before the jury panel, he pleaded guilty to 51 counts of sexual assault and not guilty in respect of the rape offences in respect of his third grandchild who, for the purpose of this judgment, will be referred to as the complainant. After a contested trial by jury, at which he gave evidence, the appellant was convicted on each of the counts of rape. The Court imposed a sentence of 10 years imprisonment with one year suspended in respect of the six offences of rape and imprisonment for five years concurrent in respect of the 81 sexual offences. He appealed against conviction for the rape offences.

The Trial

The Evidence of the Injured Party

4. At the time of the Central Criminal Court trial the complainant was 17 years old. Her evidence in chief was provided by way of a DVD recording of an interview conducted on

10 December 2019, when she was aged 14 years, by specialist garda interviewers pursuant to s. 16 of the Criminal Evidence Act, 1992. In the interview, the complainant recounted the first time she was raped. This occurred, she said, in the home of the accused when she was aged “like ten”. He removed her clothing, put her on a bed, penetrated her vagina with his penis and told her not to move. She alleged that he restrained her by holding her hands above her head by her wrists. She stated that she felt scared and sick. She alleged that this happened in his home on other occasions when he was babysitting and nobody else was there. She referred to one sister going to music lessons. She referred to it happening in the sitting room. She was asked about the time on the couch and whether she noticed anything about herself. She said that she was sore. The specialist interviewer asked the complainant where she felt sore to which the injured party stated her “hands”. When asked “Ok ok anything else?” the injured party shook her head.

5. The complainant was briefly cross-examined by counsel for the defence on a live television link before the jury. It was put to her that the rapes never happened, that the appellant absolutely denied the allegations, that he had never engaged in sexual intercourse with her, and that he never removed the complainant’s clothing as alleged.

Closing Speech for the Defence

6. During her closing speech to the jury, counsel for the defence suggested that, upon careful consideration, there were concerns as to whether the complainant’s account of rape satisfied the threshold of reasonable doubt. Counsel raised various criticisms of the complainant’s evidence or lack of it. She said that the complainant gave no evidence as to the location of her family during the rapes, having referred only to one sister going to music lessons. She went on to submit to the jury: “Mr. S is in the unfortunate position where all he can do is say, this did not happen, I did not do these things. What more can he do? But look very carefully at the mechanics of the alleged act and the account that is given by [the complainant]. There is no reference to pain from the rape. When she is asked about being sore, she references her hands and when she is asked about anywhere else, she says no. When she is asked, she does say she could feel it in her. But there’s no reference to his weight on top of her, there’s no reference to an erect penis and there’s no reference to any ejaculation. And as I say, I am not trying to be crude, but these are features that you would expect to hear when someone is describing this act, particularly when you’re dealing with a child who isn’t familiar with these things. And I’d suggest to you that if you carefully examine the evidence, it flies in the face of what [counsel for the prosecution] describes to you as a vivid account being given.”

7. Prior to the judge’s charge and in the absence of the jury, prosecution counsel objected to the defence closing speech. Counsel identified matters which had not been put to the complainant during cross-examination, namely, the lack of reference to pain other than her hands, the appellant’s weight, or erection and ejaculation. Counsel for the defence replied that her case was that “these things simply didn’t happen” and that there was no further obligation on her to rectify any deficiencies in the injured party’s evidence.

8. The trial judge took time to consider the transcript and the authorities and ruled as follows: “I’m of the view that I should tell the jury that they decide on the weight to attach to the evidence, that it has been submitted to them on behalf of [the appellant] that the complainant’s account did not make reference to pain or to the weight of [the appellant] on top of her. And that it was not put to the complainant that she had referred to sexual assault in her letter to her mother. These are all matters for the jury, but they were not put to the complainant. But it’s entirely a matter for the jury to consider all the evidence and what weight should be attached to the evidence”.

Charge of Trial Judge

9. In her charge to the jury, the trial judge noted that the jury will consider the closing speeches of counsel for the prosecution and defence but that the speeches “are not evidence”. The trial judge included the following in her charge to the jury: “you saw [the complainant’s] evidence by way of DVD and then you saw her crossexamination. One matter I want to bring to your attention is that it was submitted to you on behalf of [the appellant] on Friday that [the complainant’s] account made no reference to pain or to the weight of [the appellant] and how it felt to have the weight of [the appellant] who’s been described as a big man on top of her. And that her account to her mother in her note was of sexual assault. And that she did not use the word rape, she referred to sexual assault. Ladies and gentlemen, you weigh up all of the evidence you have heard in the trial. These were not put to [the appellant], these submissions which I have referred to were not put to [the appellant] and it will be a matter to weigh up all of the evidence in relation to what you have heard during the course of the trial and to consider the significance you attach to any of the evidence which you have heard during the course of the trial. Consider all of the evidence and the significance you attach to it.”

Decision of the Court of Appeal

10. In his appeal, the appellant submitted that the trial judge erred in law in instructing the jury that a lesser weight should be attached to matters put to the jury by counsel for the defence as they had not been put to the relevant witness during the trial. The Court of Appeal affirmed that the defence counsel said nothing to the jury that was impermissible. The Court noted that while prosecution counsel had hoped for a stronger intervention by way of reprimand or otherwise, such an action might well have given rise to difficulty in the context of the trial in circumstances where defence counsel had not overstepped the line. The Court of Appeal said that the judge’s remarks could scarcely have been more restrained. The Court went on to say that it was “beyond doubt that the judge was entirely within her rights to draw the attention of the jury to the fact that the criticisms of the complainant for not dealing with certain matters in her narrative were in the context that those were not issues raised with her” (para 14). It was, the Court said, not an answer to point out, as defence counsel did, that these were issues canvassed during the course of the specialist interview. The appeal was dismissed. Issue 1: The Obligation on Defence Counsel to Put Their Case to the Witness Submissions

11. The appellant, citing Powles, Waine and May, May on Criminal Evidence (6th edn, Sweet & Maxwell 2015), submitted that the object of cross-examination is twofold; first, to destroy or weaken the effect of the evidence furnished by the witness-in-chief, and second, to elicit from the witness information favourable to the cross-examining party. The appellant highlighted two rules of evidence, first, cross-examination is not confined to issues raised in evidence-in-chief but must relate to either the issues in the case or the credibility of the witness. Second, the cross-examining party should put as much of their own case as concerns them to the witness and offer them the opportunity to address contradictions posed by the cross-examining party. In failing to do so, the cross-examining party is generally taken to have accepted the evidence of the witness. In counsel’s closing speech, they should not attack a part of a witness’s evidence which has not been challenged in cross examination.

12. The appellant agreed that the obligation to put one’s case to a witness was set out in the case of Browne v Dunn (1884) 6 R 67 and was subsequently approved in The People (DPP) v Burke [2014] IEHC 483, [2014] 2 IR 651 (“DPP v Burke”). The rule was subsequently endorsed by this Court in McNamee v Revenue Commissioners [2016] IESC 33 and again in McDonagh v Sunday Newspapers Limited [2017] IESC 46, [2018] 2 IR 1. These cases and the submissions in relation to them will be considered further below.

13. Referring to McDonagh v Sunday Newspapers and to the dicta of Charleton J. on the duty to cross-examine, the appellant submitted that the duty to put one’s case to a witness is discharged by firstly identifying what is in issue between the parties, identifying the issue for the witnesses, and allowing witnesses the opportunity to address the issue. The appellant submitted that the duty was complied with in this case. It had been put to the injured party that the appellant had not at any time had sexual intercourse with her and thus the injured party was given the opportunity to answer the case put by the appellant.

14. Referencing the primary objective of cross-examination, the appellant submitted that this duty does not extend to putting weaknesses or voids in the witness’s evidence to the witness, rather, such matters are typically addressed in a closing speech. This was particularly pertinent considering the ample opportunity afforded to the injured party to address the details of the rape in both the specialist interview and in cross-examination.

15. The respondent (“the DPP”) in reply submitted that the principle that a contrary case must be put to a witness is well-established and the rationale is depicted in Browne v Dunn as being one that is ‘absolutely essential’ in the proper conduct of a case and for fair play and the fair dealing with witnesses and that it is ‘absolutely unjust’ to ask the jury to believe evidence without putting the witness on notice of the basis on which they were doing so.

16. The DPP stated that this requirement was reaffirmed in the context of criminal cases in R v Fenlon (1980) 71 Cr App R 307. She also cited DPP v Burke in submitting that fairness required that the matter impugned must be put to a witness. While there is no requirement on counsel for the defence in a criminal trial to cross examine a witness, this does in effect, result in untested evidence. The DPP relied on EPI Inc v Symphony plc [2005] 1 WLR 3456, as cited in DPP v Burke, in which it was stated that it is essential that witnesses are challenged with the other side’s case and that this involves putting the case positively. A failure to put a point should usually disentitle the point to be taken against the witness in a closing speech. The DPP submitted that McDonagh v Sunday Newspapers confirmed that Browne v Dunn forms part of Irish law and the rationale for the rule was fairness to the witness. She submitted that in McDonagh, which concerned defamation, Charleton J. held that it is not sufficient for the plaintiff to simply put to witnesses that he denied the content of garda interview notes which the defence claimed supported their case, but that at a minimum the reasons for such denials should be provided.

17. Referring to The People (DPP) v Shaughnessy [2021] IESC 18, [2021] 3 IR 444, the DPP argued that in that case it was made clear that there was an onus on the defence that “the essential factors in defence that a witness contradicts be put to a witness”.

18. The DPP submitted that unfairness is illustrated in the case at hand. A simple denial of the allegation was solely put to the witness. The jury was however invited to consider both a denial together with some criticisms of alleged gaps or improbabilities in her evidence which she herself was never afforded an opportunity to explain. The DPP submitted that there is a very real risk of unfairness in impugning the credibility of the injured party for failing to put certain matters to her.

19. The DPP stated that the jury was invited to doubt the account of the injured party for not providing an explanation as to where her family was, beyond the reference to her sister, during the course of the rapes despite the fact that the injured party had said during interview that it occurred when no one else was home nor was she asked to explain where her family may have been or the frequency or unlikelihood of this.

20. The DPP submitted that the jury was invited to doubt the account of the injured party concerning the rapes themselves. Counsel for the defence commented that the complainant had not made reference to any other pain bar in her hands, the weight of the appellant on top of her, or any erection or ejaculation. Counsel submitted to the jury that these would be typical features of such an account. The DPP argued that there is no evidential basis for this presumption nor is it fair to invite the jury to disbelieve the account of the injured party on this basis. She further states that a child who is a victim of abuse may struggle to recount the features of the abuse or may not want to revisit the pain during the specialist garda interview. Despite what was put to the jury, the injured party was not asked in the interview if she had experienced pain elsewhere and asking the garda to do so would effectively be asking the garda to engage in their own cross examination in the interview.

21. The DPP submitted that the injured party may not have been conscious of the appellant’s weight or how the position of his body may have made his weight inconsequential. Similarly, the injured party was never asked to describe whether the appellant’s penis was erect or if he ejaculated. These issues cannot be answered as they were not put to the witness and it is unfair to invite the jury to disbelieve her based on same. The DPP draws on the comments made by Birmingham P. in the Court of Appeal judgment in that the injured party would have been capable of answering the questions had they been put to her, however, the Garda interviewers wanted to avoid any suggestion of prompting the witness.

The rule in Browne v Dunn

22. It is a curious feature of Irish law that the 19th century English decision of Browne v Dunn appears to have been expressly referred to only once in the 20th century case law whereas, in the first quarter of the 21st century, a flurry of Irish decisions addressed the decision and the extent of its application. Indeed, it is noteworthy that Ronan LJ. in Flanagan v Fahy [1918] 2 IR 361 queried, but did not decide, whether “the settled law and practice” of England “governs the Irish Courts”. That case was decided not by application of Browne v Dunn but on the basis that where a witness was accused (directly or indirectly) of having recently fabricated/invented her evidence, it was permissible to call evidence demonstrating that the witness had given a consistent statement on an earlier occasion.

23. Since the decisions of this Court in McNamee v Revenue Commissioners and McDonagh v Sunday Newspapers, it can no longer be doubted that the rule in Browne v Dunn applies in civil proceedings. The McDonagh decision referred with approval to the High Court

decision in DPP v Burke and the McDonagh decision was referred to with approval by this Court in The People (DPP) v Shaughnessy. Moreover, in a decision delivered in July 2021, the Court of Appeal in People (DPP) v PS [2021] IECA 311 referred approvingly to Browne v Dunn. Perhaps not surprisingly in view of those decisions, the appellant in the present case did not question that the rule in Browne v Dunn also applied to criminal law.

24. Having considered the written submissions of both parties, this Court asked the question if the parties were aware of any cases, in this jurisdiction or elsewhere, which have drawn a distinction between the application of the rule in criminal cases and its application in civil cases. Cases from Australia, Canada, and New Zealand were provided by the DPP and were the subject of written and/or oral submissions from the parties.

Browne v Dunn

25. What then is the rule in Browne v Dunn? The judgment was delivered in an appeal from a libel action against the solicitor defendant where the plaintiff contended that the application to issue a summons against him was a sham and that the application was made for the purpose of annoying the plaintiff. The solicitor defendant had drawn up a document containing the alleged libel and had exhibited it to the persons who signed it for the purpose of obtaining their authority to take the proceedings. Witnesses who had signed the document and who gave this evidence for the solicitor defendant were not cross-examined on behalf of the plaintiff. A number of judgments were delivered, but Charleton J. in McDonagh v Sunday Newspapers identified the following passage from the speech of Lord Halsbury in Browne v Dunn as encapsulating the decision: “To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.”

26. The following passage from Lord Herschell LC was also referred to approvingly by Charleton J. in McDonagh v Sunday Newspapers (at para 41) having been cited by Laffoy

J. in McNamee v Revenue Commissioners: “… I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses. Sometimes reflections have been made upon excessive cross-examination of witnesses, and it has been complained of as undue; but it seems to me that a cross-examination of a witness which errs in the direction of excess may be far more fair to him than to leave him without cross-examination, and afterwards to suggest that he is not a witness of truth, I mean upon a point on which it is not otherwise perfectly clear that he has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling. Of course, I do not deny for a moment that there are cases in which that notice has been so distinctly and unmistakably given and the point upon which he is impeached and is to be impeached is so manifest, that it is not necessary to waste time in putting questions to him upon it. All I am saying is that it will not do to impeach the credibility of a witness upon a matter on which he has not have any opportunity to give an explanation by reason of there having been no suggestion whatever in the course of the case that his story is not accepted.”.

27. Lord Morris in agreeing with Lords Herschell and Halsbury cautioned against “laying down any hard-and-fast rule as regards cross-examining a witness as a necessary preliminary to impeaching his credit”. On some occasions, he observed, the most effective crossexamination would be to ask the witness to leave the box.

DPP v Burke

28. Baker J. in DPP v Burke conducted an incisive examination of the existence of the rule (if indeed rule it be) in Ireland, its status, and its application. That case concerned the application of the rule in the District Court in unusual circumstances where the prosecution had called the wife of the defendant to give evidence for the purpose of proving one matter but who went on to give evidence which was exculpatory of the defendant. She was not made a hostile witness. The judge of the District Court asked whether she was entitled to prefer the evidence of other prosecution witnesses to the unchallenged evidence of this witness. Significantly Baker J. (at p 654) stated: “[Browne v Dunn] has been identified as the source of a principle the precise status of which is a matter of some controversy and difficulty, as to the conduct of a trial and what must be put to a witness in cross-examination. It has variously been described as a rule of law, a rule of evidence, or possibly a rule of fairness such that a witness must not be discredited without having a chance to comment upon the dissenting evidence or answer a challenge in some way”.

29. Baker J. said that not only must the rule be applied with some care but that it is a “rule for the purposes of giving concrete reflection to the requirement of fairness”. She identified two aspects of the rule, the first was the status of the evidence not put to the witness and the second was how the court was to treat the evidence of the witness which was not challenged in cross-examination.

30. In the course of her judgment, Baker J. discussed “a useful and compelling article” by Hugh Kennedy, ‘Putting the case against the rule in Browne v Dunn’ (2006) 11(2) Bar Review

39. She accepted the argument that in a criminal context to impose a duty on an accused person to cross-examine could have an impact on the right to silence at trial and could displace the burden of proof in practice and prevent an advocate from making tactical choices in the conduct of the defence. She held that there could be no rule of evidence or of law that required a party in a criminal case to enter upon a cross-examination of a witness. Baker J. said, however, that the party choosing not to test the evidence faced the inevitable consequence that the evidence was before the court in untested form. For Baker J., the important issue was how to characterise unchallenged evidence. The application of uncontroverted evidence could not lead to or direct a court to a particular conclusion on matters of fact. She also stated that “a party may not seek to ask the judge or jury to disbelieve a piece of testimony if the person giving that testimony has not had an opportunity to comment or deal with the challenge. So stated it is a rule not so much to the conduct of a case but to the conduct of argument or submissions at the close of a case…”. It did not preclude the judge from disbelieving a witness.

31. Ultimately, the conclusions as to the legal position reached by Baker J. were as follows: “(a) In closing submissions or argument a party may not impeach the credibility of a witness if that witness’s evidence has not been tested in cross-examination;

(b) Ipso facto a person who does not cross-examine evidence is faced with the prospect that the evidence is heard by the trial judge or the jury and is untested.

(c) There is no requirement that evidence be cross-examined, but by not crossexamining evidence the evidence goes to the fact finder as untested and uncontradicted evidence.

(d) Untested and uncontradicted evidence carries greater weight than tested contradictory evidence.

(e) It is not the function of any rule of law to direct the court to accept evidence merely on account of the fact that it has not been tested. The court must hear all of the evidence before it and is entitled to weigh the evidence, including unchallenged evidence, against the evidence as a whole adduced at the trial.

(f) A trial judge or a jury is not compelled as a matter of law to accept evidence because it is not challenged. Unchallenged evidence is part of the evidence at trial and the fact that it is unchallenged gives it somewhat greater weight, but does not direct a particular result.”

AC v O’Brien

32. AC v O’Brien [2015] IEHC 25 was a decision given shortly after that in DPP v Burke. It concerned a judicial review of the refusal of a District Judge to state a case about the status of the rule in Browne v Dunn in Ireland in circumstances where the prosecution had not cross-examined the accused. O’Malley J. held that the matter was now clarified by the

decision in DPP v Burke and she agreed with the principles set out above. Interestingly, she queried whether that decision had raised Browne v Dunn “in its pure form” because the prosecution could not have made its own witness the subject of cross-examination.

33. It is of further interest that AC v O’Brien, like DPP v Burke and unlike the present case, concerned the application of the rule to the prosecution during a summary trial.

McDonagh v Sunday Newspapers

34. This was not a criminal case but an appeal from a jury decision in favour of the plaintiff in a libel action. The plaintiff had been cross-examined about notes from various Garda interviews (which were being introduced to show he had admitted certain matters for which he claimed defamation) and in broad terms he denied making the statements and said that as far as he was concerned, they were all made up. The defence then called numerous Garda witnesses to give evidence of the contents of interviews they had conducted with the plaintiff. These witnesses were not cross-examined on the basis that the plaintiff did not make the statements.

35. This Court gave a 3-2 split decision. In his judgment for the minority, McKechnie J. dealt extensively with the rule in Browne v Dunn. He, like Baker J., queried whether the rule was correctly classified as a principle, or a rule of law or evidence, or simply one of good practice. He also queried if it applied in criminal law and if so, did its application differ depending on whether the trier of fact was a judge or jury (para 52). He proceeded on the basis that it did apply to the case before him. He did not accept that there ought to be an exclusive focus on cross-examination. He said that the rule may arise in two situations; where contradictory evidence was not put or there was a failure to cross-examine. From his review of the case law, McKechnie J. said that what the rule was truly focused on was to ensure that evidence intended to be impugned is put in issue in a manner or way, whatever that might be, which conveys to all parties and the relevant witnesses that such evidence is being challenged. How that was to be done is not the test (para 59). Strategy and tactics as regards running the trial were left to the lawyer. He was not satisfied that there was a rule of law which compels cross-examination before impeachment of a witness. While there may be risks of one approach over another, there were different routes to challenge. On the facts of the case McKechnie J. held that the evidence had been challenged. I will later address what was said about the foundation of the rule below.

36. On the other hand, the majority judgment (Charleton J.) under the heading “Duty to crossexamine” cited this Court (Laffoy J.) in McNamee v Revenue Commissioners which approved Lord Halsbury’s statement above. He also cited Lord Herschell’s rule “that if you intend to impeach a witness, you are bound, whilst that testimony is live, to give that witness an opportunity of making any explanation which is open”. Charleton J. held that there had been no challenge to the Garda evidence. He held however that the trial had to be looked at in the round. In his view, counsel for the defendant could have asked for the jury to be sent out at the end of the cross-examination and, in its absence pointed out to the trial judge the error in approach. It could have been corrected by the cross-examination continuing for a short time and putting the essentials of the “fabrication, mistake, tiredness or whatever” to the witness. Charleton J. said that “[c]entral to an adversarial system is making the point that ensures that the trial abides by the rules and making that point at the appropriate time” (see para 44).

The People (DPP) v Shaughnessy

37. The appeal in that case was on the ground of alleged inadequate or incompetent representation at trial. This Court (Charleton J.) referred approvingly to the rule in Browne v Dunn in discussing the obligations of counsel to put factual instructions to a complainant.

RAS Medical Ltd v Royal College of Surgeons

38. This Court in McNamee v Revenue Commissioners had dealt with the application of the rule to situations where the contents of documents were relied upon to impeach affidavit testimony. That was confirmed by this Court in RAS Medical Ltd v Royal College of Surgeons [2019] IESC 4, [2019] 1 IR 63, and the DPP relied upon the following dicta of Clarke CJ.: “Where a party wishes to assert that evidence tendered by an opponent lacks either credibility or reliability, then it is incumbent on that party to cross-examine the witness concerned and put to that witness the basis on which it is said that the witness’s evidence should not be accepted at face value. It is an unfair procedure to suggest in argument that a witness’s evidence should not be regarded as credible on a particular basis without giving that witness the opportunity to deal with the criticism of the evidence concerned.” A Rule of Fairness - Fairness to whom?

39. In one way or another the cases above discussed the rule as one of fairness. This is usually expressed as fairness to the witness, thereby repeating the well-known dicta of Lord Herschell. An example in this jurisdiction where the issue of fairness to the witness was emphasised is Knockacummer Wind Farm Limited v Cremins [2018] IECA 252 (“Knockacummer”). In essence, the trial judge made a finding of ‘sharp practice’ by a solicitor witness without making the solicitor aware that such finding may be made and without giving her opportunity to address it. The Court of Appeal held that it was important as a matter of fair procedures that the witness would have an opportunity to have relevant matters put to them so that there could be an opportunity to rebut the suggestions being made. Peart J. (with whose judgment on this issue his colleagues agreed) pointed out that it was particularly important to do so because a witness, unlike parties to the proceedings, does not deliver pleadings and thus unless a matter is put to the witness there will be no opportunity to respond to the parties’ pleadings.

40. In Knockacummer, Peart J. relied upon the judgment of Charleton J. (who gave the judgment for the majority) in McDonagh v Sunday Newspapers. Charleton J. agreed that the rule was one of fairness: “The extent to which fairness requires cross-examination is essentially dependent on how a trial runs. Fairness, however, is what the law requires both in relation to procedures that are dedicated towards achieving a correct conclusion in a trial and in relation to the right of a witness to be given a real opportunity to comment on a verdict the implication of which may only be interpreted as adverse.”

41. In Knockacummer, fairness to the witness is to the foreground, but nonetheless, it is a useful example in understanding just why such fairness may be necessary. That case concerned the construction of a buy-back option and the defendant’s solicitor was found by the trial judge to have known that the absence of a start date for the exercise of the buy-back option was a mistake but failed to alert her opposite number to that position. The solicitor’s evidence had been cut short by a rhetorical question from the trial judge “then do we need to go into it any further?” and, it appears, in consequence no such suggestion was ever put to her. This issue was one of the grounds of appeal of the defendant. Peart J. said that the ‘sharp practice’ issue “ought to have been directly put to her as a matter of fair procedure, before the trial judge could reach a properly evidentially based conclusion” (emphasis added). Thus, the fair procedure was necessary for the trier of fact to reach a proper

conclusion.

42. The importance of fairness to the trier of fact was made by the DPP in submissions in reliance on the decision of the High Court of England and Wales in EPI Inc v Symphony. The rationale for rule as fairness to the trier of fact was explained in another English

decision Tullow Uganda Ltd. v Heritage Oil and Gas Ltd [2013] EWHC 1656 (Comm). Burton J. said that: “But in my judgment if there is to be such an onslaught on the honesty and credibility of these two professional witnesses as has been carried out in the Closing Submissions, challenge to the accuracy of their evidence is plainly insufficient, and it must be necessary and in any event sensible and fair to put to a witness that in certain (in this case apparently numerous) respects he has been dishonest and is not telling the truth. This is not simply out of fairness to the witness, but it is also necessary for the judge, because if I am to conclude that an otherwise apparently honest and respected professional has been deliberately false and misleading, I must have the opportunity to see how the witnesses respond to each such suggestion and see whether I am persuaded by their answer (if any)” (emphasis added).

43. This focus on fairness to the trier of fact was already apparent in the decision in Browne v Dunn. Lord Halsbury referred to the unjustness of “ask[ing] the jury afterwards to disbelieve what [the witnesses] have said” without giving them an opportunity to explain. Moreover, it seems to me, fairness to the witness and to the trier of fact encompasses fairness to the party who has called the witness.

44. Tripartite fairness is, I believe, what the decisions in this jurisdiction on Browne v Dunn encapsulate. It is well expressed by the dicta of David Watt JA of the Ontario Court of Appeal in R v Quansah [2015] ONCA 237 at para 77 as follows: “The rule is rooted in the following consideration of fairness: i. Fairness to the witness whose credibility is attacked: The witness is alerted that the cross-examiner intends to impeach his or her evidence and given a chance to explain why the contradictory evidence, or any inferences to be drawn from it, should not be accepted: (…) ii. Fairness to the party whose witness is impeached: The party calling the witness has notice of the precise aspects of that witness’s testimony that are being contested so that the party can decide whether or what confirmatory evidence to call; and iii. Fairness to the trier of fact: Without the rule, the trier of fact would be deprived of information that might show the credibility impeachment to be unfounded and thus compromise the accuracy of the verdict.”

45. As these and other decisions make clear, as the rule is one of fairness it may not be applied reflexively. Application of the rule requires thoughtful engagement with how the trial is running; not all situations demand ‘putting’ the opposite case to the witness. Moreover, its application in criminal trials must be subject to Article 38.1 of the Constitution which protects the right to a fair trial. Given the sparsity of Irish decisions dealing with how Browne v Dunn is to be applied in criminal trials, it is appropriate to have regard to the experiences and application of the rule in other common law jurisdictions.

Criminal Trials and the Application of Browne v Dunn

England & Wales

46. R v Hart (1932) 23 Cr App R 202 concerned a trial for assault where the defence called three alibi witnesses. None of the witnesses were cross-examined nor was there any mention of the fact that they were not cross-examined in the judge’s charge to the jury. In those circumstances, the Court of Appeal held that “if, on a crucial part of the case, the prosecution intend to ask the jury to disbelieve the evidence of a witness, it is right and proper that that witness should be challenged in the witness-box or, at any rate, that it should be made plain, while the witness is in the box, that his evidence is not accepted. Here no questions were asked in cross-examination” (p 207). Having regard to that matter, and also to the summing up, the appeal was allowed. Browne v Dunn is not mentioned in the report, but it is an application of the rule to the prosecution in a criminal case.

47. R v Fenlon concerned the duty of a co-accused to cross-examine their co-accused who had given evidence by putting their own defence insofar as it differed from his evidence. Browne v Dunn was expressly raised in the appeal and the appellant claimed that the rule only applied to prosecution counsel. The Court of Appeal could see no distinction between one situation or the other and based the rule on fairness to the witness. The Court held that it was the duty of counsel who intends to suggest that a witness is not telling the truth to make it clear to the witness in cross-examination that he challenges his veracity and to give the witness an opportunity of replying although it need not be done in minute detail. The Court of Appeal did not address any issue as to how or if the right to silence, the presumption of innocence or the burden or standard of proof in a criminal trial might impact on the application of the rule.

Australia

48. The first High Court of Australia decision to which this Court was referred is MWJ v R [2005] 222 ALR 436. The appeal addressed the duty on counsel where there was an inconsistency in the prosecution evidence between the complainant and her mother. The trial judge held that the failure to cross-examine the complainant on the inconsistency prevented the appellant from relying on the inconsistency. The High Court held that the appellant was not obliged to do so and unsurprisingly the appellant in the present appeal relies heavily on this as a persuasive authority.

49. Delivering judgment for the majority, Gummow, Kirby, and Callinan JJ. identified the rule as the obligation on one party to give appropriate notice to the other party and any of their witnesses of any imputation on the witnesses’ conduct or credit. A corollary of the rule was that judges should abstain from adverse findings about parties and witnesses in respect of whom there has been non-compliance. A further corollary was that usually crossexamination will suffice as adequate notice where the witness has been given an opportunity to deal with the imputation. The court held that an offer to tender a witness for further cross-examination will, in many cases, suffice to meet surprise or prejudice resulting from a failure to put a matter in earlier cross-examination.

50. The High Court of Australia held that reliance on the rule in Browne v Dunn can be both misplaced and overstated. In criminal cases the ‘salutary practice’ of excusing witnesses temporarily only on the understanding that they would make themselves available was adopted. They said however that there may be some circumstances in which it could be unfair to permit the recalling of a witness but in general that would be appropriate. In relation to the particular facts of that case, they held that the cross-examiner was not under an obligation to have the complainant recalled as a condition of his reliance upon the inconsistency which had emerged in the case for the prosecution.

51. In the subsequent case of Hofer v R [2021] 395 ALR 1, the High Court of Australia addressed the application of the rule where, in his own evidence, the appellant referred to relevant matters which had not been put to the two complainants in a trial for rape. The prosecutor asked the appellant to account for each omission with the implication that the appellant’s evidence in this regard was one of recent invention. No objection to the suggestion of recent invention was taken by counsel for the defence and the jury was not directed as to the use they could make of this evidence.

52. By a majority, the Court re-affirmed the application of the rule in Browne v Dunn to criminal trials, highlighting its application to adversarial systems of justice. The High Court identified however, that difficulty in respect of the rule in criminal proceedings arises not so much from adherence to it as from the proper course to be followed when it is not observed. They highlighted that criminal proceedings were not only adversarial but accusatorial in nature which requires the prosecution to prove its case and cannot require an accused to assist in doing so. As a result, the position of the accused could not be equated with a defendant in civil proceedings.

53. The High Court explored the ways in which non-observance of the rule could be addressed. The obvious course is to recall the witness so that the omission can be corrected. The Court identified the practise of the prosecution putting to an accused that the evidence was only ‘recently invented’ by the accused. This was based upon an assumption that the reason the matter was not put to the witness in cross-examination was because no such instructions had been given by the accused to counsel and inviting the conclusion that the accused was therefore making the evidence up. The High Court identified a number of reasons why a matter was not have been put to the witness; counsel misunderstanding the instructions, forensic pressure resulting in looseness of cross-examination, and the possibility that it was deliberately not advanced because counsel did not think it would help the defence. The Court held that where there were a number of possible explanations, there was no proper basis for a line of questioning directed to impugning the credibility of the accused and absent clear indication of recent invention no accused should be subjected to such questioning. The potential for unfairness was too great.

54. Such a cross-examination might also lead to the possibility of having to open up disclosure of instructions. The High Court said that in many cases the cross-examination will have a dual purpose: a) to identify the unfairness to the witness and b) to impugn the credibility of the accused. Where the sole purpose was to impugn the witness, in accordance with statutory provisions, leave from the trial judge was required. Finally, the Court held that the trial judge should be alert to the problems associated with cross-examination. This should be raised with counsel at an early point. Where cross-examination of the accused has occurred, it is necessary to warn the jury about any assumptions made by the crossexaminer and draw attention to the possible reasons why the matter was not put and to direct the jury as to whether any inferences are available.

New Zealand

55. The DPP identified Gutierrez v R [1997] 1 NZLR 192 as the leading case in New Zealand. The appeal addressed the prosecution’s duty, or the extent of such duty, to put its own witness’s evidence in cross-examination of the accused, and, if not done, whether the judge was entitled to make a finding of credibility against the appellant in that regard. Having examined domestic and other common law jurisdictions’ case law in relation to the rule, the Court said that the case before them illustrated the possible futility of an inflexible rule. The Court of Appeal held (at p 199): “… the rule is simply one of fairness. Has a reasonable opportunity been given to enable the evidence in question to be properly assessed? It is the responsibility of prosecuting counsel or a prosecutor who proposes to attack the credibility of defence witnesses, including the defendant, to cross-examine in a way which makes it plain that the relevant evidence is challenged and gives the witness a fair opportunity to answer the challenge. Such cross-examination however may not be necessary if from what has gone before or from the circumstances of the case it is fairly made plain that the truthfulness of particular facts given in evidence is not accepted, and an adequate opportunity to meet the challenge has otherwise been afforded. If evidence relevant to credibility is not so tested when it ought to be, it is likely to be unreasonable for the trier of fact to make an adverse finding in respect of credibility."

56. In the circumstances of that case, it was held that the appellant had full opportunity to deal with the conflict of evidence and the judge was entitled to find as he did.

Canada

57. In R v Lyttle [2004] SCC 5, the issue of Browne v Dunn was addressed briefly by the Supreme Court of Canada although they said that it was irrelevant to the issue before them. They observed that although the rule was designed to provide fairness to witnesses and the parties, it was not fixed. The extent of its application was within the discretion of the trial judge after taking into account all the circumstances of the case.

58. The decision of the Ontario Court of Appeal in R v Quansah is much more on point. This concerned the stabbing of a prisoner by another prisoner who had just entered the cell of the deceased. The accused claimed he had acted in self-defence although he accepted that he had entered the cell to engage in a pre-arranged fight one on one. Prisoners who had been outside the cell were called by the prosecution but were not cross-examined about certain specifics (the door being kept open by a shoe) which the accused relied upon in his evidence in support of his contention that the deceased had lain in wait for him. The trial judge told the jury that they could consider as a factor in assessing the weight to be attached to the accused’s evidence, the failure to cross-examine the witnesses on these issues.

59. I have addressed how the Court of Appeal in R v Quansah framed the governing principles of Browne v Dunn above at para 44. The Court also noted that as well as issues of fairness, there were also procedural considerations. These were to ensure the orderly presentation of evidence, avoidance of scheduling problems associated with re-attendance, and to lessen the risk that the trier of fact, especially a jury, may assign greater emphasis to evidence adduced later in trial proceedings than is or may be warranted. In my view those procedural matters are also significant factors as to why the rule is one that ought in general to be followed. I note that McKechnie J. held in McDonagh v Sunday Newspapers that one could add to the rule “its utility from a practical point of view in promoting efficiency and effectiveness in the conduct of a trial”. Although McKechnie J. gave the minority judgment in McDonagh, there appears not to have been specific exception taken to this characterisation of the rationale for the rule.

60. The Ontario Court of Appeal in R v Quansah observed that a failure to cross examine at all or on a specific issue tends to support the inference that the witness’ evidence is accepted in its entirety or on the specific point and disentitled to later challenge. As a rule of fairness, the rule in Browne v Dunn was not a fixed rule. It does not require every scrap of evidence to be put but matters of substance must be put to the witness. The Court held (at para 82): “In some cases, it may be apparent from the tenor of counsel’s cross-examination of a witness that the cross-examining party does not accept the witness’s version of events. Where the confrontation is general, known to the witness and witness’s view on the contradictory matter is apparent, there is no need for confrontation and no unfairness to the witness in any failure to do so.”

61. The Court stated that the potential relevance to the credibility of an accused’s testimony of the failure to cross-examine a witness for the prosecution on subjects of substance on which the accused later contradicts that testimony depends on several factors which include but are not limited to: i. The nature of the subjects on which the witness was not cross-examined ii. The overall tenor of the cross-examination and iii. The overall conduct of the defence. (para 84, R v Quansah) The rule was not an ossified or inflexible rule and was situational dependent.

62. Significantly, the Ontario Court of Appeal in R v Quansah held that breaches of a rule grounded in fairness do not attract a single or exclusive remedy: “The remedy is a function of several factors, including, but not only:

• The seriousness of the breach

• The context of the breach

• The timing of the objection

• The position of the offending party

• Any request to permit recall of a witness

• The availability of the impugned witness for recall; and

• The adequacy of an instruction to explain the relevance of failure to crossexamine” (para 117).

63. The Ontario Court of Appeal said that the first remedy that the trial judge may consider where there has been a breach of the rule is that of recall of the witness. Failure to take advantage of the opportunity to recall may mean that the aggrieved party will not get the benefit of a Browne v Dunn instruction in the charge to the jury.

64. Where an instruction is given to a jury, the trial judge does not have to give a “special instruction” but should make it clear that the failure has relevance to the credibility of the witness who was not challenged as well as the credibility of the witness who gave contradictory evidence.

65. Timing of an objection was important as to remedy. A prosecutor has to act in a timely way if there has been a breach and there can be no “lying in the weeds” to seize advantage of the failure to cross-examine. The point to make the objection is when the accused gives the evidence on a point of substance. In my view, it is striking how closely these comments reflect those of Charleton J. in McDonagh v Sunday Newspapers at para 44 of the judgment to which I have referred at para 36 above.

66. In R v Quansah, the Court of Appeal rejected the ground of appeal giving deference to the trial judge’s choice of remedy to give a jury instruction that the lack of cross-examination was a factor they may take into account. The jury instruction was appropriate in circumstances where, inter alia, the trial judge had characterised it as a comment having made clear the jury were not bound by comments. The Application of the rule in Browne v Dunn in Criminal Trials in this Jurisdiction

67. From the foregoing review of the Irish case law and the case law from other jurisdictions a number of conclusions may be drawn about how the rule in Browne v Dunn ought to apply to criminal trials in this jurisdiction. Baker J. and others have correctly said that the use of the word ‘rule’ does not describe adequately or accurately its nature. It is not a rule of law or a rule of evidence. At most it is a principle of fairness but, in common with how it has been used in case law and in textbooks, it is appropriate to refer to it as the rule in Browne v Dunn. As I have said above at para 44, it is a rule of tripartite fairness.

68. The case law also supports the view that as a rule of fairness it has an impact on procedure at trials. It is appropriate to return to the words of Lord Herschell LC who identified the rule as not only essential to fair play and fair dealing with witnesses but as “a rule of professional practice in the conduct of a case”.

69. Abiding by the general principle that a party must put any positive case to the witness in cross-examination promotes the fair and efficient running of trials. There is a right time for making a challenge to evidence. Bringing witnesses back to be re-examined (or crossexamined) is potentially distressing and/or disruptive to witnesses but will inevitably disrupt the procedural efficiency in the administration of justice. The requirement to bring witnesses back may cause delays in that trial and consequential delay to trials that are backing up. It is therefore sensible and appropriate that witnesses are cross-examined in full at the first opportunity for doing so.

70. Whether in civil or criminal trials, two distinct matters must be considered when faced with an allegation of a breach of the rule: the first is whether the rule has been broken and the second is the remedy for such breach. The examination of the foregoing case law has led me to conclude that in respect of each of those issues, the fact that a criminal trial is at issue is relevant to determining if there has been a breach and if so, the remedy. I will discuss the nature of the remedy later, but it is vital to stress from the outset that the remedy, in the context of the running of the trial, must be related to addressing potential unfairness and it is not for the purpose of reprimanding counsel.

General Principles on Applying the Rule in Criminal Trials

71. The facts of this appeal will be addressed further below and in making general remarks about how the rule in Browne v Dunn ought to apply in criminal trials, it must be emphasised that these broad comments do not stem from actions taken by either counsel who conducted this trial. No criticism is intended and therefore ought not to be inferred in this outline of general principles.

72. As a rule of fairness, it cannot be applied in a rigid or inflexible manner. The extent to which fairness requires cross-examination in essentially dependent on how a trial runs (McDonagh v Sunday Newspapers). The remedy will also depend on several factors identified in R v Quansah and set out at para 62 above.

73. Criminal trials require special considerations for the application of the rule. Article 38.1 of the Constitution gives constitutional protection for the fair trial rights of the accused. As O’Malley J. stated in People (DPP) v Heffernan [2017] IESC 5, [2017] 1 IR 82, “[t]he presumption of innocence … is a bedrock principle of our criminal justice system” which has as its corollary that the prosecution must prove every element of a crime. The privilege against self-incrimination, as a constitutional right, is also a relevant consideration in a criminal trial. In common with civil trials, legal professional privilege will also play a role.

74. Juries are usually told in opening speeches that the accused does not have to prove anything and does not have to do anything in the course of the trial. This flows from the presumption of innocence and that the burden of proving guilt beyond reasonable doubt lies with the prosecution. To require an accused person to cross-examine a witness could not be consistent with the right to trial in accordance with law under Article 38.1. In that regard I agree with Baker J. when she said that there was no such requirement. That is not the same as saying that the rule has no application at all in a criminal trial. Fairness and common sense may mean however, that an accused on whose behalf there is no cross-examination, risks some kind of adverse comment if entirely outrageous or unwarranted attacks on credibility are advanced to a jury without any foundation whatsoever in the evidence.

75. The special position of an accused in a criminal trial means that the rule cannot apply symmetrically to the prosecution and the defence. Yet, while the accused’s right to a fair trial prevails over the community’s right to prosecute offences (per Denham J. in B v DPP [2007] IESC 18), the right of the community to fair procedures in a prosecution is nonetheless a factor. Importantly, the rights of victims (including complainants) must be considered at trial (People (DPP) v WC [2024] IESC 48). This is especially relevant in so far as vulnerable witnesses, most especially child witnesses alleging sexual abuse, are cross-examined. The Court of Appeal (Ní Raifeartaigh J.) in People (DPP) v VE [2021] IECA 122 identified how traditional approaches to trial might require some accommodations to be made for a complainant with a particular vulnerability and that the trial judge had the task of balancing enabling a child to give evidence while ensuring compliance with the requirements of Article 38.1. In another trial, People (DPP) v NR [2021] IECA 121, the Court of Appeal expressed great concern over the length of time over which the child was required to give evidence. Excessively lengthy cross-examination of child witnesses is not acceptable.

76. I make these remarks about child witnesses to highlight that purported adherence to the rule in Browne v Dunn may not be used to prolong or intensify a cross-examination that might not otherwise be appropriate. Fairness permits, and may require, flexibility. Fairness must accommodate all who have an interest in fair trials; the community, the witness (often the alleged victim), and in particular the accused. What is fair to require of the prosecution may not be fair to require of an accused person.

77. Undoubtedly and speaking generally, counsel for the accused must be entitled to point to inconsistencies in the prosecution evidence when making submissions to the judge/jury. To that extent I agree with the High Court of Australia in MWJ v R; it is not for the accused to clear up or resolve inconsistencies in the prosecution case. Indeed, if the inconsistencies are too great between the evidence of the complainant and the person to whom she made the recent complaint, then it is difficult to see the basis on which the latter evidence is admissible; recent complaint evidence is to show consistency. While more minor inconsistencies may not render the evidence inadmissible, it will be a matter for the jury to decide what they make of the totality of the evidence.

78. As all criminal practitioners know, if a witness has simply not ‘come up to proof’ in the evidence, counsel for the accused is under no duty to give the witness the opportunity to fill that gap by cross-examining on that issue. Indeed, such omissions will generally lead to an application for a directed verdict. Moreover, if there are other significant ‘omissions’ in testimony, naturally counsel may refer to those in seeking to raise a doubt. While generally an ‘omission’ in the evidence of the witness does not have to be the subject matter of cross-examination, nonetheless, there remains the possibility that what is termed by counsel as an ‘omission’ ought in fairness to be put. That will be a matter to be determined in the circumstances of each case and may only arise in a situation where what has been ‘omitted’ may not be a true omission at all but only a view of facts stemming from certain myths and stereotypes about victim behaviour (see further discussion below at para 84).

79. Where an accused decides to enter into a contest with the evidence that has been given by the prosecution by way of cross-examination of a witness or by giving evidence contrary to that of the witnesses, the accused is however bound by the usual rules that apply to crossexamination and to the calling or the giving of evidence. An obvious example is that an accused is no more allowed to give hearsay testimony than a witness for the prosecution. As referred to in People (DPP) v VE above, when cross-examining a child, counsel for the accused is bound by the ground rules which have been set as well as all the usual rules on cross-examination as to credit, previous sexual experience, or previous inconsistent statements. Cross-examination must not only be bound by rules of evidence, but it must be fair in accordance with applicable rules; one such rule of fairness is that of Browne v Dunn. If counsel intends to call evidence (be it the accused or another witness) then the relevant part of that evidence must be put to the opposing witness. That is only fair to the witness, to the prosecution, and to the jury (or judge/s sitting without a jury). Putting the case can be done in a variety of ways and counsel must be given a significant degree of latitude in that respect. What must be achieved is that the witness, the prosecution, and the trier of fact are clear about the terms of the conflict between the parties. If a particular factual matter is to be raised, like the presence or absence of a shoe (or other item) holding the door of the cell open as in R v Quansah, then that must be put to the witness. Whether there has been a breach will require careful analysis and I refer to the factors set out in R v Quansah referred to above at para 61.

80. Where evidence has been given by or on behalf of the accused, which was not put to the prosecution witness, the prosecution must decide whether to recall that witness. If the prosecution chose not to recall the witness, then no comment needs to be made by the prosecution or trial judge to the jury. If the witness is no longer available for any valid reason (and a particular additional stress to a child witness may be one such valid reason), then the jury may be told of this fact if fair and appropriate. I discuss in more detail in the section entitled ‘The Remedy’ how the issue of a comment by the judge ought to be addressed.

Counsel’s Speech and the Rule in Browne v Dunn

81. This appeal raises, or purports to raise, a specific issue; the breach of the rule is alleged to have only been completed at the time of the defence closing speech. None of the criminal cases are directly on this point, although the civil cases from England and Wales referred to above come close as they concern an attempt to impeach the unchallenged witness during closing submissions. McDonagh v Sunday Newspapers arose where the trial judge drew the jury’s attention to the lack of cross-examination of the gardaí by counsel for the plaintiff as to whether he had made the statement. The trial judge said that these were matters from which they may draw inferences. I have dealt with the right to point the jury to inconsistencies and omissions in the evidence above.

82. As a matter of principle,, the presumption of innocence and burden and standard of proof requires that counsel be permitted to invite the jury (or judge/s) to accept that the evidence has not reached a sufficient standard to justify a conviction in the absence of having crossexamined any witness or calling evidence. In most situations however, non-engagement with the evidence may not be the most practical or effective approach to a defence in most cases. Without having cross-examined or having put forward any other evidence or in the absence of inconsistencies, it would be exceptionally difficult to make a speech to the jury with any hope of success unless the witness’s evidence was so inherently “incredible and romancing a character” that the jury could be relied upon not to accept it. No doubt it would be a rare occurrence for such an approach to be taken to the defence of an accused, but, nonetheless, the principle stands; counsel is entitled to invite the jury to accept that the evidence that they have heard is not sufficient for them to be satisfied beyond reasonable doubt of the guilt of the accused. In jury trials, there is an added constitutional dimension that requires the judge to be scrupulous in ensuring that the decision on guilt or innocence (and thereby acceptance or rejection of evidence in whole or in part) is a matter for the jury and for them alone.

83. Raising new issues of fact in a speech to the jury which had not previously been put before the jury ought never to happen. Counsel cannot introduce ‘new evidence’ and to do so would be contrary to professional standards. Difficulties may arise however in the grey area where counsel raises what are said to be matters of ‘common sense’. Defence counsel might seek to downplay evidence of identity because it was dark given the time of night and time of year. That might, possibly, in the particular circumstances of the trial appear unfair; an urban well-lit area on a clear night of the full moon may have given every opportunity for the witness to make an identification. On the other hand, the opportunity for making the identification is a matter that was within the power of the prosecution to bring out in evidence. The trial judge must decide whether there has been an unfairness to a witness bearing in mind the right of the accused to a fair trial.

84. On the other hand, counsel may have raised what are claimed to be matters of ‘common sense’ but which in fact perpetuate myths and stereotypes about victims of sexual abuse. In the Court of Appeal in England and Wales in R v JD [2008] EWCA Crim 2557, the defence to an allegation of rape within an ongoing, if deteriorating, relationship was one of consent and the defence relied heavily on the delay in the making of the complaint. The trial judge commented extensively to the jury on the trauma of rape and the effects of shame on a victim. The Court of Appeal accepted that a judge was entitled to make comments as to how evidence is to be approached particularly in areas where there is a danger of a jury coming to an unjustified conclusion without an appropriate warning. They held that “the fact that the trauma of rape can cause feelings of shame and guilt which might inhibit a woman from making a complaint about rape is sufficiently well known to justify a comment to that effect”. The conviction was however overturned because the judge in that case had gone too far in his comments. I mention that case because the courts in this jurisdiction have long since acknowledged that victims often delay in reported sexual abuse (e.g. SH v DPP [2006] IESC 55, [2006] 3 IR 575). There can be no difficulty with telling a jury of the received wisdom of the courts in the countless cases dealing with allegations of sexual offending. Moreover, if there has been no cross-examination of a complainant as to the reasons for any delay, fairness would appear to indicate that the jury should be reminded of this fact together with an explanation that feelings of guilt and shame can inhibit the making of the complaint. A more detailed instruction to the jury may be needed in the case of children.

85. The rule of fairness necessarily also applies to the speech of counsel for the prosecution and indeed it does so with even greater force. If the accused has given or called evidence, prosecution counsel may only impeach their credibility having regard to the evidence given at the trial and to matters raised in their cross-examination which left them, and indeed the jury, in no doubt that the witnesses’ credibility was being challenged. It is not every minute detail of disagreement that must be put to a witness so long as it is made clear that the relevant parts of their testimony are being challenged.

86. Finally, and with respect to the general adherence to the principles of fairness inherent in the rule in Browne v Dunn, it must be acknowledged that these principles appear to be well known and adhered to by counsel appearing in the criminal courts. Much of what I have referred to heretofore is a restatement of the principles underpinning the fair and efficient running of trials in which counsel fearlessly and fairly advance their clients’ interests in courtrooms all around the country.

The Remedy

87. If, however, there is a breach, what is the remedy? That will again depend on a consideration of those factors (and any other relevant matters) outlined in R v Quansah and set out at para 62 above. A one size fits all approach to the remedy cannot be adopted. Careful attention must be paid to the timing of any request for a remedy. The moment to raise the issue is the moment the breach occurs. That is when it may be remedied. If there has been an unfortunate omission by defence counsel to put even the most basic denial to the witness, then prosecution counsel may discreetly raise the matter with counsel and if necessary, the judge in the absence of the jury. If the prosecution become aware from hearing the evidence given for the defence that a matter was not put to the prosecution witness, the time to raise it is then and there. Delaying may disentitle the prosecution from seeking a remedy in which the judge will give a jury direction on the matter.

88. First and foremost, the remedy of being permitted to recall a witness to be questioned about the omitted fact will be for the prosecution to seek by way of application to the trial judge. Whether to so seek to recall their own witness is a tactical decision of the party who called that witness in the first place. If that party decides not to recall the witness, then that should be the end of the matter and no further comment may be made. If the witness is no longer available for any valid reason (and again, additional stress to a child witness may be one such valid reason), and the trial judge is satisfied that permission to recall would have been granted if the witness was available, then the jury may be told of this fact if it is thought fair and appropriate to comment on the lack of cross-examination having considered all the relevant factors and this is discussed further in the following section.

89. The accused’s right to a fair trial limits what the prosecutor may do in cross-examination of an accused who has given new evidence. It may be appropriate for a prosecutor to point out in their cross-examination of the accused that the witness was not cross-examined on the new evidence, but when pursued this is only for the purpose of highlighting this to the jury and not for the purpose of insinuating that it is a recent invention and not given in instructions to counsel. This will usually be in circumstances where prosecution counsel has decided, with the court’s permission, to recall the witness for the purpose of permitting cross-examination on this point or asking the question themselves in re-examination. In those circumstances, making the point in cross-examination of the accused will explain to the jury exactly why the witness is being recalled. There may be a rare and exceptional occasion when the new addition is so contrary to unchallenged memoranda of interview and to the manner in which the cross-examination of the witness had followed those memoranda that it is appropriate to raise recent invention. Great care must be taken in those circumstances not to stray into legal professional privilege and, it would appear to be prudent for the prosecution to seek a ruling from the trial judge in the absence of the jury before embarking on such an approach. The Judge’s Direction where there has been a breach of the rule

90. If, in a criminal trial, the rare situation has been reached where the judge determines that, having regard to the nature of the breach of the rule and the lack of any other remedy, fairness demands that the jury be given a direction, what ought that direction contain? In the first place, it is important to recall its purpose; to bring fairness to proceedings by explaining the relevance of the lack of cross-examination. Its purpose is not to reprimand counsel (or the accused if self-represented) but is to put the absence of cross-examination in context (see para 93 below).

91. The comment may not contain a direction that the untested and/or uncontradicted evidence must be accepted because it has not been so tested. At all times, the trier of fact is entitled to weigh all the evidence in the balance in reaching a decision. That decision also remains with them whether or not evidence was controverted. Great care must be taken not to usurp the function of the jury.

92. Baker J. in DPP v Burke and O’Malley J. in AC v O’Brien accepted that the untested and uncontradicted evidence carried greater weight than tested contradictory evidence. McKechnie J. in McDonagh v Sunday Newspapers said he did not necessarily agree with that. I too am unconvinced that such a conclusion follows. Much will depend on the circumstances. Baker J. so held having referred to dicta from Hardiman J. in the case of Boliden Tara Mines Ltd v Cosgrove [2010] IESC 62. In my view, Hardiman J. was not laying down a rule of law to that effect. Instead, he thought “it to be a salient feature going to the weight of the evidence”. In other words, in the circumstances of that case, the lack of challenge was relevant to the weight he gave to the specific evidence. I am of the view that a jury ought not to be instructed to give greater weight to untested evidence but instead may be instructed to give the evidence the weight they think is appropriate in the circumstances.

93. In McDonagh v Sunday Newspapers, the trial judge told the jury that they were entitled to draw inferences from the fact that the gardaí had not been challenged on their evidence with regard to the contents of the memoranda. Such a direction ought not to be given to the jury unless it is pointed out to them what inferences they could draw from it. It will only be in the rarest case, such as a clear-cut case of recent invention, that an inference as to the credibility of the accused could be put. Generally it will be sufficient to “point out to the jury that the particular matter was not put to the relevant witness; that it should have been put so that the witness could have the opportunity of dealing with the suggestion; and that the witness has been deprived of the opportunity to give that evidence and that the [jury] has similarly been deprived of receiving it” (per sample direction by the Supreme Court of Queensland in R v Foley [1998] QCA 225). It may also be appropriate to add that in those circumstances the jury may take into account that the evidence was unchallenged when assessing the weight to attach to it. I repeat however, the necessity to give a direction to the jury ought to arise in only the rarest of cases. The rule exists as one of fairness designed to assist the trier of fact in reaching an appropriate verdict. All parties must take timely action to ensure that the trier of fact has all the appropriate evidence, contested where appropriate, before it and thus it will rarely be necessary to make such a comment to the jury. Was there a Breach of the Rule in this case?

94. Of all the matters raised in objection by prosecution counsel, the trial judge only referred to three in her charge to the jury: that the complainant had referred to sexual assault (and not rape) in her letter to her mother, absence of mention of pain anywhere but her hands and absence of any sensation of weight on top of her. These are the only matters which are the subject of this appeal.

95. The issue relating to the reference to the initial complaint being one of sexual assault (and not rape) was not, it seems, pursued with vigour either before the Court of Appeal or this Court. What is apparent from what counsel said on the transcript, on the day following the initial complaint, the complainant’s parents brought her to the doctor. The complainant answered ‘yes’ when asked by the doctor if there was intercourse. There was apparently an agreement between counsel that this evidence would not be called unless there was any suggestion of recent fabrication. Counsel for the defence submitted to the trial judge that she was not suggesting recent fabrication but making a point about the absence of a complaint of rape in that note. It is perhaps noteworthy that a schoolfriend’s statement was read into evidence which appeared to suggest that prior to writing that note her friend had ‘mentioned’ rape to her.

96. It is appropriate to observe that there should never be a grey area as to what can and what cannot be done when counsel have agreed not to lead evidence. Clearly, if counsel for the defence had suggested that the issue of rape was “a recent fabrication” this would have been improper; counsel for the defence did not do so, however. As for the supposed obligation to question the witness on this, it seems to me that it was evidence introduced by the prosecution to show consistency and if it appears inconsistent, then defence counsel was entitled to highlight this to a jury without having given the witness an opportunity to explain such inconsistency. Having considered the circumstances here I do not consider that it amounted to such a breach. I would comment however that the difference between sexual assault and rape may not be one which every child or even every juror has at the forefront of their minds, and it may well be permissible for a judge to make a comment on this subject with full consideration of fairness in so doing.

97. As to the other alleged breaches of the rule, it will be recalled that defence counsel submitted to the jury, that the matters of pain and weight were, along with ejaculation and an erect penis, things “you would expect to hear when someone is describing this act, particularly when you’re dealing with a child who isn’t familiar with these things”. Counsel is entitled to make comment on absence of evidence in suggesting that the jury ought to have a reasonable doubt. As a general comment, I am not sure that it can be assumed that jurors have familiarity with what victims of sexual abuse and in particular child witnesses may say when describing the abuse. The courts are coming towards the stage where it is recognised that, either from embarrassment (or possibly internalised sense of shame) or a desire to avoid returning to the abuse, victims may be reluctant to be forthcoming in discussing that abuse. The DPP also makes the point that repeated child abuse, as there was here, may normalise abuse and thus a child may struggle to recognise these features; that may be so but how to advance that argument in a given case will be dependent on all circumstances of that case. If a crucial matter is judged to have been omitted from an interview, even a specialist interview, the Gardaí and even at a later stage the DPP, will have an opportunity to organise a further interview. All of that must be considered before a failure to cross-examination on ‘omissions’ would amount to a breach of the rule, if those ‘omissions’ are relied upon in counsel’s submission to the jury. If the stage is ever reached where it is permissible for a judge to make comment on the absence of cross-examination on an issue, the judge must be assiduous in ensuring that the correct balance has been kept between permitting defence counsel to raise a doubt on evidence and ensuring that the considerable experience of the courts of hearing victims (so found) struggle to give evidence is made available to a jury. It is important to focus on the issues pursued in this appeal and I make no finding that any such general comment was appropriate by the judge in this case.

98. The DPP pointed out that defence counsel had been incorrect to say that the complainant had been asked ‘anywhere else’ when she said she had sore hands. This is correct, the interview had asked ‘anything else’ at the end of the interview. A mistaken reference to evidence is not a breach of Browne v Dunn and generally it is something a judge is entitled to correct. In the present case, the judge did not focus on correcting that reference but dealt with it by telling the jury the issue of pain had not been put to a child. It did not amount to a breach of the rule.

99. The absence of reference to pain and that of weight in the evidence of the child were identified as ‘weaknesses’ in the evidence by defence counsel. Counsel had already made it clear to the witness that the accused did not accept that he had raped her. She did not call any evidence of a factual nature that was not put to the witness. The evidence of the accused was to deny the rapes. In my view, the reference in the speech to pain was justified because the complainant had been asked if she noticed anything about herself afterwards and when she said “I was sore” she was asked “where were you sore” and she replied “em my hands”.

No defence counsel could be expected to cross-examine a child on the basis that if this had happened, she would have felt pain directly from the penetrative act. Moreover, this was not a generalised or gratuitous reference to the absence of pain but was one which related to the evidence that was actually given in response to a specific question. The DPP argues that specialist interviewers are constrained in what they ask and while that may be so, they could have asked further questions about the other instances of rape which could, but may not, have elicited a different answer.

While it might possibly be that not every 10-year-old may experience pain on being raped by an adult male, the apparent absence of pain is, in the absence of evidence to the contrary, a valid matter to raise with the jury when asking them not to accept that the case has been proven beyond a reasonable doubt. The categorisation of the ‘omission’ by the complainant to refer to the weight of the accused is perhaps something that invited the jury to speculate. This case was not run on the basis that the entire matter was speculation, it was brought on the very specific basis that it was a breach of the rule in Browne v Dunn.

In considering whether there was such a breach it is important to recall that the right to a fair trial of an accused limits the extent to which there can be compelled – through fear of retribution – engagement with evidence. This was a comment on a matter on which the jury would have to use their own common sense in making an assessment as to whether this was an ‘omission’ at all or if so, an ‘omission’ that went to the credibility of the witness. This can be distinguished from the situation where the accused had given evidence of a particular fact that was not put to the witness.

This was a ‘fact’, if ‘fact’ it be, that an accused denying the rape could not have given any relevant evidence about. It was ‘a comment’ in a true sense on evidence not given. In those circumstances there was no breach of the rule and thus no cause for the judge to comment in relation to a purported breach. Issue 2: The Extent to which a Trial Judge May Draw the Attention of a Jury to Issues Not Raised with Witnesses

100. As there was no breach of the rule in Browne v Dunn, I have concluded that it would have been preferable if the trial judge had not commented on counsel’s speech to the jury. That leads directly to the ground of appeal which was directed mainly towards criticism of the Court of Appeal which had found that the judge was entitled to comment despite their being no breach of the rule. The question to be addressed here is whether the comment by the judge in circumstances where counsel had done nothing wrong in the course of addressing the jury had rendered the trial unsafe and unsatisfactory.

101. At the appeal, counsel for the appellant accepted that there is no legal rule which prevents a trial judge from commenting on the evidence, the case of the prosecution, or the case of the defence. Indeed, the appellant accepts that a trial judge may comment adversely on an aspect of a case but that such comment will only be permissible insofar as the charge as a whole is balanced and fair.

102. Citing The People (DPP) v Rattigan [2017] IESC 72, [2018] 3 IR 417 (“Rattigan”), the appellant emphasised that the trial judge has a fundamental role in explaining legal principles to the jury, and in cases of significant complexity or length, the evidence relevant to the jury’s role as the arbiter of fact. The DPP also relied on Rattigan which is the authoritative decision as regards judicial comment to the jury. The only issue is whether this comment (even assuming there had been no breach of the rule in Browne v Dunn) crossed the line laid down in Rattigan.

103. I agree with the appellant’s submission that when assessing whether a comment is permissible, the fact that it is made by the presiding judge takes on a special significance. As stated by O’Malley J. in Rattigan, juries look to the judge for impartial guidance and that they tend to assume that they will be neutral as well as more experienced and knowledgeable about criminal investigations and trials. O’Malley J. cited with approval from a passage in The People (DPP) v McDonagh [2010] IECCA 127, that as lay persons a jury may confer on a view expressed by a judge an importance or status which, in turn, undermines the hallmark of a jury system, independence. That passage included the following: “Therefore, even when a judge engages with the facts, he or she must emphasise, with particular care, that the views expressed may be entirely ignored and that, ‘fact’ is purely and exclusively a matter for the jury”.

104. The appellant submitted that there are relevant factors to be assessed in the case at hand in deciding whether or not it is permissible for a trial judge to draw the attention of the jury to the fact issues were not raised by the defence. These relevant factors include the fact that the appellant admitted sexual assault but denied rape and gave evidence to the jury. This was against the backdrop that a full and comprehensive account of the appellant’s behaviour towards the injured party was put before the jury and that the injured party was asked to describe same. Furthermore, the appellant submitted that the comments of the trial judge should be assessed in the context of the entirety of the closing speech as a whole. In circumstances where it was explained to the jury that the only thing that the appellant could do was deny the rapes, counsel for the defence asked the jury to assess the injured party’s account of the rapes. The appellant submitted that the trial judge’s comment to the jury that these matters were not put to the injured party could only have the effect of undermining counsel’s closing speech.

105. In Rattigan, this Court held that the comment by the judge, coming at the end of a ‘model charge’ amounted to a ‘devastating critique’ of the defence case. The Court held that the relevant passage “was capable of driving some or all of the members of the jury to believe that they had little choice but to convict, and that there is a real possibility that it did so”. The comment in the present case is far removed from the comment condemned in Rattigan. The trial judge made no critique of the case being made nor of the counsel who made it. It must also be said that the ground of appeal to the Court of Appeal was that the trial judge erred in instructing the jury that a lesser weight should be attached to matters put to the jury by defence counsel. This was not what the trial judge had said, she had reminded the jury that the matters were not asked of the witness and said it was a matter for the jury to weigh all the evidence and to consider all the evidence and the significance to attach to it.

106. It must also be remembered that in the present case, counsel while not agreeing that any rule had been breached, engaged with the trial judge on what the jury ought to be told. As set out in the Court of Appeal judgment at para 9, the following occurred after the judge indicated she would charge the jury in relation to the matter: “The judge stated further: ‘Now, it is entirely a matter for the defence to decide how they’re going to run their defence. But I think the jury should be told, these were not put to the complainant.’ Defence counsel, in seeking to ensure she understood the ruling, summarised the position as follows: ‘…it does seem to me that the jury are being put in a position where they’re being told that if the defence wish to rely on it, they ought to have put it and that would seem to stray into some obligation on the defence.’ The judge enquired if there was particular wording counsel for the defence wished for the judge to use. Counsel indicated her concern was that the jury were left with the belief that something underhand occurred on the part of the defence, and it seemed that what was being argued for by the Director is that a defence counsel could not apply for a direction because they did not put certain things to the complainant. Counsel indicated the Court’s wording was fine, once it could not be implied that there is an obligation to do it.”

107. After the trial judge gave her charge there was no requisition, nor could there have been one, that the judge had implied that there had been such an obligation. Indeed, the trial judge was conspicuously neutral on the issue of who should have asked the question to the witness.

108. I am satisfied that in the context of this case and considering the judge’s charge as a whole which was fair and balanced, that there was no unfairness in the judge commenting as she did. The judge’s comments could not be taken as an instruction to the jury as to the judge’s view or to point to a particular verdict. The comment left the weight of the evidence and the significance of the evidence to the jury.

109. In light of all the circumstances, the charge was not unfair.

Conclusion

110. The rule in Browne v Dunn may be generally stated as requiring a party who intends to call rebuttal evidence (or otherwise impeach a witness’s testimony) to have laid a foundation for this in cross-examination of that witness. It is not a rule of law or evidence but a principle of fairness; fairness to the witness, the opposite party and to the trier of fact (judge or jury).

111. The application of the rule in Browne v Dunn to criminal trials was not challenged in this appeal. As a rule of fairness, its application in a criminal trial must be subject to the right of the accused to a fair trial under Article 38.1 and an accused cannot be required to cross-examine a witness. The application of the rule does not require long or detailed crossexaminations. The rights of witnesses, especially victims, not to be subjected to oppressive or inappropriate cross-examination for their age or vulnerability, must be respected.

112. Where a perceived breach of the rule has occurred, the time for taking objection is immediately after the breach. Prosecutors have a particular duty in this regard.

113. Where an accused gives evidence of factual matters that ought to have been put to a witness, the prosecution must be careful that their cross-examination does not stray into questioning the accused about the possibility that the reason the witness was not so crossexamined was because it was a recent invention by the accused. This could trespass on legal professional privilege. If there is a situation where counsel has reason to believe that it can be established that it is recent invention without straying into the issue of legal professional privilege, counsel ought to seek the leave of the trial judge to do so.

114. In closing speeches, counsel are entitled to comment upon inconsistencies both within a witness’s testimony and also as between witnesses. Counsel for the defence is also entitled to refer to asserted omissions in the evidence or to apparent exaggerations in the evidence with the aim of raising a doubt. Not all ‘omissions’ are true ‘omissions’ and thus there may be some situations where an unfairness could arise where such an ‘omission’ was outside the range of evidence that the witness might properly have been expected to give evidence upon. If myths and stereotypes are relied on by counsel, then in an appropriate case where that issue is clear, the trial judge may be entitled, with circumspection, to instruct the jury with a view to assisting them in reaching a proper verdict, as to the experience of the courts which runs counter to those myths and stereotypes.

115. The remedy for a breach is usually to give the opposing party an opportunity to recall the witness. If so, no further comment from the prosecution or the trial judge, other than to explain the reason for the recall, is necessary. If the witness is unable to be recalled, some comment to the jury may be necessary. So too may comment be required if there is a breach of the rule by counsel in closing. Whether comment is required will depend on a range of factors which must be assessed by the trial judge. The extent of any comment will also depend on considerations of fairness bearing in mind the objective of enabling a jury to reach a fair and proper verdict. The purpose of the comment is never to reprimand counsel. It is to provide a fair remedy for the unfairness generated by the breach of the rule.

116. There was no breach of the rule in Browne v Dunn in this trial.

117. The comment made by the judge in this case was, however, conspicuously neutral in tone and content, no criticism of counsel was made, the jury were not instructed to reach any particular verdict and were told to give this matter whatever weight or significance they considered appropriate. The comment did not render the charge or the trial unfair.

118. In all the circumstances, I would dismiss the appeal.