Court of Appeal dismisses rape conviction appeal where cross-examination on private images failed relevance test.

THE COURT OF APPEAL

Birmingham J.

Mahon J.

Edwards J.

107/16

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

Respondent

V

Robert Keogh

Appellant

JUDGMENT of the Court (ex tempore) delivered on the 11th day of May 2017 by Mr. Justice Birmingham

1. After a trial which lasted 13 days the appellant was convicted on 10th February 2016 of two counts of rape, two counts of s. 4

rape and one count of assault causing harm. Subsequently, on 18th April 2016, he was sentenced to a term of 13 years imprisonment.

He has appealed against conviction and sentence and this judgment deals with the conviction aspect.

Background

2. The trial was concerned with events that occurred on 19th July 2012 at the address of the appellant at the Hermitage in Port

Laoise. The prosecution case was that the appellant had invited the complainant to come to his house on the pretence of doing some

painting in exchange for some money whereupon he dragged her upstairs, raped her vaginally and then anally in an upstairs bedroom,

dragged her across to the bathroom where he showered her, then brought her back to the same bedroom where he then raped her

again, both vaginally and anally, before returning her to the shower. The defence case at trial was that there was no sexual activity

with the complainant but that it was the case that the complainant had made inappropriate advances towards the appellant in the

course of the painting work which resulted in him using what was described as a certain degree of force to reject her advances.

3. The grounds of appeal relied on are as follows:-

(i.) that the judge erred in law or in a mixed question of law and fact in refusing to accede to an application made by

counsel for the appellant to recall the complainant during the course of the defence case for the purpose of cross

examining her on a fundamental inconsistency as between a statement made by her to the gardaí and her evidence at

trial in relation to her knowledge of the layout and contents of the upstairs bedrooms;

(ii.) that the judge erred in law in failing to warn the jury of the dangers of convicting in the absence of corroboration;

and

(iii.) that the judge erred in law in refusing the appellant leave pursuant to s. 3 of the Criminal Law (Rape) Act, 1981 to

adduce evidence and/or cross examine the complainant about a sexual experience with a person other than the appellant,

namely the possession of explicit sexual images stored on her mobile phone.

The recall of the complainant

4. The issue arose on day 7 of the trial. It should, however, be noted that the prosecution case closed at lunchtime on day 5 and

that during the afternoon of day 5 the defence opened its case calling first the mother of the accused, as well as another witness in

respect of whom an application pursuant to s. 3 of the 1981 Act had been made and had been acceded to. That witness gave some

further evidence on day 6 of the trial and was followed by his sister and then by the accused who gave evidence in his own defence.

His direct evidence continued on day 7 and he was then cross examined. When that finished, at that stage, in the absence of the

jury, senior counsel for the appellant, Mr. Blaise O’Carroll S.C. read the second statement that had been made by the complainant to

An Garda Síochána which had described the layout of the house where the complainant said the rape occurred. The trial judge

enquired of counsel what he was seeking to do with the complainant’s statement and counsel indicated that the problem he had

related to the main bedroom. He did so in these terms:-

[This exchange with the judge took place after Mr O’Carroll had read the statement]

The judge asked:-

“When you say, Mr O’Carroll, that’s all you want to do, what are you seeking to do with Ms F.’s statement? That’s what

you’ve read over to me, is that correct? It’s her second statement.”

And counsel responded:-

“That’s correct, Judge, and I know the problem is I am not sure if we actually got that bit out of … certainly we got the

bathroom and upstairs and the door on the right or two doors on the right but I can’t, I just can’t remember if we actually

got into the main bedroom. If we did, that’s the end of it; if not, it’s just that little bit of evidence.”

The description given by the complainant in the course of the statement had been as follows:-

“I have been asked by Garda Standish about the layout of the house. I can recall most of the layout of his house. When

you walk in, the sitting room is on the right hand side. On the left there is a staircase. Straight down the hall there is a

kitchen table. It is not a long hallway. In the kitchen there is a dining area with a table and a few chairs. There is also

two French doors out to the garden. That’s the whole ground floor as far as I can remember. You go upstairs and then

you turn right a little bit. On the right side there is a bedroom which it happened in. Further up from it on the right, I

think, there is another door. It was dark and I didn’t have my glasses on so I am not sure. On the left, as you come up

the stairs, there is a bathroom and then the main bedroom. I remember the main bedroom because it was the only bed

with bedding. When Robert brought me upstairs it was the first and only time that I have been up there.”

In the course of his application counsel commented:-

“So it’s only something that’s occurred to me now that given [the complainant’s] description of the alleged rapes in the

case and her description of where it happened, in the first bedroom on the right hand side and that is the extent, she is

dragged back into the shower, back into the same bedroom, back into the shower, then back into the bedroom to get

dressed and they go down, so how does she know about the main bedroom, that is the essential thing. So she… and

that’s all, that’s all I want to do.”

5. As we have seen, the judge pressed counsel as to just what his application was and he indicated that it was either a question of

recalling the complainant and him putting that to her, putting to her that she had said, or alternatively having the matter dealt with

by Garda Standish, the member of An Garda Síochána who took the statement. The trial judge indicated that she did not see any

scope for the statement being read by Garda Standish but said that she would check the position to see to what extent the bedroom

had featured in the cross examination over lunch. Then, after lunch, the judge explained that she had indeed looked at the transcript

and had not seen any question regarding the master bedroom but went on to say that she was not satisfied to exercise her discretion

to permit the witness to be recalled, adding

“The statements were obviously available for a considerable period of time and the prosecution’s case is concluded at this

point in time. I am aware that I could exercise my discretion at any point in time, even after the case is concluded and

speeches have been made, but I am not satisfied to do so in the interests of fairness in this case.”

6. The ground of appeal which was quoted above gives a slightly misleading impression of what the point in issue here is in that it

speaks of a fundamental inconsistency as between a statement made to the gardaí and the complainant’s evidence at trial. However,

in fact what the appellant wanted to do was to have the complainant recalled at a time when not only had the prosecution case

closed but effectively the defence case had to. In order to deal with a statement that had been made available in the usual way at a

very early stage and that in a situation where counsel was unsure whether the topic had or had not been dealt with at an earlier

stage. The fact that there was uncertainty about whether there had been questions about the main bedroom and that the transcript

had to be examined in that regard showed how completely marginal this point was. [The Court is in absolutely no doubt but that the

trial judge was entirely justified in exercising her discretion in the way that she did. Giving evidence as a complainant in a rape trial is

not easy and recall is likely to be the exception rather than the rule, though it is certainly possible to imagine cases where the

interests of justice would so require. Permitting the recall of a complainant after the prosecution and the defence cases have closed,

as was proposed here, would be even more unusual and the judge was entitled to take the view that this was not the case for it to

happen.]

The absence of a corroboration warning

7. The question of a corroboration warning was raised with the judge before closing speeches when counsel for the appellant

indicated that he was seeking a so-called Lucas direction and also a corroboration warning. The judge then ruled on the matter as

follows:-

“As I indicated, I will give a Lucas warning. The lies are capable, in law, of amounting to evidence of corroboration with

the usual warnings attached to the purported lies and as to how they should be considered and assessed by a jury. I

have a discretion under s. 7 of the Criminal Law (Rape) (amendment) Act, 1990 as to whether to give a corroboration

warning and in considering whether to give any such warning in the instance of this particular case, I obviously have had

regard to and am familiar with the jurisprudence and in particular with the decision of J.E.M. I have regard to the fact that

there is evidence which is capable in law of amounting to corroboration, there are two strands of that particular type of

evidence, being the evidence of the purported lies and being the evidence of the injuries sustained by the complainant.

These are pieces of evidence which are capable, as I have said, in law, of amounting to evidence of corroboration.”

8. There are certain inconsistencies in the complainant’s account as to the sequence of events but is in the nature of allegations that

there are on occasions inconsistencies in the evidence and that is a matter which can be addressed and dealt with if so wished by

the defence. But in this particular instance, given that there are two pieces of evidence capable of amounting in law to corroboration

I am not satisfied to exercise my discretion by giving a corroboration warning and having considered the entirety of the evidence I

refuse to give such a warning.

9. The starting point for consideration of this issue is to be found in s. 7 of the 1990 Act which abolished the requirement for a

mandatory corroboration warning. In this case the judge referred to the J.E.M. case and confirmed her familiarity with the

jurisprudence in the area. The J.E.M. case had referenced the decision in England in R.N.. Macinjola and the Court of Criminal Appeal

had made the point that the English and Irish statutory provisions which introduced change were underpinned by the same legal

principles and then endorsed broadly the approach of Lord Taylor L.C.J. in Macinjola. The trial judge referred to J.E.M. and to the

jurisprudence and indicated her familiarity. She then referred to the fact that there were certainly inconsistencies in the case and by

so doing indicated that she regarded the presence and extent of inconsistencies as a relevant consideration when considering how to

exercise a discretion before going on to refer to the injuries sustained by the complainant and the lies that were told by the appellant,

these being the factors which resulted in her exercising her discretion against giving the warning.

10. In the Court’s view the approach of the trial judge to the application that was made to her was a perfectly proper one. The Court

is in absolutely no doubt that the trial judge was entitled to exercise her discretion in the way that she did and the Court sees no

basis for interfering with the exercise of that discretion.

Ground 3 – the application to cross examine the complainant in relation to the possession of explicit sexual images on her

mobile phone

11. It is to be noted that there were two separate and distinct applications made on behalf of the appellant pursuant to the relevant

statute. The first was that he would be permitted to ask questions, and indeed subsequently to call evidence, in relation to the fact

that some 13 days after this incident the appellant had a sexual experience which involved oral sex. That application by the appellant

was acceded to and as we have already seen a witness was called in that regard as part of the defence case. The second

application (and it is with this that we are concerned at this stage) related to a series of images which had been saved on a media

card on the complainant’s phone. The Court was told by counsel on behalf of the complainant, who had intervened in the proceedings

in accordance with the statutory provisions, that the images had been e-mailed to his client by a friend of the client and that she had

then deleted the images. Counsel for the complainant argued that the act of the friend sending unsolicited sexual images arguably

amounted to a transaction that was a sexual experience with another person and said that the application was being made really as

an exercise in caution.

12. Counsel for the complainant submitted that it was a case where leave was required as the sending of the images by another

meant that there was interaction with another and the context, the sexual context, meant that this was a sexual experience with

another so that leave required.

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

“Well I am satisfied that the application comes within the terms of s. 3 in that the section envisages any sexual

experience of a complainant with any person. The next question to be decided is whether the material is firstly relevant

and then there must be something in addition to relevance, it must be that the statutory criterion under the act are met

in order to enable leave to be granted for cross examination in this category of case. I am not satisfied that the material

meets the relevance test in the first instance and therefore the statutory criterion do not have to be considered. Now,

even if I am wrong in that I am satisfied that s. 3 does apply, even taking it on the basis of a standard objection to the

material on the basis of admissibility, on the basis of relevance. I am not satisfied that the material is relevant on that

basis alone and I will refuse the application and return the material.”

14. On the hearing of this appeal, counsel for the appellant says that the account that was given by the complainant was so unusual

that the images on the phone do have a relevance and the cross examination should have been permitted to proceed. In the course

of this morning’s hearing the members of the Court were asked to view the images. This was in a situation where members of the

Court had expressed some scepticism as to how such images could be regarded as relevant. The Court did as it was requested to do

but still remains unconvinced that the images could be regarded as having any real relevance. It is to be noted that in deciding

whether to grant leave once an application under s. 3 had been made that the Court was not at large. The statute provides that the

judge should give leave if and only if he is satisfied that it would be satisfied that it would be unfair to the accused person to refuse

to allow the evidence to be adduced or the question to be asked but significantly it then goes on to say as follows:-

“That is to say, if he is satisfied that, on the assumption that if the evidence or question was not allowed the jury might

reasonably be satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or

question might reasonably be that they would not be so satisfied.”

15. The Court does not see how the images would ever come close to meeting the statutory threshold. Indeed, even if the statutory

considerations are completely put to one side the issue would not cross the basic threshold of relevance. Simply because a person

makes a complaint that they have been a victim of crime does not mean that they abandon their right to privacy or that they lose

that right. Someone wishing to question an individual about private or intimate matters must establish that the proposed line of

enquiry has a relevance. This the appellant has not been in a position to do. In those circumstances the Court will dismiss this ground

of appeal.

16. In summary, then, the Court is rejecting all grounds of appeal that have been argued and so dismisses the appeal against

conviction.