The Gazette 1993

SEPTEMBER 1993

GAZETTE

out that a number of hours elapsed before the second and third defendants had given their statements to the Gardai. The defend- ants were convicted on the counts of rape and actual bodily harm. On appeal HELD by the Court of Criminal Appeal (McCarthy, Keane and Budd JJ) dismissing the appeal: (1) in relation to the first defendant, this was not a case in which visual identification was challenged for accuracy in the ordinary sense, since the first defendant admitted he had been at the scene in question; and accordingly a specific warning to the jury on the dangers of convicting on visual iden- tification was not required. The People v Casey (No.2) [1963] IR 33 distinguished; (2) the case against the first defendant turned on the issue whether the complainant's evi- dence that he had raped her was bel ieved by the jury; and having regard to the fact that, overall, the trial judge had fairly put the defendant's case in his direction to the jury, the Court would not interfere with what essentially was a matter for the jury, who had an opportunity to see the complainant's evidence at first hand; (3) while counsel for the second and third defendants was enti- tled to put every legitimate case to the jury in closing submissions, it was equally the duty of the trial judge to draw the jury's attention to whether any such defence case was based on a statement of fact that was not true or not wholly true; and the trial judge's direction as to the time lapse before the second and third defendants made their statements to the Gardai came within the scope of this duty, and he had acted cor- rectly in so doing. The People(D.P.P.) v McKeever Court of Criminal Appeal 16 July 1992 CRIMINAL LAW - TRIAL - PROCEDURE - MAJORITY VERDICT - FUNCTION OF TRIAL JUDGE - WHETHER JUDGE REQUIRED TO WARN JURY NOTTO DISCUSS CASEWITH OTHER PERSONS - APPEAL - TRANSCRIPT - WHETHER ACCURATE - SENTENCE - Courts of Justice Act 1924, s.97 - Criminal Justice Act 1984, s.25 The defendant was charged in the Circuit Criminal Court on three counts arising from the same incident: robbery of £35; posses- sion of a firearm with intent to commit an indictable offence, namely robbery; and laossession of a firearm with intent to endan- ger life. At his trial, the defendant was ac- quitted on the charge of possession of a firearm with intent to endanger life, but was convicted by a majority of 10 - 2 on the other two charges. He was sentenced to two con- current terms of 6 years imprisonment. On appeal HELD by the Court of Criminal Ap- peal (O'Flaherty, Lynch and Denham JJ) dismissing the appeal against conviction but allowing the appeal against severity of sentence: (1) the transcript certified for the purposes of an appeal under s.97 of the 1924 Act should as far as possible be accu- rate, but inevitably there may be some inac- curacies; however, there was nothing in the instant transcript to support the defendant's claim that an entire question and answer recorded in the transcript was not, in fact, put in the trial. Dicta in Attorney General v Joyce and Walsh [1929] IR 526 referred to; (2) the Court would emphasise the need for all juries to be warned not todiscuss the case with any person other than another member of the jury; but while no such warning was given in the instant case, there was nothing

could not find corroboration in the evi- dence adduced. The defendant was con- victed on both counts. On appeal HELD by the Court of Criminal Appeal (McCarthy, Keane and Denham JJ) dismissing the ap- peal: (1) the form of the indictment in the instant case conformed as nearly as may be to the forms in the appendix to the 1924 Act, and since the actions alleged against the defendant could be described as compo- nents of a single activity or a chain of similar events, it was not necessary for the indict- ment to specify separately each act of al- leged assault. Jemmison v Priddle [1972] 1 QB 489 applied. Per curiam: it might be that, as a matter of fairness, the prosecution would be bound, if requested to do so, to specify the relevant acts alleged to consti- tute the indecent assaults; (2) as the trial judge had warned the jury to disregard the incomplete DNA evidence once the pros- ecution indicated that it did not seek to rely on it, the Court would not presume that the jury would reject that direction and convict an accused person on the speculation that some forensic evidence would have proved some unspecified fact, and that ground of appeal would be rejected; (3) it was im- proper for the trial judge to discuss in any way the trial with representatives of the media; in particular he should not have vetted in any way the newspaper reports of the trial, albeit influenced by the desire to ensure there should be no report which would influence the outcome of the trial; but, again, in light of his warning to the jury concerning the DNA evidence, the Court would not presume that this affected the jury's verdict. Per curiam: the Court would unreservedly condemn any suggestion that a court of trial could be used as a testing area for the admissibility of evidence, forensic or otherwise, and would emphasise the desir- ability of careful assessment in advance of trial of the need to call particular evidence; (4) since the trial had taken place after s.7 of the 1990 Act came into effect, the trial judge was not required to warn the jury of the danger of convicting on uncorroborated evidence, and this was a matter for the trial judge's discretion; but having given the particular warning in the instant case, he had dealt correctly and adequately with the question of what evidence might constitute corroboration. The People(D.P.P.) v G. Court of Criminal Appeal 13 November 1992 CRIMINAL LAW - EVIDENCE - SEXUAL OFFENCE - INDECENT ASSAULT - EVIDENCE OF COMPLAINANT TO PSYCHOLOGIST - WHETHER ADMISSIBLE - AP- PEAL - FUNCTION OF COURT OF CRIMINAL APPEAL - CONFLICT OF EVIDENCE The defendant had been charged on four counts of the indecent assault of his daugh- ter. The assaults were alleged to have taken place between 1986 and 1988. During the daughter's cross - examination in the trial court, she accepted that the defendant had sent her to a child psychologist during the time it was alleged she was being sexually assaulted but that, at that meeting, she had not made any complaint of sexual assault to the psychologist. In her re - examination by the prosecution, the daughter stated that since that initial meeting with the psycholo- gist, she had re-attended and that the psy- chologist had recommended that she go to

the police. Counsel for the defendant ap- plied to .have the jury discharged on the ground that the daughter's evidence on re - examination amounted to evidence of a complaint of sexual assault, that it was inad- missible since it was not sufficiently close in time to the events complained of, and that "the jury would be highly prejudiced by its admission since they might consider that the psychologist had accepted the com- plaint and had advised the daughter to go to the Gardai. The trial judge declined to dis charge the jury but warned them that the evidence had been inadmissible and to dis- count it. The defendant went into evidence and denied the allegations made by his daughter. The defendant was convicted on all counts. On his application for leave to appeal HELD by the Court of Criminal Ap- peal (Finlay CJ, Keane and Carney JJ) grant- ingthe application and allowing the appeal: (1) the Court would not interfere with a jury verdict ip a case, such as the instant, merely on the ground that the defendant had vehe- mently denied the accusation, since there was credible evidence to support the verdict and it could not otherwise be said to be perverse. The People v Egan (L.) [1990] ILRM 780 applied; (2) having regard to the fact that the i nstant case was extraordinari ly finely balanced between the strength of the evidence for the prosecution and defence, the inclusion of what was undoubtedly the inadmissible evidence of complaint to the psychologist created a risk of prejudice in the jury's mind which was too great to make it safe to leave the jury's verdict undis- turbed; and the Court was also influenced in this regard by the fact that the daughter's evidence on this point had been specifically referred to in the prosecution's closing speech to the jury. [Note: as prosecution counsel indicated that it was unlikely that the defendant would be charged again, the Court did not make an order for his re - trial but admitted him to bail pending the enter- ing of a nolle prosequi in the Circuit Crimi- nal Court.] The People(D.P.P.) v McCarthy and Ors Court of Criminal Appeal 31 July 1992 CRIMINAL LAW - EVIDENCE - VISUAL IDENTIFICA- TION - SEXUAL ASSAULT - COMPLAINANT IDENTIFY- ING DEFENDANT IN COURT - WHETHER CASEY WARNING REQUIRED - JUDGE'S DIRECTION - AT- TENTION DRAWN TO POSSIBLE DEFECT IN DEFENCE SUBMISSION WHETHER APPROPRIATE The defendants were charged with rape and actual bodily harm arising out of one inci- dent. The complainant gave evidence in which she identified the defendants as hav- ing raped her in sequence. The first defend- ant admitted that he had been at the scene involved, but denied that he had had sexual intercourse with the complainant. In state- ments to the Gardai and at the trial, the second and third defendants, brothers, ad- mitted that they had had sexual intercourse with the complainant but alleged that it had been with her consent. The complainant was extensively cross - examined on her account. In his closing address, counsel for the defendant noted that the second and third defendants had given a similar expla- nation of their involvement in the event and had had no opportunity to concoct a story before giving their statements to the Gardai. The trial judge, in his summing up, pointed

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