The Gazette 1993

GAZETTE

SEPTEMBER 1993

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

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