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COURT OF CRIMINAL APPEAL
Record No. 214/00
McGuinness J.
Herbert J.
Butler J.
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
.v.
M. K.
APPLICANT
Judgment of the Court delivered by Mrs Justice McGuinness on the 19th day of July 2005
The applicant was convicted by a jury in the Dublin Circuit Criminal Court on the 23rd day of October 2000 on one count of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 and one count of assault occasioning actual bodily harm contrary to section 47 of the Offences Against the Person Act 1861. The alleged assaults were occurred on 9th August 1996 when both the applicant and the complainant were thirteen years of age. At the time of his trial, therefore, the applicant was seventeen years of age. The presiding judge, His Honour Judge Kieran O’Connor, sentenced the applicant to one year’s detention on each count, the sentences to run concurrently from 23rd October 2000. Leave to appeal was refused. The applicant has now served his sentence and his application is for leave to appeal against conviction only.
THE FACTS
The facts of the case insofar as they are relevant to this application are that on the evening of 9th August 1996 the complainant attended a young persons’ discotheque in a town in Co. Wicklow. In the course of the evening she consumed some alcohol. The amount of alcohol she had consumed was in issue: varying accounts of her intoxication or otherwise were given by a number of witnesses while the medical evidence in this regard was inconclusive. The discotheque ended at around 10.30 to 10.45 p.m. The complainant left the discotheque and walked along the main street to a chip shop in the company of two girls. A number of young people, including the complainant’s brother and some girls from Northern Ireland, were about the main street and around the chip shop and some conversations took place. It appears that after speaking to her brother the complainant agreed to go home and went back along the main street. The complainant met with the applicant and walked with him to the entrance of a laneway. It was common case that they had a conversation there. The evidence of the complainant was that the applicant pulled her up the lane to a place where there were some bottle banks and there assaulted her both sexually and physically. She gave evidence of recognising and identifying the applicant, whom she had known for some time. The applicant’s evidence was that he left the complainant at the mouth of the lane and joined other people who were standing around the chip shop.
It was common case that some time later the complainant emerged from the laneway and made her way up to the chip shop. She was bleeding from the head and had a gash in her knee. Her legs had scraping type injuries. There were abrasions inside her mouth. She was extremely distressed. She alleged that the applicant had assaulted her both physically and sexually. The applicant vigorously denied all these allegations.
The complainant was taken to the local Garda Station and thence to the Rotunda Hospital, where she was examined by Dr. Patricia Cahill, who gave evidence at the trial of her multiple injuries. The complainant alleged to Dr Cahill and in a later statement to the Gardai that the applicant had digitally penetrated her vagina and also touched the area of her vagina with his hands.
It was conceded at a very early stage on behalf of the applicant that the complainant had been assaulted in the lane concerned but he denied that he had carried out the assaults. The primary issue at the trial was, therefore, not whether the complainant had been assaulted, but rather whether the applicant was the perpetrator of the assaults.
The trial took place over a period of four days. At the opening of the trial it transpired that one of the jurors was personally known to the learned trial judge and he was therefore excused from service. The trial continued with a jury of eleven persons. During the course of the trial a number of applications were made by counsel to the court in the absence of the jury; such of these as are relevant to the grounds of appeal will be dealt with later in the course of this judgment. On the fourth day of the trial a technical witness gave brief evidence. Subsequently counsel for the prosecution and for the defence addressed the jury. The learned trial judge then charged the jury, who retired to consider their verdict. Some discussion ensued on requisitions and the learned trial judge briefly recharged the jury. After a deliberation of some two and a half hours, at about 8.15 p.m. the jury returned with a 10/1 majority verdict of guilty on the first count and a unanimous verdict of guilty on the second count. During the course of the jury’s deliberations an incident took place whereby the learned trial judge permitted one member of the jury to absent himself from the other members of the jury for a period in order to recover his car from a local multi-storey car park which was about to close for the night. Certain issues arise out of this incident on the appeal and they will be dealt with in greater detail later in this judgment.
GROUNDS OF APPEAL
In the applicant’s notice of appeal there are set out a considerable number of grounds of appeal, some of which are based on the learned trial judge’s refusal to discharge the jury on the application of counsel for the defence at an early stage of the trial. Further grounds of appeal were based on matters arising from the learned trial judge’s charge to the jury and from the incident whereby one member of the jury was permitted to separate from his fellow jurors.
At the hearing before this court, however, senior counsel for the applicant, Mr Gageby, set out four of the grounds of appeal on which he proposed to rely, as follows:-“1. The learned trial judge’s charge to the jury that the applicant’s failure in all the circumstances to give evidence amounted to his exercising his right to silence was in error both in law and in fact.
2. The learned trial judge erred in law in his charge to the jury in failing to distinguish clearly between the civil and criminal standards of proof when instructing the jury as to the applicable standard of proof.
3. The verdict was rendered unsatisfactory by virtue of a material irregularity, namely the jury deliberated in the absence of one of their members.
4. The learned trial judge’s charge to the jury was rendered unsatisfactory and unfair in particular in that the learned trial judge failed to point out unequivocally to the jury that there was no evidence in the case in law which could amount to corroboration.”It should be noted that these grounds of appeal are numbered above in the order in which they will be considered in the course of this judgment. They were in fact ordered slightly differently in the course of Mr Gageby’s submissions to this court.
GROUND 1 – THE RIGHT TO SILENCE
As was his right, the applicant did not give evidence at his trial. Around the time of his arrest and thereafter he had, however, been extensively interviewed by members of An Gárda. In these interviews he answered all questions put to him; throughout the interviews he steadfastly maintained his innocence of the offences alleged against him. The records of all of these interviews were admitted in evidence at the trial and were given to the jury in the form of exhibits.
During the course of his charge to the jury (at Book 4 page 92) the learned trial judge said:
“You will have to have regard to what [the accused] said. He did speak, even though he didn’t leave the dock, he didn’t give evidence. He relied on the right to silence, which he is entitled to do. He is entitled to stay where he is in the court and adopt the attitude, I am not saying a word because I don’t have to say a word. That is known as the right to silence, which [the accused] has and he acted on that. He did not give evidence. You, ladies and gentlemen, will have regard to the fact that he didn’t give evidence as a right.”
Counsel for the applicant submitted that it was not sufficient for the learned trial judge to tell the jury that the applicant was entitled to rely on his right to silence. He should in addition have instructed the jury that they were not permitted to draw any adverse inference from that fact.
Mr Gageby pointed out that this matter had been raised by then counsel for the defence, Mr O’Higgins, by way of requisition at the trial (Book 4 page 121-123). Counsel had submitted that rather than exercising what is generally described as a right to silence the accused had fully co-operated with the Gardai in their interviews with them. Counsel suggested that it was potentially prejudicial to say of a man that he did not take the stand and exercise his right to silence. The learned trial judge strongly rejected this submission. However, when re-charging the jury (at Book 4 page 143) the learned trial judge stated:
“The first thing I want to deal with is the right to silence. The accused man has the right to silence. When I spoke of his right to silence, that is his silence in court. He has, of course, as I have told you and as you are aware, spoken to the Guards in the bedroom of his house the night the Guard went to investigate, he spoke that night, he spoke later in the police station, the next day in the police station. So he did speak, and I emphasise that to you. That was when he spoke. But in court he did not speak, he decided and elected to rely on his right to silence which he has and nobody is to take any consequence from that. That was what I told you.”
Mr Gageby acknowledged that this further explanation to the jury clarified the matter to some degree but submitted that it still fell short in not stating in particular that no adverse inference was to be drawn. In so submitting counsel relied on the dictum of Keane J. (as he then was) delivering the judgment of the Supreme Court in D.P.P. v Finnerty [1999] 4 I.R. 364 where it was stated:
“Thus, it is not in dispute that the exercise by an accused person of his right not to give evidence in his own defence cannot lead to any inferences adverse to him being drawn by the court and that, in the case of a trial by jury, the jury must be expressly so advised by the trial judge.”
Counsel for the Director, Mr Murray, pointed out that in the passages of the learned trial judge’s original charge immediately following the passage at page 92 quoted by Mr Gageby the learned trial judge referred at some length to the applicant’s interviews by the Gardai and the record of what he said which was before the jury. He submitted that any uncertainty in the original charge was fully corrected in the learned trial judge’s recharge. He submitted that this was fully in accord with the dicta of the court in D.P.P. v Coddington (Court of Criminal Appeal, unreported, 31st May 2001).
CONCLUSION
In Director of Public Prosecutions v Coddington, the learned trial judge in that case had in a positive way invited the jury to draw an inference from the fact that the accused had not given evidence. A considerable sum of money had been found in the accused’s house. In his charge to the jury the trial judge had said (quoted at page 7 of the judgment):
“The defence say to you that you don’t know who lives in the house apart from Mr Coddington, though the fact that it was residence was not disputed, and that there is no evidence of who else may have access to the house or whose money it was. They say that there may be a totally innocent explanation as to why the cash was in the house. You are invited then to speculate as to what the perfectly innocent explanation may be. You have had no evidence from the accused insofar as that is concerned. There is no contest about where he lived, there is no contest that it was his money, and yet you are invited to speculate as to what the explanation there might be for the money being there”.
The judgment of this court on the appeal was delivered by Murray J. (as he then was). The court stated that the trial judge’s charge suggested that there was some onus on the accused to provide evidence of an innocent explanation for the presence of the money. The court referred to the passage in Director of Public Prosecutions v Finnerty quoted earlier and went on to say (at page 8-9):
“While the trial judge may remind the jury of the fact that the accused had, as it is right, not given evidence in the trial they must be expressly instructed not to draw any inference from the exercise of that right. In this case, the learned trial judge not only recalled that the accused had not given evidence but did so in the context of the failure of the defence to provide evidence of an innocent explanation for the presence of the money and without any direction that no inference was to be drawn from his failure to give evidence.”
The court then set aside the verdict and ordered a new trial.
It appears to this court that the learned trial judge’s charge to the jury in the present case in regard to the right to silence does not in any way resemble the charge which was given by the trial judge in Director of Public Prosecutions v Coddington. It appears to the court that, while the learned trial judge in the present case did not use the specific phrase “any adverse inference”, any possible lack of clarity in the relevant passage in his original charge was fully corrected in his recharge quoted above. The jury was clearly informed that the accused man had a right to silence and that no one was to take any consequence from the fact that he did not give evidence at the trial. This ground of appeal therefore fails.
GROUND 2 – STANDARD OF PROOF
At the outset of his charge to the jury (Book 4 page 69) the learned trial judge dealt with what he characterised as “the general legal principles which apply to this trial and indeed apply in every other criminal trial that takes place in this country”. Having dealt with the presumption of innocence and the onus of proof, he went on to deal with the concept of reasonable doubt. This he did in some detail and at some length. He did not, however, refer to the distinction between civil standard of proof and criminal standard of proof.
This was raised by counsel for the defence in the course of requisitions (Book 4 page 125). Counsel suggested that it was “common but not mandatory” for a trial judge, when dealing with the standard of proof, to contrast the criminal standard with the civil standard. The trial judge dealt with this matter when recharging the jury. At Book 4 page 144 he said:
“I did not tell you and I apologise that there is a difference as to the standard of proof between a criminal and civil case. It is a higher standard of proof. Beyond a reasonable doubt in a criminal case is higher than in a civil case.”
Counsel for the applicant, Mr Gageby, submitted that this explanation did not go far enough and was not sufficiently clear. The learned trial judge had not mentioned the concept of the balance of probability and had not contrasted it with that of beyond a reasonable doubt.
Counsel for the Director submitted that the learned trial judge had made the concept of beyond reasonable doubt abundantly clear to the jury. It was usual, but not essential, to refer to the civil standard of proof. Mr Murray pointed out that counsel for the defence in his requisition at the trial had described this as “only a minor matter” and “not a substantial matter”.
CONCLUSION
In the People (Attorney General) v Byrne [1974] I.R. 1 this court considered in some detail the formulation of the criminal standard of proof and held that the traditional formulation of beyond reasonable doubt should be used. Kenny J. speaking for the court said (at page 9):
“The correct charge to a jury is that they must be satisfied beyond reasonable doubt of the guilt of the accused, and it is helpful if that degree of proof is contrasted with that in a civil case.”
It appears, therefore, that it is not an essential requirement to make the contrast with the civil standard of proof, desirable though it may be.
In his charge to the jury the learned trial judge said (Book 4 page 70-72):
“The next of these principles is called reasonable doubt. That, in effect, is the standard of proof which must be achieved in a criminal trial before the jury can convict. Reasonable doubt; two ordinary words. You give them their ordinary meaning. I am sure you have used the words during the course of today, even though we are only a certain distance through the day. Reasonable doubt, The reason that is the way the standard of proof is referred to is that some judge in ancient times said what the standard of proof was and he said, ‘the jury in a criminal trial shall not convict the accused person of the crime charged unless they are satisfied that he is guilty beyond a reasonable doubt’.
So that is why we pick up on those two words.
Another way of saying that, it is the standard of proof required in a criminal trial before a jury convicts the accused. I am not going to try and define the words, reasonable doubt, because they do not need defining. You know what those words mean. You take them in the context of the standard of proof. Have the prosecution, through Mr Hickson, satisfied you that the accused man is guilty beyond a reasonable doubt? You can see now the way the standard of proof is set. It is beyond a reasonable doubt.
First of all, I have not got any intention of giving you a definition of those words. I have not got a magic machine that we could feed all the facts into, like, without being derogatory to the case, when you are buying a stamp. There was a time when you put a penny into a stamp machine and you got out a penny stamp. I don’t think a penny stamp would take your letter very far now. But there is no machine like that; there is no calculation or any means, mathematical or otherwise, by which this matter can be decided. You are now down to eleven, the eleven of you, if you are satisfied beyond a reasonable doubt that the accused man committed it.
What I can do and I have done on other occasions in similar situations in a criminal trial, I have said to the jury to help them and I will say it again to you. To understand the concept of reasonable doubt, have regard to your own affairs. Think of decisions, important decisions to you as individuals, not the eleven of you collectively. But you have all had to make decisions in the recent past; decisions which were important to you as individuals and they vary widely and I am not going to try and give you an illustration of it. You know what was important to you where you had to make a decision in the recent past. If that decision had, as most important decisions have, a deadline; that you have to make up your mind by a certain hour, doesn’t matter when it is, morning, afternoon, doesn’t matter. And as you come to that hour of make up your mind time, you are not satisfied to go ahead and make it then, you wanted to consult if it was a legal matter, a solicitor; if it was a financial matter, your accountant or bank manager, or, as many people do they want to sleep on their problem and hope they will be able to make up their mind when they wake up. And that helps some people.
If you are in that kind of doubt making your own personal decision or if you were, that means you have a doubt because you are not happy to make up your mind at the time you should make it up. In that instance, if you are in that situation in this trial, find the accused man not guilty. Because you have a doubt and provided that doubt is a reasonable doubt you find it not guilty, because the law gives the benefit of the doubt to the accused man. I say that again in a slightly different way. If you have a doubt and it is a reasonable doubt, you give the benefit of that doubt to the accused man. That is the law of this country.”
This court is of the view that the learned trial judge dealt fully and adequately with the required standard of proof and with the explanation of the phrase “beyond reasonable doubt”. In his recharging of the jury he further clarified the matter. The jury can have been in no doubt as to the standard of proof they were to apply.
This ground of appeal therefore fails.
GROUND 3 – THE JURY IRREGULARITY
In this ground of appeal the applicant submits that the jury’s verdict was rendered unsatisfactory by virtue of a material irregularity, namely that the jury deliberated in the absence of one of their members. In making submissions regarding this ground of appeal counsel for the applicant referred to the transcript of day 4 of the trial, at pages 146 to 149.
The relevant events, as set out in the transcript, appear to have been as follows. At page 146 of the transcript for Monday, 6th November 2000 the foreman of the jury, after the jury had embarked on their deliberations and at the conclusion of the recharge made by the trial judge, very shortly after 5.20 p.m., informed the trial judge that one of the jury members had parked his car in a car park in Jervis Street which closed at 6 p.m. To this the trial judge replied:
“It is an unusual procedure, you will be escorted by a member of the Gardai over to collect your car”.
There then ensued a discussion between the trial judge and the foreman of the jury as to how long the foreman thought the jury might require to reach a verdict and whether the jury would require refreshments. The foreman of the jury advised the trial judge that they would require refreshments. At page 147 of the transcript, the trial judge is then recorded as saying:
“Go back into your room and I will send them in to you and a Guard will look after that gentleman and his car”.
The Court Registrar then announced the time as being 5.24 p.m.
The following exchange then took place between counsel for the accused and the trial judge:-
“Mr O’Higgins: I wonder, My Lord, if I might make a suggestion that is helpful. It seems to me if this gentleman with the car problem leaves in the company of another Guard the jury cannot deliberate in his absence.
Judge O’Connor: That has never been decided and I wonder is it necessary.
Mr O’Higgins: I think it was decided in a case in July.
Judge O’Connor: This year?
Mr O’Higgins: In the following circumstances where a foreman of the jury, it was a country case, wanted to go and milk the cows and it was suggested that the jury would go to the hotel and have their dinner and deliberate amongst themselves, provided the waitress was not too close, until he arrived and the Court of Criminal Appeal said in no uncertain terms that should not happen. But I wonder is there a way around it. If the Guard of the jury… (interjection).
Judge O’Connor: The Guard would not be insured.
Mr O’Higgins: To ascertain where the car was, whereabouts in the Jervis Street Centre. I am sure one of the Guards would go and collect it.
Judge O’Connor I am sure the Guards would not be insured.
Mr O’Higgins: Well, that is the end of my helpful suggestion.”
At page 149 line 28 of the transcript the trial judge advised counsel for the accused that he would “give the majority charge at about 7.45 p.m. and then, if they have not reached a verdict after that, within a parameter of thirty minutes, then we are at 8.15 p.m., I would be inclined to let them disagree because they will have had a long stint at that stage.”
At page 149 of the transcript the trial judge enquired of the registrar as to how long the jury had been deliberating at that point and was informed that they had been deliberating for two and a half hours. The trial judge then informed counsel that he proposed to give the “majority charge” to the jury. From the next announcement of the time of day which appears at page 149(c) of the transcript this statement of two and a half hours must be incorrect. As the jury entered the courtroom the registrar announced their deliberation time to that point as being two hours and thirty seven minutes. By reference to the time the jury retired and the time check at page 149 (c) line sixteen, this statement of two hours thirty seven minutes must also be incorrect. The trial judge then gave the “majority charge” and directed the jury to return and continue with their deliberations. Some time later, as appears at page 149 (c) line fourteen of the transcript, the registrar announced that the jury had then been considering their verdict for two hours and thirty seven minutes and that the time was 7.50 p.m. The trial judge announced that the time was then ten minutes to eight and that he would call out the jury at 8.20 p.m. after which, if they had not reached a verdict, he would be inclined to let them disagree.
After what is recorded on the transcript as being two hours and thirty seven minutes of deliberating the jury by a majority of ten to one found the accused guilty of sexual assault and unanimously found the accused guilty of assault occasioning actual bodily harm.
The only proper inference to be drawn from the transcript is that the jury commenced their deliberations at 5.24 p.m. after the recharge by the learned trial judge. While there is no evidence on the face of the transcripts that the particular jury man separated from the reminder of the jury and went to deal with his motor car in the company of a member of An Garda Siochana as a keeper, in the judgment of this court the proper inference to be drawn is that he did, having regard to the statement by the learned trial judge that “a Guard will look after that gentleman and his car”.
It was not contended before this court that the separated juryman failed to return. It may fairly be inferred that he must have been present when the trial judge gave his “majority charge” by which time the jury had been deliberating for more than two hours of their total deliberation time of two hours and thirty seven minutes.
There is therefore no evidence as to exactly how long the juror in question was absent but, given the short distance between the court and the relevant car park, it cannot have been for a long time. It appears to have been during the time that the jury were partaking of refreshments. While the learned trial judge directed the jury to go back into their room, where the refreshments were to be provided, he did not direct them to continue with their deliberations in the absence of their fellow juror. Nor, of course, is there any indication on the transcript that they did in fact do so.
In his submissions on behalf of the applicant on this ground of appeal Mr Gageby relied on the judgment of this court in the case of The People (Director of Public Prosecutions) v Gavin [2004] 4 I.R. 556. In that case the relevant ground of appeal was that the trial judge gave the jury ambiguous instructions which created the impression that there were entitled to continue their deliberations in the hotel and in the absence of a member of the jury. The facts as disclosed in the judgment are that after about three hours of deliberations the jury through their foreman informed the court at approximately 7.45 p.m. that they were likely to take a long time to reach a decision. With the consent of counsel for the accused, one member of the jury was allowed to separate from the others for some hours so that he could go and milk his cows. He was warned by the trial judge not to talk to anyone including members of his family about the case. Having arranged for the remaining jurors to be accommodated in a local hotel in the care of a member of An Garda Siochana as a jury keeper, the trial judge was asked by the foreman of the jury if they could deliberate about the case amongst themselves that night in a confined space. The Court of Criminal Appeal found that the trial judge and counsel for the prosecution both considered that the jury could continue their deliberations at the hotel later that night. It seems clear from the judgment that both the trial judge and counsel for the prosecution considered and the trial judge directed that they should postpone any such deliberations in the hotel until the juror permitted to separate had returned. The Court of Criminal Appeal considered that such a course was inappropriate and rendered the verdict unsatisfactory.
In the Gavin case the Court of Criminal Appeal did not rule that the separation of a juror with the consent of the court after the jury had commenced their deliberations in itself rendered the subsequent verdict unsatisfactory and unsafe. The decisive factor was that the learned trial judge had specifically permitted, and indeed positively suggested, that the jury should continue their deliberations during their overnight break in the hotel. The practice of sending juries to a hotel overnight was established in recent years precisely to avoid the situation where juries who had not yet reached a verdict were kept in the jury room until very late hours or even overnight until a verdict was reached. It was felt to be preferable that the jury be given an opportunity for rest and refreshments overnight so that they might approach their task with a fresh mind the following day. The general practice is strongly to discourage actual deliberation during the overnight break. It was in this context that this court considered that the course followed by the learned trial judge in the Gavin case was inappropriate and rendered the verdict unsatisfactory.
The situation in the instant case was completely different. There was no overnight break and no direction by the learned trial judge that the jury should continue their deliberations either during a break or in the absence of one of their members.
Section 25 of the Juries Act 1976 provides:
“In any trial with a jury the jurors may separate before considering their verdict except where the judge otherwise directs.”
It seems likely that this section was enacted to deal with the sort of problems that arose in cases like Crippen [1910] 5 C.A.R. 255 where it was argued that there had been a mistrial because a juryman who had been taken ill during the course of the trial was separated from the other jurors for an hour or more while being treated by two medical men who were in court. As was pointed out by Widgery L.C.J. in the case of Prime [1973] 57 C.A.R. 632 at 635 the attitude to the segregation of jurors had changed tremendously in the years since that judgment was given. Section 35(4) of the Criminal Justice Act 1948 in the United Kingdom is in similar terms to section 25 of the Juries Act 1976 in this jurisdiction. In the case of Regina v Alexander [1994] 1 W.L.R. 422 at 426, James L.J., considering the judgment of Lord Goddard C.J. in Rex v Neal [1949] 2 K.B. 590 at 596, accepted that an express statutory provision to permit the separation of jurors during the course of a trial could go to support a contention that once they retired to consider their verdict there was no question of the jury being allowed to separate thereafter. However, later in his judgment at page 246 and 247 James L.J. pointed out that the principle that a jury having retired to consider its verdict should not thereafter separate from each other or from the jury bailiffs and that the jury must remain in the charge of the court through the bailiffs throughout their deliberations had evolved at a time when the attitude of the public and the courts to juries was somewhat different from that of modern times.
His Lordship then went on to give instances of how in modern conditions it might be necessary for juries to become separated after the summing up by the trial judge and he also cited the judgment of Widgery L.C.J. in Regina v Prime (referred to above).
In the case of the King v Ketteridge [1915] 1 K.B. 467 at 470 Phillimore L.J. delivering the judgment of the Court of Criminal Appeal stated as follows:
“If a juror, after the judge has summed up, in a criminal trial separates himself from his colleagues and, not being under the control of the Court, converses or is in a position to converse with other persons, it is an irregularity which, in the opinion of the court, renders the whole proceedings abortive…”
Though this case was decided under what may be described as the former regime affecting juries, the judgment still suggests that it is separation “not being under the control of the court” which is irregular and not separation per se.
In the case of Rex v Neal [1949] K.B. 590 at 595 Lord Goddard C.J. delivering the judgment of the Court of Criminal Appeal, having considered the judgment in Rex v Ketteridge, continued as follows:
“It is unnecessary to consider what might be the position if the court permitted them (the jury) to go to some place for refreshment under the charge of the bailiff. It may be that in such a case the position would be no different from that which obtained in murder cases until the recent legislation which permits a jury to separate for the night, because it is well known that when the court rose for the day, the jury were taken in the custody of the bailiff or bailiffs to a hotel where they stayed for the night and were brought back in the same custody to the court the next day. This might still happen if the court, in its discretion, refused to allow them to separate. In truth, the statement in Archbold is too wide and should be qualified by some such words as ‘to be given only in cases of evident necessity’. No doubt, if a juror is taken ill or wishes to relieve himself, the court can permit the bailiff to take him from the jury room for the purpose of medical attention or of going to the water closet but he must remain in the charge of the bailiff. If the illness is not a mere passing indisposition, the judge could no doubt discharge that particular juryman, as he could if he was taken ill in the box, and under the provisions of the recent statute could take a verdict provided that the jury are not reduced below ten. Before that statute, if any one or more of the jury were taken ill and could not continue their deliberations without danger, the duty of the judge was to discharge the jury without giving a verdict and to order the trial to take place again. This is clear from the judgment of Blakburn J. in Winsor v Regina L.R.1. Q.B. 289. In our opinion, in allowing the jury to leave the court and go into the town after they had been charged and thereby leaving the custody of the bailiff who had been sworn to keep them in some private and convenient place is so serious an irregularity and departure from the procedure recognised by law that we have no option but to quash the conviction, as was done in Rex v Ketteridge [1915] 1 K.B. 467.”
In that case after the Recorder had concluded his summing up and the jury had been delivered to the bailiff for the purpose of considering their verdict they were given permission by the Recorder to leave the court and the custody of the bailiff for the purpose of obtaining luncheon.
In each of the reported cases there was clear evidence available to the court of the actual extent of the calculable time for which the juror was separated from the rest of the jury. In the instant case this court has no idea of that time by reference to the transcript and no means of calculating it other than by indulging in mere speculation. Indeed it is not apparent on the face of the transcript whether the particular juror in fact separated at all from the other members of the jury. At the trial these matters could readily and ought to have been carefully monitored. The only inference which this court can now draw with any confidence is that the separated juryman must probably have rejoined his colleagues at some time before the trial judge gave his majority charge. This court cannot speculate as to the many diverse circumstances which may have attended the separation of this juror from the jury and influenced the duration of that separation, even proceeding upon the assumption that the juror was at all times in the control of the designated member of An Garda Siochana.
The court is satisfied that the test for setting aside a verdict where a juror is separated temporarily from the other members of the jury is to have regard to the materiality of the separation and whether there is significant prejudice to the accused. In the instant case there is no evidence upon which this court could reasonably or properly decide either of these matters. This ground of appeal therefore fails.
In connection with this ground of appeal, counsel for the applicant also raised the matter of the inconsistent timings as set out in the transcript and referred to in detail above. It was suggested that the individual juror who went to recover his car, - if he went, - may not have spent the requisite two hours in deliberation prior to the giving of the majority charge by the learned trial judge.
In the first place this is pure speculation. In the second place the matter was not raised by counsel at the trial. As was stated by this court (Kearns J.) in the People (Director of Public Prosecutions) v Liam Campbell (unreported) 4th March 2005:
“There is the clearest of authority which suggests that the Court of Criminal Appeal should not allow points not taken at trial to be argued on appeal. In The People (D.P.P.) v Moloney (ex tempore, unreported Court of Criminal Appeal 2nd March 1992) O’Flaherty J. stated at page 3 of the judgment‘We would wish to reiterate the jurisprudence of the court which has been in place for many years that there is an obligation on counsel on both sides, the prosecution and the defence, to bring to the attention of the trial judge any inadequacies they perceive in his direction to the jury. If an appeal is brought before this Court on a point that has not been canvassed at trial this court will regard any person making such a new point as having an obligation to explain why it is sought to be made on appeal when not made at the trial. That is not to say but if the essential justice of the case calls for its intervention we have an obligation so to intervene.’
This approach was confirmed by this court in The People (D.P.P.) v Cronin (unreported Court of Criminal Appeal 16th May 2003) when Hardiman J. stated at pages 25 to 26 of the judgment:
‘We would respectfully concur with what is said in this passage [i.e. in Moloney]. The reason for this rule or statement of principle is not at all a technical one, but one designed to assist in the orderly conduct of trials and appeals. It is to ensure a proper relationship, based in reality, between the conduct of an appeal and the task on which the Court is engaged, which is to say whether or not the trial was a safe or satisfactory one.’”
This court accepts this statement of the law and concurs with it. This submission is therefore rejected.
GROUND 4 – THE CORROBORATION WARNING
The final ground of appeal was based on the approach taken by the learned trial judge in his charge to the jury to the question of corroboration. The learned trial judge in the course of his charge gave the jury what is customarily known as a “corroboration warning” in that he informed the jury that while it was open to the jury to convict the applicant on the uncorroborated evidence of the injured party it was dangerous to do so. Counsel for the applicant submitted, however, that the judge’s further directions to the jury on this subject were at best ambiguous and very possibly misleading. He did not, Mr Gageby argued, make it clear that there was no evidence at the trial which was capable of being corroborative in the proper sense. In addition the judge had suggested to the jury that if they examined all of the evidence they might find some corroborative material within it. Requisitions were raised in regard to the need to clarify the definition of corroboration in reference to the evidence given at the trial but the learned trial judge did not recharge the jury on this aspect of his charge. In making his submission on this aspect of the case Mr Gageby referred to a number of decisions to which further reference will be made later in this judgment.
Counsel for the Director submitted that the corroboration warning given by the learned trial judge was both correct and perfectly adequate. He argued that there was, in point of fact, a number of pieces of physical evidence that were corroborative of the fact that the assault had taken place. There was also evidence that the accused had been seen walking along the main street with the injured party. This had been highlighted by the judge as being potentially corroborative.
CONCLUSION
During the trial following the close of the case for the prosecution and immediately prior to the learned trial judge’s charge to the jury counsel for the defence, in the absence of the jury, made an application for a direction based on grounds which are irrelevant to this appeal. This was refused by the judge. There followed a lengthy discussion between both counsel and the learned trial judge as to whether the custody records should be admitted into evidence. There was, however, no reference made either by counsel or by the learned trial judge to the question of corroboration. The learned trial judge did not indicate whether or not he proposed to give the jury a corroboration warning and there was no discussion as to what, if any, evidence was capable of constituting corroboration. The absence of this exchange between judge and counsel, which is a frequent practice in trials involving sexual offences, may well have led to some of the difficulties which followed.
The learned trial judge in his charge proceeded to warn the jury of the danger of convicting the accused in the absence of corroboration. At day 4 page 77 to 78 he said:
“The next principle I will deal with is the question of corroboration. Corroboration, ladies and gentlemen, is a legal principle which I have to tell you about because this is a charge of sexual assault and it only applies to sexual assault. Corroboration is evidence which is independent of the complainant’s evidence which confirms in some material particular that the offence was committed and that the accused committed it.
Here I am giving you another warning. I must warn that although you the jury may convict on the uncorroborated evidence of the injured party, it is dangerous to convict in the absence of corroboration in relation to the evidence of the injured party. What does all that mean? It means that you have got to be especially careful in the absence of any evidence of corroboration and there is not any direct evidence of corroboration in this case. But, you can have regard to the injuries sustained by the injured party. Quite clearly she was assaulted; the wound on her head, the marks on her face which the doctor said came from the fact that she was subjected to a shocking assault, the marks on her neck, the scraping on her shoulder and the laceration on her leg. They are all indications that she was assaulted and the question really arises, was it the accused man who did all that. That is a matter for you, ladies and gentlemen. Again I have given you the warning.
The actual injuries confirm her evidence that she was assaulted; the fact that her clothing was damaged and interfered with and some of it removed; that confirms the actual assault. But it does not confirm that the accused man was responsible. What I suggest you do there is this, in the light of these warnings I am giving you, you will have to look for other evidence in the case to ascertain if there is corroboration. That is something you will have to do. Your function is to take the overall evidence – I will be going into this in detail in a moment – but basically, you have to look at the evidence and you decide if the evidence is sufficient, having regard to the warnings I have given you, to convict the accused man. And if you are satisfied, then you do convict him, find him guilty.”
The matter of corroboration was raised by counsel for the prosecution by way of requisition following the judge’s charge. At day 4, page 113, counsel quoted a passage from Charleton’s Offences Against the Person (at page 322) which referred to what constituted corroboration. Mr Hickson went on to submit that the finding of the complainant’s sanitary towel and purse at the scene of the attack constituted direct corroboration and should have been so described by the learned trial judge. The judge considered that he had already made sufficient reference to this aspect of the evidence.
Later, at day 4, page 127, counsel for the defence also raised a requisition concerning the corroboration warning. He made the point that there was no dispute in the case that the attack had occurred and argued that no amount of evidence simply confirming that the attack took place could amount to corroboration. He went on to submit that corroboration was something independent of the complainant’s testimony that would tend not to confirm that an offence had been committed but to confirm the connection between the accused and the offence. Mr O’Higgins was critical of what he described as the learned trial judge’s “invitation” to the jury to sift the evidence and see what they could find by way of corroboration. He submitted that there was in fact no evidence before the jury that could amount to corroboration and that the judge should have so directed the jury. He submitted that the jury should not “be left wondering” if there was corroborative evidence; they should be told in categorical terms that as a matter of law there was no corroborative evidence.
In reply to Mr O’Higgins the learned trial judge suggested that he would “use different words” when dealing with corroboration in his recharge. In the event, however, he made no reference to corroboration when recharging the jury.
Since the enactment of the Criminal Law (Rape) (Amendment) Act 1990 it is no longer mandatory for a corroboration warning to be given by the trial judge to the jury in sexual offence cases. It may still, however, be desirable in particular cases and the learned trial judge in the present case cannot be criticised for including such a warning. As was stated by Keane J. (as he then was) in this court in The People (Director of Public Prosecutions) v Reid [1993] 2 I.R. 186 at page 197:
“Notwithstanding the new legislation, there will still be cases in which trial judges will consider it desirable to warn the jury as to the dangers of convicting on the uncorroborated evidence of the complainant. The Court considers that it may be of assistance, in such cases, to direct the jury’s attention to those aspects of the evidence which are capable of corroborating the complainant’s version.”
In the present case there was no criticism by counsel for the applicant of the decision of the learned trial judge to give a corroboration warning as such. The criticisms made on behalf of the applicant are directed towards the trial judge’s reference to what amounted to evidence of corroboration and his suggestion to the jury that they themselves should look for other evidence to ascertain if there was corroboration.
The classic explanation of the meaning of corroboration was given by Lord Reading C.J. in R v Baskerville [1916] 2 K.B. 658 as follows at page 667:
“We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed but also that the prisoner committed it.”
In this court in The People (Attorney General) v Trayers [1956] I.R. 110 Maguire J. stated at page 114:
“In this connection, the Judge should explain to the jury what is meant by corroboration, namely, ‘independent evidence of material circumstances tending to implicate the accused in the commission of the crime with which he was charged’ (per Sullivan C.J. in Attorney General v Williams [1940] I.R. 195 at page 200). I do not propose to elaborate on this rule which has been explained and adopted by Maguire C.J. in The State (Attorney General) v Moore [1950] Ir. Jur. Rep. 45.”
These are, of course, pre-1990 cases but where in the context of the present law a discretionary warning is given, it is still, in the view of this court, necessary for the meaning of corroboration to be made clear to the jury. These principles were set out in the judgment of this court in The People (Director of Public Prosecutions) v P.J. [2003] 3 I.R. 550 (at pages 566 to 568 of the report) to which counsel for the applicant referred in argument. Counsel also directed the attention of the court to the judgment of this court (Hardiman J. in The People (Director of Public Prosecutions) v Doyle), in which stress was laid on the confusion caused by a failure to make clear what evidence was fully corroborative, or “corroborative in the strict sense” (Court of Criminal Appeal ex-tempore 28th May 2001) at page 2. This, however, was an ex-tempore judgment and the learned judge in delivering the judgment of the court, while allowing the appeal, did not deal with the matter in full detail.
In the present case, as the court has already remarked, there was no preliminary discussion between counsel and the learned trial judge as to whether the judge intended to give a corroboration warning or, if so, what evidence constituted corroboration. Such a prior discussion no doubt is not essential and the fact that it did not take place is not a ground of appeal. However, this practice is often helpful to the trial judge and consequently, on occasion, to the jury, in that it leads to clarification as to what should come within the ambit of the established definition of corroboration. In this case it seems to this court that a somewhat confused picture was conveyed to the jury in regard to corroborative evidence.
In his charge to the jury at page 77 day 4, the learned trial judge succinctly and correctly set out the legal principles on corroboration. “Corroboration is evidence which is independent of the complainant’s evidence which confirms in some material particular that the offence was committed and that the accused committed it.” He then warned of the danger of convicting in the absence of corroboration and stated that there was no direct evidence of corroboration in the case. However, he then went on to refer in some detail to the evidence of the injuries suffered by the complainant. While he told the jury that the injuries confirmed the complainant’s evidence that she was assaulted but did not confirm that the accused man was responsible, he then went on to tell the jury that they “would have to look for some other evidence in the case to ascertain if there was corroboration.”
In this case there was no issue as to the fact that the offence was committed – that the complainant suffered a serious sexual assault. On that very account, it seems to this court, it was necessary for the learned trial judge to distinguish clearly between evidence that confirmed that the offence was committed and evidence that connected the accused man with the commission of the offence. Only this second type of evidence would be “corroboration in the strict sense” in the context of this case. In saying that there was no direct corroboration the trial judge appears to have accepted that there was no evidence of this second type. However, his further direction to the jury to look for other evidence might well have suggested to them that there was some form of indirect corroboration available to them. This is likely to have given rise to confusion in the minds of the jury.
The concept of corroboration and its proper definition in law is quite a difficult one but one which is of considerable importance to a jury in deciding the guilt or innocence of an accused person. It is essential that a clear definition of the principle of corroboration be given but it is also of great importance that it be clearly and unequivocally pointed out to the jury what, if any, of the evidence before them is capable of amounting to corroboration as defined.
In the view of this court the passage in the learned trial judge’s charge which concerned corroboration, taken as a whole, could have given rise to confusion in the minds of the jury. The possibility of such confusion was raised with considerable emphasis by way of requisition by counsel for the defence but no further reference to the matter was made by the learned trial judge in his recharge of the jury. Any confusion which might have arisen from the original charge therefore remained uncorrected. It must therefore be concluded that the trial was unsatisfactory in this important respect. The court will therefore treat this application for leave to appeal as the hearing of the appeal, will allow the appeal and will quash the convictions of the applicant. Since the applicant has already served his sentence no retrial will be directed.
DPP v K.
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