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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> DPP -v- Christopher Griffin [2009] IECCA 75 (22 June 2009) URL: http://www.bailii.org/ie/cases/IECCA/2009/C75.html Cite as: [2009] IECCA 75 |
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Judgment Title: DPP -v- Christopher Griffin Composition of Court: Macken J., deValera J., Gilligan J. Judgment by: Macken J. Status of Judgment: Approved
Notes on Memo: Refuse leave to appeal against conviction - sentence appeal adjourned to a date to be fixed. | ||||||||||
THE COURT OF CRIMINAL APPEAL Between/ DIRECTOR OF PUBLIC PROSECUTIONS -and- Judgment of the Court delivered on the 22nd June 2009 by Macken, J.CHRISTOPHER GRIFFIN Applicant This is an application for leave to appeal against conviction brought on behalf of the applicant. He was found guilty of rape and of several sexual offences. The applicant was convicted by a jury on the 18th January 2007 at the Central Criminal Court, sitting at Cloverhill, Dublin, and, after adjournment, was sentenced on the 24th April 2007. This application deals only with the conviction. The Notice for Leave to Appeal invokes 23 separate grounds. They can, in reality, be divided into general groups which allege that the learned trial judge: (1) wrongly failed to recuse himself although he had previously represented the applicant professionally; (2) was wrongly in possession of a security report not previously disclosed to the defence, which report was influential in the conduct of the proceedings, and whose content caused him to be biased against the applicant; (3) wrongly permitted the trial to proceed at a venue which was inappropriate and prejudicial to the applicant; (4) wrongly failed to discharge the jury having regard to extensive press/media coverage of the trial which was highly prejudicial to the applicant; (5) wrongly issued blanket refusals of applications made on behalf of the applicant; (6) failed to discharge the jury but wrongly permitted the trial to continue in the absence of a material witness; and (7) inadequately charged the jury in several respects. Background: The applicant was charged with 15 separate counts of rape and/or of sexual assault on a young female, on several dates between 1993 and October 2001 at addresses in Dublin, in respect of which the applicant pleaded not guilty. The evidence tendered by the complainant was to the effect that the applicant was in a relationship with the complainant’s mother since in or around 1993. In evidence she said in that year, when she was about eight years of age, the applicant commenced to sexually assault her and the assaults, including rape, continued until 2001, when she was 16. She gave details of the events occurring within that period. All the allegations were vigorously denied by the applicant in evidence. Written submissions have been filed on behalf of both parties which greatly assisted the court, and the oral hearing before this Court extended over two days, with detailed argument for both parties. All grounds lodged were invoked, but some grounds were clearly of greater importance than others. The Failure to Recuse Ground: Little need be said, for example, about this ground which alleges that the learned trial judge wrongly failed to recuse himself when requested at the commencement of the trial in December 2006, on the basis that he had acted for the appellant, approximately ten years prior to the date of the application. The learned trial judge stated, according to the transcript, that he had no recollection of this, having been on the bench for a long number of years and that he would have forgotten about any such event. The respondent to the appeal points to the fact that the applicant was returned for trial as early as 2003, and matters connected with the trial were listed on several occasions prior to December 2006 when it was listed for hearing, including as late as the 4th December 2006, but despite these several listings, no such application was made, not even prior to when the jury was empanelled on the 11th December 2006. Conclusion: The above point, taken by the respondent, is no criticism of counsel then acting on behalf of the applicant, who may not have been alerted to the claim until after the jury was empanelled. Taking the argument at its highest however from the applicant’s point of view, what was said by his then senior counsel at the trial was that the learned trial judge had “apparently” acted for the applicant. It is clear from the transcript of the trial, being the record by which this court must make its decisions, that there was no evidence tendered to support the contention that the learned trial judge had, either apparently or in fact, acted for the applicant, although it must have been possible for the applicant to have clarified this without great difficulty if there was any basis to the claim. He did not do so. Whenever the matter became known to counsel, therefore, the fact remains that no evidence of any description was tendered to support this ground and, on its own, it is baseless, and must fail. The Security Report Grounds: Related to the above ground of failure to recuse, however, is a separate ground, not raised in the course of the trial in the manner now sought to be raised and therefore upon which there was no ruling. The Court is urged to conclude that, by reason of the learned trial judge being “wrongly in possession of a security report not disclosed to the defence”, and by reason of “special knowledge” which the learned trial judge thereby had concerning the applicant this led to his being biased against the applicant or perceived to be so. The argument now sought to be made by senior counsel Mr O’Higgins for the applicant, is as follows: the precise manner in which the learned trial judge came into possession of the report was not known; the content of the security report should have been made available to defence counsel at the outset of the case; its content led to the learned trial judge wrongly being in possession of “special knowledge” concerning the applicant; and having regard to the content of the report and the learned trial judge’s response or reference to it during trial, there was a reasonable apprehension that the learned trial judge could not be seen to be impartial towards the applicant by ordinary members of the public. He should therefore have recused himself. Counsel at the trial did argue on an aspect of the report, dealt with below. Conclusion: This ground is a good example of a case not made before the trial judge, and now sought to be made in this Court, without seeking to come within the principles for doing so, well established in the jurisprudence. No explanation has been tendered as to why no application for a ruling on this ground was made. The Court is satisfied that it can, and indeed must, resolve this appeal within the principles enunciated by this Court and the Supreme Court in The People (Director of Public Prosecutions) v. Cronin (No.2) [2006] 4 IR 329. The applicant has not argued that he is entitled to come within any of the exceptions to those principles. On long established jurisprudence, this Court must confine its review to rulings made in the trial in response to issues actually raised on behalf of the applicant in the court below, the applicant not being permitted to re-run the case before this Court by seeking to raise matters which could have been raised during the trial but which, for whatever reason, were not. In the absence of any argument or submission that this ground may now be raised, on the basis that it comes within any of the exceptions to the application of the principles in DPP v Cronin, supra., this ground cannot now be entertained. However, even if it could be said that the court should, in the interests of justice, entertain this ground, firstly, the transcript makes it clear that the content or the general nature of the security report was read into the transcript on the 13th December 2006, in the absence of the jury, on the second occasion when senior counsel then acting for the applicant sought to have the jury discharged on the basis of the venue at which the trial was taking place, the existence of the report having been disclosed on the 11th December, the first day of the trial. Secondly, a decision to act on a security report, as occurred in this case, while a matter within the broad ambit of the administration of justice, forms no part of the adversarial procedure between the Director of Public Prosecutions and an accused. It is an administrative decision made for the purposes of ensuring adequate and appropriate security for all parties involved in the administration of justice, and for the legal process itself. The respondent correctly argues that such a security report must be acted upon by the appropriate parties. That clearly includes the judge having charge of the criminal list, as here, either acting alone or in association with the President of the High Court, or others involved, in ensuring the safety and security of all parties concerned. There is no evidence apparent from the transcript that the content of the security report or indeed its existence was “influential in the conduct of the trial vis a vis the applicant” as now alleged on his behalf. The content of the report related to matters arising outside the trial itself. It contains no information or detail relating to the trial of the offences themselves, save that the information described in it arose out of complaints originally made by the complainant, and the possibility that, since it was believed that jurors had apparently been intimidated during an earlier trial, such an event might also arise in the context of this trial. The report makes no distinction between one possible group or another involved in any such matters, and the transcript discloses that the learned trial judge himself was alert to this fact because he stated on the first day of the trial, on the 11th December:
Counsel for the respondent contests the existence of any issue of apparent bias, no express bias being alleged, arguing there was no evidence of how or in what manner the court was biased or otherwise improperly influenced by reference to the actions of the learned trial judge and none is in reality proffered by the applicant. The law relating to apparent bias is very well established at this time and is encapsulated in the case of Blehein v St John of God Hospital and Anor [2001] IESC 73 (Unreported, Supreme Court, 31st July 2001), and in several other cases. The test is the following:
The first two comments complained of above were made, not in the presence of the jury, but as part of voir dire applications in the presence of counsel when exchanges with a learned trial judge can sometimes be robust. The first extract is dealt with below. The second extract complained of did not have any adverse effect on the fairness of the trial of the applicant, the main complaint in that regard being also dealt with below, and the Court finds, for the reasons stated later, that the issue of the absent witness was dealt with appropriately. The final matter concerns the reading of the security report to the jury, after the jury had returned its verdict on the applicant and found him guilty. While the court accepts that this was an unusual approach, the learned trial judge considered that the jury was entitled to know at that stage, why the trial was being held at Cloverhill and in circumstances of considerable security. Although unusual, there is no suggestion that the reading of the report to the jury at that point in the trial was evidence of bias on the part of the trial judge during the course of the trial to conviction stage, and the Court concludes that “a reasonable, objective and informed person would not, on the correct facts, reasonably apprehend” that the learned trial judge by reading the report was biased against the applicant. This related ground and the arguments thereon are rejected on the basis that they were not the subject of any application (apart from venue ground dealt with below), and on the basis that, even if they could or should be entertained by this court, as an exception to the Cronin principles - upon which no argument was presented - the justice of the case does not require them to be admitted as grounds of appeal. The Venue Ground: The above report is also the basis for a further ground that the learned trial judge wrongly permitted the trial to proceed at a venue which was not appropriate and was prejudicial to the applicant. An application based on this ground was made on behalf of the applicant at the opening of the trial on the 11th December 2006 and again on the 13th December 2006. They were rejected by the trial judge by rulings on both occasions. This is a ground properly before this court. The argument is based on the following: Firstly, the content of the report contained material not proven and the applicant could not test its veracity. Its context therefore was or could be seen to be prejudicial and could not form a proper basis for the trial to proceed where it did. Secondly, there is a substantial newly or relatively newly constructed courthouse at Cloverhill in Dublin. Adjoining or adjacent to that courthouse or as part of an overall complex, is a prison. It is submitted that because of this, a jury would likely be prejudiced against the accused by reason of the proximity of the courthouse to the adjoining or adjacent prison. Conclusion: As mentioned above, counsel at the trial did argue that the content of the report had not been proven, that since information given by gardaí in the recent past had, on occasion, been found to be unreliable, he should therefore have been given an opportunity to test the basis for the report, that the content of the report was not evidence upon which the Court could act, and that there was no evidential basis upon which the applicant could or should be tried at Cloverhill. Counsel for the applicant in this court also argues that the report contained “clearly inadmissible evidence” which had not been proven. It is wholly unclear to the Court on what legal basis an accused seeks to prohibit a judge who is presiding over a trial, from relying on a report furnished from appropriate authorities (in this case the gardaí), on the basis that its content consists of “clearly inadmissible evidence” which had not been proven, so as to prevent a trial proceeding at a particular venue. Counsel, not surprisingly, neither in this court nor in the court below, put forward no case law to support this contention, or the further contention that because the learned trial judge relied on the report in relation to security of the trial, the applicant was deprived of the presumption of innocence, and there is no basis so to conclude. There is no factual basis presented in support of this ground of alleged unfairness to the applicant by virtue of the jury being present at the chosen venue of the trial. Rather it is an inference which counsel asks this Court, and which counsel then acting on behalf of the applicant asked the learned trial judge, to accept as a natural and inevitable conclusion arising from the close proximity of the court of trial to the prison at Cloverhill. The court at Cloverhill, so far as this Court is aware, was newly constructed more than ten years ago, as a brand new, designated courthouse which can function, as appropriate, for several elements in the administration of justice, including trials. It is where many applications for bail are held, partly, it is true, because of its convenience to Cloverhill prison adjacent to or adjoining it. Nor is there support, factual or otherwise, for the conclusion or the inference that a fully functioning courthouse, such as Cloverhill, is an inappropriate or unsuitable venue for a trial of this nature, or that such a venue is in any way unduly prejudicial to an accused, all courthouses by their nature being in some way unfavourable to an accused. Nothing in the transcript or before this Court suggests, or furnishes a basis from which it could be reasonably deduced that a jury attending a trial at Cloverhill is in any way involved in or exposed to, or upset by, the existence of an adjoining or adjacent prison, assuming they are aware of it. Nor is there any basis upon which to conclude that any juror was or might reasonably be thought to be in any way prejudiced against the applicant by the chosen venue, or against any witness appearing on his behalf, or against the applicant’s counsel or in any other manner, during the course of this trial. The learned trial judge did express the view that if the courthouse, at Green Street, Dublin, frequently used by the Special Criminal Court, had been available, he would have preferred the trial to take place there, to avoid any debate of the type which arose. It was not, however, available. This Court finds that the appropriate decision was made, having regard to the advices received, to hold the trial in Cloverhill courthouse. On a somewhat similar application made, this court, in the case of DPP v. Dundon (Unreported, Court of Criminal Appeal, 25th July 2007) stated:
The Media Coverage Ground: This is one of the two most important grounds of appeal. This judgment is confined however to the materials which were the subject of rulings made during the course of the trial. An application was made during the hearing of this application to adduce additional evidence of media coverage, as well as a new ground of appeal, which is the subject of this Court’s prior ruling of the 24th July 2008. Several applications in respect of media coverage were made in the course of the trial to the learned trial judge, seeking the discharge of the jury on the basis of reports which the applicant considered to be highly prejudicial both to him and to his guarantee of a fair trial. These were: 1. An application made on the morning of the 14th December 2006. 2. A second application made in the early afternoon on the same date. 3. An application made on the morning of 15th December 2006. 4. A final application made on 19th December 2006. All applications were refused. To understand the applicant’s concerns on this issue at the trial, it is necessary to give some considerable detail of the media coverage complained of. In the first of the above applications, the applicant’s then counsel referred to comment in “a number of outlets” including (a) an item on the 9 p.m. news on RTE on 13th December 2006 (the night before the application); (b) a report of an item on a morning RTE or a Newstalk radio programme at “about 8 a.m.” on 14th December 2006; and (c) newspaper reports in the Daily Mail, the Irish Independent, the Irish Times, and the Star, all on the 14th December 2006. These all followed in the immediate aftermath of the fatal shooting of a man called Byrne at the Financial Services Centre in Dublin on the 13th December 2006. No extracts are cited in the transcript from the RTE morning news programme of the 14th December 2006 nor from Newstalk radio, the latter of which, according to the transcript, had apparently made a reference to “a hand grenade attack on a house in Swords”. Taking the transcript in sequence, so far as concerns the RTE 9 o’clock news programme on the 13th December 2006, the relevant portion of the statement complained of is the following:
According to the transcript, the complaint made by the applicant’s then counsel in relation to the Daily Mail was of the following passage:
The Irish Times report was in the following terms:
“The sources last night told the Star they believed his killing is nothing to do with Hyland but rather is connected to his part in a feud between two rival crime gangs in Dublin’s inner city.” (emphasis added) In relation to that application the learned trial judge stated, inter alia:
“I am satisfied that a jury is capable of acting on the evidence and on the directions of law given by the trial judge. … I am prepared to give the jury an express warning but the parties might take the view that that is going to do them more harm than good. There will be a warning given if the parties want but I am not discharging the jury on the basis of what has been opened to me.” The second application was made in the early afternoon of the same date, and refers to an extract from a four page report covering crime in several parts of the country, under the title “Who’s in Charge?” in an edition of the Evening Herald of the same date, including the following:
Counsel for the defence submitted that the position arising from that publication was now aggravated and if the Court did not do something to stop this type of media publicity, “we would reach a situation of farce”. He argued that the newspaper articles were an attack on the presumption of the innocence of the accused, that the jury was being fed a diet of prejudicial information which clearly identified the applicant and reference was being made in graphic terms to the case and to details of the case “as well as references to Swords and Ferryman’s Crossing”. Counsel for the prosecution admitted to concerns arising from the “increasing publications” but according to the transcript, she was also concerned that this might give rise to possible intimidation of the jury, and at that time did not have full instructions on this very recent publication. In passing it should be mentioned that Swords does not however appear in any of the cited transcripts. In response to this second application the learned trial judge stated:
… Now Mr Giblin is entitled not to have anything published during the currency of this trial which would associate his client with alleged rape or with anything of that kind or with gangsters. I will receive from either the prosecution or the defence motions for contempt of court in relation to anything published that in any fashion prejudices the accused man in the course of this trial or can be taken as a reference to him in the context indicated. It is also open to the parties to take proceedings in the judicial review list. If any newspaper defies or radio station or organ of opinion defies the ruling I am just giving by prejudicing Mr Griffin’s situation in the course of this trial they will be dealt with extremely severely… If Mr Giblin has cause to complain again in the course of this trial these publications can be brought before me immediately for the purpose of extremely serious financial penalties. Ultimately of course the punishment for contempt is sequestration of their assets. I am not going down the imprisonment route and give them the satisfaction of martyrdom.” “… he also upset a number of criminals in the city because he took the side of a woman who was raped by another criminal”. This extract is the last two lines of the RTE News extract complained of on the first application. Mr Giblin argued that his client could not obtain a fair trial and that any retrial should be held in camera, when the newspapers and media outlets had been appropriately and severely dealt with by the court, referring to another trial in which the trial judge had taken that particular approach. The transcript discloses that on this application, prosecution counsel acting on behalf of the respondent considered that, if the jury had read, not the RTE extract just cited the actual subject of the applicant’s third application, but the Evening Herald extract the subject of the second application, it could have materially compromised the applicant’s presumption of innocence. For the purposes of dealing with the matter senior counsel for the prosecution, Ms Murphy, requested the learned trial judge to enquire of the jury members whether or not any jury member had read any material connecting any reported events with the trial itself. The learned trial judge heard argument on behalf of both parties and agreed to so enquire of the jury. The jury was enquired of in the following terms:
The jury: No. Judge: Are you satisfied with that? The jury: Yes. Judge: … do you feel you could remain uninfluenced by any external matters until this case is over, treat it exclusively on the evidence and my legal charge(?check) or should we insulate you in a hotel without newspapers radio and television? Do you want to have a chat about it. Foreman: Yes.” In the absence of the jury counsel on behalf of the applicant contended regard:
The jury was recalled and the foreman stated the following, without any opportunity of being further addressed by the judge:
In response the trial judge stated: “Well now, what I have been told by the jury has answered a further question that was put to me since. Mr Foreman, members of the jury, I don’t believe we are going to make much further progress today…” No further application was made on behalf of the applicant in relation to the above response of the jury. The fourth and final application was made on the 19th December 2006 in respect of media reports and was in the following terms:
This application was rejected by the learned trial judge in stating:
Mr O’Higgins for the applicant accepts in his oral argument that no connection had been made by the jury to the media coverage of the Byrne murder as of the 15th December 2006, having regard to their responses. He submits however that one or more of the jury “must have read or must have seen the articles or broadcasts which reported upon the extraneous matters taking place outside the courtroom”. He relies on case law in support of his contention that the media publicity went far beyond what was permitted in law and to an extent that the jury ought to have been discharged, and that the trial judge erred in law in failing to do so. Mr O’Higgins further emphasises that the extracts the subject matter of the complaints made on the 14th December clearly referred to the applicant, and that there should be no doubt about this. The closest reference, he says is, to “Ferryman’s Crossing”. Notwithstanding that all the pointers in the media coverage refer to the case, and make it clear that it is referable to the applicant, as accused, he submits the trial judge nevertheless fell into error in suggesting that the material did not support an application to discharge the jury, but was referring to some future event and not the one before the court,. The learned trial judge, if he had concluded that the media coverage did not refer to the accused, which he could not have done on the material in question, should have determined also that no reasonable person could conclude that the coverage did refer to this particular trial, but he did not do so. The only conclusion to be drawn was that the learned trial judge had committed an error in principle, in the approach he adopted to the materials, even on the first application made on the 14th December 2006. As to the extract from the Evening Herald, Mr O’Higgins adopts the approach previously adopted by Mr Giblin, then counsel for the applicant, that the situation was developing “into a farce” unless it was remedied and that the presumption of innocence of the applicant was being jeopardised to an unacceptable level, it being “open season” on the applicant at that time. He submits that the publicity in question was “hard core material” and of such a nature as to be unprecedented in the course of a trial, referring to “a murderer” and “a leader of a feud” and to “issues of intimidation”, and that one would be hard-pressed to find anything more scandalous in nature. He argues that in light of the sensitivity of the issues and the importance of the maintenance of a clear barrier between the reporting of extraneous issues, and the matters to be canvassed at the trial, the learned trial judge should not have questioned the jury, firstly, in relation to their state of knowledge, and also should not have addressed the jury in terms of what he calls a “threat to sequester”. He also submits that the trial judge should not have posed any question to the jury when this was not with the consent of both parties; that while the foreman of the jury stated that the jury had not been aware of any media coverage of the trial, it was an irresistible inference that the jury had read and had seen the footage in question, because it had been brought to “the forefront of the jury’s mind”. It was “inevitable that the connection would then be made” since the question posed must have naturally excited or aroused curiosity in the mind of the jury. Having posed the question and received an answer, the judge committed an extreme error in principle by entering into discussion with the jury without the consent of the defence or of either party, which was highly damaging to the applicant and the jury was not advised that the option of being discharged was available. No balanced or fair consideration could have been given to the issue by the jury in the absence of knowledge on their part of the latter option available to the trial judge. Concerning the final application made on the 19th December Mr O’Higgins also argues that the ruling on this was a peremptory ruling, the judge wrongly refusing, in reality, to entertain the application at all. Counsel on behalf of the respondent argues that the approach of the learned trial judge in relation to all applications was correct. On the first application the material was sufficiently innocuous and sufficiently far-removed in content from the trial that there was no requirement or necessity for the discharge of the jury, and no appreciable risk that the jury would have been, by virtue of any of the materials cited on the 14th December 2006, influenced or contaminated in any way. Counsel for the prosecution accepts that the content of part of the report of the Evening Herald gave rise to concerns, but that those concerns could be dealt with by appropriate questions put to the jury to ascertain the jury’s knowledge of the material or of its relevance. The appropriate questions were put to the jury in a manner similar to questions put in other trials, including in the first trial of the applicant, and were entirely proper in the circumstances. Moreover any other approach such as that proposed on behalf of the applicant would have drawn the jury’s attention to particular matters extraneous to the trial and of which the jury remained unaware. Finally counsel for the respondent contends that, whereas those intimately involved in events arising outside the trial, or extraneous to the trial, or persons having particular knowledge of the security report might, but only might, have made some association between the trial and the materials published in the Evening Herald, the alleged connection between the extraneous matters and the applicant or the trial was not at all likely to be as evident to those not so familiar, such as a jury. Conclusion: The Court is satisfied that the first application on the 14th December 2006 was correctly dealt with by the learned trial judge and does not in any way call into question the fairness of the trial or the safety of the verdicts. The court has set out the extracts complained of. These extracts did not, and could not reasonably have been understood by a jury to have referred to the case which was at hand. The suggestion of counsel for the applicant that the learned trial judge should have said, if he believed it to be so, that no reasonable jury could understand that the materials referred to the applicant, even if correct, and the court does not find it necessary to decide this, could not, for that reason, lead to an unfair trial or to unsafe verdicts. The Irish Times report stated only that Byrne, originally from “Ferryman’s Crossing”, had “recently been implicated in a grenade attack in the north inner city which was part of a feud between criminals”. That latter claim is scarely an obvious reference to the trial. The mention of “Ferryman’s Crossing” which counsel for the applicant says is the “closest connection” to the trial, is hardly surprising since the extract simply states that the deceased, Byrne was “originally” from there. This appears to be a street or an avenue in the north inner city, likely to consist of a normal number of houses or apartments. It is not clear why counsel considered this to be such a strong connection even if one of the charges in the case related to an event which occurred in that same street or avenue. The extract from the Irish Independent denied any links with a man called Hyland, but stated that the gardaí believed the murder “may be linked to an ongoing feud between two north inner city families”, which stemmed from “a rape several years ago”. That suspect, whoever it might be, was “due to stand trial shortly” which was not a likely direct reference to an ongoing trial. The extract from the Star spoke only of “a feud between two rival crime gangs in Dublin’s inner city”. The Daily Mail stated he “upset other criminals after taking the side of a minor who was allegedly raped by another underworld figure”. Finally, the RTE extract complained or spoke of Byrne “taking … the side of a woman raped by another criminal”. None of these extracts could be taken reasonably to refer to the applicant in the manner contended for by counsel. The submission by counsel then acting on behalf of the applicant at trial was that the following had been mentioned: the inner city, Ferryman’s Crossing, Seville Place, and Swords, in terms of areas. Seville Place was already set aside by counsel himself as not being relevant. Swords, repeated on more than one occasion by then counsel, had its origin in a complaint, never developed, of an extract alleged to have been broadcast on “Newstalk” radio. That extract was never presented in court and never cited. Nor did it even appear among the list of radio and television clippings which were furnished to this court as part of the bundle of media reports relied on by the applicant, and the subject of this Court’s ruling made in July 2008, which also contained all the above mentioned extracts from television, radio and print media which are the subject of the present application. Counsel having corrected himself, according to the transcript, in relation to “Seville Place”, this left the “inner city” and “Ferryman’s Crossing”. Apart from the localities in the print media, there are references to “taking the side of a woman who was raped”, and reference to “feuding families” arising out of the rape. In one extract, the rape was to be the subject of a future trial. One report did include the fact that it was a minor who was raped. While another referred to Byrne as coming originally from Ferryman’s Crossing, it made no mention of a rape at all. Nor did the extract from yet another newspaper. Further it would have to be assumed, even on counsel’s argument at trial, that in order to make the claimed connection with the applicant or the trial, the jury would have to have read all of the above print materials, and possibly also have seen the television and heard the radio broadcasts complained of, which cannot be presumed to be either likely or obvious, the individual reports the subject of the first application not being likely to have the results contended for. The learned trial judge had a discretion to discharge the jury if there was a reasonable likelihood that the material would be understood by the jury to refer to the applicant in the present case. The Court is satisfied that the learned trial judge was correct in finding that the material was not “of a smoking gun nature” sufficient to discharge the jury at that time. The second of the applications to discharge the jury was in respect of the extract from the Evening Herald set out above. This was, as is clear from the exhibits filed, part of a larger, four page report, on criminal gangs using guns in Ireland and on ways of dealing with the problem. As concerns the particular extract, which occupied a relatively small part of the overall report, it mentioned an address in Raheny where the deceased person, Byrne, had lived, stating that the “would be assassin” who had been “charged with rape” had been arrested in the area some months previously. A feud was mentioned, and the rape of a 12 year old girl over a number of years by a person “while living with her mother”. This was a much closer reference to the subject matter of the trial than the earlier extracts, but also had to be seen in its much larger context. The learned trial judge’s refusal to discharge the jury on the basis of that material, but combined with an indication that the media could be brought before the learned trial judge “immediately” for the purposes of sanctions, appears to this court to be a sufficient and proper exercise of the learned High Court judge’s discretion in the matter at that time, and does not suggest the claimed failure on his part to exercise his discretion within correct legal principles. But even if the approach was open to question, which the court does not have to determine, the extract was in fact revisited the following morning, that is, on the next earliest possible occasion, to which the court now turns. On the third application on the 15th December 2006 which was dealt with on the basis of the respondent’s delayed response to the Evening Herald extract, in respect of which the respondent’s counsel also expressed concerns, the learned trial judge agreed to revisit the content of that publication, on the basis proposed by the respondent, that is, by questioning the jury in relation to it. As set out above, counsel for the applicant objected to the particular question put by the judge to the jury and contended that the appropriate question to be asked of the jury was whether they had seen the “specific material” of which complaint was made, and in response, the learned trial judge agreed to recall the jury, without indicating what he might propose to say to them. The jury, having been canvassed, delivered a response which made it clear that it had not been influenced by any media reports, for the fairly simple and straightforward reason that they did not think the issues arising in the trial had reached the media. This was a voluntary unprompted response of the jury. The jury further undertook to avoid looking at any media for the future of the trial. The test, as correctly stated by counsel then acting for the applicant, is whether there is “an appreciable risk that the jury have been contaminated in some way by the media coverage”. The Court is satisfied that the approach adopted by the learned trial judge was an appropriate manner in which that application was disposed of, and given the response of the jury and the undertaking given, there was no such appreciable risk of the type required for the discharge of a jury. On the other hand, if the question proposed by counsel for the applicant had been put to the jury, it would have specifically drawn the attention of the jury to the very material which they quite clearly had not seen, as is evident from their response, and as is accepted by Mr O’Higgins, and in respect of which they had made no association whatsoever with the trial. Such a question would also have drawn a particular connection between what counsel for the applicant calls “the extraneous events” reported in the media and the trial itself, a consequence which might then well result or risk resulting in the discharge of the jury, an otherwise unnecessary event in the light of the jury’s actual knowledge. There is no basis upon which to conclude, as counsel for the applicant suggests, that the jury “must have seen” the coverage and that “an inevitable connection was made” No application was in any event made on behalf of the applicant in relation to the jury’s response or to the learned trial judge’s acceptance of that response, and it must be assumed the response was considered satisfactory by then defence counsel, highly skilled in trial matters. Nor was any argument presented on the basis that the jury ought to have been instructed on the alternative possibility of its discharge. While the Court also agrees with the respondent’s observation that the references in the media reports, assuming they were intended to refer to the applicant as being the person described, as Mr O’Higgins assures the Court they do, while they may well have been obvious to those very conversant with or involved in such external matters, it is not at all obvious that the references in the media reports which troubled the applicant would be as evident to others, such as the jury, not so involved, and the Court does not base its decision on this observation. Moreover, as the respondent points out, courts have consistently emphasised the importance to be attached to the independent role of the jury and to the ability of members of the jury to limit their decision making to evidence actually tendered in the course of a trial, and not to be influenced by outside matters, such as publicity. It is sufficient in that regard to refer to a small sample of the many, many cases in which this has been repeated over the years, both by this court and by the Supreme Court, including Dawson v Irish Brokers Association, (Unreported, Supreme Court, 6th November 1998) in which O’Flaherty J. stated:
That a trial court should have regard to and apply the above approach as being perfectly acceptable in law, is clearly established from the case law of this Court and of the Supreme Court. That is not to say that in an appropriate case, a jury should not be discharged in the proper exercise of the Court’s discretion. The existence of that discretion and the applicable principles were referred to in The People (Director of Public Prosecutions) v Nevin [2003] 3 IR 321 and were accepted as being correct in The People (Director of Public Prosecutions) v Laide [2005] 1 IR 209, in which the Court stated:
Finally, on this ground, it is argued that the learned trial judge wrongly indicated in his second ruling that contempt of court proceedings could be utilised as a means of controlling alleged adverse media publicity, it being argued that such an approach was wholly inappropriate in the context of the present trial. On this argument the court is satisfied that the trial judge was correct in indicating his willingness to consider a contempt motion, if appropriate, in the event of further publicity. He did not however suggest this was the only approach, and nor did counsel for the applicant think so, as counsel moved a third application to discharge the jury on grounds of adverse publicity the following day, dealt with above, and a fourth application on the next sitting day, which is dealt with below. In the present case the obligation on the jury to make their decision strictly by reference to the evidence heard in court was clearly outlined to the jury by the learned trial judge in his charge, in the following terms:
How do you ascertain the facts? Well now you are confined to the evidence, the evidence that has been given in the witness box and cross-examined upon, and you cannot wander outside the evidence. You cannot speculate. You cannot bring any independent knowledge of your own to bear. But if you had any independent knowledge of the facts of this case you would have disqualified yourselves when so invited to do at jury selection.” As concerns the fourth application which was dismissed by the trial judge in short terms, it is clear from defence counsel’s own submission to the trial court that the publicity had been “not as bad as one might have expected. The Court order, I think, may have had some effect”. He referred to, but without citing, the Evening Herald of the previous Friday, and mentioned the Irish Times of the previous Saturday, to the effect that the jury was asked were they affected by publicity relating to “other matters”, but he stated “I didn’t see that”. That submission was made against the exchanges which had previously occurred, and the undertaking by the jury that they would not look at any further media reports. No particular extract was cited, and having regard to counsel’s acknowledgement that the court order appeared to have had an effect and that the publicity was “not as worrying as the previous publicity”, it is difficult to see how the learned trial judge’s response, even if peremptory, can be criticised as being an incorrect exercise of the discretion vesting in him. Finally it was suggested in the course of argument on this ground, that the applicant’s then counsel had been, in effect, intimidated into silence or into not making any further applications in relation to adverse media publicity, by virtue of the alleged bias of the learned trial judge or by his response to the applications already made. Quite apart from the fact that no ruling was sought or made in the course of the trial on this alleged ground and the Cronin principles apply to it, from a reading of the transcript, there is no evidence whatsoever to support such a suggestion, and much evidence to support the conclusion that the applicant’s then counsel was in no way intimidated by the learned trial judge. Nor was he at all reluctant to make all appropriate applications on behalf of the applicant, and did in fact do so on several occasions throughout the trial, making detailed, strong and robust submissions in the course of several applications to discharge the jury, on a variety of grounds. He moved, in all, ten or eleven such applications. Further it should be added that if the issue of adverse media publicity was of continuing concern to counsel for the defence at trial, it would surely have been mentioned, but was not, in counsel’s closing speech to the jury. The issue of the media publicity complained of simply disappeared from the trial. This ground, based on media publicity, also fails. The Blanket Ruling Ground: This ground is allied mainly to the adverse publicity ground. Counsel on behalf of the applicant contends that, taking the nature of the publicity and the number of applications made to have the jury discharged, the trial judge displayed an aversion to and/or an unwillingness objectively or judicially to consider submissions or applications being made on behalf of the applicant. In particular he relies on the several rulings made as set out above, drawing special attention to the following response, which was to the second application made on the afternoon of the 14th December 2006:
According to the argument, the learned trial judge was, by that statement, for example, making it clear that while submissions could be made and would be formally entertained for the record, they would not be acted upon either at that time or at any time in the future days of the trial. It is submitted by counsel for the applicant, that this “blanket ruling” was an infringement of the constitutional right of the applicant to a trial in due course of law, because the trial judge was under a duty and obliged to conduct the proceedings with scrupulous fairness, but this did not occur having regard to the trial judge’s approach or attitude. Further, the onus was on the learned trial judge to hear and adjudicate upon all applications, and not to react by promising to hear further contempt motions, or by suggesting judicial review. The applications made were reasonable applications, not simply tactical manoeuvres to bring an end to a trial. The transcript discloses, Mr. O’Higgins argues, that the learned trial judge had adopted a particular approach or thinking, evident by ignoring the first application, and his insistence, on the second occasion, that the case was going to go ahead “no matter what”. He submits that the only choice given to the jury on the third application to indicate that they had not been influenced, or the possibility of spending Christmas in a hotel without newspapers, that is to say, in a repressive environment. There was a fundamental error in law, because if the trial is to proceed before the jury “no matter what” a trial judge cannot give the necessary weight to the arguments presented while setting his face in adopting a particular approach. Moreover this could not give the appearance of justice being seen to be done. It is also argued that by refusing to discharge the jury and by making the above blanket ruling effectively prohibiting or actively discouraging the making of any further applications whereby the concern of the applicant or the prosecution might be addressed in relation to media matters, the learned trial judge failed to eliminate the risk of an unfair trial, which risk was both real and apparent. Mr O’Higgins relies on several well known judgments and the principles found in them relating to fair trials and to a real and serious risk to a fair trial. On behalf of the respondent, it is submitted as follows: that prior to making the so-called “blanket ruling” the learned trial judge had heard several applications to discharge the jury on the basis of (a) the venue; (b) the failure of the learned trial judge to recuse himself; (c) the absence of a witness; and (d) media coverage. On the morning of the 14th December 2006, in response to the first application to discharge the jury on the basis of media publicity, the learned trial judge considered the nature and content of the coverage, ruling that although it did not reach a level sufficient to discharge the jury, he would entertain “such an application at any time”, stating that the court was used to applications relating to media coverage up to ten times a day. The second application to discharge the jury occurred just after lunch on the same day. This was made on the fourth day of the trial in circumstances, the respondent says, where the jury had heard very little evidence in a trial originally listed as lasting “four days, perhaps three”, at its commencement on the 11th December 2006. The respondent submits that during the course of the trial itself there is no evidence of any unwarranted decisions made by the learned trial judge, nor of any actions by him affecting the appellant’s right to a fair trial. It is submitted that while the apparent blanket nature of the statement complained of may be considered undesirable, there is no evidence of any inappropriate decision making on the part of the trial judge. The test of the conduct of the trial should be measured, it is said, by the actions and conduct of the learned trial judge and not on what was said, perhaps as an expression of frustration, at one point in the trial. Conclusion The argument on behalf of the applicant ranges far and wide on this ground. Firstly, it is important to point out that the objection which is made is to the initial statement (set out above), in the fuller ruling delivered by the learned trial judge on Day 4 of the trial, on the second application made on the 14th December 2006 based on media publicity, the earlier application having been made on the morning of the same day. That initial three line statement is the first part of a lengthier one in these additional terms:
Now, Mr Giblin is entitled not to have anything published during the currency of this trial which would associate his client with an alleged rape or anything of that kind or with gangsterism. I will receive from either the prosecution or defence motions for contempt of court in relation to anything published that in any fashion prejudices the accused man in the course of this trial or can be taken as a reference to him in the context indicated. It is also open to the parties to take proceedings in the judicial review list. If any newspaper defies or radio station or organ of opinion defies the ruling I am just giving by prejudicing Mr Griffin’s situation in the course of this trial, they will be dealt with extremely severely. After the trial is over, the gloves are off, they can publish what they like and, unfortunately, it is a feature of contemporary journalism that people are never prepared to wait. If Mr Giblin has cause to complain again in the course of this trial, these publications can be brought before me immediately for the purpose of extremely serious financial penalties. Ultimately, of course, the punishment for contempt is sequestration of their assets. I am not going to go down the imprisonment route and give them the satisfaction of martyrdom.” Secondly, it is the case that the media publicity on the second application was revisited the following day, on the further application by counsel for the applicant, when counsel for the respondent was in a position to give the prosecution’s view of the material. The transcript discloses no reluctance on the part of the learned trial judge to hear that application and all arguments tendered on behalf of the applicant. Thirdly, although the impugned statement supporting this ground was made on the second application, it was not objected to, and no application was made for it to be withdrawn or retracted. It was not the subject of any application to discharge the jury on the grounds now contended for. From the applicant’s point of view, as to media publicity, two further applications were made, one on the 15th December 2006 and one on the next sitting day, the 19th December 2006, and several earlier applications to discharge the jury were made on other grounds, all of them being entertained by the trial judge. In such circumstances, it must be taken that counsel then acting for the applicant did not consider that there was anything unduly objectionable in the statement made, and having regard to the number of applications made for the discharge of the jury, up until that point in time, did not consider it necessary to seek to have the jury discharged on the basis that the comment would or was likely to lead to an unfair trial or was an error in law of the magnitude now contended for. The transcript also demonstrates clearly that counsel for the applicant was more than willing to challenge rulings or intended actions or statements of the learned trial judge, and engaged, with skill and competence, in several exchanges with him. In the absence of any application or ruling on this ground, the principles in Cronin again apply. No reason has been put forward as to why an exception should be made to their application. A suggestion was made in the course of the oral hearing of this application that there was, in effect, no point in counsel raising such an issue. The court has found this not to be true. The case law makes it clear that it is for the applicant to establish that there was a real and serious risk of an unfair trial, arising out of any ruling made or any alleged failure of the trial judge to ensure a fair trial. That test is not met in relation to this ground having regard to the history of all the applications made, even if it were an admissible ground of appeal, which it is not. As to the second statement made by the learned trial judge, not in a voir dire, as the above statement was, but to the jury concerning the possibility that he would exercise his discretion to secrete the jury in a hotel during the trial, again no application was made in that regard either. It was simply mentioned, in passing, by counsel for the defence in his challenge on the question put to the jury. For this Court to entertain this as a specific ground, there must be some evidence to support the conclusion that the absence of any application was due to an error or oversight on the part of counsel acting for the applicant, as accused. Not only could it not be said that there was any such error or oversight, counsel then acting for the applicant was, as is set out above, extremely alert, and correctly so, to every possible objection which could be raised, and to every possible occasion upon which he was, also quite properly, entitled to and applied to have the jury discharged, or move further similar applications. The Court must conclude, having regard to the foregoing, that defence counsel deliberately, for good and valid reasons, did not seek to have the jury discharged based on the above so-called blanket ruling ground at any time during the remaining days of the trial. It can also be concluded that he did not consider that the exchanges with the jury were such as to give rise to any inhibition on putting forward the defence chosen, or of any risk to a fair trial, let alone a real or serious risk of an unfair trial, or of unsafe verdicts. This ground fails. The Missing Witness Ground: To understand this ground, the following sets out its context. The witness in question is M. D., the mother of the complainant in this case, and on the evidence, the long-standing partner of the applicant since in or around 1993. According to the book of evidence, she was listed as a prosecution witness in the first trial, and was also a witness listed in the book of evidence in the trial the subject of this application. The evidence relating to this witness’s absence is also of relevance. Her original intended evidence for the first trial was comprised in a statement she made to the gardaí on the 8th January 2003 included in the book of evidence. Her statement of proposed evidence included the fact that her daughter, the complainant, had informed her at a certain point in time about the alleged assaults, and that she, M. D., had then taken the complainant to the garda station to make a complaint on the 2nd or 3rd January 2003. Her statement of proposed evidence also contained an assertion by her that when she confronted the applicant he admitted having sexually assaulted the complainant. In the first trial which took place in May 2006, she agreed in her oral evidence that she had brought the complainant to Store Street Garda Station on the 2nd January 2003 to make a complaint, but not that the applicant had made the above admissions to her. In that trial, however, her evidence as tendered viva voce was not in accordance with the statement previously made by her to the gardaí but rather was materially different to and in conflict with it. As a result, she was, on the application of the prosecution, declared a hostile witness by the court, and was dealt with on that basis. A witness order was served on this witness for the second trial. She did not appear in response to the witness order, and a medical report was submitted in relation to her absence. The learned trial judge directed that the doctor issuing the report attend to give evidence, which she duly did on two occasions, on the 12th and 13th December 2006. Dr Lynehan’s evidence was to the effect that although she was not the witness’s regular doctor, having examined the witness, she found her to be suffering from acute anxiety and panic both on the Saturday prior to the date on which the doctor gave evidence, and on the 12th December, 2006 of her being in a state of acute anxiety and in fear of her life and of her children’s lives. The doctor could not, she said, imagine how the witness’s symptoms could be resolved unless the fear for her life was removed, although she could not say this for certain. The transcript also discloses that the missing witness, who had been given anti-anxiolytic and antidepressant medication, had not in fact followed the medical regime prescribed, because while taking the antidepressant, a longer acting drug, she had not taken the quick acting anti-anxiolytic. On the second visit to Dr Lyneham, the doctor’s evidence was that the witness expressed suicidal ideation, and felt she would benefit from a visit to a psychiatrist. The doctor, having spoken to a doctor at St Ita’s in Portrane, had arranged for the witness to attend there within two hours. However, about two hours later a friend of the missing witness telephoned to say the witness had not followed part of the medication programme prescribed and had not either attended St Ita’s. She, the doctor, said in evidence, she did not feel in a very strong position to influence the state of well being of the missing witness at that time. In response to questions by counsel for the defence at the trial as to whether, if the witness complied with the referral to a psychiatrist that “something could be done for her to address her concerns as to her physical and mental state”, the doctor stated: “It is very difficult to say because I feel that because her symptoms are directly related to a fear, a threat to her life, that unless that situation is resolved, it’s hard to imagine how her symptoms will change …”. Counsel acting on behalf of the defence in the course of the trial, made four applications, on the 11th, 12th and 13th December 2006, for the discharge of the jury on the grounds of the absence of this witness, considered to be a material witness for him. Mr O’Higgins firstly argues in this application, that where a witness is not available who has been listed in the Book of Evidence and upon whom a witness summons has been served, the onus is on the prosecution to establish that the witness is not available and will not be available. He submits that the position in the present case was that the medical evidence was not such that any diagnosis could be made, because fear appears to have been her main problem. However, it was not a question of the witness attending a doctor and refusing to be treated. The doctor was not sure whether the witness was going to follow the advice given. The furthest that the medical evidence went, he argued, was that the witness was unfit to attend trial but it did not go beyond saying that further investigation was warranted. The witness was not refusing to participate but was simply “too unwell” to attend, because the witness was in fear. Secondly, there was no evidence of this witness or indeed of the applicant seeking to buy immunity in some way, and the learned trial judge was wrong in holding it against the applicant that the witness’s failure to attend was a mechanism for buying immunity from suit. There had been a grenade attack on her home causing significant fear. Thirdly, this witness was an important witness who might or could establish the innocence of the applicant. In her evidence at the earlier trial she withdrew her statement previously made to the gardaí that the applicant had made certain admissions to her, and gave a reason why she considered that the complainant had made up the allegations. There was, in the circumstance, no reason for the learned trial judge to have continued with the trial in the absence of the witness. According to counsel for the respondent, the judge was not, in law, obliged to adjourn the trial for a witness whose evidence was declared hostile in the first trial and whose evidence was simply unreliable, invoking DPP v Casey (Unreported, Court of Criminal Appeal 14th December 2004) and R v Oliva [1965] 49 Cr.A.R. 293, and the prosecution has a discretion not to present a person whose evidence is not believable. If her evidence was capable of being believed, she could have been delisted, but no application was made in that regard. On the basis of the medical evidence the witness would not be in a position to give evidence as her anxiety would not diminish within any reasonably foreseeable period of time. Conclusion: It is not the case, as contended for by counsel on behalf of the applicant, that the prosecution must in all circumstances call a witness who has been listed in the book of evidence, although in law this is the norm, save in unusual or exceptional circumstances. Counsel on behalf of the applicant in the course of oral submissions made it clear, quite correctly on the applicant’s case, that assuming she gave the same evidence as she gave at the first trial, that evidence could or might be consistent with an innocent explanation, thereby rendering this witness of material importance to the applicant in the second trial. It seems to the Court that it is only if her evidence was the same as that given in the first trial, that she could be of any assistance to the applicant. Indeed the applicant applied to have certain portions of this witness’s evidence given in the first trial, made available to this court on this application for leave to appeal so that the evidence then given could be noted. Assuming the above to be the position, if she gave such evidence, it is equally clear that it would conflict with her proposed statement of evidence as originally given to the gardaí, and she would thereupon again be treated as a hostile witness. In such circumstances her evidence could not be considered to be material to the prosecution and there would be no value in calling her as a witness on its behalf. The applicant is not assisted by the decision in DPP v Lacy [2005] 2 IR 241 invoked on his behalf and the Court notes it was not relied upon by the applicant in the course of trial. In that case, while the general principle of law is as contended for by counsel for the applicant, namely that a witness in the book of evidence should ordinarily be called by the prosecution and should not fail to be called without a very good reason, the witness in that case was in an entirely different position however and had not changed his story in any way. Rather, his story had remained wholly consistent at all times. What was of importance in that case was that his story, which supported the accused, differed materially to the story of all other witnesses who were tendered by the prosecution, but he was nevertheless not called, and so his evidence was neither led not heard. It could very properly be said in such circumstances that it was wholly inappropriate that his evidence, among all other evidence, was not made available, whereas the evidence of all other witnesses, which was against the accused’s own evidence, was. Contrary to the facts in that case, the witness’s evidence in the present case at the first trial was wholly different from and in conflict with what she had tendered in her original statement. If she had responded to the witness summons, she could, of course, have been tendered to the defence if they wish to call her, as a witness, or she could, as the respondent argued, have been delisted, but no application was made in that regard. Further, the learned trial judge in the course of several applications to discharge the jury, invited counsel for the applicant to indicate whether or not he wished the court to issue a warrant for the arrest of this witness, which invitation was on all occasions declined, on no stated legal basis, but rather on the grounds that there was a possibility the witness might become available. The issue which the law requires a trial judge to consider, for the purposes of exercising his discretion to discharge the jury in such circumstances, is the centrality of the witness’s evidence to the trial, in particular to the accused. If her evidence was as it had originally been in her intended statement of evidence, it might or would likely have supported the complainant’s evidence. It would undoubtedly be challenged on behalf of the defence, inter alia, by reference to her different evidence in the first trial. There is no suggestion by counsel for the applicant that her original statement could or would assist the applicant, as accused. If, on the other hand, her evidence was given in terms similar to that at the first trial, she would be declared hostile. It is not established on behalf of the applicant however that her evidence would, in fact, be centrally supportive of the applicant’s case, counsel for the applicant contending only that her evidence, if it were to be given – but upon the nature or content of which there was no factual material available – and if it were the same as in the first trial, it would then be supportive of the applicant’s innocence. Nor was the only reliable evidence of her condition given by the doctor who examined her, suggestive of her being available to give evidence within any reasonable period of time. The Court concludes that the approach of the learned trial judge was appropriate in the circumstances of the case, there being no evidence as to when the witness would likely be available, that every facility was tendered to secure the presence of the witness and that the offers to have the witness brought to court pursuant to warrant, as would be normal, was not accepted on behalf of the applicant. There are, in the circumstances, no bases upon which this ground can succeed. The Inadequacy of the Charge: The final ground concerns the alleged failure on the part of the learned trial judge to give a warning to the jury as to the absence of corroboration. The obligation to give a mandatory corroboration warning in such cases was abolished by the provisions of the Criminal Law (Rape) Amendment Act 1990. The question which therefore arises is whether the learned trial judge, in failing to give such a warning in this case, wrongly exercised the discretion vesting in him to give such a warning in an appropriate case. Counsel on behalf of the applicant asserts that there were compelling reasons to give a warning in the present case, on two grounds, namely (a) the unreliability of the complainant’s evidence; and (b) her failure to recollect her precise age at the time of one of the offences. Counsel for the respondent argues that this court should not interfere with the trial judge’s discretion unless that discretion was exercised on an incorrect legal basis or was wrong in fact, relying on cited case law in that regard. Moreover counsel argues that in the course of his charge the learned trial judge gave a sufficient warning to the jury to constitute an appropriate corroboration warning in the context of the present case. The court is satisfied that the charge of the learned trial judge on this ground was sufficient having regard to the abolition of the mandatory corroboration warning in the Criminal Law (Rape) (Amendment) Act 1990. This is in the following terms:
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