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Irish Court of Criminal Appeal |
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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Director of Public Prosecutions -v- Foley [2013] IECCA 90 (20 December 2013) URL: http://www.bailii.org/ie/cases/IECCA/2013/C90.html Cite as: [2013] IECCA 90 |
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Judgment Title: Director of Public Prosecutions -v- Foley Neutral Citation: [2013] IECCA 90 Court of Criminal Appeal Record Number: 314/09 Date of Delivery: 20/12/2013 Court: Court of Criminal Appeal Composition of Court: Murray J., de Valera J., McGovern J. Judgment by: Murray J. Status of Judgment: Approved
Outcome: Leave to appeal v conviction refused | ||||||||||||
December THE COURT OF CRIMINAL APPEAL
Murray, J. [314/09]
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT AND DANIEL FOLEY APPLICANT JUDGMENT of the Court delivered on the 20th December, 2013 by Murray J.
1. On the 4th December, 2009 the applicant was convicted, after a trial by judge and jury at Tralee Circuit Criminal Court, of the offence of sexual assault contrary to s.2 of the Criminal Law (Rape) Amendment Act, 1990, as amended by s.37 of the Sex Offenders Act, 2001. The statute provides for a maximum term of imprisonment of 10 years. 2. The applicant was sentenced to a term of imprisonment of 7 years with 2 years suspended. 3. The applicant applied for leave to appeal against conviction and the sentence imposed. 4. On the 31st day of July, 2013 this Court refused the application both in relation to his conviction and sentence. The Court then stated that it would give its full reasons for its decision at a later date. The judgment sets out those reasons. The judgment first of all addresses the issue raised concerning conviction and then deals with the question of severity of sentence.
Ground of Appeal Against Conviction 6. At the conclusion of the trial no application was made for leave to appeal against conviction. There was an application for leave to appeal against sentence only which was refused. 7. In December, 2009 a notice of appeal against conviction was filed in the Court by the applicant in person (without any reference to a corroboration issue) and rejected, as no application for leave to appeal against conviction had been made to the trial judge. Such an application was subsequently made to the trial judge and refused. In July, 2010 the applicant applied to this Court and was granted an extension of time for appeal. The notice of appeal and application for leave to appeal subsequently filed raised the issue of corroboration for the first time. Background Facts and Circumstances – Evidence at the Trial 9. Both the complainant and the applicant were in the area outside the nightclub and the applicant carried the complainant to another nearby and more secluded area, namely, a car park at the rear of a building known as The Revenue Building. There was CCTV footage of both of them leaving that area and also evidence from CCTV footage of both of them in the Revenue car park. The sexual assault was alleged to have taken place in the Revenue car park. 10. It is not necessary for the purposes of addressing the issue of corroboration which has been raised in this appeal to recite in full the evidence at the trial, including that of the complainant. It was the defendant’s defence that what took place between himself and the complainant was consensual, and that will be referred to later in the judgment. The complainant’s evidence as to what occurred included evidence that the applicant was trying to force himself on top of her, trying to have intercourse with her and that she was resisting him. She recalls asking him how could he do this to me, saying “get off me” and saying no a number of times. She gave evidence of struggling with him, trying to kick him, hitting him and trying to push him off. She described him as having grabbed a hold of her wrists and pinning them down over his shoulder. She also referred to him as having tried to unbutton her pants and pull her pants off her while she was struggling trying to keep them on. At one point she passed out and when she came to her pants were off her. This was before the gardai arrived. 11. At approximately 3.50 a.m. a garda patrol car entered the car park behind the Revenue building. They were investigating a report of activities of some youths in the vicinity so that their arrival in the car park was entirely coincidental. As they drove into the car park Garda White noticed a man in dark clothing leaning on the ground over a woman. He got out and approached the man, who was the applicant, who kept saying “I found her here”. He noticed that the woman was naked from the waste down. She was mumbling, constantly moaning and groaning on the ground. He described her as being semi-conscious with her eyes closed, her head rolling from left and right. She was lying on the ground practically unresponsive. He immediately called an ambulance. The applicant in answering the questions put to him by Garda White stated that he had come out of the pub to smoke a cigarette and the bouncers had closed the doors behind him. He added that he had come around to the car park to relieve himself and “I saw yer one lying on the ground with no one else around her so I came over to see if she was alright and when I got her I realised I knew her. There was nobody else around. I tried to get her standing.” He denied having sexual intercourse or assaulting her in any way. He said he thought he would be able to get her on her feet and get her home. He admitted that he had bought her a drink earlier that evening in the Mermaid but had only been in her company for about 5 minutes at the bar and didn’t see her again until he had come over to the car park. He was subsequently to admit to the gardai that the account he gave to the gardai on that occasion was untrue and proffered an explanation as to why he had lied to the gardai at that point. This is referred to later in the judgment. Evidence of Garda Mary McGinty
13. For the purpose of the issue in this appeal it is only necessary to focus on the essential aspect, and related circumstances, of the applicant’s defence to the charge, namely, that sexual contact occurred between him and the complainant but that it was consensual on the occasion in question. 14. When subsequently interviewed by the gardai in Listowel Garda Station on 2nd September, 2008, the applicant acknowledged that he had told lies to the gardai in the account which he gave when discovered standing beside the complainant in the car park on the night in question. Having admitted that the earlier account was untrue, the account which he then gave to the gardai at the interview included a statement that he had met the complainant outside the back door of the Mermaids nightclub and that he and the complainant went up the back of a laneway behind the Mermaids where they sat down near an archway and began ‘kissing and cuddling’. The applicant then described to the gardai how they had been touching one another intimately and that she, the complainant, suggested that they go somewhere else less public. They then went to the back of the Revenue building. There they began “kissing and cuddling” again. He said the complainant took her jeans and underwear off and then “we gave each other oral sex”. Everything that occurred occurred with her consent and she was sober enough to consent. Asked to explain why she was unconscious when the gardai arrived the applicant responded that he did not know “one minute she was talking, the next she fell asleep”. When asked why did he tell lies to the guards on that occasion he answered “She told me in the Mermaids that she had a boyfriend who was not the nicest of people. I panicked. I don’t know.” He denies sexually assaulting her. In answer to a specific question he stated that they walked from the back of the Mermaids over to the rear of the Revenue building and denied a garda suggestion that he carried her over there. In the course of the interview he was shown CCTV footage which appeared to show the applicant carrying the complainant in his arms across the car park and around the corner to the Revenue building and then the footage showed them together until the gardai arrived. Having seen the CCTV footage he accepted that he had, in fact, carried the complainant as it showed. 15. In his evidence at the trial the account given by the applicant was essentially along the same lines as the account which he gave to the gardai during the course of the interview, and in particular that any sexual contact between himself and the complainant was consensual. He did add that after they had been intimate with one another they both fell asleep. He woke up because he felt cold but said he failed to wake the complainant and shortly after that the gardai arrived. Submissions at the Trial 17. The learned trial judge had not discussed the question of treating such evidence as being capable of corroboration with counsel before he commenced his charge. It would have been more prudent if he had done so, as this Court has previously advised in a number of cases, but nothing turns on this in this case. In any event there was a luncheon break in the course of the trial judge’s charge and the matter was raised with him by counsel before the charge recommenced after lunch. Counsel for the prosecution questioned whether, and indeed he expressed the view that it was not, such evidence was capable of amounting to corroboration. The learned trial judge ruled, since ultimately it was a matter for him, that such evidence was capable of amounting to corroboration. No issue was raised by the defence concerning this ruling. 18. In the course of his continued charge after lunch he revisited the question of corroboration and as regards the evidence given by Garda McGinty he gave a direction to the jury in a form that had been agreed by both counsel. At the conclusion of the charge no requisition was raised by counsel for the defence concerning the form of direction given to the jury concerning corroboration in this particular respect. 19. Subsequently the jury returned to pose a question and seek clarification concerning the trial judge’s direction on this particular point. Both counsel for the defence and the prosecution agreed that the trial judge should repeat to them the agreed direction which he had already given, which he did. The Trial Judge’s Direction
22. Counsel in this application for leave to appeal submitted on behalf of the applicant that the Court should hear and determine the issue raised in the appeal notwithstanding the failure of defence counsel to object or requisition the trial judge on the point in question. The explanation given by defence counsel for failing to raise the issue at the trial was essentially that to do so could have had disadvantages for the defence and does not add anything to the weight of the submission made on behalf of the applicant, and therefore does not require further consideration. Although it would be open to the Court in these circumstances, in the light of successive decisions of this Court, to decline to determine the issue on the appeal by reason of the failure to raise the point at the trial, the Court in its discretion has decided to consider the issue on its merits. (See for example the judgment of the court delivered by O’Flattery J. in DPP v. Maloney (Unreported, CCA, October, 2000)). Submissions of the Applicant 24. It was submitted on behalf of the applicant that the statements of the complainant in the back of the ambulance were not independent of the complainant, were not credible by reason of her inebriated state and were capable of an alternative explanation. It is also submitted that what she said in the rear of the ambulance “might in fact be a form of unconscious complaint”. If such evidence was admissible it could only be admissible as demonstrating consistency on the part of the complainant but not as corroboration. Submissions of the DPP
Decision 28. No issue was taken on behalf of the applicant at the hearing of the appeal with the general principle that evidence of the state of distress of a victim following on assault may, in appropriate circumstances, be capable of constituting evidence corroborating her complaint in a material respect. 29. In Attorney General v. Levison [1932] I.R. 158 at 165 the following was stated by this Court:
31. As long ago as the judgment given by this Court in The People (AG) v. O’Sullivan [1930] I.R. 552 evidence concerning the distress of a victim was treated as evidence of corroboration. That was a case in which the accused had been convicted of sodomy of a young boy and at page 557 of the report it was, inter alia, stated:
33. An essential element of corroborating evidence is that it is independent of the complainant’s own evidence. Whether an item of evidence can be treated as independent of that of the complainant may depend on the particular circumstances of the case and, if it may be so treated, the weight to be attached to it. Thus evidence of a complainant concerning the interior details of a room in an accused’s house where an assault was alleged to have taken place would be corroborative if the jury were satisfied that the complainant had never otherwise been in that room. (see Levison above). An essential element of evidence concerning evidence of a complainant being in a distressed condition or state following an alleged assault is that it is capable of being treated as a spontaneous rather than false, contrived or self-serving reaction by a complainant. There may be evidence of distress of a complainant in circumstances where a trial judge might well rule that it should not be treated as being capable of amounting to corroboration. This may be due to remoteness from the time and circumstances of the alleged assault or other particular circumstances. Otherwise, where the trial judge rules that evidence is capable of being treated as corroborative, it is then a matter for the jury to consider whether evidence should, in fact, be so treated and if so, the weight to be attached to it. 34. In this particular case the evidence was that the complainant was unconscious, or virtually unconscious, lying on the ground naked from the waist down when the gardai arrived and Garda McGinty endeavoured to rouse the complainant while awaiting the ambulance. When the ambulance did arrive and she was being lifted on a stretcher the evidence of Garda McGinty was that the complainant began screaming and lashing out in all directions. Her evidence is set out in full earlier in this judgment. It includes the fact that the complainant became increasingly agitated, distressed and upset, and remained in that condition during the trip to hospital. The evidence was that she “kicked out and lashed out” for the duration of trip. “She was very disorientated and mumbling incoherently at times.” It is not in issue that she was in a semi-conscious condition at the time. Apart from her physical reaction the evidence from Garda McGinty was that she was shouting “Get off me” and “No” and “I won’t let you”. 35. Counsel for the applicant did not really take issue with evidence concerning the agitated condition of the complainant as such but objected in this appeal to the words spoken by the complainant being treated as evidence capable of corroboration of her complaint. It was submitted that at most this was evidence of consistency just as the complaints of a victim of sexual assault as to what happened to him or her immediately after the assault has been committed may be admissible as evidence of consistency but not as evidence of the truth of the statements. 36. First of all it should be noted that the agitated words of the complainant in the ambulance made no reference to any form of sexual assault and do not contain any particular allegation against the applicant or any other person. Both her physical reaction and the words spoken by her, apart from indicating a high level of distress, would suggest that she was, in a semi-conscious state, trying to fend off some attacker. The words spoken by the complainant in the distressed condition described by Garda McGinty cannot be equated to a complaint, properly understood, being made by her of an assault earlier in the car park. 37. One of the important features of the evidence of Garda McGinty is that the physical expressions of distress were inextricably mingled with the words which she spoke or shouted at the same time. It is not disputed that she was semi-conscious at the time or, as it has also been put, semi-comatose after having been found virtually unconscious at the scene prior to the arrival of the ambulance. 38. Being in such a semi-conscious state and taking, in particular, the description of her condition and state as a whole as set out by Garda McGinty it is clear that the complainant’s physical reaction and accompanying words were capable of being treated as involuntary and spontaneous by virtue of her emotional and semi-conscious condition. In other words, independent of her own conscious will. Therefore, in the particular circumstances of the case as described in the evidence the Court is satisfied that the trial judge was correct in ruling that such evidence was capable of being treated as corroborative of the complainant’s account in some material respect. Whether it was so was left to the jury to decide. The Court is satisfied, however, that they were entitled to treat the evidence as independent of the complainant’s conscious account of what took place if they were satisfied that her distress and accompanying words were a spontaneous and unconscious expression of her distress by reason of her emotional and semi-conscious state at the time. 39. An important consideration when considering whether evidence is capable of being treated as corroborative of a complainant’s evidence is whether it tends to implicate or connect the accused with the crime. In this context the defence of the accused may be of particular importance as pointed out by this Court in AG v. Levison (cited above). 40. As Kearns J. observed in DPP v. Meehan (cited above) having just quoted the relevant passage from the Levison case “An important feature evident in this definition is that that which constitutes corroboration may depend in an individual case on the "defence set up by the accused".” In DPP v. Gilligan Denham J. observed “Thus the nature of corroborative evidence depends on the facts and circumstances of the case and the defence of an accused. Corroborative evidence establishes a link which tends to prove that the accused person committed the offence. Corroboration may be found in a simple fact.” She went on to add that “The nature of the defence may be critical in determining what is corroborative evidence.” 41. In this case, as the facts outlined above establish, the applicant admitted having gone into a car park with the complainant in the early hours of the morning, after they had both been drinking, and to having committed sexual acts with her. His defence was that she consented to these sexual acts. These allegedly consensual sexual acts took place not long before Garda McGinty arrived on the scene. On the evidence before the jury it was open to the jury to treat her distressed state as being inconsistent with any suggestion of she having recently participated in a consensual sexual encounter. If they accepted that to be the case, of course it undermined the applicant’s defence that she had willingly participated in the sexual acts, and therefore tended to implicate him in the offence. 42. Accordingly, in the opinion of the Court, the evidence given by Garda McGinty was capable of being treated as corroborative of the complainant’s account of what happened on that occasion, and the trial judge was correct in so ruling. 43. There is one other matter referred to in the submissions of the applicant, namely, that the evidence should be credible. This aspect of corroborative evidence was addressed by Denham J. in DPP v. Gilligan (cited above). In that case she stated:
“The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible.” This is a matter of common sense. Corroboration arises where the evidence to be corroborated has a degree of credibility. However, corroboration is not a two stage process. It is not a process in which there is first a determination as to whether a witness is credible, and, if he is credible, then the issue of corroboration is addressed.” 45. Accordingly, for all the foregoing reasons, the Court will refuse the application for leave to appeal against conviction. Application for leave to appeal against sentence 47. As regards sentencing the complainant gave evidence of how she was severely and traumatically affected by the assaults. 48. In sentencing the applicant the trial judge made an extensive summary of all the circumstances of the case including the circumstances found to be aggravating, as well as reference to the character witnesses called on behalf of the applicant and the fact that he had no previous convictions. The aggravating circumstances included the attitude adopted by the applicant when the gardai arrived on the scene, which included not only the lies which he told to the gardai but referring to his victim as “yer one” and claiming to have found her by chance, unconscious, in the car park. 49. The trial judge found that the offence fell in the upper mid region of sexual assault. 50. No issue is taken with this conclusion of the trial judge when sentencing. 51. The appeal against sentence is based on two sentences in the transcript of the sentencing hearing where the judge observed: “I am conscious of the fact that the accused is 35 years of age and has no previous convictions, but one is not entitled to credit because one has no previous convictions.” He went on to say “Being conviction free is not an accolade which you can bestow upon yourself. Surprisingly in the plea in mitigation which was made on behalf of Mr. Foley, little remorse has been shown and no apology has been offered.” 52. The trial judge’s examination of the issues arising in sentencing, including the nature of the offence and the circumstances of the applicant, is extensive. He imposed, for reasons which he fully explained, a sentence of 7 years but with 2 years suspended. With regard to the two observations referred to the Court is of the view that the trial judge was addressing the degree of credit to be allowed to the applicant for no previous convictions, rather than excluding it entirely, particularly in the light of the absence of any show of remorse or apology in the course of the plea in mitigation and also having regard to the aggravating factors in the case. In any event, the Court is satisfied that the sentence imposed by the learned trial judge, having regard to the gravity of the offence and the circumstances of the applicant, was correctly structured and appropriate, and for the purpose of doing justice to the case concludes that the sentence should not be interfered with. 53. Accordingly, the application with regard to sentence is dismissed.
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