Supporting Documents:

THE SUPREME COURT

DETERMINATION

THE PEOPLE AT THE SUIT OF THE THE DIRECTOR OF PUBLIC PROSECUTIONS

RESULT: The Court refuses leave to the applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

1. This determination relates to an application for leave to appeal to the Supreme Court from a judgment of the Court of Appeal (Birmingham J., Sheehan J., Mahon J.) delivered on the 10th February, 2017, and from the resulting order of that Court made on the 23rd February, 2017.

2. Jack Kirwan (“the applicant”) seeks leave to appeal to this Court from the said judgment and order of the Court of Appeal.

3. The Director of Public Prosecutions, (“the DPP”), is the respondent, who opposes the application for leave.

Jurisdiction

4. The jurisdiction of the Supreme Court to hear appeals is set out in the Constitution. As is clear from the terms of Article 34.5.3 thereof, and the several determinations made by this Court since the enactment of the 33rd Amendment of the Constitution, an applicant must establish, if he is to obtain leave for a further appeal, that the decision of the Court of Appeal involves a matter of general public importance, or that otherwise, in the interests of justice, it is necessary that there be an appeal to this Court.

Background and Procedural History

5. The issues which arise in this case arise from events which occurred on the early morning of the 11th October, 2008 at a hotel in Wexford. In the applicant’s trial, the prosecution case was that the applicant entered, without permission, a hotel bedroom occupied by the complainant, Ms. NB, and thereafter proceeded to sexually assault her by touching and digital penetration. This determination sets out only the material relevant to the application, and not all the evidence adduced at the trial.

6. The applicant was first put on trial for these offences in January, 2016. Two of the witnesses were the complainant and her sister, who had accompanied her on the evening to the hotel, and was also staying there. At the first trial, evidence emerged that the complainant and her sister had discussed their testimony prior to the trial. This matter had not been set out in the Book of Evidence. As a consequence, the trial judge discharged the jury. The applicant was then placed on trial again, on the 15th February, 2016. During the course of the trial both the complainant, and her sister, testified. The complainant gave evidence of travelling to Wexford on the night of the 10th October, 2008. She booked into the hotel, had dinner and then went on to a nightclub with her sister. Both the complainant and her sister had alcohol with the dinner and later in the nightclub. Later, the complainant and her sister returned to the hotel. The complainant went to her bedroom, while her sister remained in the downstairs area of the hotel. The complainant gave evidence of falling asleep on the bed, and then awakening to find that she was being assaulted. She saw an unknown male standing in the room in a state of undress. She testified that the man appeared to initially move to leave the room, but then attempted to get into the bed. The complainant shouted at the man to leave the room, and he eventually did so.

7. In the course of the trial, the complainant testified that, after the assault, she rang her sister seeking assistance. The complainant’s testimony was that she heard a knock on the door, and that, thinking it was her sister, she opened the door, only to find the applicant standing in the hallway wearing a shirt but no trousers. She screamed and slammed the door. The sister testified as to what she had been told by the complainant, which was admissible under the doctrine of recent complaint. She also testified that while she had been en route to the sister’s bedroom, she encountered a man in the hallway who was wearing a shirt but no trousers. There was some discrepancy between the evidence of the two sisters regarding the description of the assailant’s clothing on the night. The sister also told the jury she had difficulty in gaining entry to the complainant’s room, and telephoned her to say she was outside, and to open the door.

The Applicant’s Submission

8. The Notice of Application contains a number of complaints regarding what transpired at the trial, and thereafter in the Court of Appeal. It is said the Court of Appeal erred in a number of issues which were raised before it. These may be set out quite briefly.

9. First, it is said that there should have been a directed acquittal. The applicant submitted to the Court of Appeal that the trial judge had erred in not directing an acquittal, on the grounds that, because of the pre-trial discussions, the prosecution evidence had been “tainted” and, therefore, unreliable. The Court of Appeal rejected this argument. It accepted that, while the situation was not ideal, nonetheless there was nothing disturbing or sinister about the fact that two sisters would have conferred with each other about the events of the night.

10. Second, it is said that, at the trial, the judge charged the jury as to the dangers of a conviction in a case of this type without corroboration evidence. But it is contended that the corroboration warning given by the judge was perfunctory or inadequate. The Court of Appeal rejected this submission, pointing out that the trial judge had directed the jury that evidence regarding the discussion was only relevant to the reliability of their evidence. The Court of Appeal pointed out that there was no evidence of any intention to deceive the jury in line with a technical definition of “collusion” between witnesses.

11. Third, at the trial, and in the Court of Appeal, it was suggested that what was at issue here was “system evidence”, and, therefore, inherently unsafe. The Court of Appeal rejected this submission also. It concluded that the two sisters had discussed their evidence prior to the trial, and that the evidence regarding their discussions had been the focus of consideration during the second trial, and the matter had been dealt with by the trial judge in considerable detail.

12. Fourth, with regard to requisitions as to the corroboration warning, the Court of Appeal noted that, on two separate occasions, the judge had informed the jury that there was no corroboration, and that it was dangerous to convict in the absence of corroboration. That court also stated that the trial judge had, in fact, dealt with the question of alcohol consumption (an issue also raised), and the pre-trial discussion between the complainant and her sister. The Court of Appeal was of the view that the defence had been fortunate to have the benefit of a corroboration warning in the terms provided by the trial judge. The court was not persuaded that the charge regarding corroboration was in any way defective.

13. On behalf of the applicant, it is now said that the case raises legal issues as to the extent of the warning which must be given in sexual assault offence cases, where there is some possibility that the evidence of the complainant had been subject to innocent contamination for some reason. It is said that various decisions of the Court of Criminal Appeal, given in the context of so-called “system evidence”, involving complaints from multiple complainants, recognised the dangers which can arise from innocent contamination of a witness’s evidence. (See DPP v. CC (No. 2) [2012] IECCA 86, and other cases cited in the application). It is said that these points were directly raised in the course of the appeal before the Court of Appeal, but the Court of Appeal did not engage with them.

14. Thus, it is contended that the issues herein raise matters of general public importance, or, alternatively, that the application should be admitted in the interests of justice.

The Respondent’s Submissions

15. The respondent contends that the Court of Appeal was correct in its conclusions. Attention is drawn to s.7 of the Criminal Law (Rape) (Amendment) Act, 1990, which abolished the mandatory requirement for a warning in sexual offence cases, and renders it a matter for the judge’s discretion. The respondent points out that the judge had told the jury in his charge there was no corroboration, and had reminded them twice on the recharge. The trial judge had twice told the jury the dangers of acting on uncorroborated evidence in a case such as this. The respondent also draws attention to the fact that a doctor from the Sexual Assault Treatment Unit in Waterford Regional Hospital had found blood on two lower vaginal swabs in the course of an examination of the complainant, and stated this was consistent with the account given by the complainant. In the view of the Court of Appeal, this, and the distressed state of the complainant immediately after the incident, could have amounted to corroboration, and, therefore, the applicant was fortunate to have benefited have such a warning.

16. More directly, however, the respondent contends that no issues of general public importance are identified; nor is there any basis provided whereby, in the interests of justice, the Court should entertain this appeal.

Conclusion

17. In fact, the very specificity of the issues which are raised in the application and response, which are set out on the Courts’ website, demonstrate that this is not a matter of general importance. In truth, the issues sought to be raised are specific only to the trial in question. This Court does not consider that any of the matters raised are matters of general public importance, or that any new issue of law is raised. This is not a case of “system evidence”.

18. In the view of this Court, the Court of Appeal dealt with the matter in a comprehensive and detailed fashion. That court concluded that the issues in relation to the alleged unreliability of witnesses were issues which were specific to the case, and were ones which had been highlighted in the course of cross-examination, and again brought to the attention of the jury by the judge in the course of his charge.

19. The Court of Appeal was justified in holding that this was not a case of “system evidence”, and, therefore, the decisions of the Court of Criminal Appeal were not relevant. System evidence concerned multiple complainants, which had no application whatsoever in this case, where the discussion in controversy was between a single complainant and her sister. Furthermore, the respondent points out that there was, in fact, some inconsistency between the complainant’s evidence and that of her sister, as to what had happened after the assault, and specifically concerning the applicant’s state of dress, and his trousers. This would negative “system” or cross- contamination of evidence.

20. Nor does the Court consider that it is necessary that this appeal should be entertained in the interests of justice, as it appears the matter was very fully considered by the trial judge, and each of the issues was considered in its context by the Court of Appeal.

21. The Court would re-emphasise that this Court is not to be seen as a further “level of appeal” from the decisions of the Court of Appeal, but rather is intended only to deal with matters of general public importance, or matters which are to be considered necessary in the interests of justice. None of the points raised come within the constitutional criteria. The application is refused.

And it is hereby so ordered accordingly.