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Irish Court of Criminal Appeal |
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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P.-v- Chaene Onumwere [2007] IECCA 48 (24 May 2007) URL: http://www.bailii.org/ie/cases/IECCA/2007/C48.html Cite as: [2007] 3 IR 772, [2007] IECCA 48 |
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Judgment Title: D.P.P.-v- Chaene Onumwere Composition of Court: Finnegan J., Mac Menamin J., Feeney J. Judgment by: Finnegan J. Status of Judgment: Approved
Outcome: Refuse leave to appeal against conv. | ||||||||||
14 THE COURT OF CRIMINAL APPEAL Finnegan J.MacMenamin J. Feeney J. No. 256/2005 BETWEEN THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS Respondentand ApplicantCHAENE ONUMWERE Judgment of the Court delivered on the 24th day of May 2007, by FINNEGAN J. The applicant seeks leave to appeal against conviction and sentence. He was convicted of one count of sexual assault contrary to the Criminal Law (Rape) (Amendment) Act, 1990 section 2 as amended by the Sexual Offences Act, 2001 section 37. He was sentenced to six years imprisonment. On the evening of 17th June, 2004 the complainant met a friend after work in Fitzsimons Hotel, Temple Bar, Dublin. At about 11 pm the complainant and her friend went to the hotel nightclub. They met a group of four or five Nigerian men and went back to their flat. The complainant retired to a bed fully clothed and fell asleep. She woke to find one man holding her down by the shoulders while the other was "pushing her from behind". She screamed and a third man entered the room, turned on the light, whereupon the two within the room left. The complainant felt wetness on her upper thigh and also on the bed sheets next to her. She reported these events to the gardai and samples for the purposes of DNA testing were taken from her. The gardai attended at the men's flat. Five men were present. Four of these agreed to give DNA samples. The applicant refused. There are ten grounds of appeal. Of these, three were not pursued at the hearing. Grounds two and three were dealt with together, as were grounds four and five and accordingly the appeal can be dealt with under five grounds. Ground 1 - The learned trial judge erred in law in refusing to permit the accused examine the witness Werner Brown as to the nature of his recollection of the conduct of the complainant and her friend while in the hotel nightclub. The complainant was cross-examined about her ability to recollect the events of the night in question having regard to the amount of alcohol which she had consumed and the circumstance that she was taking prescription anti-depressant medication. Her evidence was that while she had a poor recollection of the events of the evening this was due to her desire to put those events behind her and specifically this was not attributable to the consumption of alcohol or the taking of medication. She was asked did she kiss any of the males with whom she was dancing while in the nightclub and she replied that she did not. Mr Brown was a doorman at the nightclub. She was asked: Question: So again if Mr Werner Brown comes into court and says that he witnessed you kissing and hanging around the necks of three of the men in the company he would be lying? Answer: Yes. There is something not right about that, definitely not. The only witness called on behalf of the applicant was Mr Brown. Before he gave evidence counsel for the prosecution objected that if Mr Brown's evidence went to credit only then it was not admissible and that the replies given in evidence by the complainant on matters collateral to matters in issue and in particular matters going to credit were binding. Counsel for the applicant gave as the reason for calling Mr Brown the introduction of evidence in relation to the complainant's ability to recollect the events of the evening, her conduct in the nightclub and her truthfulness as a witness. Counsel was asked by the learned trial judge if these were not matters as to credit and he replied:- "There could be nothing more important in a sexual assault case than credibility. It is a question of both sides effectively telling their story and for the jury to determine whether or not the complainant's story is capable of belief beyond a reasonable doubt. Now if their credibility is undermined by them having been shown to the jury to have misrepresented facts collateral to the issue then I would have to be entitled to do that". From this it is clear that the basis upon which it is was sought to introduce Mr Brown's evidence was one collateral to the matter in issue namely the complainant's credibility. In R v Nagrecha [1997] CAR 401 the appellant had been conviction of indecent assault. The defence had a statement from a Mr Lee which contained the following - "I found her very difficult. She suffered from what appeared to be severe mood changes … She also made allegations of a sexual nature against me when I told her to shape up at work or she would have to go. She reported this to my boss who did not believe her. Due to bad work standards she left shortly after this. She told work colleagues she had been sexually assaulted on one occasion by a taxi driver or at least there had been an attempt to do so. Also she told us a building worker had attempted to sexually assault her. No one believed what she said". Counsel for the defence sought permission to cross-examine the complainant about the matters contained in Mr Lee's statement and depending on the answers which she gave be permitted to call Mr Lee to give evidence. The complainant denied that she had made any of the allegations of a sexual nature. The trial judge had held that although the defendant was entitled to ask the complainant whether she made the allegations and whether they were true as they went entirely to credit if she denies them the defence may not call witnesses to contradict her. The Court of Appeal reviewed the authorities and held that rebuttal evidence should be admitted where such evidence goes to an issue. The court referred with approval to a passage from Cross and Tapper on Evidence (8th Ed) at p.341:- "It has also been remarked that sexual intercourse, whether or not consensual, most often takes place in private and leaves few visible traces of having occurred. Evidence is often effectively limited to that of the parties, and much is likely to depend upon the balance of credibility between them. This has important effects for the law of evidence since it is capable of reducing the difference between questions going to credit and questions going to the issue to vanishing point. If the only issue is consent and the only witness is the complainant, the conclusion that the complainant is not worthy of credit must be decisive of the issue". A further passage from Cross and Tapper on Evidence (8th Ed) at p.335 was also quoted with approval:- "There are now signs of a more liberal approach to rebuttal certainly in criminal cases. A modern example is Busby where it was suggested that a police witness for the prosecution had fabricated an oral confession and threatened a potential witness for the defence so as to prevent him from testifying. Both allegations were denied by the police officer and the defence proposed to call the man who had been threatened to rebut the denial of a threat. The judge refused to permit the rebuttal applying the traditional collateral matter rule, but the Court of Appeal quashed the conviction on the basis that the defence should have been allowed to rebut the denial because it went to a fact in issue. This seems quite contrary to the decision in Harris v Tippett, and to most tests for the distinction between credit and issue, in effect, substituting substantial relevance as a test for allowing rebuttal" Thus where consent is an issue credibility is of such importance that rebuttal evidence going to credibility may be admitted. In the present case consent is not an issue. In the course of Mr Brown's evidence counsel for the prosecution was asked by the learned trial judge what was the purpose of the questioning and he replied "to discredit". He went on to say that "No My Lord it is not to discredit it is to establish credibility of one set of facts over the other". The only facts to which this comment could relate was the alleged conduct of the complainant in the nightclub and the court is satisfied that this conduct was not a fact in issue. Accordingly, the evidence of Mr Brown was properly excluded. Ground 2 - The learned trial judge erred in law in refusing to discharge the jury when the prosecution served additional disclosure on the defence after the prosecution had closed its case, where such disclosure pertained to the evidence given by Mr Burrington, witness for the prosecution and where the prosecution was not purporting to recall that witness. Ground 3 - The learned trial judge erred in law and in fact in determining that the accused was not prejudiced by the fact that it was only disclosed by the prosecution after it closed its case that at least two other people, previously unknown to the defence, had been involved in the DNA evidence adduced by the prosecution during the trial where the procedures and methods used in obtaining and analysing that evidence had been challenged by the defence. DNA evidence was central to the prosecution case. The evidence was given by Mr Mike Burrington, a scientist from the Forensic Science Laboratory, Dublin. During the course of cross-examination by counsel for a co-accused the witness explained the deletion of a reference "16" from his report. When asked why this occurred he explained that a second analyst did not detect the element 16 and that the normal practice where two analyses do not agree is that the most conservative approach is adopted. A second analysis is carried out routinely throughout the entire procedure. This was the first time that the applicant's legal team were made aware of the existence of a second analysis. The following day counsel for the prosecution informed the court that: "It is best practice in the Forensic Science Laboratory, that when checking on the DNA from time to time, to get a second opinion from another scientist, in this case it was a Miss Geraldine O'Donnell. She in fact happens to be senior to Mr Burrington but was acting as a back-up scientist in each case. I am not calling her as a witness. Similarly, a Miss Linda Williams from the Forensic Science Laboratory did back-up, double checked, on some of the gel tests. I am not calling her as a witness either. … There is some five or six pages of charts or tables or notes generated by Miss Geraldine O'Donnell, and lest it be said that there has been a failure to record full disclosure in this case I’m making copies of those available now". An application was made to discharge the jury which the learned trial judge refused to do. The applicant's submission is that failure to disclose the additional tests potentially prevented the defence from challenging the credibility of the DNA evidence. Reliance is placed on Director of Public Prosecutions v A.C. - Court of Criminal Appeal unreported 11th May, 2005 Denham J. The issue in that case was whether the prosecution failed to make prompt disclosure and if they did what consequences should flow. The court laid down the following principles - "1. The court should consider, by reference to the principles already established in respect of cases where evidence emerges subsequent to trial, the materiality of the evidence. 2. The court should consider the culpability of the prosecution and the defence in relation to the late availability of the evidence." In this case the evidence in issue was undoubtedly made available late. The applicant claims that it had the potentiality of enabling the DNA evidence of Mr Burrington to be attacked. Notwithstanding the availability of the documents however, it is not suggested that any discrepancy other than that related to element 16 is disclosed in the additional documentation. The discrepancy was in any event disclosed in the course of cross-examination and related to samples taken from one garment only. In these circumstances the defence in no way contributed to the late disclosure. The additional evidence was confirmatory of the evidence of Mr Burrington and, accordingly, not material in the sense of being in any way exculpatory. The failure to make disclosure in these circumstances did not affect the fairness of the applicant's trial. Ground 4 - The learned trial judge erred in law and in fact in finding that the detention of the accused by the gardai after his arrest complied with the provisions of the Children Act, 2001. Ground 5 - The learned trial judge erred in law in ruling that such breaches of the provisions of the Children Act, 2001 which may have occurred in relation to the accused's detention in garda custody were not matters sufficiently prejudicial to the accused to necessitate him ruling inadmissible any evidence arising out of that detention. The applicant has an application for asylum pending and in connection with that application he gave his date of birth as 14th August, 1986. This date appears on an identity card furnished to him by the authorities. He was arrested on the 18th June, 2004 just under two months short of his eighteenth birthday. The Children Act, 2001 in part 6 thereof contains provisions relating to the treatment of child suspects in Garda Síochána stations. Relevant to this application are section 56, section 58 and section 61. These provide as follows:- "56. The member in charge of a Garda Síochána station shall, as far as practicable, ensure that any child while detained in the station shall not associate with an adult who is so detained and shall not be kept in a cell unless there is no other secure accommodation available. 58. (1) When a child is arrested and brought to a Garda Síochána station on suspicion of having committed an offence, the member in charge of the station shall as soon as practicable - (a) inform or cause to be informed a parent or guardian of the child— (i) that the child is in custody in the station, (ii) in ordinary language and in the Irish language when dealing with a child from the Gaeltacht or a child whose first language is Irish, of the nature of the offence in respect of which the child has been arrested, and (iii) that the child is entitled to consult a solicitor and as to how this entitlement can be availed of;
(b) request the parent or guardian to attend at the station without delay. (i) is unable to communicate with a parent or guardian of the child, or (ii) the parent or guardian indicates that he or she cannot or will not attend at the station within a reasonable time,
(a) a parent or guardian, or (b) in his or her absence, another adult (not being a member of the Garda Síochána) nominated by the member in charge of the station. (2) Notwithstanding subsection (1), the member in charge of the station may authorise the questioning of the child or the taking of a written statement in the absence of a parent or guardian, where the member has reasonable grounds for believing that to delay the questioning would involve a risk of death or injury to persons, serious loss of or damage to property, destruction of or interference with evidence or escape of accomplices.
(7) In this section references to a parent or guardian include references to an adult relative of the child, an adult reasonably named by the child pursuant to section 58(2)(a) or the adult mentioned in subsection (1)(b)."
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