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Court of Appeal in Northern Ireland Decisions |
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You are here: BAILII >> Databases >> Court of Appeal in Northern Ireland Decisions >> PG, R. v [2005] NICA 9 (25 February 2005) URL: http://www.bailii.org/nie/cases/NICA/2005/9.html |
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Ref: HIGF5187
HIGGINS J
[1] On 1 December 2004 the appellant's application for leave to appeal against conviction was granted, the application for leave was treated as the appeal and the appellant's convictions quashed. A new trial was ordered on the same indictment. The appellant was released on bail pending the retrial on the same terms and conditions of bail as applied prior to his trial. The reasons for quashing the convictions were reserved and we now give them in this judgment. [2] The appellant was convicted by the unanimous verdict of the jury on all five counts on the indictment in a trial before His Honour Judge Foote QC at Enniskillen Crown Court on 21 June 2001. Counts 1 to 3 alleged indecent assault upon a female, count 4 alleged gross indecency with a child and count 5 alleged rape. The offences were alleged to have been committed against the appellant's niece (hereafter referred to as the complainant), between 1st June and 30 September 1987. The complainant was born on 19 February 1978 and in the summer of 1987 was 9 ½ years of age. The appellant's wife and the complainant's mother are sisters. [3] On 9 November 2001 the appellant was sentenced to 21 months imprisonment on counts 1 to 4 and to 12 years imprisonment on Count 5. All the sentences were ordered to run concurrently. [4] The Crown was represented by Mr McMahon QC and Mr Mateer, both of whom appeared at the trial. The appellant was represented by Mr Orr QC and Mr McCreanor, neither of whom appeared at the trial. [5] The complainant lives in the Republic of Ireland. In the summer of 1987 she stayed with the appellant and his wife at their home in Castlederg in County Tyrone. Her evidence was that throughout the period that she stayed with them she was indecently assaulted by the appellant and on one occasion raped. At the end of the stay she joined the rest of her family in Scotland for a holiday and then returned home. She did not tell anyone about these matters at that time. When interviewed by the police and in evidence at his trial, the appellant denied that he committed any of the alleged offences. [6] The complainant told the jury that when she was about 12 years of age she saw a television programme in which a woman recounted how she had been abused when she was young. About a week later "it came up in school and I told a friend of mine about what had happened to me". She then said she spoke to her teacher who requested her mother to come to the school and her teacher "told my mother what I had said". Later she said that when she was about 20 years of age she decided she felt "strong enough to talk about it". She undertook a training course with the Irish Society for the Prevention of Cruelty to Children at a centre in her home town. During this she had to sign a form that she would report any type of abuse she might hear about while she was at the centre. She decided that "it was time to deal with her own issues". One of the welfare officers at the centre advised her what to do and she spoke to the Garda Siochana. She was then asked if, during all those years, she had spoken to anyone else "about what had happened" and she replied that when she was about 14 years of age she had spoken to a counsellor in the Rape Crisis Centre in her home town. She said she had visited her on a few occasions for counselling and "spoke to her about it ". [7] In cross-examination she clarified that she had not herself discussed what had happened with her teacher directly. She thought she had said to her friend that "my uncle was trying to have sex with me" and she thought that this was what her friend had said to her teacher. Her teacher then asked whether her mother knew and she told the teacher that she did not. When her mother came to the school she spoke to the teacher alone. Afterwards her mother came out of the room and was upset and asked "who did it". At that stage the complainant told her mother about the abuse. Later when she went home from school "we sat down and discussed it and then I revealed what happened in Castlederg with [the appellant]". Later in her cross-examination she was asked –"Q181 Moving on then, when you discussed it with your mother did you advise your mother then of the full details of what had happened in Castlederg just as you told the members of the jury this morning.
A. As time went by I told my mother more about what had happened. I remember that at the start I found it very difficult to talk about it to my mother because my mother used to get upset when I talked about it. I think until the hearing my mother probably didn't know the full extent of what happened as regards the details.
Q182… Would she have known that [the appellant] had attempted to have sex with you or tried to have sex with you? A. Yes.
Q183 She would have known that he had indecently assaulted you, touched you on occasions? A. Yes."[8] The appellant's mother gave evidence that the complainant came home from school and told her that she had to go and see her teacher. The complainant told her why she had to speak to the teacher, but no details of what the complainant said were given. The next day her mother spoke to the teacher who asked if it was true and she replied yes and the teacher said she had hoped it was not. She was then asked –
"Q ….did [the complainant] go into detail about what had happened or not?
A. No she didn't at that time. And not for a long time, I was dragging, dragging information from her for along time before she – and a lot I didn't hear until today."[9] The complainant's stepfather gave evidence that he learnt of the complaints from the complainant's mother and that they had discussed what should be done about it. He stated –
"A. Obviously we agonised over it for a long time, I suppose, and we decided to keep it within the family and try to protect and support [ the complainant] as best we could."[10] Neither the complainant's friend to whom she had first revealed what she alleged had happened to her, nor her teacher, who spoke to her mother, were called to give evidence. However the Rape Crisis Counsellor to whom the complainant spoke did give evidence. She said the complainant first came to see her on 20 February 1991. In all she had about six or eight meetings with the complainant. She was asked what she was doing during those meetings and she replied " well, a lot of what, …[ the complainant] was very angry and …". Counsel interrupted and asked were you counselling her to which she replied, " I would say that I was, I was supporting her rather, I think." [11] Leave was granted to amend the grounds of appeal by the addition of two further grounds. These were –
"4. The evidence of complaint made by [the complainant] should not have been admitted in evidence.
5. If the evidence of complaint was properly admitted there was a failure to direct the jury on the evidential significance of a complaint in a sexual case."[12] Mr Orr QC indicated that these were the only grounds of appeal now relied on. He submitted that the circumstances in which evidence of complaint of a sexual nature can be given in evidence are limited. However, where such evidence is properly admitted in evidence, it is incumbent on the trial judge to give a careful direction to the jury on the significance and purpose of such evidence. His first point was that this evidence should not have been led by the prosecution as it was not evidence of recent complaint. [13] Mr McMahon on behalf the Crown accepted that this was not evidence of recent complaint. The evidence was introduced to set the scene as to how the complaint came to be made, to explain the delay over a long number of years and to show that the complaint to the Garda Siochana was not the first occasion on which she made a complaint. The prosecution anticipated that the defence would wish to attack the prosecution case on the basis that the complainant had not spoken about the allegations at the time nor for a long time thereafter. Mr McMahon submitted that the issue of consistency did not arise. [14] The learned trial judge dealt with this evidence in the trial in this way -
"It was put to her that these things just didn't happen at all. She was also asked whether she had told her mother before [her teacher] (?) told her mother or afterwards. Mr Rodgers put to her (Inaudible). Her evidence was that her mother didn't know about it until [ her teacher] (?) told her mother, but her mother said that [ the complainant] told her the night before she went to see [her teacher] . It's a matter for you, members of the jury, just how much weight, if any, you put on that. Is it the kind of thing (Inaudible)? Does it really matter very much (Inaudible). It is clear that she was making complaints about this two or three years after the (Inaudible).
We heard from [ ] (?) the rape counsellor from Clonmel. She tells us that [ the complainant ] went to see her on 20 February 1991, four years or three and a half years after these alleged incidents, and she saw her six or eight times then. She was playing a supporting role. We weren't allowed to hear, as a matter of law, what [ the complainant] told her. That is the law that you can't be told that. But we know that she did go to a rape counsellor in 1991 and her evidence was that she told her what had happened to her.
We heard from her mother. She said, as I have already said, that [the complainant] told her before she went to see [her teacher] but she said [the complainant] didn't go into the details at all for a long time (Inaudible). 'I didn't go to the Guards. I thought about it. I thought I could protect [the complainant] and get her through it (Inaudible).' These are matters of fact (Inaudible) members of families go through. It's a matter for you as to what weight you place on this. [Her stepfather] said he first knew about this some years later from his wife. He decided (Inaudible) and it was [the complainant's] decision to go to the police in 1998.
One thing I have to warn you about, it is now some time since these events, somewhere around 13 years. You are entitled to consider why these matters did not come to light sooner. Is that a reflection on the reliability of the complainant? You have been given an explanation (Inaudible). She has told you that she didn't tell anybody for two or three years (Inaudible). She said that when she was 14 or 15 years she went to a rape counsellor for a time. Finally then, after attending the Irish Society for the Prevention of Cruelty to Children, when she was aged 20 she felt strong enough to face up to it and contact the Guards who put her in touch with the RUC. You should make allowance for the fact that with the passage of time memories are vague. Witnesses, whoever they may be, cannot be expected to remember with clarity events which happened 13 years ago and sometimes the passage of time may even play tricks on memory. You must also make allowance for the fact from the Defendant's point of view that (Inaudible) the alleged incidents happened the more difficult it maybe for him to answer them. You have only to imagine what it must be like to answer questions about events which are said to have taken place 17 years ago to appreciate the problems which may be caused by delay and even if you do believe that the delay in this case is understandable, if you decide that because of this the defendant has been placed at a real disadvantage in putting forward his case you must take that into account in his favour in deciding whether the prosecution has made sure of his guilt."[15] It was submitted by Mr Orr QC that the jury were left with the evidence of the complainant about her allegations and some evidence that she had told her friend, her teacher, her mother and, inferentially, a rape counsellor about her complaints. On each occasion the witnesses were told, quite properly, that they should not relate the details of what the complainant had said. Without further explanation the jury were left with the impression that the complainant had on each occasion related details of her complaints that were consistent with the evidence that she had given before the jury. It was submitted that the purpose and limited effect of this evidence should have been explained to the jury and, in particular, that the jury should have been informed that the fact the complainant had made unspecified complaints to other people did not mean that she had given consistent accounts of her evidence to those persons on the other occasions in question. The way the learned trial judge had directed the jury on the issue left open the possibility that the jury would conclude that on each of the occasions referred to she had given an account consistent with her evidence and thereby her credibility, in the minds of the jurors, would be enhanced. [16] The general rule is that a witness may not be asked in examination in chief whether he or she has formerly made a verbal statement consistent with his or her present testimony and other witnesses cannot be called to prove such verbal statements. A well-known exception to this rule is that complaints made of sexual assault may be given in evidence provided certain conditions are met. First, the complaint should be made at the first reasonable opportunity; second, the complainant should give evidence of the making of the complaint, and third, the terms of the complaint should be proved by the witness to whom they are given. The only purpose for which such evidence of recent complaint is permitted is to show the consistency of the complainant in her complaints and to negative allegations of consent. For the reasoning behind this exception to the rule see the judgment of Hawkins J in R v Lilleyman 1896 2 QB 167 and the historical analysis in R v Spooner, now reported at 2004 Crim App Rep 39. [17] In R v White 1999 AC 210 the defendant was indicted for rape and attempted buggery. The prosecution relied on the uncorroborated evidence of the complainant, who said in her evidence-in-chief that after the incident she had told a friend what had happened, and that she had also told her aunt, her parents and a neighbour, who was a police officer, before eventually reporting the matter to the police rape unit. The prosecution did not call any of those five people as witnesses. The defence case was that the defendant and the complainant had had sexual intercourse with her consent. The judge in his summing up referred to the evidence of the complaints, and although he directed the jury that it did not constitute corroboration of the complainant's evidence he gave no directions as to the use they could make of the complaints. He told the jury that even though there was no corroboration they could convict the defendant if they believed the complainant's evidence. The defendant was convicted of rape and attempted buggery. The Court of Appeal of Jamaica by a majority dismissed his appeal against conviction. [18] The defendant appealed to the Privy Council who allowed his appeal. It was held that that the complainant's evidence of the five complaints, being evidence of previous self-consistent statements, was not admissible to show her consistency or to negative consent, because the persons to whom the complaints had been made had not given evidence, or testified as to the terms thereof, nor was it admissible to rebut an allegation by the defence that the complainant's testimony was a recent invention since it had been given in chief before any such suggestion could be made; that although the mere mention by the complainant that she had spoken to the other people was not inadmissible, she should not have been allowed to say that she had told five people what had happened because the jury was bound to infer that she had made complaints in terms substantially the same as her evidence to the court; that, therefore, the admission of evidence that she had made statements to others necessitated a careful direction to the jury as to the limited value of that evidence and, in particular, that it could not be taken into account in assessing the credibility of the complainant; that the judge had failed to direct the jury adequately. [19] In giving the reasons of the Privy Council for allowing the appeal Lord Hoffman said at 216 -
"Their Lordships accept that when the complainant herself is giving evidence, it may be difficult for her to give a fair and coherent account of her behaviour after the incident without allowing her to mention that she spoke to other people who may not be available to give evidence (within the sexual complaints exception) of what she actually said. Their Lordships would not suggest that the mere mention that the witness spoke to someone after the incident was inadmissible. In most cases it will be very difficult to draw any rational distinction between consistent conduct, which is plainly admissible (e.g. that the witness wept) and the fact that she spoke to someone such as a parent. On the other hand, it is important to avoid infringement of the spirit of the rule against previous self-consistent statements by conveying indirectly to the jury that she had given a previous account of the incident in similar terms with a view to inviting the jury to infer, not merely that her subsequent conduct was not inconsistent with her complaint but that her credibility was actually supported by the fact that she had told the same story soon after the incident.
In the present case their Lordships think that the prosecution probably went further than could be justified by the need to allow the complainant to give a fair account of her conduct after the incident. In the absence of a ruling by the judge that the questions could be asked because of an imputation of recent invention, she should not have been allowed to say that she had told five people 'what had happened.' The inference which the jury were bound to draw was that she had made statements in terms substantially the same as her evidence to the court."[20] Lord Hoffman went on to say that they would not go so far as to say that the evidence of the complainant about telling other persons what had happened (allegedly) was inadmissible. However where such evidence was admitted in evidence, it required "a careful direction about the limited value which could be attached to it". Lord Hoffman then considered the judge's summing up and concluded at page 218 -
"Apart from telling the jury that it did not amount to corroboration, he gave no indication of what use could be made of the complaints. Their Lordships consider that in the circumstances of this case, that was insufficient. The passages cited from the summing up would have indicated to the jury that the evidence about the complaints were in some way a relevant circumstance to be taken into account in assessing the complainant's credibility, upon which the whole prosecution case depended. On more than one occasion the jury had been told that it was a matter for them to decide whether the complaints had been made and whether it was plausible that they should have been made to some people but not to others. They had been directed not to blame the complainant for the absence of evidence confirming the complaints, because this was a matter for the police. The jury must therefore have considered that, having formed an opinion on these matters, they were entitled to put it to some use. Quite what they would have made of the direction that the complaints did not constitute corroboration is hard to say, but this difficulty is also encountered in cases of admissible complaints, when the jury has to be instructed that the evidence is admissible to show consistency and negative consent but does not amount to corroboration. As the jury had been told that even without corroboration they could convict if they believed the complainant's evidence, there must have been a significant risk that they considered themselves entitled to regard the evidence of complaint as confirming her credibility. To leave it open to the jury to take such a view was a misdirection. It was in their Lordships' view incumbent upon the judge to give the jury clear instructions that the complainant's own evidence was for this purpose of no value whatever. If the judge thought it necessary to deal with the question of why she had not gone earlier to the rape unit, it would have been sufficient for him to tell the jury that they were entitled to take into account her explanation that she had lacked the courage to do so."
[21] Mr Orr QC submitted that the evidence of the complainant's complaints to other persons should not have been admitted. We do not accept that submission. We think Mr McMahon's decision to lead the evidence was correct. In any prosecution in which allegations are made long after the events alleged, the jury are bound to be curious as to why the matter only comes to trial at a much later date. It is not right that the jury should be left to speculate about that. In such circumstances they are entitled to know the complainant's history, where to do so informs them of the reasons why the allegations have been brought to the attention of the authorities at a late stage. The extent of the admission of such evidence will depend on the circumstances of individual cases. We have therefore concluded that the evidence was admitted properly, but once admitted, it required careful direction from the learned trial judge. [22] In his summing up the learned trial judge did not direct the jury as to the evidential significance of the complainant's accounts to the various persons mentioned. On the contrary he said the weight to be attached to the evidence of her complaints was a matter for them, as if it would assist them in assessing her credibility. To that extent the summing up was not sufficient. [23] In the present case the only evidence against the applicant was that of the complainant. It was her word against his. Thus the jury's view of her credibility was crucial. The evidence that she had given accounts to various persons over the years was capable of enhancing her credibility in the eyes of the jury. In R v White, supra, Lord Hoffman said that on the facts of that case the jury was bound to infer that the complainant had made statements to other persons in terms substantially the same as her evidence to the jury. While corroboration did not arise in the present case, we are of the view that there was a real possibility that the jury, in gauging the credibility of the complainant, took into account the history of her complaints to her friend, her teacher, her parents and the rape counsellor, even though no details of her accounts were given. The impact of the complaints, combined with the status of the persons to whom they were made, must not be underestimated. This evidence required a careful direction from the learned trial judge as its purpose and significance of it and the limited value it was to the jury in their assessment of the issues in the case. More particularly it required a specific direction that it could not improve the credibility of the complainant nor be used to determine that her allegations were in fact true. The purpose behind the admission of the evidence was solely to explain how the allegations came to light and to explain the delay between the date of the alleged events and the date of the complaint to the police. [24] Mr McMahon submitted that the verdicts were nonetheless not unsafe as the jury clearly believed the complainant and rejected the evidence of the applicant. We do not agree. In a case in which the prosecution case rested solely on the evidence of the complainant, a careful direction was essential to avoid the real possibility of the jury taking those complaints into account in assessing the credibility of the complainant. In the absence of such a direction, the convictions could not be regarded as safe. [25] For these reasons we gave leave to appeal, allowed the appeal and quashed the convictions.
