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Cite as: [2009] IECCA 17

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Judgment Title: D.P.P. -v- Daniel Doherty

Neutral Citation: [2009] IECCA 17

Court of Criminal Appeal Record Number: 190/06

Date of Delivery: 26 February 2009

Court: Court of Criminal Appeal

Composition of Court: Macken J., Birmingham J., Edwards J.

Judgment by: Macken J.

Status of Judgment: Approved

Judgments by
Macken J.
Other (see notes)

Notes on Memo: Leave to appeal against conviction refused. Leave to appeal against sentence
was withdrawn by leave of the court.

    Macken, J. No CCA 190/06

    Birmingham, J.

    Edwards, J.





    Daniel Doherty


    Judgment of the Court delivered on the 26th day of February 2009 by Macken J.

    By a notice of application for leave to appeal dated the 12th January 2007, the applicant seeks to appeal from his conviction on the 31st May 2006, following trial, on two counts of rape and one count of indecent assault, as well as from the sentences of seven years in respect of each of two counts and of two years and six months in respect of the third count. This judgment, in line with usual practice, concerns only the appeal against conviction at this time.

    The grounds of the application for leave to appeal number 17 in all, and are lengthy, but fall broadly into the following two or three general groups, which can be summarised as follows:

    (1) The trial was conducted in an unsatisfactory manner because the legal representation on behalf of the applicant failed generally to protect his interests, and in particular counsel for the applicant permitted certain evidence prejudicial to his defence to be admitted, and/or failed to challenge the admissibility of other evidence tendered by the prosecution.

    (2) Arising out of (1), and also independently, the learned trial judge erred in law in admitting statements of prosecution witnesses which were not executed in conformity with the provisions of s.21(2)(a) and (b) of the Criminal Justice Act 1984; admitted into evidence contacts with the complainant and statements made by her not within the ambit of the doctrine of recent complaint; permitted inadmissible evidence or material to be placed before the jury, or permitted the prosecution to lead inadmissible evidence, the same being of no probative value and prejudicial to the defence.

    (3) The charge of the learned trial judge was flawed in several respects.

    In the written submissions filed on behalf of the applicant, all other grounds of appeal as originally drafted, are abandoned.

    One of the two most important legal issues detailed in the submissions and which occupied the bulk of the oral hearing before this court is the first allegation, allied to the first of the alleged errors made by the trial judge mentioned in (2), that is to say, the admission into evidence, either wrongly and without objection on the part of defence counsel, or in error on the part of the learned trial judge, of statements of two prosecution witnesses which did not contain the required statutory declaration, and which ought not to have been admitted, as not being in conformity with the provisions of the above Act of 1984 as well as of other evidence. The court made an ex tempore ruling in the course of the hearing of this application that the statements were not made in conformity with the required provisions of the Criminal Justice Act 1984 and adjourned consideration of its consequences. The consequences flowing from this ruling will be dealt with later in the judgment, after dealing with the first major contention on the part of the applicant.

    The claim that the applicant’s interests were not protected by counsel:
    Senior counsel for the applicant, Mr. Owens, squarely lays his main complaint on the first of the above grounds. He contends that, in defending the applicant in the course of the trial, his counsel did not protect the applicant’s interests adequately, which resulted in the trial of the applicant not being in any way satisfactory. Counsel contends that the verdicts were thereby rendered unsafe and must be set aside. He does so based on several related arguments.

    Firstly, that in a trial having the characteristics of this one, where the complainant had not complained formally to the gardaí for a long period of time, but was no longer under the dominion of the applicant, if she ever had been, counsel for the applicant could and should have approached the defence on a basis different to that actually chosen, because the tactics employed were prejudicial to the applicant, of no benefit to him, and irrational. This was because (a) the above referred to statements, of E. G. and of E. McL., who were outside the jurisdiction and unavailable to attend the trial to give evidence in person, were permitted by defence counsel to be led in evidence by the prosecution, when it was clear that their contents were highly prejudicial to the applicant, and did not contain any material of assistance to him. Alternatively, even if they did contain material of assistance to the defence, which counsel does not accept, it was not of sufficient probative value to overcome the clear prejudice to the applicant arising from their admission; (b) that evidence of the complainant herself and comments and allegations made concerning the incidents to or by third parties, such as to S. R., her sister, and others, as well as to the persons set out at (a) above, at times reasonably coincidental with the events of which complaint was made, as well as evidence of statements made by her much later to other witnesses, were also wrongly admitted. In the case of her early statements these should not have been admitted at all, because they did not include complaints of sexual impropriety on the part of the applicant, or were not made at the first opportunity, or were not voluntary. Evidence of complaints made by the complainant to others such as her sister, and in particular, later, to a bishop and to priests should also not have been admitted. Finally, objection should have been taken, but was not, to the content of some, at least, of the cross-examination of a witness called on behalf of the applicant, M. McG.

    Secondly, the approach of the applicant in the defence of his case could have been just as readily achieved, and the desired end result secured, by means of vigorous and appropriate cross-examination of the complainant and/or other witnesses, such that it was neither necessary nor proper for the above statements or the evidence of the persons in question to have been admitted at all. Since the only benefit to be gained for the applicant in dealing with the above matters in the manner which had occurred, was to permit cross examination of the complainant on her alleged inconsistencies, the proper approach to the defence of the applicant would have dictated that all the material in question be kept out of the case, and not put before the jury. Competent counsel, according to Mr. Owens, would have adopted the approach he contends for. Therefore both the strategy adopted, and the consequent admission of statements or of evidence were wrong, and their admission did not, in any event, advance the contended for strategy.

    Thirdly, although the complaints now made in the course of this application were not made in the course of trial, because of the incorrect and irrational tactics adopted by defence counsel, the arguments now sought to be made should be fully ventilated, as an exception to the general rule that points not made at trial are not normally permitted to be made in the course of an application for leave to appeal. The points now made are intended to ensure that justice is done. Moreover, counsel argues that the position falls squarely within the principles found in People (DPP) v Cronin (No. 2) [2006] 4 IR 329, in particular the following extract from the judgment of Kearns, J:
        “It seems to me that some error or oversight of substance, sufficient to ground an apprehension that a real injustice has occurred, must be demonstrated before the court should allow a point not taken at trial to be argued on appeal. There must in addition be some sort of explanation tendered to explain why the particular point was not taken. Furthermore, as noted above, the Court of Criminal Appeal is concerned only with a review of the trial and the rulings made therein, and not with other suggested errors or oversights which may pre-date the trial or have been amenable to remedy in some other manner”.

    Senior counsel for the respondent Mr. Vaughan Buckley, submits that the application is misconceived, based on the matters of which the applicant now complains. The documents and materials in issue were led by the prosecution in the trial without objection but rather with the consent of the defence, it being clear that these were sought for the purposes of allowing the defence to follow a particular course of action at the trial for the perceived benefit of the applicant in his defence. The complainant and other witnesses led by the prosecution were all cross-examined to that end, which was clearly to the effect that the complainant was both inconsistent in her statements to several persons, and was a fantasist. It was perfectly proper in the circumstances for the evidence to be put before the jury. The respondent had not acted in any way wrongly, and, in the circumstances, nor had the learned trial judge. Mr. Marrinan, Senior Counsel, in his rather more limited but important role in these proceedings, representing former counsel acting on behalf of the applicant at the trial, reminds the court that there has been no suggestion made, on affidavit or otherwise, that the applicant’s instructions as to his defence were not followed. Nor is it said on behalf of the applicant that he was not adequately consulted in relation to his chosen defence before and during trial. Rather, he submits that the position now being contended for is based, in reality, on the view which another counsel might have taken as to how he might have run the defence had he been then acting for the applicant in the trial. He argues that counsel for the applicant has failed to indicate to the court in what precise manner the defence could more correctly have been handled, other than by asserting that the complainant’s allegations could have been adequately dealt with by mere cross-examination. He contends that it is wholly unrealistic to approach an analysis of the difficult situation which arose for the defence in the trial in such a manner. Briefly, he outlines the facts which counsel was faced with as being the following. There was a statement by the complainant alleging four sexual assaults on her by the applicant when she was a young teenager. In support of those allegations there was a damning statement from the complainant’s sister who had, with her brother, while searching for the complainant, called to the parochial house where the applicant lived, on the evening of one of the alleged assaults, during darkness, and found a car there but, receiving no response, had left the parochial house which was then in darkness. They then queried the complainant who made no complaint about a sexual assault, but admitted that she was in the house at the time. When confronted, according to that evidence, the applicant admitted the complainant was at the parochial house, but for counselling, and said that he believed she was 18 years of age, and also claimed that the lights in the parochial house had been on at all times. Mr. Marrinan submitted that the evidence of the complainant’s sister was corroborative of significant parts of the complainant’s evidence, all of which was admissible. So also admissible in evidence were the responses given by the applicant to Gardaí when questioned. This was the limit of the admissible evidence in the case. On the contrary, the various statements sought to be used by the defence, he argues, were littered with inconsistencies and included for example (a) a close friendship, (b) kissing, (c) an event in the sacristy, (d) a failure to make any mention of an alleged event, which took place during confession, to a friend although accompanying that friend home immediately afterwards, and (e) statements indicative of the applicant being upset, but of making no complaint of improper sexual activity by the applicant. Moreover, while the complainant, according to those statements, mentioned three events, she did not mention the fourth. In these circumstances, there was clear evidence of inconsistent prior statements, upon which the applicant was fully entitled to rely, leading to cross-examination on all of the statements, and a strong line of defence not otherwise available. There was, therefore, Mr. Marrinan contends, a very strong basis to support the defence contention that the events did not happen at all. The decision of counsel, which is of course a tactical decision based on the evidential material available, and the clear limits on any other possible approach, was based on a judgment made so as to avoid the recognised disadvantage of a mere swearing match between the parties, with corroborative evidence of the complainant’s evidence in the hands of the prosecution. The reality of a trial of this nature, as any practitioner will say, is how difficult and inadvisable it would be to proceed in any way other than in the manner adopted by counsel handling the defence at the trial. The problem faced by the defence was that a complaint had been made or relayed by the complainant to a friend in 1984 and the statement of that friend, if it were opened, would or could assist the complainant, but even if damaging in one respect, it was nevertheless a vital statement for the purpose of putting forward the defence. The applicant had also stated that the complainant was an attention seeker, had been showing him too much attention, was hanging around the house, and so forth, and in relation to one aspect, that money, which the complainant admitted she had demanded, was perhaps a possible motive. It was therefore essential to explore the highly inconsistent statements and evidence of the complainant. If the defence were confined to mere cross-examination, putting it to the complainant that her allegations were fabrications, then once counsel for the defence raised any such issues, the prosecution, who until then could not have led in evidence the various statements made at an earlier stage, were thereupon entitled to lead them in rebuttal. Therefore any useful line of cross-examination was totally closed off, and the only defence that could be put in this way would consist of a wholly undesirable situation, in which a swearing match would ensue, but on the prosecution side there would be corroboration, at least in some form, of the allegations made by the complainant. While Mr. Marrinan accepts that one could pose a question such as “did you not have an unusual interest in the priest?”, this would not avail the applicant. On the other hand the extent of the prior inconsistent statements would enable the applicant undermine both the complainant’s statements and indeed the statements of other witnesses. In particular he contends that one of the two statements made abroad was favourable to the applicant, and any counsel was obliged to take the greatest advantage of that. Similarly, in relation to the statement concerning the complaint made later to a teacher, that statement was flatly contradicted by the statement made by the complainant’s sister at a time much closer to the events. Such inconsistencies had to be explored to the greatest extent possible on behalf of the applicant. Not only therefore would it be wholly unrealistic to limit the defendant’s defence to possible cross-examination, as counsel for the applicant now suggests, this would have been both dangerous and unsafe. Finally, Mr. Marrinan argues that it is inappropriate to analyse a transcript, in effect, by putting it under a microscope and looking at certain small extracts from it after a trial lasting several days, for the purposes of suggesting later in the course of this application that the approach adopted was open to criticism, instead of viewing the transcript in the correct way in which it should be viewed, that is, by considering the evidence as a whole, and in its correct context. The defence was, contrary to the suggestion now made on behalf of the applicant at the time of this application, well prepared and skilfully carried out, and counsel had correctly dropped any objection to the evidence in issue being led, so as to enable the large element of inconsistency to be explored properly for the benefit of the applicant. To adopt any approach other than that actually adopted would have been both unreal and unwise. Mr. Quinn, former solicitor for the applicant in these proceedings attended throughout the application, and had set out on affidavit his recollections of the issues arising from the handling of the case during the trial. On an earlier date the court had indicated that Mr. Quinn, who along with former counsel, following the normal practice in that regard, had been informed of the nature of the application being made, was relieved of the necessity to make any written submissions, in light of the fact that no allegation had been made by or on behalf of the applicant in relation to the manner in which Mr. Quinn handled the trial of the applicant. However the court also indicated that Mr. Quinn, if he wished, could continue to attend court in case matters arose upon which it would be necessary for the court to hear him, as otherwise, if any complaint against him were to emerge during the hearing, he might not have a proper opportunity of responding. During the course of the oral hearing it became even more clear from Mr. Owens’ submissions, both oral and written, that no suggestion was being made on behalf of the applicant on any matter arising in the trial which might adversely involve Mr. Quinn in any way whatsoever. This application for leave, having been fully opened by Mr. Owens in the course of his oral submissions over more than a day, made this clear, and the court did not therefore consider that it was either necessary or appropriate to hear Mr. Quinn separately in relation to any issues which might have occurred during the course of the trial, in respect of which no complaint had been made against him by counsel for the applicant. The court notes, however, Mr. Quinn’s wish to join with Mr. Owens, acting on behalf of the applicant, in support of the grounds put forward in this application.

    Conclusion: There is no doubt but that the applicant may not be precluded in an appropriate case, from raising the above grounds of appeal by reason of the jurisprudence epitomised, inter alia, by DPP v Cronin, supra., and jurisprudence along similar lines. Nor is there any doubt but that in exceptional circumstances, claimed serious incompetence of counsel may be a basis for a good ground of appeal. It is however inappropriate for this court to engage in a general enquiry into how a defence was chosen between an accused and counsel or with its details where as in this case, no allegation is made that the applicant was not consulted on his defence. Rather it should look at the basis for the complaint made and its contended for effect on the trial. As was stated by Keane, C.J. in his judgment in DPP v McDonagh [2001] 2 IR 411, dealing with counsel’s conduct of a trial:

        “It has already been noted that, when delivering the judgment of the court on the hearing of the second interlocutory application in this case, Murray J. said that the conduct of a trial, including steps taken preliminary to the trial by an accused’s legal advisers could, in exceptional circumstances, give rise to a ground of appeal. That view is clearly consistent with the requirement of Article 38.1 of the Constitution that no person is to be tried on any criminal charge “save in due course of law”. A criminal trial in which the defence of the accused was conducted with such a degree of incompetence or disregard of the accused’s interests as to create a serious risk of a miscarriage of justice, could not be regarded as a trial in “due course of law”. That would apply as much to steps taken by the accused’s legal advisors prior to the trial as it would to the conduct of the trial itself.
        That is not to say, however, that what might properly be regarded as an error by the accused’s legal advisors is, of itself, sufficient to justify the setting aside of the verdict and the ordering of a retrial. As was printed out by Rougier, J., giving the judgment of the English Court of Appeal in R. v Clinton [1993] 1 WLR 181 at page 1188:
        “It is probably less helpful to approach the problem via the somewhat semantic exercise of trying to assess the qualitative value of counsel’s alleged inaptitude, but rather to seek to assess its effect on the trial and verdict.””

    This judgment has been followed on several occasions, including in DPP v WG, unreported, Court of Criminal Appeal 4th November 2004, a decision of this court delivered by McCracken, J., in a slightly different context. Another case in which a somewhat similar application was made and in which a similar view was taken is the case of DPP v O’Regan [2008] ILRM 247, a decision of this court delivered by Kearns, J. and yet again in DPP v Flynn, unreported Court of Criminal Appeal, 30th July 2003 (Fennelly, J). While some of those cases involved a failure to follow instructions, no claim is made in this application that instructions were not followed.

    In preparing for a case of this nature with its particular features, defence counsel clearly had a choice to make, which was to consider whether the balance of advantage lay in probing the inconsistencies in the statements eventually admitted, or whether it would make better sense from the perspective of defence tactics to exclude all of the evidence that was capable of being excluded, and to confine the case, as far as possible, to one of assertion and mere denial by means of vigorous cross-examination. The latter is what Mr. Owens contends for. There were, however, as is clear from the above, undoubted disadvantages associated with whichever approach was adopted and therefore that choice was not an easy one. If the evidence of the two American based witnesses was excluded, and also the later complaint evidence, the case remaining available to the prosecution was still a formidable one. Any defence team would have to be very concerned that if, as a result, it was merely one person’s word against the other, there was a real risk that a jury might well believe a young woman talking about her childhood experiences, and might equally disbelieve a priest accused of the sexual assaults. As Mr. Marrinan pointed out, the prosecution case would receive a powerful boost from the admissible evidence of S. R. the complainant’s sister, in connection with the encounter she claimed to have had with the applicant when he is supposed to have admitted the complainant was at the parochial house but said that he was counselling her and that he thought she was 18 years of age. From the defence’s perspective, this would involve the difficult and unenviable task of getting across to a jury, not merely that the complainant was a fantasist, but also that her sister was a deliberate perjurer. As was stated by Fennelly, J. in DPP v Flynn, supra:
        “… however, the cross-examination of a witness to the effect that his evidence is false is generally likely to be unconvincing, if evidence to contradict it is not, as was the case here, going to be available.”

    The interviews conducted with the applicant by the Gardaí also gave rise to difficulties for the defence, as did a letter written by his solicitor, on his own instructions and as dictated by him. At interview, and in the course of the letter, he was adamant that he had never heard confession in the church sacristy, but during the course of the trial it was conceded on his behalf that he had indeed heard the confessions of the complainant and her school friend in the sacristy. The defence case was also not helped either when the account the applicant gave of how to put a seat back in a Toyota vehicle, a relevant matter in the context of the complaints made, was clearly undermined by a technical expert, a representative of a garage.

    In terms of the witnesses available to give evidence, it was therefore a very fine call and it is not surprising that the defence team might well conclude, having regard to the foregoing factors, that the balance of advantage lay in allowing in the evidence of the various conversations or statements. References to kissing the priest, and being kissed by the priest, and claims of having an affair with the priest, all fitted neatly into the scenario that was being advanced that the complainant had something of an obsession with the priest, and was a fantasist. The decision to call the complainant’s counsellor as a defence witness may at first glance be more difficult to understand, as it might have been appreciated that somebody in that position could be sympathetic with her long-time patient, and might not do the defence any favours. Equally, of course, assuming her expert evidence was fairly given, it might reasonably be assumed it would also support the fantasist or obsessionist theory and would likely disclose further inconsistencies. The area of greatest difficulty relates to the admission of the evidence of two former school friends, who were unavailable to be called, and whose statements were read to the jury. This was not a question of an unwise concession, however, or of an error or oversight such as is referred to as being a necessary ingredient in this type of application according to DPP v Cronin, supra., as is claimed. From the prosecution point of view, the advantage of one at least of the statements was that it showed the complainant had made some reports of untoward conduct by the applicant close in time to when the abuse is supposed to have occurred. Having this statement before the jury was however central to the defence strategy. The defence clearly believed that they could obtain significant assistance from the statement of E. G., in particular, believing that if details of the accounts were actually scrutinised, as would be possible only if they were admitted and put to the complainant, the statements, on balance, actually assisted the defence. The transcript of the trial makes it clear that the cross-examination of the complainant was directed towards establishing serious inconsistencies between the complainant’s evidence in court, and what others were saying she had told them at a much earlier stage and far closer in time to the alleged events themselves. Not only was this a major element of the cross-examination, it was also the lynchpin of an application for a direction at trial and was a recurring theme in the closing speech.

    The court is of the view that the case was conducted by defence counsel in accordance with a pre-thought out agreed strategy. That involved allowing into evidence material such as the content of the above accounts given at different stages by the complainant in relation to the abuse to which she alleged she was subjected or other evidence of which complaint is now made. The legal issue which arises is whether such an approach is one which counsel, properly instructed, could properly and reasonably adopt. It is clear from the authorities that cases in which “a court is entitled to set aside the verdict of a jury when the grounds consist wholly or substantially or criticisms of the conduct of the defence at the trial, or of the preparations for the trial, must of necessity be “extremely rare”.

    Examples of such serious incompetence have included counsel falling asleep during a trial, and in another case, of counsel failing to put a defence to the jury so as not to permit the chosen defence to be considered.

    This last statement was approved of in DPP v Flynn, supra., in which Fennelly, J. stated:
        “The Privy Council in Sealey v The State, an appeal from the Court of Appeal of Trinidad and Tobago, (unreported, delivered the 14th October 2002; decided by a majority that the disregard of counsel of instructions to put forward the good character of the accused in a murder case, meant that the trial was unsatisfactory. Lord Hope, while dissenting on its application made a statement of principle on similar lines to that of this court in DPP v McDonagh and which the court considers to be correct, namely that the “underlying question must always be whether the defendant was deprived of his right to a fair trial because the effect of the conduct which is complained of was that his defence was not put to the court.””

    In the present case, the court does not find that the conduct of defence counsel at the trial is open to the criticism now made of it or that the defence actually adopted was not put to the jury. Counsel was confronted with a very difficult situation and a particular approach to the defence was adopted with the applicant’s consent or on his instructions. Two or even more counsel may of course advise taking different valid approaches. Having regard to the analysis made by Mr. Marrinan of the factual and evidentiary issues arising, as set out above, it is not possible to conclude that the approach actually adopted was irrational, as claimed, nor that it was incompetent, nor in disregard of the applicant’s interests or his instructions. The defence strategy adopted was unsuccessful, it is true, but that has emerged with the benefit of hindsight. As was stated in The People (Director of Public Prosecutions) v McDonagh [2001] IR 411:

    “In particular where counsel has fully discussed the case with his or her client, and has made careful and considered decisions as to how best the defence should be conducted in his or her clients interests, an appellate court should not intervene simply because it appears that counsel might have been mistaken in the view that he took.”

    Nor can it be said that the strategy adopted or the defence put to the jury or the admission of statements or of evidence otherwise inadmissible lead to a miscarriage of justice or to unsound verdicts. The court now turns to consider the consequences of its ex tempore ruling made on the statements of the foreign witnesses. As has been stated earlier in this judgment, the statements of E.G. and E. McL. were admitted into evidence without either of them having been executed in conformity with the provisions of s.21 of the Criminal Justice Act 1984. The reasons for their admission are the subject of the above findings in relation to the strategy adopted by the defence, and the perceived advantage flowing to the defence by their being admitted without objection. No objection was made to the evidence being led, for the purposes of permitting the exploration of a particular line of defence. As well as being of assistance, at least in part, to the prosecution, in reality they were admitted so as to facilitate that defence strategy. This court has found that this was an approach on the part of counsel for the applicant which, while not successful at the end of the day, did not constitute incompetence on the part of defence counsel. The fact that the statements were admitted without being in conformity with the provisions of the above Act of 1984 does not have, as its automatic consequence, that the trial of the applicant was thereby rendered unfair or that the verdicts were in consequence unsafe. There is considerable jurisprudence on the consequences of the wrong or inadvertent admission of inadmissible evidence, or where that evidence does not conform with certain rules, whether constitutional, statutory, or otherwise. It is not argued, nor can it be, that the statements were admitted in contravention of any constitutional right of the applicant. In ordinary course, they ought to have been admitted only if it was established that they had, in fact, been executed in conformity with the provisions of the Act of 1984, the parties being essentially ad idem as to the basis for the statutory requirement. The question which arises therefore is whether, having regard to the relevant provisions of the Act of 1984, and the non-conformity of the statements with it, and taking into account the defence being advanced, the admissions of the statements resulted in the trial being unfair and the verdicts unsafe. It was made clear during the course of this application that the most offensive portion of the statement of one of the witnesses, was, in fact, redacted in the sense that it was not read out to the jury during the course of the trial, a portion of the statement which was particularly prejudicial to the applicant. There was some debate as to whether this was in fact the manner in which that statement was dealt with, but the court is satisfied, on a reading of the transcript, and on hearing counsel, that in fact that portion of the statement to which serious objection was taken, was never read out to the jury. Nor were the statements admitted through a ruse or trick, such as might give rise to different considerations, also well established in the jurisprudence. They were admitted, notwithstanding non conformity with the Act so as to facilitate the establishment of the defence chosen on the part of the applicant . In the foregoing circumstances the court is satisfied that the admission into evidence of statements which had not been executed in conformity with the relevant provisions of the Act of 1984 did not render the trial unfair or the verdicts unsafe.

    The claim that the trial judge wrongly admitted inadmissible evidence:
    A second ground of appeal set out above contends that the learned trial judge himself wrongly admitted into evidence the above statements of prosecution witnesses not executed in conformity with the provisions of s.21(2)(a) and (b) of the Criminal Justice Act 1984, and also wrongly admitted evidence of contacts with the complainant and statements made by her not within the ambit of the doctrine of recent complaint and on other grounds, as well as permitting inadmissible evidence to be placed before the jury or to be led by the prosecution, the same being of no probative value and highly prejudicial to the defence. The arguments are the same as those set out above save that no issue of incompetence arises.

    The issue of the admission into evidence of the above statements of the witnesses residing outside the jurisdiction or the other evidence which was either admitted, or led by the prosecution without objection by the defence, is not possible to determine without having appropriate regard to the issues exposed in the first part of this judgment and the finding of this court in relation to them, because the same statements or the same evidence are also the subject matter of this ground of complaint as against the learned trial judge.

    A distinction has to be drawn in an application of this type between the challenge to a trial judge in respect of the wrongful admission into evidence of inadmissible evidence following an application in that regard and a ruling against the defence application, on the one hand, and the position in the present case. Where there was no application made and no ruling. The objection is based in reality on the learned judge failing to rule out, of his own motion, evidence which might be inadmissible but which the defence was clearly anxious to have led, or admitted.

    In the opinion of the court the first of the contexts does not arise at all, since no application was made to resist evidence possibly inadmissible from being led, and therefore no ruling of the trial judge which can properly be the subject of appeal to this court. The case frequently cited in respect of the principle that this court operates on the basis of rulings of the trial court is the People (Director of Public Prosecutions) v Madden [1977] IR 336 in which O’Higgins, C.J. in clarifying the role of this court stated:

        “In the appeals now before this court we have transcripts of the Special Criminal Court made in the course of and at the end of the trial on questions of law and findings of fact in relation to the admissibility of evidence, sufficiency or cogency of the evidence, and the reasons for the rulings and verdict given. Therefore subject to the grounds of appeal, it would seem to be the function of this court to consider the conduct of the trial as disclosed in the stenographer’s report to determine whether or not the trial was satisfactory in the sense of being conducted in a constitutional manner with fairness to review as far as may be required any rulings on matters of law, to review so far as maybe necessary the application of the rules of evidence as applied in the trial, and to consider whether any inferences of fact drawn by a court of trial can properly be supported by the evidence, but otherwise to adopt all findings of fact subject to the admonitions in the passages cited above.”

    It is of course not surprising, having regard to the history as set out above, and the defence strategy adopted, that rulings were not sought or objections made to the admissibility of the evidence now complained of as being wrongly admitted by the learned trial judge.

    The question which arises from the applicant’s argument is whether, notwithstanding the strategy adopted by the defence, which must have been perfectly evident, the trial judge was nevertheless under an obligation, of his own motion, to refuse to allow evidence to be led by the prosecution which was not admissible for one reason or another or to prohibit the admission into evidence of statements or other evidence which counsel for the applicant now contends ought never to have been admitted.

    A judge in the course of a trial, which is an adversarial proceeding, should not become an advocate on behalf of either party, the prosecution or the defence, whether as regards the admissibility of evidence or with respect to the evidence itself, except in the most limited circumstances, which did not arise in this trial. Otherwise the trial judge risks the defence as chosen not being put, or not being fully put without interference, to the jury. As was stated by this court in DPP v Cronin [2003] 3 IR 377, although in a different context:
        “The cases uniformly acknowledge that a defendant might prefer the alternative course not to be suggested because of its adverse effect on the defence which the defendant actually wishes to assert. It seems to us that this court should be slow to uphold an obligation on a trial judge to intervene in a manner adverse to the prisoner’s true defence, except in very unusual circumstances.”

    And again in the People (Director of Public Prosecutions) v Hanley (unreported, Court of Criminal Appeal 5th November 1999), this court stated:
        “… while the trial judge may regard the defence (being tendered) as being unmeritorious, nevertheless it is a fundamental rule in a criminal trial that the defence must be put to the jury and that it is the right of defence counsel to say what his defence is.”

    That latter case was a case where the defence, as formulated by counsel, was not put to the jury by the trial judge, but the principle underlying the decision is that it is the right of defence counsel or the defendant to say what his defence is, and the defence so identified by the defendant and his advisors, is the defence which will be carried throughout the entire of the trial.

    Again as was stated in DPP v Cronin, supra:
        “Where a competently defended prisoner advances a defence which opens the prospect of a verdict of acquittal if it is accepted, or if it raises a reasonable doubt on any essential matter, it would be a grave responsibility to interfere with its prospects of success by introducing, uninvited, the possibility of what Lord Taylor LCJ called “a compromise verdict”.”

    Whereas that was in a particular context, it seems to the court that in the circumstances of the present case where the defence advanced a defence which opened a prospect of a verdict of acquittal if it was accepted, namely, that the complainant was a mere fantasist, or raised a reasonable doubt on any essential matter, it cannot be the role of the trial judge to interfere with the prospects of the success of that defence by excluding evidence which, in pursuit of that strategy, the defence wishes to have before the jury. A decision on the part of defence counsel not to challenge the admissibility of certain evidence or statements is normally taken, and must be presumed to have been taken in the present case, either on the applicant’s express instructions or with his consent. A trial judge cannot be privy, in the nature of things, to the instructions or to the tactical considerations operating in any trial and may, by interfering of his own motion, run the risk of doing considerable harm to any predetermined defence. This is so quite apart from the obligation on a trial judge to remain at all times impartial and unbiased, and not to be seen to be advancing the case of one party over another, in the circumstances of this trial, the prosecution over the defence.

    Counsel on behalf of the applicant has established no basis upon which it can be said that the trial judge erred in law in the circumstances of the present case in admitting into evidence statements made by the complainant not within the ambit of the doctrine of recent complaint, or possibly inadmissible evidence adverse to the applicant and being of no probative value, or the statements of the witnesses resident in the United States or other statements invoked.

    Apart from the foregoing major complaints, the first of the matters raised in relation to the general run of the trial, concerns the application for a direction on count 4. This arose in reality in relation to the applicant’s claim that there was no evidence that the sexual relationship between the complainant and the applicant, if it occurred, was not consensual. Having regard however to the very significant difference in age between the complainant and the applicant, the complainant at that time being in or around 13 and the applicant being in a significant position of authority and much older in age, as well as the complainant’s earlier experience of the applicant’s behaviour towards her, the jury was clearly entitled, if they accepted that sexual intercourse took place on the occasion referred to in that count, to determine that the activities in question amounted to rape. As it is, as the respondent points out, the jury did not return a verdict of rape on that count, but on the evidence adduced, returned a verdict of guilty of indecent assault, which was open to the jury on the evidence adduced. The applicant submits that a direction, however, should have been granted or that there should have been liberty to amend the indictment to a charge of indecent assault. The court is satisfied however that the respondent’s counsel is correct in arguing in his submissions that this would have had no effect or would have made no difference, in light of the verdict actually returned by the jury on this count.

    A second matter which is considered of importance to the applicant is the question of the date of the first offence which, if the jury accepted the evidence of its occurrence, would have taken place either on the 19th December or on the 21st December 1984. Mr. Owens argues that it was unacceptable, having regard to the difference between the two dates, that the jury was not charged specifically or given adequate guidance in relation to the significance of the dates, and as to what the jury should say if they were not satisfied that the offence took place on the 21st December. He draws the court’s attention to the fact that the purpose of the particulars of an offence in an indictment is to set out precisely what is being alleged and when, in particular, it is being alleged the events occurred with sufficient particularity to enable the jury bring in a verdict on the question being asked. Counsel submits there was clearly an issue, on the evidence adduced in cross-examination, as to the significance of the difference between these two dates. Having regard to the proximity of these dates and to the length of time which had passed since the events occurred, it is contended on the part of the respondent that it was appropriate for the first count to go the jury on the basis that the offence was committed on or about the 21st December 1984.

    This court agrees. Given the time that had elapsed between those two dates, and the making of the complaint, and the date of the laying of charges, the court is satisfied that the charge, not having been amended, but having been permitted to go the jury on the basis of a reference to the events having occurred “on or about” the 21st December 1984, was appropriate and sufficient, without specific further guidance. Moreover, it is telling that at all times the events complained of the subject of that count, while initially stated by the complainant to have occurred on the 19th were then later corrected to the 21st December 1984. The events were recalled and related by her, by reference to a specific event, namely the evening of the Christmas school holidays. Her evidence was that she wrongly thought the day of the school holidays was Friday the 19th December but it became clear it was Friday the 21st. Even allowing for the above discrepancy of two days, since the applicant had a specific reference day and event during which the events were said to have occurred, the applicant could not be said to have been disadvantaged by the apparent discrepancy in dates. The court is satisfied in the circumstances that the apparent discrepancy between dates, arising from the complainant’s invoking of two dates, and correcting them by reference to the day of the Christmas holidays from school, even without specific guidance from the learned trial judge in the course of his charge as to that discrepancy, did not constitute a real or serious risk, which is the test involved, of an unfair trial, or that the verdict on count 1 was in any way unsafe in consequence thereof.

    Finally, it is appropriate to deal with the arguments raised in relation to the question of video evidence. In the course of the trial the jury requested the court to permit it to see video evidence of the interviews with the applicant in the garda station. This request was sought at a time when original memos of interview had been read over to the jury and exhibited. Mr. Owens puts this in context when he states that the request was to see a small portion of the tape, perhaps five or ten minutes, to see what the jury called “the body language”. No objection was taken to the showing of a small portion of the video tape in court in the presence of the jury. Mr. Owens argues however that this should not have been done. The statutory regime providing for it is silent on the purpose for which the video tapes are made but he suggests that the purpose of s.27 of the Criminal Justice Act 1984 which provides for such video taping of interviews is to protect both those arrested in garda stations and to ensure that interviews with “suspected persons” are carried out with propriety and give verifiable independent evidence in relation to the question of admissions. He submits that there are inherent dangers in attempting to assess guilt by an examination of the demeanour of a person answering questions under arrest in a garda station. In the present case it is said that the jury got a sample, which may or may not have been representative of the full interview, without any accompanying assistance from the learned trial judge and without caution to enable the jury evaluate what they were shown, and it is contended that this was unsatisfactory.

    Mr. Vaughan Buckley for the respondent draws the court’s attention to the fact that the portion of the video tape of the interview was shown without objection by the defence counsel but also without objection by the applicant notwithstanding the fact that the applicant himself sat beside his counsel in the course of video so as to be able to view the tape clearly. He submits that the fact that the applicant’s confidence in the impression his demeanour disclosed in the portion of the video shown, proved, in retrospect, to have been misplaced, is not a reason to permit this issue to be raised on appeal for the first time, no requisition having been raised on the judge’s charge arising out of the showing of the video tape, although former counsel on behalf of the applicant addressed the jury on the impact that the video evidence should have or could have, in the course of his closing submissions. Mr. Marrinan argues that no fault can be found in permitting what occurred, that it is done on a regular basis, and that, in an appropriate case, it would be advisable for counsel for the defence to insist that the jury should see a video, because the demeanour of a witness in giving statements to the gardaí can be extremely telling. There was, therefore, no reason whatsoever for objecting to the video evidence, sought by the jury, being furnished to it. This court agrees that in the absence of any requisition on the charge it is inappropriate to permit this issue to be raised for the first time on appeal. It is a classic example of appropriate tactics adopted on behalf of the defence in circumstances where the applicant, as accused, raised no objection whatsoever and in circumstances where a decision as to whether or not to raise requisitions on the judge’s charge on a particular issue lies within the professional decision of counsel acting in the matter, clearly, in the present case, with the full agreement of the applicant.

    The court is not satisfied that the argument put forward on behalf of the applicant ought to be entertained by the court at this time, and even if it were to be considered as an exception to the Cronin line of jurisprudence, the court is satisfied that no basis has been established for permitting this as a ground of appeal.

    The applicant has not established that the approach adopted or the tactics agreed in respect of the defence of the applicant in this matter are open to the criticism made. Nor is there any evidence upon which it could be established with any degree of reasonably certainty that the tactics actually adopted by the applicant’s counsel in the present case were such as to lead to real or serious risk of an unfair trial and in consequence of an unsafe verdict, nor that the learned trial judge misdirected himself in law in any respect. Nor was his charge in any way insufficient or open to challenge on the grounds alleged. The application for leave to appeal is refused.

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