Jury not prejudiced by re-charge in the course of deliberations

First Appellant convicted of one count of rape - one count of sexual assault contrary to section 2 of the Act of 1990 – acquitted on separate count – Second Appellant also convicted of rape - co-accused were sentenced together in respect of the rape offences to 12 years’ imprisonment with the final one year suspended - First Appellant also sentenced to further eight years’ imprisonment for the sexual assault offence - offending of co-accused involved the same Complainant – she was 14 years of age at the time of the events – both co-accused appeal on conviction and sentence – instant appeal relates to conviction only of both co-accused - Complainant recalled that she and her friends were drinking - difficulty in sourcing alcohol due to being underage at that time - group approached passers-by on the street to ask if they would purchase alcohol for them - they encountered the Appellants who agreed to procure alcohol for them - various interactions and a meet up with them thereafter – celebrating birthday at a GAA pitch – required alcohol so contracted Appellants – went to a field to drink - Complainant passed out on the ground - came to and recalled touching - oral sex - First Appellant penetrating her - second Appellant was watching and masturbating - Second Appellant penetrated her – came across her mother who slapped the First Appellant – Complainant informed mother of facts some time later and Gardai were contacted – at trial Defence Counsel highlighted inconsistencies in Complainant’s evidence - delay of approximately 3 weeks between the events complained of and the making of the complaint had resulted in the loss of potentially relevant evidence – clothes washed – SATU report – normal results - alleged acts had taken place three weeks prior to the examination – no forensic evidence – Garda asked during questioning in police station that the Complainant’s statement was detailed for a young girl – the question itself is not evidence – jury asked whether there was anything in medical report re. the detailed statement for a 14-year-old –Judge said “that’s not on the transcript so I have to confine myself to the transcript” - foreman said “that’s what we wanted to clarify” - DPP v. Zoltan Almasi – Defence Counsel asked Judge to remind jury that Garda question not evidence – Trial Judge declined to charge jury on this - question posed by the foreman was confined to the doctor’s report which report had been read out in full – later in the midst of deliberations Judge told jury that the issue related to Garda questioning - questions put by the Guards are not evidence - it is the person's answer which is the evidence – Foreman admitted prior confusion – ground of appeal - Trial Judge erred in law in failing to accede to a requisition to re-charge the jury when requested to do so - addressed the jury without any prior notice to the parties - remedy was too late and inadequate in all the circumstances - failure to give a corroboration warning - Appellants said eventual recharging was inadequate and occurred too late because the jury advised the trial court that they had reached a verdict on one count and was “nearly there” in relation to the other counts - recharging occurred without prior notice to the parties - wrong not to give a corroboration warning - Complainant had not made a complaint in a timely manner - prejudiced the opportunity to harvest forensic trace evidence – Court of Appeal noted that issue with Garda memorandum of interview not flagged before it went to the jury - jury thinking unclear -
merely asked for the evidence of Doctor to be re-read to them - trial judge very properly acceded to that request – Jury asked - “Sorry, your Honour. Is there anywhere mentioned that statement was too much detail for a 14-year-old?” – Court of Appeal found no issue – Jury continued to deliberate for another one hour and five minutes after re-charging – Trial Judge’s overall charge in the present case was exemplary and comprehensive – jury had time to consider Trial Judge’s instructions – acted in accordance with their oath – Trial Judge legitimately exercised her discretion in relation to the corroboration warning - appeal dismissed.