DPP v MS 2023 IECA 208 - Putting the case / Weight of evidence

Judgment of Birmingham P in the Court of Appeal 11th July 2023

The defendant appealed his conviction of charges of rape on the basis that the trial judge had erred in law in instructing the jury that a lesser weight should be attached to matters put to the jury by defence counsel as they had not been put to the relevant witnesses during trial.

The appeal failed. Giving the judgment Birmingham P stated:

'It appears that prosecution counsel hoped for a stronger intervention, whether by way of reprimand or otherwise, than was forthcoming from the trial judge. Had that happened, it might well have given rise to difficulty in the context of the trial, in circumstances where, in our view, defence counsel had not overstepped the line. However, the judge’s remarks could scarcely have been more restrained. It seems to us beyond doubt that the judge was entirely within her rights to draw the attention of the jury to the fact that the criticisms of the complainant for not dealing with certain matters in her narrative were in the context that those were not issues raised with her. We do not think it is an answer to that point to say, as defence counsel did, that these were issues canvassed during the course of the specialist interview, and, accordingly, there was no onus on the defence to deal with these issues and the judge should refrain from comment. For our part, we have no doubt that the judge might have chosen to address the issue in less restrained terms, but we are satisfied that the manner in which she did so is not one that can be criticised. Accordingly, we dismiss what is in effect the sole ground of appeal.'