Practice Issue - Judge's Charge - DPP v PS and DPP v LD

The difficulties relating to the Judge's charge in respect of cases involving vulnerable witnesses were addressed in two relevantly recent cases:

In DPP v LD [2018] IECA 54, the appeal points included a submission that the trial judge had, in her tone and comments used during her charge, displayed a commendation and endorsement of the child complainant’s evidence. While the appeal failed, the Court of Appeal did note at [44]: ‘Cases involving child witnesses represent one area in which judges need to be sure-footed and to step warily if deciding to offer commentary on a complainant’s evidence.’

DPP v PS [2021] IECA 311. In this case, the appeal was largely based on the mischaracterization by the trial judge of the defendant’s case in his charge. The defence had been that the events had not occurred but the trial judge had stated that as it had never been put to the witness that she was lying, the defence case must be that she was mistaken. Counsel had requisitioned the trial judge but the subsequent recharges exacerbated the situation as he then he stated that the defence counsel suggested that the complainant was mistaken or lying. This formed the appeal point after conviction. The appellant had argued that defence counsel had done everything to put the case in a respectful way and ‘to ensure not to attack anyone else’s character.’ In upholding the appeal and ordering a retrial, the Court of Appeal stated :

26. Counsel must make it clear to the witness in any given case that the witness’s veracity is under challenge, however, in certain circumstances it is not strictly necessary that the challenge be expressly stated in minute detail. Nonetheless, it must be made clear that the witness’s credibility is in issue and that the defence case is that the witness is not to be believed.

27. We are persuaded in the circumstances that the judge’s comment during the summing-up went beyond the legitimate comment by a judge and undermined the defence case significantly. The question then arises as to whether it was possible to remedy the situation following requisition.

The judgment went on to state that in this case, the situation had not been remedied:

33. In the circumstances, while we are satisfied the comment was capable of remedy in the re-charge, the latter remarks of the judge diluted the impact of his earlier comments in re-charge and in those circumstances we are persuaded that the re-charge did not rectify the original error.

34. Therefore, we are persuaded that the judge’s charge was insufficiently fair and thus undermined the defence case.