The Court of Appeal ruled that a trial judge was wrong to prevent a complainant from giving evidence about alleged acts that formed part of her account of a charged sexual assault. The court answered a question of law referred by the Director of Public Prosecutions under section 34 of the Criminal Justice Act 1967, as amended. It was a without prejudice appeal.
D.J. had stood trial in the Circuit Court in Cavan on a single count of sexual assault, alleged to have occurred at a hotel in Cavan on 20 February 2011. The trial concerned events said to have taken place in a hotel bedroom in the early hours of that day. The complainant, M.J., alleged that D.J. sexually assaulted her over 40 to 45 minutes. Those allegations were not findings made by the Court of Appeal.
Before the jury heard the complainant’s evidence, the defence asked the trial judge to exclude passages describing attempted oral and vaginal penetration and digital penetration. The judge considered those passages to allege offences more serious than the sexual assault charged and ruled that the complainant could not refer to the three matters. The prosecution argued that the digital penetration described did not constitute rape and should not be excluded.
The Court of Appeal agreed that digital penetration did not constitute rape under section 4 of the Criminal Law (Rape) (Amendment) Act 1990. It noted that such acts are habitually charged and prosecuted as sexual assault. The court said the prosecution should not have been restricted from adducing that evidence, even if the trial judge’s general approach to evidence of more serious offences had been correct.
More broadly, the court held that the alleged acts all amounted to sexual assault and were relevant to the charged offence because they were said to have occurred in the same bedroom on the same occasion. Relevant evidence was prima facie admissible and should be excluded only under an established rule of evidence. The court also noted that the Director of Public Prosecutions is not required to charge the most serious offence available, and that evidence of a more serious offence does not prevent a conviction for the offence actually charged.
Relying on earlier decisions concerning larceny, the Court of Appeal concluded that M.J. should not have been prevented from giving a full account of what she said occurred. It answered the legal question by ruling that the trial judge was not correct to exclude the evidence. The appeal judgment did not determine D.J.’s guilt or make findings about the underlying allegations.