Court of Appeal: Rapist loses appeal against use of ‘recent complaint’ evidence in trial

Court of Appeal: Rapist loses appeal against use of 'recent complaint' evidence in trial

Killian Flood BL

The Court of Appeal has dismissed an appeal against a rape conviction in which the defendant claimed that the trial judge had erred by allowing more than one “recent complaint” witness.

Giving the judgment of the Court, Mr Justice John Edwards described the situation as “somewhat unusual” and ruled that the prosecution was allowed to call more than one witness to give evidence about the victim’s initial complaints about the crime.


The victim, Ms C, had met the defendant, Mr A, on a dating website and had consensual sex with him on two occasions. After a period in which Mr A did not contact Ms C for several weeks and then suddenly got in contact again wanting to start over, Ms C became wary of A’s intentions. After meeting him again, she refused to engage in anything other than kissing when Mr A tried to instigate sex.

They parties continued to text over the next few days and agreed to meet at Dollymount Beach in the defendant’s car. After kissing for a short time, the defendant began to instigate sex again by putting his hand down Ms C’s shirt and removing her bra. The victim told Mr A numerous times to stop but he did not. Instead, he digitally penetrated Ms C with his fingers before removing his trousers and having intercourse with her. The victim said that she was saying “no” about once every second and that she tried to push against him, but he continued to assault her.

Shortly after the incident, Ms C went to her friend, Ms S, and told her what had happened. Ms S immediately took Ms C to the local Garda Station, where she made a formal complaint to Garda Karen Griffin. In doing so, the victim relayed the same information to Garda Griffin, but added that Mr A had performed oral sex on her. The complaint made to Garda Griffin was significantly more detailed than the account given to Ms S, but Garda Griffin did not make any notes of this complaint. When the victim was subsequently transferred to the Sexual Assault Treatment Unit at the Rotunda Hospital, she specifically denied that oral sex had occurred.

At trial, the defence objected to the prosecution calling Garda Griffin to give “recent complaint” evidence of the rape, claiming that it was hearsay in circumstances where recent complaint evidence had already been adduced by Ms S. However, the trial judge allowed the evidence of Garda Griffin on the basis of the particular facts of the case, including that the complaint to Garda Griffin was at a very early stage in the process and that Ms C had not mentioned the oral sex complaint to Ms S. The defendant was ultimately convicted of rape and sentenced to eight years’ imprisonment.

Court of Appeal

The defendant appealed his conviction to the Court of Appeal, claiming that the trial judge was wrong to allow the prosecution to produce more than one “recent complaint” witness and that the judge misdirected the jury about the doctrine of recent complaint.

Mr Justice Edwards upheld the trial judge’s decision to admit Garda Griffin’s evidence. He said that the two accounts were closely connected in time and provided a single narrative of the offence which were consistent with the evidence given at trial. The court was satisfied that the two accounts were not internally inconsistent despite being given in two different contexts. The accounts simply differed in the level of detail they contained, the court said.

The court distinguished the present case from the ruling in The People (Director of Public Prosecutions) v Gavin [2000] 4 IR 557, in which the Court of Appeal refused to adduce recent complaint evidence because it was “crucially different” from the account given at trial. While the court accepted that there was more detail in the later complaint to Garda Griffin, the absence of this detail in the earlier complaint to Ms S did not render the account “crucially different” to disallow the evidence under the Gavin case.

Mr Justice Edwards concluded that the evidence of Garda Griffin did not constrain the defence from exploring the circumstances in which the victim failed to mention oral sex to Ms S, or why thought it appropriate to say to Garda Griffin.

The court also rejected the defendant’s claim that the trial judge had failed to correctly charge the jury regarding Garda Griffin’s evidence and on the issue of consent. At trial, counsel claimed that the judge’s charge assumed a disputed fact, namely that Ms C had told Detective Garda Griffin about the detail relating to oral sex. The defence had rigorously cross-examined Garda Griffin about her lack of notes from Ms C’s initial complaint and said the issue of whether Ms C had told her that Mr A had performed oral sex was a live issue for the jury to resolve.

Mr Justice Edwards said that the court had ruled “many times” that the “narrow parsing” of a judge’s charge can be distorting and unfair. The court held that this was the case in the defendant’s appeal. The court was “completely satisfied” that the trial judge did not assume any disputed fact in her charge or usurp the function of the jury at all. Further, after quoting her charge at length, the court determined that the trial judge’s charge on the issue of consent was “impeccable.”


The Court dismissed the grounds of appeal and upheld the conviction of the defendant.

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