In sexual misconduct cases one is often faced with a classic ‘swearing match’ – where one person (the complainant) gives evidence that the misconduct happened, and one other person (the accused) says that it did not. I am often thereby reminded of the case of Hannon (facts below) and often wish I could bring that case to the attention of the jury. May I, properly, do so?
The Hannon Case
The Hannon case (reported at [2009] 4 I.R. 147) concerned an allegation of sexual assault made against Hannon (then aged 22) by a 10 year old girl. The case went to trial, the girl was believed, and Hannon was convicted.
Seven and a half years after the conviction, and then aged 20, the girl confessed that the assault had never happened and that she had made the whole thing up.
Now, obviously you’re going to have some questions about how such a thing could happen, and I’m going to quote from the judgment of the Court of Criminal Appeal (Hardiman J.) in answer to the questions I imagine you asking.
How could the made-up allegation be believed?
“The complainant’s allegation of sexual assault and common assault was made in detailed terms. It was conspicuous for its graphic and coherent language and for the correct use of various medical/anatomical terms. After the alleged assault the complainant had arrived, in a muddy and dishevelled state, at the nearby house of a friend and had convinced that friend, a child herself, and her mother, that something untoward had occurred. Despite the absence of any medically significantly injury she seemed to have convinced a nurse and doctor by whom she was seen that she had been assaulted. The applicant was arrested and questioned at some considerable length about her allegations, during which process various gardaí had suggested to him that it was incredible that a young child could make up allegations of this sort: they simply did not believe it could happen. There is no evidence other than that the complainant invented this story on her own.”
Why did she make up the story?
“There was a history of animosity between the families of the complainant and of the applicant. This related to disputes about land, rights of way and similar matters, not uncommonly found in country districts. This led to a number of confrontations. Some short time (a matter of days), before the alleged assault, the complainant had been present in court when her father, one Crofton Hardester, had been convicted of assaulting the applicant’s father. The Hardester family had arrived from the United States to live in the area some years before.”
In the words of the girl (as quoted in the judgment):
“… I wish to state that my evidence was false as was my complaint in its entirety. Feichín Hannon never assaulted me. I have never spoken to him. We never had any contact because of the trouble between the families. I wish also to add that I was never coerced to make the complaint, never coached, and never encouraged by anyone. I am the only party at fault. I now wish to tell the truth about this matter. I wish to right the wrong that I have done to Feichín Hannon insofar as I can. I am twenty years old now, and I have lived with my cancerous guilt every day for the last ten years. It has been present at every moment. It has eaten away at me. Every happy event, every accomplishment, every friendship and every love affair has been stolen. My entire life since I left Ireland has been stolen. I know how awfully wrong what I did was, and I am deeply, deeply remorseful, more than anyone will ever understand. I know that Feichín Hannon has lived with the shadow of his conviction over his life for many years now, and I can only imagine the rage, the injustice, the pain and the shame he must have felt. I want to see justice done now. I wish there was some way I could apologise to Feichín Hannon and his family and tell them how much I regret what I did. I also wish there was some way to apologise to the State and its employees for wasting their time and money.
… I would like to end this statement by saying I have changed, and I have lived the cleanest life I could in the years since I left Ireland. I would like to say that I found God, and I am attempting to pay back my moral debt to society through good deeds. But all of that would be a cop out. I did something terribly wrong and I got away with it. Other people paid a heavy price, Feichín Hannon most of all. I want to clear his name now. That is all.”
Why didn’t his lawyers uncover the lie?
“The applicant was charged with the offences mentioned. The court has seen the transcripts of his trial and no criticism can be made of the conduct of his defence, which was competent and resourceful throughout. The applicant himself constantly denied the allegations and when questioned by the gardaí, he did not make any admission of guilt. The trial was entirely properly conducted by the trial judge, Judge Carroll Moran, but the alarming and disturbing fact is that, notwithstanding being entirely innocent, the applicant was convicted of these offences by a jury.”
Why Didn’t he appeal his conviction?
“The complainant, Una Hardester, also made the statement on the 9th December, 2006, at Clifden garda station:- ‘I have never been able to understand why he did not appeal’. As explained above, however, having regard to the nature of the case it is utterly improbable that an appeal could have succeeded. Indeed, on the facts as known to this court, no competent lawyer would advise an appeal and to do so would simply be holding out false hopes. An appeal court cannot simply substitute its own view of the facts for that of that jury which heard and saw the witnesses.”
Closing SPeeches
Now, in my view, the Hannon case is a powerful counter-argument to the idea that allegations of this kind would never be made up. It would be a very useful tool in the armoury of a defence lawyer, dealing with a sexual misconduct case where there is no corroboration. Imagine being able to say to a jury: “Look, this wouldn’t be the first time someone has made up an allegation, and it wouldn’t be the first time that a jury has believed it.”
However, I don’t believe that it is open to me to do so. Although investigators can often be found putting questions to accused persons along the lines of “She wouldn’t make it up, would she?”, and “How could she make stuff like that up if it didn’t happen?”, it would be very rare for such exchanges to be put before a jury. Juries are asked to decide cases based on the evidence before them, and not on the beliefs of the investigators or on statistical probabilities.
This is well illustrated by the Court of Appeal decision in D.P.P. v M.C. [2022] IECA 96, in which defence counsel quoted extensively from the Hannon case in his closing speech to the jury. Defence counsel tried to justify this on the basis that the accused had been asked, in a Garda interview, why the complainant would make up these allegations if they were not true. Defence counsel said that he was entitled in his defence to suggest an ulterior motive or intent, or more importantly, no motive at all.
The accused was convicted and appealed on several grounds, one of which related to the manner in which the trial judge dealt with defence counsel’s references to the Hannon case. The trial judge said the following to the jury:
“Now, there was a reference by [defence counsel] about other cases and he talked about a case involving a miscarriage of justice. There are miscarriages of justice. There are also cases where convictions where people are convicted of horrendous assaults, but you do not have regard to other cases. If you were to start to do that the defence could start reading any number of cases where people were acquitted or wrongly convicted, the prosecution could start reading out numerous cases where people were correctly convicted. You are not trying any other cases. You are trying this particular case. So, bear that in mind.”
Defence counsel, on appeal, contended that this was a mischaracterisation of the reason he had referred to the Hannon case. Further, he submitted that the jury might have been misled by the trial judge into thinking that the question of motive, or that false allegations are sometimes made, was not relevant to their deliberations at all.
The Court of Appeal pronounced on the question as follows:
“There is nothing particularly wrong with an accused person telling the jury, through his counsel, that false allegations may sometimes be made by complainants, and/or that this can happen without any apparent reason or particular motive on the part of the complainant. Nor would it be inappropriate per se for counsel to refer to the Hannon case as an illustration of this phenomenon. However, it is important that the jury focus on the facts of the case in front of them and that they are not distracted from that task. In a context where the appellant’s counsel took the unusual course not merely of mentioning the Hannon case but of reading out extensive portions of the judgment to the jury as part of his closing speech, we see nothing wrong with what the trial judge did say and his subsequent refusal of the requisition in question. In effect, the trial judge was doing no more than reminding the jury that they should concentrate on the case before them in reaching their decision and that thinking about other cases would not be particularly helpful for them in this task. There was nothing wrong with this nor did the matter require further revisiting in the manner requested by the appellant. The Court rejects this ground of appeal.”