D.P.P.-v- Adam Keane,  IECCA 119 (2007)
THE COURT OF CRIMINAL APPEALMurray C.J. 67CJA/07
IN THE MATTER OF SECTION 2 OF THE CRIMINAL
JUSTICE ACT 1993
THE DIRECTOR OF PUBLIC PROSECUTIONS
ADAM KEANERESPONDENTJUDGMENT of the Court delivered by Murray C.J. on the 19th day of December 2007
This is an application by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993 for a review of the sentence imposed on the Respondent in the Central Criminal Court on the 12th March 2007 following his conviction by the jury of the offence of rape. The sentence imposed by the learned trial Judge was one of three years imprisonment suspended on his being of good behaviour in his own bond for 1,000 for a period of five years. (He was also certified as a sex offender and placed on the Sex Offenders Register).
The D.P.P. brings this application as an independent public servant authorised by law to prosecute crimes and offences pursuant to an Act of the Oireachtas adopted in accordance with Article 30.3. of the Constitution which otherwise vested the role of prosecutor in the Attorney General.
As in virtually every country, the Courts established by and in accordance with the Constitution have a hierarchal structure. This permits, inter alia, access to the Courts at first instance and on appeal to a higher Court whose decision is then final and binding. Exceptionally there may be a further appeal to a higher Court again, usually in limited circumstances, in one form or another, such as an appeal from this Court to the Supreme Court pursuant to s. 29 of the Courts of Justice Act 1924.
Courts of appeal have long been seen as an important and essential element in calibrating the scales of justice and thus ensuring confidence in the judicial process. Legal systems provide for an appeal from Courts of first instance not least because it is not assumed that Courts of first instance are infallible no more than it is assumed Courts of appeal are. There is no human institution that enjoys such a brave assumption. Indeed when the Supreme Court relaxed the doctrine of stare decisis (in AG -v- Ryan Car Hire Limited 1965 I.R. 642) Kingsmill Moore J. noted "If it could be safely assumed that all members of a Supreme Court were perfectly endowed with wisdom and completely familiar with all branches of the law, to treat their judgments as infallible would need but little justification. Judicial modesty has refrained from putting forward such a claim ." Moreover, an appeal by a party who, rightly or wrongly, is dissatisfied with a decision of a Court of first instance, in addition to providing the party with the benefit of a case being heard or examined a second time by another Court, also brings finality to individual disputes before the Courts which is one of the objects of the administration of justice.
That is the structure which we are constitutionally bound to respect.
As regards sentencing, for a very long time only the convicted person had a right of appeal against the sentence imposed on an accused following conviction on indictment. There were historical policy reasons for this which it is not necessary to consider here. Suffice it to say that, for public policy reasons, the Oireachtas decided in 1993 that the Director of Public Prosecutions should, in the circumstances referred to in s. 2 of that Act have a right to apply to the Court of Criminal Appeal to review the sentence imposed by the trial Court. That is the position in law.
Subsection (1) of that section provides "If it appears to the Director of Public Prosecutions that a sentence imposed by a Court on conviction of a person on indictment was unduly lenient, he may apply to the Court of Criminal Appeal to review the sentence".
Subsection (3) provides that on such an application this Court may either quash the sentence and in place of it impose on the convicted person such sentence as it considers appropriate being a sentence which could have been imposed on the accused by the sentencing Court. Alternatively, it may refuse the application of the D.P.P.
Having imposed sentence in this case the learned trial Judge went on to advise Counsel for the respondent that he should warn his client that "the Director is very trigger happy in relation to appeals on the grounds of undue leniency. So it is quite probable that this is not the end of the matter."
The Court considers this reference by the learned trial Judge to have been unfortunate as it may be understood as trivialising or lacking in the respect which is due to the process of appeals designated as appropriate by the Oireachtas. Section 2 of the Act of 1993 established a process of access to a court of appeal on the part of the D.P.P. in respect of sentences imposed by the sentencing Court. A Court should avoid using language that might be taken to suggest the denigration of the exercise of a statutory function of appeal. Moreover no finding was made or any conclusion pointed to which could in any sense justify the use of language suggesting that the right of appeal was being abused, which in any event is essentially an issue for the Court of Criminal Appeal.
On the contrary, the Director's application in this case far from being an abuse of the process of the Court is, as the Court's conclusions set out below in this judgment demonstrate, one which is well founded.
The offence of which the respondent was convicted is that he did, at a time unknown on the night of the 29th or 30th May 2005, at a certain address in Ennis, Co. Clare have sexual intercourse with a female person who at the time of the intercourse did not consent to it and at the time he knew that she did not consent to the intercourse or was reckless as to whether she did or did not consent to it, contrary to common law and as provided by s. 48 of the Offences Against The Person Act 1861 and s. 2 of the Criminal Law (Rape) Act, 1981.
It should be noted at this stage that subsequent to the imposition of the suspended sentence by the Court of trial the respondent was brought before that Court again and, after the learned trial Judge had made certain findings of fact adverse to the respondent, he set aside the suspension of the respondent's sentence and ordered that he serve the term of three years imprisonment. This latter Order of the trial Judge was in turn appealed to this Court by the respondent. That is a separate issue with which the Court is not presently concerned. The sole question before the Court for present purposes is whether the application by the D.P.P. pursuant to s. 2 of the Act of 1993 is well founded.
The essential facts concerning the rape of the victim were not in dispute at the trial although the accused maintained his plea of not guilty throughout. From the outset of the Garda investigation into this offence, shortly after its commission, and throughout the trial the stated position of the respondent was that he had no recollection whatsoever of the events immediately surrounding its commission due to the fact that he had earlier, during the evening prior to the offence committed, consumed a considerable amount of alcohol and also taken some drug described as MDMA and referred to in the trial as being a form of ecstasy. There was in any event cogent evidence from the victim herself as well as expert evidence which showed that the DNA profile derived from a semen sample taken from the victim matched the DNA profile of the respondent.
The victim, Miss Y, was at the time of the offence a 33 year old single woman who lived on her own with three young children on a housing estate in Ennis, Co. Clare. The children were aged about 10, 8 and 4 at the time. At that time Miss Y had been "essentially living with", as it was put at the trial, her boyfriend Mr. M since September 2004. He had previously been a boyfriend of Miss B. At the time of the offence Miss B's boyfriend was the respondent. Mr. M was not residing in the victim's house around the time of the offence because of an argument which had occurred between them. Miss B lived in a house on the same housing estate nearby to Miss Y's.
Although the respondent and Miss Y knew one another from the locality and mutual friends, especially through Miss B, and he had previously been in her house, there had never been a close or intimate relationship between the two of them.
On the evening of May 29th 2005 the victim, Miss Y, had put the children to bed by 9.30 p.m. and decided to go to bed early herself shortly after that.
She suffered from severe deafness since childhood and always wore a hearing aid but did not do so when she went to bed because it was uncomfortable to wear in bed. She always slept with the light on and had a landing or bathroom light on with the door to her own bedroom left open. Due to her deafness she would not hear the children if they woke up in the middle of the night but if they came out of the room the lights enabled them to readily see her in her bed and they could come straight into her.
The offence was committed between midnight and 1.00 a.m. There was evidence at the trial that Miss Y woke up and was conscious of a male person in her bed who was cuddling up to her and had his arm around her waist. She had had an argument with her boyfriend M. and she thought that "[M] is back that is good". There was no conversation and she went back to sleep. The next thing which occurred was that she woke up with a man on top of her having sex with her. Initially she assumed it was M but soon realised that it was not, noticing, inter alia, that unlike M the man had tattoos on his arm and he had different hair. She panicked and pushed the man off her and felt his penis sliding out of her. She got out of bed. She found the bedroom door had been closed and on running out of the room she found the lights had also been turned off outside. She turned on the lights and stood in the bedroom doorway and saw the respondent sitting...
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