Director of Public Prosecutions v A.T.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 29 February 2024
• Neutral Citation: [2024] IECA 91
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 108/2022

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

A.T.

Appellant

[2024] IECA 91

Birmingham P.

Edwards J.

McCarthy J.

Record No: 108/2022

THE COURT OF APPEAL

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 29 ^th of February 2024.

Introduction

1 . On the 6 ^th of May 2022, A.T. (i.e. “the appellant”) was convicted following a jury trial before the Central Criminal Court of thirty counts of indecent assault contrary to common law, which counts comprised count nos. 15 to 39 inclusive and count nos. 41 to 47 inclusive on the indictment (Bill CCDP0023/2020). These counts related to sexual abuse which occurred over a period from April 1977 to May 1983, perpetrated by the appellant against his sister-in-law (i.e. “the complainant”). During this period the appellant was aged approximately 21 to 24 years, and the complainant was aged approximately 11 to 14 years. The offending behaviour was said to have occurred at two residential addresses – the complainant's family home, and the home of the appellant and his wife – and in the appellant's car.

2 . Having been convicted of the foregoing counts, the appellant was sentenced on the 31 ^st of May 2022 to a global custodial sentence of 4 years, which sentence was backdated to the 24 ^th of May 2022. No element of this custodial disposal was suspended, and the court below further made provision for post-release supervision pursuant to ss. 28, 29 and 30 of the Sex Offenders Act 2001 (i.e. “the Act of 2001”) for a period of 2 years from the date of release. The appellant being a person to whom Part II of the Act of 2001 relates, the court below further issued a certificate pursuant to s. 14(2) thereof.

3 . Now before this Court in the context of an appeal against conviction, the appellant advances three grounds in his Notice of Appeal dated the 31 ^st of May 2022, those three grounds stating as follows:

• “ 1. The learned trial Judge erred in law in failing to give the jury a corroboration warning.

• 2. The jury's verdict was perverse.

• 3. The jury's verdict was internally inconsistent.”

Factual Background

4 . On the 26 ^th and 28 ^th of April 2022, the complainant gave evidence at the trial of the appellant, outlining the sexual abuse which the appellant was then alleged to have perpetrated on her. It should be restated at this remove that the sexual abuse which the complainant then alleged was said to have been committed at three different locations, including two residential addresses. For the purposes of the present judgment, the residential addresses concerned shall be referred to as “House A” and “House B”, respectively.

Allegations relating to events prior to March/April 1977

5 . The complainant described how she came to be contact with the appellant. She stated that he was the husband of her eldest sister and that he had moved into the complainant's family home, House A, with his wife and their young child on the 31 ^st of January 1976, when the complainant was aged approximately 10 years. The complainant's memory of the exact date of the appellant's arrival was attributed by the complainant to her then regarding her sister's return to the family home as momentous, as she “ adored” her sister and had missed her “ terribly”.

6 . The complainant's evidence then centred on events subsequent to January 1976. Before describing the complainant's evidence, it should be emphasised that the events complained of prior to the 1 ^st of April 1977 form the subject matter of counts in respect of which the appellant was ultimately acquitted (i.e., count nos. 2 to 14). As will be seen, the abuse described by the complainant was said to have occurred on a repeated and frequent basis, and was said to have taken place throughout the time in which the appellant lived at House A.

7 . The complainant described how she would play in one of the bedrooms in the upstairs part of House A. At the time, the house did not have central heating and so, in advance of putting his child to bed in the evening, the appellant would go upstairs and light a fire in the fireplace of the bedroom which he and his wife occupied. He would call the complainant into the room, and in the course of the earlier encounters it was said that he would ask the complainant whether she knew “ where babies came from” and that he would say that he would show her, before then proceeding put the complainant on the bed, lay her back, pull down her underwear and digitally penetrate her vagina. The complainant recalled feeling “ terrified”; that she did not know what was happening; that she was “ absolutely mortified” that the appellant had gone near her underwear, and; that she was “ afraid”. She said that was not able to cry out, “ because he [i.e. the appellant] told me no one would believe me, and he told me that if I ever told that he was an adult (sic), I was a child, they wouldn't believe me”. She further averred that this behaviour occurred repeatedly “ for months the whole time they lived in the house”, she went on then to describe how this abuse would occur two to three times a week.

8 . The complainant said that the abuse would evolve to include other elements, including getting her to learn and read to him a “ filthy” poem, and further that he would expose his penis to her while he digitally penetrated her vagina, though she stated that the abuse did not (at that particular remove in time) escalate to penile penetration. The complainant described how the appellant tried to kiss her, “ shoving his tongue” into her mouth and telling her it was called “ French kissing”. She averred that such kissing occurred two to three times a week. In cross-examination, the complainant's evidence was that she had stated as much in her statement to gardaí, however Garda Sergeant Georgina O'Reilly (otherwise “Sgt. O'Reilly”) in her evidence on the 29 ^th of April 2022 confirmed that at no stage, during any of the statements that were taken, was it ever complained that the appellant had attempted to French kiss, or kiss at all, the complainant.

9 . The complainant stated that these encounters with the appellant were “ quick” and that they occurred at a time when other adults in the house would be either preoccupied or absent and when the complainant would usually be upstairs playing in the bedroom. The complainant averred that the abuse would always start in the appellant's bedroom but that it would move to the bathroom. The complainant said that her father would insist on minimising the use of electricity and that it would be dark when she went to use the bathroom located at the other end of the hallway. She described how the appellant “ took every opportunity to jump out of the end of the stairs in the dark”. Outside the bathroom door there were coats hanging up against the wall. The complainant recalled how the appellant would “ grab [her] up against the coats” and would “ grab” at her vagina and at her chest and push her against the wall. She stated “ [h]e wouldn't be nice about it. And it was always real quick (sic) so no one would catch him”. The appellant would similarly jump out at the bottom of the stairs in the dark too. This behaviour was said to have been “ constant”, and the complainant described how she “ used to hate having to leave a room to go to the bathroom if he wasn't in that room, because [she] knew he'd be somewhere”. She went on to recall,

“ He'd just laugh. He'd just keep laughing. He told me nobody would believe me. He told me my family would disown me, that my nana would have nothing to do with me, you know. And he also told me that he knew people and that he could get my family harmed if I ever told on him”.

10 . Such remarks were said to have been a “ constant” feature of his abuse of the complainant, and she recalled how she was “ terrified” and hated being in and around the house, being on her own, and hated the dark. She recalled not knowing what to do, and that the appellant's remarks inhibited her ability to disclose his abuse, leading her to effectively remain silenced.

Complainant's evidence regarding events post-March 1977

11 . The complainant described how the abuse which took place in the bedroom came to a close around the time that the appellant's second child was born in and around March 1977. The events occurring after the birth of the appellant's second child are of interest, inasmuch as they relate to counts in respect of which the appellant was actually convicted; the preceding events conversely formed the subject matter of count nos. 2 to 14 on which the appellant was acquitted. While the appellant's behaviour ceased to take place upstairs in the bedroom, the complainant recalled how it moved downstairs or would take place at “ any chance he got”. She stated that “ [h]e just never stopped […]. It just was constant”. The complainant then went on to describe the alleged events giving rise to count no. 1 on the indictment, a count of rape, on which count the appellant ultimately was not convicted.

12 . In September 1979, the appellant, the complainant's sister, and the couple's children, moved out of House A. Prior to this, there was a period in which the appellant was said to have continued to perpetrate sexual abuse against the complainant. She averred that the appellant continued to try grabbing her, and that he would try to grab her chest. She described how he thought it “ was very funny all the time” and that he would jump out at her in the dark. She also described how he would walk by her and drop his hand to touch her on her genitals. When asked by counsel for the prosecution how frequently the appellant would behave in this manner towards her, the complainant replied “ [a]ll the time. Any time he could get near me with no one around”. She stated that she would try to avoid the appellant's abuse by keeping out of his way, either by not being in the...