Director of Public Prosecutions v B.B.

• Jurisdiction: Ireland
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 16 May 2024
• Neutral Citation: [2024] IECA 155
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 19/22

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

and

B.B.

Appellant

[2024] IECA 155

Edwards J.

McCarthy J.

Kennedy J.

Record No: 19/22

THE COURT OF APPEAL

JUDGMENT of the Court delivered on the 16 ^th day of May 2024 by Ms. Justice Isobel Kennedy

1 . This is an appeal against conviction. On the 6 ^th August 2021, the appellant B.B. was convicted of one count of rape contrary to s. 2 of the Criminal Law (Rape) Act, 1981, five counts of rape contrary to s. 4 of the Criminal Law (Rape)(Amendment) Act, 1990, and two counts of sexual exploitation of a child contrary to s. 3 of the Child Trafficking and Pornography Act, 1998. On the 18 ^th January 2022, the appellant was sentenced to a term of imprisonment of 15 years.

2 . We have not used the appellant's or the victims' real initials in the interests of protecting the identity of the children. A and C are the appellant's nephews and B is the appellant's niece. Some further background to the offending and the grounds in common with this appellant are contained in the judgment of this Court entitled People (DPP) v A.A. (not that appellant's real initials).

3 . The appellant was convicted in respect of sexual offending of B and C, his niece and nephew. He is their uncle; his sister is their mother. The appellant was tried with six co-accused, two of whom were the subject of a directed acquittal by the trial judge. All of the offences of which the then accused were respectively convicted occurred between the 18 ^th August 2014 and the 28 ^th April 2016. Between those dates, B was aged between 6 years and 7 years and C was aged between 5 years and 6 years.

4 . The complaints resulting in the conviction of the appellant were the subject matter of evidence given by B and C in video recorded interviews with Specialist Garda Interviewers concerning incidents of sexual exploitation by way of the instruction to the children to engage with each other sexually, a s. 2 rape of B (the female child) and s. 4 rapes of C.

Grounds of Appeal

5 . The grounds now relied upon are as follows:-

“1. The learned trial judge erred in fact and in law by allowing the DVD evidence in respect of [C] & [B] (two of the three child complainants) to be put before the jury;

2. The learned trial judge erred in fact and in law by (a) ruling at trial that Counsel on behalf of the Appellant was not entitled to cross-examine/put matters to a Garda Specialist Interviewer (before the jury) the fact that certain of the techniques used by Garda Specialist Interviewers during the Garda Investigation underpinning the proceedings resulted in the DVD interview evidence of one of the Child complainants to be admissible at the trial and (b) failing to give reason(s) as to why such cross-examination/putting matters could not be put before the Jury and/or heard by them.

3. The learned trial Judge erred in fact and in law by refusing to grant orders to the Appellant on foot of his Notice of Motion dated 16 November 2021 inter alia permitting and/or facilitating the making of an enquiry of the jury and/or jury foreman on foot of a letter received by the learned trial Judge from the jury/jury foreman subsequent to the completion of the issue paper in the proceedings and an order arresting the verdict of the jury in respect of Count numbers 76, 77, 79, 80, 81, 82, 83 & 84 on the list of the charges preferred to the jury for their deliberations.

5. The learned trial Judge erred in fact and in law by failing to grant the Appellant a separate trial to that of his co-accused.

6. The learned trial Judge erred in fact and in law by ruling inadmissible the expert testimony/evidence sought to be adduced by the Appellant from Dr A, Assistant Professor, School of Psychology.”

6 . Grounds 1, 2 and 6 are interrelated, ground 2, it is said provides context for ground 1. Grounds 3 and 5 are standalone grounds.

7 . Grounds 1, 3, and 5 are grounds in common with the appellant referred to above; A.A. and have been addressed in that judgment. However, the basis for the application the subject of grounds 1 and 2 are somewhat different and requires separate consideration.

8 . We propose to address grounds 3 and 5 in reasonably brief terms and the parties should refer to the judgment in A.A. in this respect, however, we will summarise the position in each instance below.

Ground 3

9 . This appellant issued a motion seeking an order directing the foreman of the jury empanelled in his trial to swear an affidavit as to the details and circumstances of inter alia, bias and prejudgment in the jury room as referred to by him in a letter he wrote to the trial judge following conviction and prior to sentence.

10 . The deliberations of all 84 counts against the five co-accused lasted 19 hours and 54 minutes over a period of nine days. The verdicts returned in respect of the appellant consisted of majority verdicts. The jury further returned a unanimous verdict of not guilty in respect of one of the counts.

Submissions of the Appellant

11 . The written submissions are quite broad in support of this appellant's argument that the judge ought to have embarked upon an enquiry into the letter written by the foreman of the jury. The appellant relies on this Court's judgment in People (DPP) v JN [2022] IECA 188:-

“ There might be some very exceptional circumstances where further enquiry might be warranted and further evidence taking possibly necessitated …”

12 . It is said that this was an indication by this Court that there was, at the very least, a limited jurisdiction to enquire into a jury verdict in exceptional cases.

13 . It is submitted that the contents of the letter from the foreman render the verdicts of the jury on all counts related to the applicant unsafe, or at the very least, entitle the applicant to be placed in a position to make fuller submissions.

14 . In refusing the reliefs sought, the trial judge determined as follows:-

“It relates solely to the juror's personal view or perception of how his colleagues addressed, approached or considered the evidence from the start of the trial and during the course of their deliberations. The letter was clearly drafted with an appreciation of the limits that applied in discussing jury deliberations.”

15 . It is submitted that this determination is unsafe for the following reasons:-

a) A finding that the evidence amounts (and is confined) to a personal view or perception can only be made where an opportunity has been given to explain, elaborate or test the evidence referred to.

b) The foreman's own appreciation or otherwise of the limits that apply to discussing jury deliberations is irrelevant.

16 . It is acknowledged that the Irish position is as was laid down in People (AG) v Longe [1967] IR 369 that the nature of the deliberations of a jury in a criminal case should not be inquired into. It is further acknowledged that the Supreme Court decision in People (DPP) v Mahon [2019] 3 IR 151 is firmly on the side of restriction of enquiry into matters of deliberation within a jury room. However, counsel contends that while prejudice or impropriety occurring within a jury room is unimpeachable, if such is in fact external, giving rise to a potential injustice, then an enquiry may be justified.

17 . The essence of the submission is that where a convicted person discovers the prospect of bias or impropriety in his trial, he/she is in no different a position than if he had discovered it from the bailiff or an external source. Counsel relies on a particular portion of the letter which he felt reached the threshold for an enquiry; that is an indication or a sense of the juror that the jury employed a reverse burden of proof when considering the appellant.

18 . It is submitted that in the present case, the contents of the foreman's letter would cause a reasonable and fair-minded observer to consider members of the jury had acted contrary to their instructions. At the very least, it is submitted that the content of the letter raises a question mark as to the soundness of the jury's verdict which warrants some form of investigation by the Court.

19 . In terms of the finality of the verdict, the applicant relies on the following quotation from R v Pan [2001] 2 SCR 344:-

“That rationale … inevitably invites the question of why the finality of the verdict should prevail over its integrity in cases where that integrity is seriously put in issue. In a legal environment such as ours, which provides for generous review of judicial decisions on appeal, and which does not perceive the voicing of dissenting opinions on appeal as a threat to the authority of the law, I do not consider that finality, standing alone, is a convincing rationale for requiring secrecy.”

20 . It is again noted that an investigation may be permitted into irregularities that were extrinsic to the deliberations. R v Charnley [2007] 2 Cr App R 33 and R v Young [1995] 2 Cr App R 379 are cited in this regard. It is submitted that the foreman can be directed to address what happened outside of deliberation sessions to elaborate on the content of his letter.

Submissions of the Respondent

21 . The respondent places reliance on the Longe case. It is submitted that no communication with a juror after trial has been permitted in Ireland for good and substantial reason.

22 . It is submitted that this Court could not realistically reach a conclusion as to the safety of the verdicts returned based on the contention, even in sworn form, of one juror alone as other jurors, if requested to testify as to their recollections of the deliberations might provide testimony at odds with his letter.

23 . The importance of the secrecy of jury deliberations is emphasised. The respondent draws attention to the “no impeachment rule” as set out by Charleton J in delivering the judgment of the Supreme Court in People (DPP)...