Director of Public Prosecutions v L.N.

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Ní Raifeartaigh
• Judgment Date: 23 April 2024
• Neutral Citation: [2024] IECA 100
• Docket Number: Record Number: 142/2021

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent

and

L.N.

Appellant

[2024] IECA 100

Edwards J.

McCarthy J.

Ní Raifeartaigh J.

Record Number: 142/2021

Bill Number: 96/2017

THE COURT OF APPEAL

(CRIMINAL)

Unapproved

JUDGMENT of the Court delivered on the 23 ^rd day of April 2024 by Ms. Justice Ní Raifeartaigh

Introduction

1 . This is an appeal against conviction in which the primary issue raised is whether the trial judge was correct in refusing to sever the 12-count indictment. . The appellant was convicted of two counts of rape and ten counts of indecent assault in the Central Criminal Court. There were four different complainants, three of which were nieces of the appellant and one of which was his sister's sister-in-law. An application to sever the indictment was made on a particular basis at the outset of the trial and was refused. The appellant's first ground of appeal is that the trial judge erred in refusing that application. The appellant also seeks to add a further ground of appeal to the effect that there should have been severance of the indictment but in a different manner and for a different reason to that which was advanced on his behalf at the trial. The appellant also appeals in respect of the trial judge's refusal to accede to a PO'C application to withdraw the case from the jury at the close of the prosecution case ( People (DPP) v PO'C [2006] 3 I.R. 238).

2 . A consideration of the severance issues raised in this appeal requires the application of the principles set out by the Supreme Court in People (DPP) v Limen [2021] 2 IR 546 (hereinafter “ Limen”) as discussed in People (DPP) v. PP [2022] IECA 289.

Evidence at the trial

The first complainant

3 . The first complainant was a niece of the appellant and the first nine counts on the indictment related to her. Counts 3 to 9 related to indecent assaults alleged to have been perpetrated when she was a child visiting her mother's family in Ireland on holidays. Counts 1 and 2 related to rapes one of which was alleged to have taken place when she a minor, the other when she was an adult.

4 . The earliest incident (count 3) was said to have occurred in 1971 when the complainant was nine years old. She alleged that the appellant put his hand on top of her crotch over her pyjamas for a period of seconds when she was briefly sharing a bed with him, another uncle, and her younger brother. The next incidents (counts 4–9) were alleged to have occurred the next time the complainant was visiting with her mother's family, in the summer of 1974, when she was twelve years old. She described a number of different occasions during which the following took place:

• i. She described having been alone with the appellant in a car at various times during the holiday and said that the appellant had placed his hand on her thigh several times while driving, and also took her hand and put it on his crotch.

• ii. There was an incident when she saw the appellant's penis protruding through his trousers.

• iii. There was an incident when the appellant moved the complainant's hand towards his penis and ‘moved [her hand] up and down’ until he ejaculated, after which he gave her a scruffy old cloth from the car door to wipe her hand.

• iv. There was an incident when the appellant stood by a bed which the complainant was in ‘with his penis protruding’ in the bedroom which was being shared by him with the complainant and another.

• v. There was an incident in a laneway when the appellant's penis was exposed.

• vi. There was an incident when she and the appellant were in a car on a laneway and the appellant stopped the car near a gate in one of the fields, walked to the gate, and produced his penis before ejaculating. It was the complainant's evidence that the appellant said, ‘It'll be our little secret’.

5 . Count number 1 on the indictment, an allegation of rape, was said to have occurred in 1977, when the complainant was again on holidays with her mother's family. She said she followed the appellant up a laneway that went up above the back of her grandmother's house, and through one gate before stopping at another gate. She described being on the ground, that he was on top of her and there was a painful, pushing sensation inside her; she said it was very quick. She said that the appellant had put his penis inside her vagina and that she noticed blood on her leg afterwards. She said, “ I'm bleeding”, and the appellant got a tissue out of his pocket and handed it to her. She stated that she had a memory of seeing him ejaculate as the appellant pulled himself off her. She said the appellant then continued on through another couple of gates to look at some cattle, and she had followed.

6 . Count Number 2 on the indictment related to the last incident (and second rape) alleged by the first complainant. It was said to have taken place in 1986 when she was twenty-four years old. She had come to Ireland to visit an aunt who was unwell, and the complainant said he would take her to see this aunt. They stopped at a hotel along the way and went in for lunch. She stated that they were leaving after lunch when the appellant went over to the desk and then reappeared and went up the stairs. She said, ‘ I followed him because I always did, because he'd never say what he was doing, you just went’. She continued ‘ And went into a bedroom and raped me at the end of the bed and afterwards, I went in the bathroom and I looked in the mirror and I thought, what am I doing here, what am I doing here.’. She further described the incident as follows ‘…he was on top of me, he didn't — it wasn't a matter of let's take — oh this is fun, let's take off our clothes, it wasn't even in the bed, it was just basically at the end of the bed that he you know, I don't think he had his shirt on, he probably took his trousers off — well, he would have done, but yes, so he put his penis inside my vagina again as if I was a slab of meat really, there was no conversation, there was no — if anybody thinks that you know, there must have been some romance for that to happen, it was as if — because I'd just switch off, it was as if I wasn't — it was as if I didn't matter because I didn't matter, I was just a thing. […] you see I'd just switch off while it was happening because it had happened before, so I'd just switch off, but I wouldn't you know, I wasn't thinking, oh yes, this is really nice, it was like and I looked in the mirror in the bathroom and because it was somewhere different, because there was a hook to hang that memory on, to hang that experience on, I just thought, what am I doing here, what am I doing here. So after that, I just like that was it, I wasn't going to be used again.’.

7 . The complainant gave evidence that she and the appellant had then continued on to visit her sick aunt and that he had said nothing about what happened in the hotel and that there had been no conversation about it.

The second complainant

8 . The second complainant is also a niece of the appellant (and a first cousin of the first complainant). Her evidence was that she was somewhere between eight and ten years old when an incident involving indecent assault occurred following a visit to the appellant's home (Count 10 on the indictment). The appellant was driving her back to her grandparent's house, where she was staying, when he veered off the usual route and pulled the car into a yard off the road, told her he needed to check something, and asked her to get out of the car and go with him as it would be safer. They entered a building in the yard and the complainant said she wandered around before entering a particular room. The appellant came into the room behind her and urinated in the corner. She stated that he then asked her to help him to fasten his trousers. She said the appellant began to masturbate in front of her and attempted to place her hand on his penis. She said that she tried to leave, but the appellant came behind her and put his arm around her before finally opening the door and letting her out of the building. She said that when they returned to his car, he rubbed her leg, squeezed her hand, and asked her if she knew what she had done. The complainant stated that the appellant repeated these actions later in the car journey and told her that she would get into trouble if she told anybody about what had happened.

The third complainant

9 . The third complainant, another niece of the appellant (and first cousin of the first and second complainants), gave evidence of an incident of indecent assault which took place when she was around eleven years old (Count 11 on the indictment). She was on her holidays with the appellant's side of the family, staying with an aunt. She recounted having been invited by the appellant to spend an afternoon with his daughters and that the appellant collected her in his car. She said she believed he had taken a wrong turn before pulling over to the side of the road beside a hedge. Her evidence was that the appellant then undid his trousers and masturbated in her presence. She said that he ejaculated onto her leg and that he later said, ‘God don't tell [his wife's name], she'd stab me’.

The fourth complainant

10 . The fourth complainant also has a family connection with the appellant because her brother had married his sister. She gave evidence of an incident of indecent assault which occurred when she was about sixteen years old (Count 12 on the indictment). She attended a dance with her sister and stayed until midnight. She said the appellant was standing at the exit as she left the dance and ‘ either he offered, or somebody had asked him if he would give me a lift home’. She did not know him well. While she was sitting in the front passenger seat, the appellant drove slowly and put her right hand on his knee, unzipped his trousers, and began masturbating. She...