Director of Public Prosecutions v N.W.

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Ms. Justice Tara Burns
• Judgment Date: 14 May 2024
• Neutral Citation: [2024] IECA 173
• Docket Number: Record Number: 38/2023

Between/

The People at the Suit of the Director of Public Prosecutions

Repondent

and

NW

Appellant

[2024] IECA 173

Birmingham P.

Kennedy J.

Burns J.

Record Number: 38/2023

THE COURT OF APPEAL

NO REDACTION NEEDED

JUDGMENT of the Court delivered on the 14 ^th day of May, 2024 by Ms. Justice Tara Burns.

1 This is an appeal against conviction. On 9 June 2022, the appellant was found guilty by unanimous verdict of Count 14 (Sexual Exploitation contrary to s. 3(2)(a) of the Child Trafficking and Pornography Act 1998); Count 16 (Sexual Assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990); and by majority verdict of Count 13 (Child Cruelty contrary to s. 246(1) of the Children Act 2001).

2 The trial judge had previously directed the jury to return a verdict of not guilty on Count 15 (Sexual Exploitation).

3 On 8 December 2022, the trial judge sentenced the appellant to 3 years imprisonment in relation to the sexual exploitation and sexual assault offences and 12 months imprisonment in relation to the child cruelty offence, all of which were suspended on certain terms and conditions. The respondent has brought an application pursuant to s. 2 of the Criminal Justice Act 1993 seeking a review of the sentence imposed on the appellant on grounds of undue leniency. That application will be dealt with by the court in a separate judgment on a later date.

Background

4 The appellant is the mother of the injured party. The injured party's father, HS, was a co-accused on the indictment and was charged with a significant number of separate offences. He died before the matter came on for trial.

5 The injured party was between the age of 3 and 4 and three quarters at the time of the commission of the sexual exploitation and sexual assault offences and between the age of 0 and 4 and three quarters at the time of the commission of the child cruelty offence.

6 The injured party lived with his father from when he was approximately 18 months old. His father had notified Tusla that he would be the primary legal carer of the injured party but that the injured party would continue to have daily access to the appellant. The appellant accepted she saw the injured party on a daily basis both at his father's house and at the house where she resided. The appellant and her co-accused continued in a relationship after he obtained custody of the injured party. The appellant described herself carrying out a parenting role in her interactions with the injured party.

7 The injured party was placed into foster care by the State in June 2015 when he was 4 and three quarters years of age. He could not use a knife and fork; did not know how to drink from a cup; was prone to overeating; stole and hid food; took food from bins to eat; could not dress himself; did not know how to sit on a chair; had very poor language skills; and urinated on walls and defecated on the ground at school. When he attended primary school aged 5, while noted to be an intelligent child, his development was assessed as closer to that of a 2 or 3 year-old. The injured party's behaviours and his lack of development formed the basis of the child cruelty charge against the appellant.

8 While in foster care, the injured party began to make disclosures of sexual abuse to his foster mother. He also demonstrated sexualised behaviour: portraying the act of sexual intercourse; peeking into the bathroom when females were utilising it; inappropriate touching of other children; and inappropriate conversation.

9 His foster mother brought the disclosures to the attention of An Garda Síochána in June 2017 and an investigation began. On 25 August, 16 September and 1 November 2017, the injured party was interviewed by specialist garda interviewers and these s. 16 interviews formed the basis of the prosecution case against the appellant and her co-accused in relation to the sexual exploitation and sexual abuse charges. The interviews straddled the injured party's 7 ^th birthday. He stated in these interviews that the appellant had taken his penis into her mouth; that he inserted his finger into the appellant's vagina, at his father's direction; and that he had stepped on the appellant's genital area.

10 In the course of these interviews, the injured party also made allegations of the most serious and shocking kind against his father and other unidentified persons.

11 By the time this matter came on for trial, the injured party was 11 ³/₄.

12 Prior to the appellant being arraigned on the child cruelty charge, the defence sought particularisation of the neglect which was alleged against the appellant. Counsel for the respondent, in the course of objecting to this application, indicated that this count did not relate to any of the alleged sexual activity. This application was refused by the trial judge.

13 With respect to the s. 16 interviews, the appellant made an application that those portions of the interviews which related to the alleged offending by the co-accused and unidentified persons, be omitted from the interview recording played before the jury on the basis of irrelevance and severe prejudice. This application was also refused by the trial judge.

14 At the conclusion of the respondent's case, Counsel for the appellant sought a directed acquittal on all three sexual offending charges on the grounds that the evidence relating to those charges was so infirm that it would be unsafe to permit it be considered by the jury pursuant to R v. Galbraith [1981] 73 Cr App R 124. In the alternative, an application pursuant to The People (DPP) v. PO'C [2008] 4 IR 76 was made on the basis that an unfairness arose with respect to the ability to cross examine the injured party, such that a trial in due course of law could not take place. This application was refused.

Grounds of Appeal

15 By notice of appeal dated 7 March 2023, the appellant indicated her desire to appeal her conviction and set out her grounds of appeal as follows:-

“i. The learned Trial Judge erred in law or in fact in refusing or declining to grant an application by the Defence to particularise the indictment and in particular count 13 of the indictment in relation to Child Cruelty in circumstances where no specific acts or omissions of the Accused were particularised.

ii. The learned Trial Judge erred in law or in fact in refusing or declining to grant an application by the Defence to edit/ omit or limit the section 16 [interviews]. In particular, the learned Trial Judge erred in law or in fact in refusing or declining an application by the Defence to omit [s. 16] Interview No. 2 with the Complainant and to omit portions of [s. 16] No. 3 with the Complainant.

iii. The trial judge erred in in fact and law in refusing or declining to end the Trial due to the re-examination of the Complainant which sought to raise issues not arising from the cross-examination of the Complainant.

iv. The learned Trial Judge erred in law or in fact in declining or refusing to grant an application for a direction by the Defence in relation to counts 14 and 16 due to conflict in the evidence of the Complainant and/ or the insufficiency of the evidence given by the Complainant in relation to those counts.

v. The learned Trial Judge erred in law or in fact in declining or refusing to grant an application at the requisitions stage for the Trial Judge to give a Special Direction to the Jury in respect of the frailty of the [s. 16 interviews] of the Complainant and the difficulty of relying upon it in the context in which it was taken.

vi. On initial application to the learned Trial Judge, the Court acceded to the requisition by the Defence to give a delay warning but the learned Trial Judge erred in law and in fact in the manner and substance of the delay warning given to the Jury.

vii. Counsel for the Prosecution, in his closing speech, commented adversely on the cross-examination of the Complainant by the Defence in circumstances which were unfair and prejudicial to the Accused.

viii. The learned Trial Judge refused to intervene in respect of the objection by the Defence when the Prosecution continuously requested the Accused to give her opinion on the evidence against the deceased co-accused which amounted to a fundamental breach of the Appellant's right to a fair trial.

ix. The learned Trial Judge erred in law or in fact in refusing or declining to warn the Jury sufficiently against sympathy or prejudice in circumstances of alleged cruelty against a child which amounted to a fundamental breach of the Accused's right to a fair trial.”

Appeal Grounds Pursued at Hearing

16 At the hearing before us, Counsel for the appellant indicated that the grounds which he was now pursuing had narrowed to two, namely the failure to particularise the indictment with respect to the child cruelty charge and the failure to direct the jury to return a not guilty verdict either on the basis of an insufficiency of evidence or unfairness. In respect of this latter ground, Counsel for the appellant indicated that he also relied on the trial judge's refusal to sever those parts of the interview which related to alleged offending by the injured party's father and other unidentified persons, and the delay which had occurred in the proceedings.

Particularisation of the Indictment

17 Section 246(1) of the Children Act 2001 provides:-

“It shall be an offence for any person who has the custody, charge or care of a child wilfully to assault, ill-treat, neglect, abandon or expose the child, or cause or procure or allow the child be to assaulted, ill-treated, neglected, abandoned or exposed, in a manner likely to cause unnecessary suffering or injury to the child's health or seriously to affect his or her wellbeing.”

18 Count 13 on the indictment which alleged child cruelty contrary to s. 246 of the Children Act 2001, stated:-

“NW… between the 11 ^th day of September, 2010 and the 18 ^th...