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)

Conviction – Sexual offences – Severance – Appellant appealing against conviction – Whether the trial judge erred in refusing the application to sever the indictment

Facts: 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 appealed to the Court of Appeal against conviction. The appellant’s first ground of appeal was that the trial judge erred in refusing the application to sever the indictment. The appellant sought 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 appealed 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).

Held by the Court that, as to the original ground of appeal, the trial judge did not err in refusing to order severance on the ground of collusion/contamination. As to the proposed new ground of appeal, the Court was of the view that by reason of the precise terms in which the first complainant described the adult rape in the case, in effect as being part of a pattern of offending which started when she was a child, the evidence was both admissible and probative and not prejudicial with regard to the allegations of indecent assault (as against the first complainant and the remaining three complainants). In the Court’s view, the trial judge would have been acting within discretion if, having been asked to sever the indictment to siphon off the adult rape allegation from all the indecent assault allegations, he had refused the application. That being so, the Court considered that the case fell below the threshold of a misapplication of fundamental principles described in People (DPP) v Cronin [2006] 4 IR 329. Therefore, the Court rejected the proposed ground of appeal. The Court agreed with the trial judge’s conclusion that the question of the broad time-period in respect of one of the complainant’s allegations and the question of witnesses who were no longer available did not warrant the withdrawal of the case from the jury but rather could be dealt with by way of direction. As to the alleged prejudice caused by the joint trial of the rape allegations with the indecent assaults, the Court considered that all of the offending was described as part of a pattern of behaviour which took place when the complainants were children (second, third and fourth complainant) or had been set in motion when one of them (the first complainant) had been a child with the dynamic continuing into her teenage years and into adulthood. In those circumstances, the Court held that the prejudicial effect was outweighed by the potentially probative value of the evidence, and it was within the trial judge’s discretion to conclude that all matters should be heard together and evaluated at the conclusion thereof by the jury.

The Court dismissed the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 23rd 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...