Director of Public Prosecutions -v- M.J., [2015] IECCA 3 (2015)

Docket Number:111/10
Party Name:Director of Public Prosecutions, M.J.
 
FREE EXCERPT

THE COURT OF CRIMINAL APPEAL [2010 No. 111 CCA]

McKechnie J.

White J.

Stewart J.

BETWEEN

THE PEOPLE (DIRECTOR OF PUBLIC PROSECUTIONS)RESPONDENT AND

M.J.APPELLANT

JUDGMENT of Mr. Justice William M. McKechnie delivered on the 25th day of June, 2015

Background:

  1. On the 27th July, 2006, Mr. M.J. (“the appellant”) was convicted in the Circuit Criminal Court of four counts of indecent assault, contrary to common law as provided for in s. 10 of the Criminal Law (Rape) Act 1981, with regard to one of his daughters, Ms. H. On the 14th March, 2008, this conviction was quashed by the Court of Criminal Appeal (or “the CCA”) as a result of concerns arising in relation to the length of time and the circumstances in which the jury deliberated at the trial ([2008] 2 I.R. 410).

  2. A retrial was ordered by the CCA which, following an application by the Mr. M.J., was transferred to the Dublin Circuit Court for hearing. On the 22nd March, 2010, Mr. M.J. was once again convicted by unanimous jury verdict of the same four counts of indecent assault as set out in the indictment laid against him. These charges were as follows:

    “Count no. 1: that “[the accused person] did, on or about the 31st October, 1981 (Halloween) in his car at a gateway on the [(specified road in specified county)], indecently assault [Ms. H.] by making her masturbate him.”

    Count no. 2: that “[the accused person], did on a date unknown between the 1st November 1981 and the 31st December 1981, did [sic] force [Ms. H.] to masturbate him while he was in his car in County [(specified)].”

    Count no. 3: that “[the accused] did, on a date unknown between the 7th June 1981 and the 7th June 1983, indecently assault [Ms. H.] in his car on [(specified road in specified county)] by making her engage in masturbation of him.”

    Count no. 4: that “[the accused], did on a date unknown between the 31st December 1983 and the 31st March 1984 in County [(specified)] indecently assault [Ms. H.] by forcing her to perform oral sex on him.”

    Subsequently, at a hearing held on the 29th April, 2010, Mr. M.J. was sentenced by the learned trial judge (His Honour Judge O’Donnell) to six years imprisonment with the final three years suspended on certain terms and conditions.

  3. By notice of appeal dated the 18th June, 2010, Mr. M.J. sought leave to appeal from the CCA against both conviction and sentence. Ten grounds of complaint were advanced on his behalf but two of them were ultimately abandoned: as was his appeal against sentence during the course of the hearing. The remaining grounds were referenced in the following manner by the CCA in its judgment, delivered on the 3rd June 2014 (“the main judgment”):

    “Ground No. (1) the admissibility of evidence issue;

    Ground No. (2) the refusal of the trial judge to grant a direction at the close of the prosecution’s case;

    Ground No. (3) the failure of the said judge to discharge the jury at the conclusion of the charge;

    Ground No. (4) the inadequacy of that charge and also the recharge, on the “right to silence”; and finally

    Ground No’s. (5) to (8) the judge’s failure to give to the jury a “Cronin” type direction (The People (Director of Public Prosecutions) v. Cronin [2003] 3 I.R. 377 (“Cronin”)).”

    The application and, therefore, the appeal was dismissed on all grounds.

  4. It should be noted that Mr. M.J., as part of his original trial, also faced other charges of indecent assault and of incestuous behaviour in relation to the complainant, Ms. H., but was acquitted of such charges: as he was, on a number of similar charges of indecent assault concerning another of his daughters namely, Mrs. M. Evidently none of these charges formed any part of the re-trial.

    The Decision of the Court of Criminal Appeal:

    Ground No. 1: admissibility of evidence:

  5. This ground of appeal related to an alleged family confrontation which took place some time in the early 1990s, during which it was claimed that the accused had admitted to having sexually assaulted Ms. H. At trial, counsel on his behalf submitted that in the exercise of its discretion, the Court should not admit evidence of this alleged event. The reasons for this contention were summarised by the appeal court, at para. 9 of its judgment in the following manner:

    “(i) that a serious doubt existed as to what, if anything, was admitted, and in particular whether it related to sexual abuse;

    (ii) that even if such an admission was made, it was impossible to relate it specifically to the counts on the indictment in view of the other charges of a similar nature involving the complaint, of which the accused had previously been found not guilty;

    (iii) that given the significant inconsistencies in the evidence, described by counsel as “massive”, it would, in this particular case, be impossible for the accused to obtain a fair trial, if the normal course was followed, of leaving such matters to the jury – particularly so when the timeframe of events is also considered; finally and in any event,

    (iv) that if the accused person was compelled to defend himself against such evidence, given the antiquity of the relevant events, then the same would inevitably result in an unfair trial.”

  6. The trial judge, when dealing with exactly the same submission as made to this Court on this ground of appeal, was satisfied that as a matter of law there was in fact a sufficient legal basis upon which the intended evidence of the confrontation could properly be placed before the jury: indicating that if and where necessary, the same would be accompanied by appropriate directions. The trial judge also stated when delivering his ruling that “at the moment”, meaning as the evidence then stood, he would have no difficulty in giving a “Cronin” type direction. The controversy which subsequently arose out of this remark was later ventilated as part of Grounds No.’s 5 – 8 of the notice of appeal.

  7. The CCA considered this ground of appeal at length. Having made some general observations on the relevant case law as opened by counsel on behalf of the accused, the Court, being still somewhat uncertain as to whether the submission related solely to the principles outlined in R v. Galbraith [1981] 2 All E.R. 1060 (“Galbraith”) or whether it was raising a “pure admissibility” point, dealt with the issue at both levels. It concluded that no concerns arose at a “technically” admissible level regarding such evidence and also, having conducted a detailed review of what each relevant witness had in fact said, was equally satisfied that when properly considered, such evidence, as a matter of principle, was capable of surviving the Galbraith test, observing in the process that of course such a decision was a matter for the jury. Having looked at a number of other rather subsidiary issues, the Court was perfectly satisfied that no point of substance had been established, which could lead to a finding that the trial judge was in error or otherwise had acted erroneously.

    Ground No. 2: the refusal of a direction at the close of the prosecution’s case:

  8. In analysing the submissions made on this ground of appeal, the Court pointed out that at all stages during the course of a trial, there remained on the presiding judge an ongoing duty to ensure that the trial and the trial process was fair: and that if at any stage of the proceedings the rights of the accused person in that regard were being impeached or jeopardised, he would have an obligation to take whatever corrective measures were appropriate, including where necessary, an order terminating the trial.

  9. Within that framework, the Court again reviewed the evidence as tendered and expressed the opinion that it was much more substantial than the submission of the accused person would suggest. Furthermore, by reference to his instructions, as articulated on his behalf by counsel during the course of the trial, it was clear that Mr. M.J. did not suffer...

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