Director of Public Prosecutions v H.S.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 24 April 2023 |
| Neutral Citation | [2023] IECA 99 |
| Docket Number | Record Number: 49/2022 |
| Court | Court of Appeal (Ireland) |
[2023] IECA 99
McCarthy J.
Kennedy J.
Donnelly J.
Record Number: 49/2022
THE COURT OF APPEAL
JUDGMENT of the Court delivered on the 24 th day of April 2023 by Ms. Justice Isobel Kennedy.
This is an appeal against conviction. On the 29 th September 2021, the appellant was convicted of one count of rape contrary to common law and s. 48 of the Offences Against the Person Act, 1861 and eight counts of indecent assault contrary to common law and s. 6 of the Criminal Law (Amendment) Act, 1935, concerning his sister MC, and four counts of indecent assault contrary to common law and s. 10 of the Criminal Law (Rape) Act, 1981 concerning another sister, RC.
The appellant is the older brother of the two complainants, MC and RC. The counts preferred on the indictment span from 1974 to 1981 when the appellant, with a date of birth in 1960, was aged between 14 and 21 years. He is five years older than MC and ten years older than RC.
RC, the younger of the two sisters outlined that she had been sexually abused by the appellant at three different addresses during the course of her childhood; in order to preserve her anonymity, we call those addresses BU, BE and MW. She described how on the 24 th December 1977, at BU, the appellant entered her room dressed as Santa Clause in a karate suit, put her hand on his penis and caused her to masturbate him. On RC's account, after the family moved to BE, the abuse continued. She described that the appellant would take her into their mother's bedroom, close the door and digitally penetrate her and that he would sometimes masturbate while doing this. She further described that the appellant would force her to perform oral sex on him and that he performed oral sex on her also. She said that she stopped speaking because of this abuse. Her mother confirmed that she was mute for a period during childhood. RC recalled that the appellant had threatened her and told her not to tell anybody. She outlined that the abuse continued after the family moved to a third address, MW. RC stated that the appellant raped her vaginally while visiting MW on the occasion of the announcement of his engagement on the 4 th June 1981.
RC received a letter from the appellant in 2015. It stated that the appellant had decided to:-
“contact those who have been damaged by me. I believe you are one of those people. It is clear to me that I have damaged you directly by my conduct which was selfish, self gratifying, irresponsible and completely inconsiderate of your life and your emotions.”
MC, the eldest daughter of the family, outlined that the appellant had sexually abused her in BU from when she was 8 or 9 years of age. She described that the appellant would take her into his bedroom, lock the door, remove her clothes and perform oral sex on her. She said that he would masturbate during these incidents and that on occasion he would read to her from a pornographic book. She said that when it was finished he would tell her to get dressed and unlock the door. She recalled that the appellant told her not to tell anybody, to keep it to herself. MC stated that near the end of her time living at BU, when she was 11 or 12 years of age, the appellant raped her. She disclosed the abuse to her mother in 1993. This was confirmed by her mother. She also told her sister, RC. MC confirmed receipt of a letter of apology similar to that received by RC from the appellant.
On the 30 th August 2015, RC made her first statement to An Garda Síochána regarding the sexual abuse she had suffered during her childhood. MC made her first statement on the 18 th March 2016. She explained that she did not complain at the same time as RC as her son had significant medical difficulties in 2015 and she required a long time and much therapy to enable her to make a statement.
It was the appellant's position at trial that he was residing elsewhere at the relevant times, and this was inconsistent with committing the offences. He denied that the letters of apology related to sexual offending but admitted in evidence to touching MC's vagina externally on a number of occasions in BU and that he rubbed against her at their grandparents' house and had also touched her thigh. The appellant made no admissions in relation to RC.
While six grounds of appeal were originally filed, the appellant indicated during oral hearing that he was not pursuing ground six. The appeal proceeds on the following five grounds only:-
“1. The learned trial judge (Ms. Justice Carmel Stewart) erred in law and/or in fact in failing to direct that the indictment be severed such as to provide for separate trials of the historic allegations of each of the two complainants, which related to different periods of time and were different in their nature, location and frequency (having no overlapping feature or pattern other than a familial relationship), and where there was good reason to fear mutual contamination as between the complainants.
2. The learned trial judge further erred in law and/or in fact in ruling admissible as ‘confession’ evidence (i) a typed note of an interview conducted by social workers with the Appellant on 1st November 2010 (subject only to a few redactions), and (ii) two pages of handwritten notes prepared by the Appellant in advance of that interview and provided to the social workers at the end of the interview.
3 (a) The learned trial judge further erred in law and/or in fact in deciding not to withdraw the case from the jury on the ground that there was a real risk of an unfair trial having regard to the passage of more than 40 years since the timeframe the subject of the allegations and the irremediable prejudice (both general and specific) arising therefrom.
(b) The learned trial judge erred in taking account, when considering the application made to her for the withdrawal of the case from the jury, the findings made by this Honourable Court when, in 2019, it overturned the decision of the High Court to grant prohibition to the Appellant in respect of the same allegations ( H.S. v. DPP [2019] IEHC 107; [2019] IECA 266).
4. The learned trial judge further erred in acceding to an application to amend the indictment after all of the evidence had been heard, based on facts which were discoverable by the prosecution with reasonable diligence before the indictment was drafted, to the extent that counts 2–11 relating to the complainant R.C. were backdated to dates which did not feature at all on the indictment on which the Appellant was arraigned at the start of the trial, causing irremediable prejudice to the line of defence pursued by the Appellant.
5. The learned trial judge further erred in law and/or in fact in refusing to withdraw all counts on the indictment from the jury and to direct the jury to find the Appellant not guilty on all counts.”
The gravamen of this appeal rests with the fact that the appellant was tried in 2021 at the age of 61 in respect of acts he was alleged to have committed between 35 and 44 years previously. It is submitted by the appellant that as a result of the complainants' delay in bringing their complaints to Gardaí, he lost “the real possibility of an obviously useful line of defence”as per Hardiman J in SB v DPP and Hartnett [2006] IESC 67 and, as such, passed the threshold at which the Supreme Court has held a trial should be halted.
It is acknowledged as per O'Malley J in PB v DPP [2013] IEHC 401 that exceptional grounds must be shown in order for a case to be withdrawn from a jury owing to the prejudice caused by delay however, in the appellant's contention, this is one such exceptional case. Accordingly, it is submitted that the trial judge erred in refusing the appellant's application for a stay of the proceedings or for a directed acquittal and in so doing breached his constitutional right to be tried in due course of law.
It is submitted that the appellant suffered not only general prejudice but specific prejudice by virtue of the delay in the bringing of proceedings against him. In terms of general prejudice, it is said that the appellant was confronted, after more than three decades, with multiple allegations occurring on non-specific occasions during wide windows of time, without, for the most part, any detail to anchor them to a time of day or night, a day of the week, a month or even a season. While it is acknowledged that this is a feature of many historical sexual abuse cases, the point is made that it is exceedingly difficult to engage with and or/counter such allegations without anything concrete to challenge or disprove.
In terms of specific prejudice, the appellant identifies persons who were either deceased or infirm at the time of the trial that could have been of value to the defence:-
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• The appellant's maternal grandparents with whom he maintains he lived with from Christmas 1974 until late spring/early summer 1976.
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• The appellant's maternal uncle who frequented the grandparents' house.
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• Two schoolteachers of the appellant's who drove him to school on a regular basis from his grandparents' house.
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• Two neighbours of the appellant's grandparents.
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• The appellant's paternal aunt with whom the appellant maintains he lived with in England from the end of July 1976 to the beginning of November 1976.
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• The appellant's paternal grand aunt with whom the appellant maintains he lived with before he went to England.
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• The owners of the hotel the appellant was employed at in 1977. The appellant maintains that he lived in while he worked there.
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• The family's doctor.
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• The appellant's ex-wife.
It is submitted that the...
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