Director of Public Prosecutions v P.S.
| Jurisdiction | Ireland |
| Judge | Ms Justice Isobel Kennedy |
| Judgment Date | 16 May 2023 |
| Neutral Citation | [2023] IECA 135 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 132/2021 |
[2023] IECA 135
The President
McCarthy J
Kennedy J
Record No. 132/2021
THE COURT OF APPEAL
Conviction – Sexual assault – Admissibility of evidence – Appellant seeking to appeal against conviction – Whether complaint evidence pertaining to two of the complainants should not have been admitted at the trial
Facts: The appellant, on the 9th June 2021, was convicted of thirteen counts of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 as amended by s. 37 of the Sex Offenders Act 2001. He appealed to the Court of Appeal against conviction. The appeal was confined to a single issue, namely, that complaint evidence pertaining to two of the complainants should not have been admitted at the trial. The appellant relied on the following grounds of appeal: (i) the Circuit Court judge erred in law in refusing a defence application in respect of the proposed evidence of “TC Jr” and thus allowing the evidence of TC Jr, pertaining to a complaint made to him in January 2014 in respect of alleged offences in 2009 and 2010, to be adduced before the jury; and (ii) the Circuit Court judge erred in law in refusing a defence application in respect of the proposed evidence of “AR” and thus allowing the evidence of AR, pertaining to a complaint made to her in early 2016 in respect of alleged offences between 2012 and 2014, to be adduced before the jury.
Held by the Court that there were legitimate reasons arising from the circumstances which led the trial judge to exercise her discretion to admit the evidence of complaint. The Court noted that the first complainant had previously complained to her friend, and only then, about a year later, complained to her PE teacher. However, in the circumstances of long term inter-familial abuse of a young girl, where the evidence disclosed that the appellant was her grandfather and godfather, that he lived in close proximity to the first complainant’s family, that she saw him every week and that her mother said that “her heart was torn out” on learning of the complaint, the Court held that those were all factors the judge was mandated to take into account in deciding on the admissibility of the evidence. The Court held that the fact that the complaint was made some four years after the last offence did not render the evidence inadmissible in the circumstances. The Court noted that the complaint was made to a person in authority, outside of the complainant’s family. The Court was not persuaded that the judge erred in the manner she exercised her discretion. Insofar as the complaint made by the third complainant was concerned, the Court found that it was arguably more difficult for the appellant to contend that this complaint was inadmissible, in that the third complainant told a close friend who was with other friends, a year or more after the last offence, about the offending. The Court noted that she did so having been upset in school and was advised by her friends to tell someone else about it; on returning home, she told her older sister, the first complainant. The Court held that this was relevant, probative evidence, not only in terms of consistency but also as to how the Gardaí became involved and the investigation commenced.
The Court was not persuaded that either ground of appeal had been made out and dismissed the appeal against conviction.
Appeal dismissed.
JUDGMENT of the Court delivered by Ms Justice Isobel Kennedy on the 16 th day of May 2023
. This is an appeal against conviction. On the 9 th June 2021, PS, the appellant herein, was convicted of thirteen counts of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act, 1990 as amended by s. 37 of the Sex Offenders Act, 2001.
. This appeal is confined to a single issue, namely, that complaint evidence pertaining to two of the complainants should not have been admitted at the trial.
. The appellant was convicted of thirteen counts of sexual assault for offences against three sisters which occurred between 2009 and 2014. The appellant is the maternal grandfather of the three complainants.
. It was acknowledged that the appellant had had a close relationship with the three complainants prior to the alleged offences. They resided nearby and were regular visitors to their grandparents' home, he took them on drives and with him whilst farming. The complainants' ages ranged between 10 to 14 years, approximately, at the relevant times. The nature of the sexual assaults involved the touching of the vagina, breasts and bottom of the complainants which is outlined below.
. AB was born in 1996 and is the eldest of the three complainants. She was 12 years old when the first incident of sexual assault occurred in 2009. Three counts relate to this complainant. She was 14 years of age at the time of the third count preferred on the indictment, being the summer of 2010. All the offences were alleged to have taken place in the appellant's home while there were other people present.
. The first offence occurred at her grandparents' house during the Easter holidays of 2009. She awoke sometime between 5am and 6am to use the bathroom, and when passing by the kitchen, she noticed that her grandfather was having his breakfast. On her return from the bathroom, he beckoned her over and tapped his thigh for her to sit on his lap. She sat on his lap, and he touched her vagina and her breasts. There was no conversation while this was happening and afterwards, she went upstairs to try to figure out what had just occurred. She ultimately went back down to the sitting room and managed to fall asleep. She didn't tell anybody what had happened at that time.
. Count 2 relates to events that occurred around Christmas of 2009, again in her grandparents' house. The complainant's aunt had put up Christmas lights on her grandparents' bedroom window and she went to see those lights. On returning inside, her grandfather stood in to let her pass by him on the way in the door and put his hand down the back of her school skirt and touched the top of her bottom. She stated that she then made her way past him, back into the kitchen as fast as she could, and she did not tell anybody. She was 13 years old when this offence took place.
. Count 3 occurred in the summer of 2010, when she was 14 years of age. Here, AB gave evidence that she was sitting on a chair next to the door into the kitchen and there were a number of other people present and chatting in the kitchen. She said that her grandfather came into the room and leant over her, placing his hand inside the back of her top. She said that she wriggled forward and believed he was going to move his hand around the front of her body because of what had happened previously. She was scared and frightened. She also gave evidence that she was doing her best to stay out of his way from the time of the first offence.
. AB was the first of the three sisters to make a complaint about the appellant's behaviour. Sometime in 2013, AB confided in a schoolfriend, who did not make a statement and was not a witness. She then complained to her PE teacher, Mr C, in January 2014. The teacher had noticed she was upset at school one day and told her “ If this is serious, I will have to report it.” AB told him that “ a person had been at her.” She named the person as her maternal grandfather. She went on to say that “ she had been touched inappropriately” by him. The admissibility of this complaint is the subject matter of the first ground of appeal. Mr C notified the deputy school principal and the relevant authorities.
. An Garda Síochána were informed about the matter. In August 2014, AB did not wish to make a statement to the Gardaí concerning these matters as he was her grandfather. She made her statement in 2016.
. The appeal is not advanced in respect of this complainant; FB. The first incident of sexual assault occurred when she was 10 years old and the last when she was 11 years old.
. FB first disclosed this abuse to her mother in 2016 on the same night and following her sister KB making disclosure.
. KB was born in 2001. The first incident of sexual assault occurred when she was 11 years of age and the last incident occurred when she was 13 years old in 2014. Counts No. 9–13 on the indictment relate to this complainant between 2012 and 2014. These offences were alleged to have taken place when she was travelling in a van with the appellant as well as incidents arising whilst she was assisting with farm work in the appellant's company.
. Count 9 relates to an incident in the appellant's vehicle where a cushion was placed over the handbrake of the vehicle, the complainant sat on this and the appellant allowed her to steer the vehicle, during the course of which, he took his hand off the gearstick and put it down inside her clothing and touched her vagina.
. In respect of Count 10, the complainant gave evidence of being by a tree, on which she and her sisters and cousins had carved their names. The appellant came up from behind her, put his hand down her pants and touched her vagina.
. Count 11 occurred in a hut in a field: the appellant placed his hand inside her pants and touched her on her vagina.
. Count 12 was stated to have occurred at a farmyard belonging to a third party and it was at a haybarn at this yard, the appellant put his hand down inside the complainant's clothing and touched her vagina.
. Count 13, the final offence in time, was stated as having occurred in a rented house attaching a farm being tended by the appellant when he touched her breast and vagina.
. In 2016, KB disclosed to her friends via social media that she was...
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