Director of Public Prosecutions v G.M.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 25 May 2023 |
| Neutral Citation | [2023] IECA 151 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 62/2020 |
[2023] IECA 151
The President.
McCarthy J.
Kennedy J.
Record No: 62/2020
THE COURT OF APPEAL
JUDGMENT of the Court delivered on the 25 th day of May by Ms. Justice Isobel Kennedy
. This an appeal against conviction. The appellant was convicted of sixteen counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990, the complainant being his former wife.
. Further counts of indecent assault and rape were preferred on the indictment in respect of which, the appellant entered pleas of guilty and are not in issue in this appeal.
. The appellant's trial began on the 24 th of October 2019 and ran until the 8 th of November 2019, on which date the jury returned a guilty verdict in respect of the s. 4 rape counts.
. The appellant challenges his conviction on the basis that the trial judge erred in directing the placement of a screen between the complainant and the appellant; in ruling that the prosecution could lead evidence which the appellant describes as having been of a highly prejudicial nature and of insufficient probative value, and; in giving a corroboration warning which the appellant regards as having been inadequate in the circumstances.
. The specific grounds of appeal state:-
“ The learned trial judge erred in the following respects:
(i) Directing the placement of a screen between the complainant and the Appellant while the complainant was giving evidence pursuant to Section 14A of the Criminal Evidence Act, 1992;
(ii) Ruling that the prosecution could lead evidence from the complainant of a highly prejudicial nature concerning allegations of physical violence, threats and abuse on occasions other than the offences charged which evidence was of insufficient probative value to warrant being admitted;
[…]
(iv) Giving a corroboration warning which, in all the circumstances, was inadequate in that it failed to reflect the full breadth of matters arising in the evidence which point to unreliability on the part of the complainant.”
. On the 24 th of October 2019, the respondent made an application pursuant to s. 14A(2) of the Criminal Evidence Act, 1992, as inserted by s. 30 of the Criminal Justice (Victims of Crime) Act, 2017, for a screen to be placed between the complainant and the appellant for the purpose of her evidence. This application was made under s. 19 of the 2017 Act, having regard to the specific protection needs of complainant which needs were assessed by An Garda Síochána pursuant to s. 15 of the same Act.
. Counsel submitted that the complainant was a victim of sexual violence and suffered from mental health issues, that she was very fearful of the appellant and that special protective measures were necessary.
. Garda Kelly stated that she initially met the complainant in June 2017 and completed her report in September 2019, that on every occasion she had met the complainant, she had presented as “ fragile, emotional, crying, incoherent at times, unable to speak, extremely embarrassed about the details of the offences. She would be fearful.” Garda Kelly further stated that the complainant would repeatedly recall the last time she was in court with the appellant which was in relation to threats he had made to kill her, which threats were made in the context of the complainant having provided the appellant's telephone number to a person who was seeking money from him.
. Garda Kelly further stated that the complainant had sought “ numerous” domestic violence orders in the past, including an interim barring order granted by the District Court in December 2009, and went on later to describe allegations of significant incidents of domestic violence.
. Garda Kelly further described how in the course of taking the complainant's statement, which took approximately 9 and a half hours, they would have to break frequently on account of the complainant's crying, and that she would become “ exceptionally upset” when the subject turned to her children and the effect the appellant's offending had had on them. Garda Kelly carried out s. 15 assessments in relation to this complainant and two further complainants and stated that the complainant was the only one who, in her view, required special measures.
. Garda Kelly described the complainant as being very open about her mental health issues, that she had felt suicidal, and that she frequently referenced her post-traumatic stress, and the memory loss issues that she has suffered as a result of that disorder. This post-traumatic stress, Garda Kelly described, was linked by the complainant to the abusive relationship she had had with her husband, the appellant. Garda Kelly said that, based on the various GP records in relation to the complainant, the complainant was still under the care of a mental health services provider. Garda Kelly, however, could not gainsay whether the complainant's PTSD was directly related to the abusive relationship she had with the appellant.
. It was the Garda's assessment that the complainant would not be able to give “ coherent” evidence in relation to the offences with the appellant sitting so close to her and that special measures were accordingly required to avoid a scenario whereby she would be fearful, upset, and disorientated. The special measure which Garda Kelly recommended was the placement of a screen.
. In her statement, the complainant detailed the history of abuse she alleged she had suffered at the hands of the appellant which the trial judge considered for the purpose of the respondent's application.
. She described in her statement how she had met the appellant in London in 1993 and that after their first child was born, she noticed a change in the appellant's behaviour, that “ he started to get angry a lot and violent” and that when she was 7 months' pregnant with their first child the appellant had given her “ a really bad beating” using a piece of scaffolding.
. His demeanour turned violent once again when the complainant became pregnant with their second child. She recalled one incident which occurred when the appellant's brother was staying with them at their flat in the UK where following a row between the appellant, his brother, and the complainant, the appellant took a baseball bat and proceeded to beat the complainant with it.
. The complainant recalled the appellant leaving shortly after the birth of their second child returning approximately a year later. She recalled the appellant returning home on one occasion and informing her that he had been sleeping with prostitutes and that one of them was HIV positive and a heroin user. She was tested for HIV and while she was waiting for the results of this test, she suffered a nervous breakdown. The couple split and the complainant recalled turning to drinking heavily between pregnancies, she ultimately had four children with the appellant. She recalled suffering from post-natal depression.
. During the currency of another pregnancy, the appellant was very violent and the complainant recalled how he would grab her by the neck or alternatively would put a pillow over her face or punch her in her torso to avoid leaving marks visible to others. The complainant described the appellant as having been “ emotionally abusive”, “ very controlling”, and that he would constantly undermine her by saying that she was incapable of doing anything. As a result of this domestic abuse, the complainant recalled alienating herself from friends and family, which alienation was in part motivated by the appellant telling the complainant that “ everyone” was looking down on her because of her lack of tertiary education.
. In or about the year 2000, the complainant on returning home from her job discovered that the appellant had taken the children, their birth certificates, and their passports. She rang the police who intercepted the appellant on his way to a seaport, to board a ferry to Ireland, with the couple's four children in tow. The appellant told the authorities that the complainant was an “ unfit” mother who had an alcohol addiction, and he subsequently left for Ireland.
. The complainant moved to Ireland with her four children and lived with the appellant once more in County Tipperary. There, in or about September 2002, the complainant recalled the appellant beating her “ really badly”, hitting her with his fists and kicking her. As a result of her crying and screaming, one of her sons rang the Gardaí. The complainant took her children and they fled to a women's refuge where they stayed for 2 months.
. The complainant recalled acceding to the appellant's request for her and the children to return home to County Tipperary. After the family moved back, the complainant noticed a complete change “ sexually” in the appellant and that he became “ very forceful” and “ rough.”
. The complainant recalled the first instance of anal rape. In or around Spring/Summer 2003, the complainant was in the turf shed at a dwelling-house in village A where she was filling a bucket with turf. She recalled the appellant approaching her from behind while she was bent over the turf bucket. He then roughly pushed her underwear to the side and proceeded to penetrate her anus with his penis. The complainant recalled being unable to scream on account of her children playing in the garden outside. The ordeal persisted for approximately 4 to 5 minutes. Immediately following this, the appellant grabbed her face and told her “ you're some woman” before adding, “ well ya (sic) have had 4 kids, you can expect it like this from now on.”
. The complainant described the emotional abuse she suffered at the appellant's hands as “...
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