Director of Public Prosecutions v S.L.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 20 July 2023 |
| Neutral Citation | [2023] IECA 209 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 146/2021 |
[2023] IECA 209
McCarthy J.
Kennedy J.
Burns J.
Record No: 146/2021
THE COURT OF APPEAL
JUDGMENT of the Court delivered on the 20th day of July by Ms. Justice Isobel Kennedy
. This is an appeal against conviction. On the 31 st May 2021, the appellant was convicted of one count of rape contrary to s. 2 of the Criminal Law (Rape) Act, 1981, as amended concerning LM (count 1), one count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990, as amended, concerning RM (count 4) and one count of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997, in respect of CD (count 5).
. The offences alleged occurred in an apartment shared by the appellant and his partner in October and December of 2015. The appellant's partner is the older sister of the complainants LM and RM. CD is a friend of RM's.
. The incident the subject of count 1 occurred in October 2015. LM went to visit her sister, the appellant's partner, as she had just given birth to a baby. That evening, the appellant's partner was admitted to hospital, leaving LM alone in the apartment with the appellant. The appellant placed a mattress on the floor of the living room of the apartment. LM developed a headache, and the appellant gave her unidentified tablets. She became dizzy, weak and sick and developed difficulties with her vision and the appellant gave her two more tablets. LM laid down on the mattress, shortly after which, the appellant removed her clothing, opened her legs and put his penis in her vagina. She pleaded with him to stop but he continued to hold her down forcefully. After this ended, he told her to go for a shower. The following morning, the appellant told LM that she was to act as if nothing happened. The appellant was acquitted of attempted s. 4 rape and rape. These three offences were alleged as a continuum.
. The incident the subject of counts 4 and 5 occurred in December 2015. RM and her friend CD went to visit her sister's new baby in the apartment. Late in the evening, RM retired to a spare bedroom and went to bed. The appellant entered the room and began shaking the blanket and pulling her legs. RM asked him to leave the room. The appellant left and CD entered. RM asked CD to lie in the bed next to her for protection. The appellant returned to the room and crawled up from the bottom of the bed next to RM. He then started rubbing the top of her legs and trying to put his hands inside her pyjama bottoms and underwear. She told him to stop but he ignored her. RM nudged CD and noticing this, CD turned to face RM and wrapped his legs and arms around her in an attempt to impede the appellant. At this, the appellant jumped over RM and pressed his two knees against CD's chest and started choking him.
. It was indicated in oral hearing that grounds 5, 6, 8 and 10 were being abandoned. The appeal proceeds on the following grounds:-
“1. The Learned Trial Judge erred in law in failing to accede to an application to sever the indictment and direct a separate trial of the Appellant on Counts 4 and 5 of the indictment. Further the Prosecution grounded the resistance to the Application to sever on system evidence in respect of the 5 Counts on the Indictment to include the ‘similarity’ of the description of features of the Rape charged on Count 2 given by the Complainant L.M (on which Count the Appellant was acquitted) to the description of the Assault Causing Harm given by the complainant [CD] on Count 5 of the Indictment. The Appellant was unfairly prejudiced in the conduct of his Defence in respect of all the 5 Counts on the indictment charged in respect of the complainants L.M (Counts 1,2,3) and R.M (Count 4) and [CD] (Count 5)
2. The Learned Trial judge erred in law in failing to discharge the jury in the light of the prejudicial evidence placed before the jury in the Evidence in Chief given by [CD]
3. The Learned Trial judge erred in law in later failing to discharge the jury:
[a] on being informed by the Court Registrar that two of the jurors complained of being photographed or perceiving that they were photographed in the car park by one or two of the witnesses for the Defence and/or
[b] failing to hold an inquiry of the jurors to establish the particulars of the alleged incident and the jury members' perception of same
[c] failing to later inquire of the Prosecution or Investigating Gardai of the outcome of the Garda investigation of the phones of the two witnesses which was completed on the 27 day of May 2021 and before the learned Trial judge's charge to the jury although informed by the Defence (on information from the investigating Garda) that a forensic investigation of the mobile phones of the two witnesses by Gardai revealed that no photographs had been taken by the two witnesses
4. The learned trial judge erred in law in failing to accede to an application to discharge the jury on the basis of the cumulative effect of the prejudicial comments made by [CD] in his evidence-in-chief and the subsequent concerns expressed by some jury members of being photographed or perceiving themselves as being photographed by one or two of the witnesses for the Defence
7. The learned trial judge erred in law in refusing an application by the Defence to include the totality of an answer by the accused in interview and acceding to an application by the Prosecution to omit same albeit that the Prosecution had previously objected to the Defence questioning of the complainant L.M. on the basis that the notes of memorandum of interview had not been agreed with the Prosecution although agreed with the previous Prosecution team which withdrew on the 28th April 2021
9. The trial was unsatisfactory and unfair in all the circumstances.”
. This judgment is confined to grounds 2, 3, 4, 7 and 9 which concern the failure to discharge the jury and the editing of the appellant's memorandum of interview. For the reasons stated hereunder, we intend to quash the conviction.
. The appellant points to two incidents which it is said should have resulted in the discharge of the jury.
. Firstly, that CD in his direct evidence about the assault on him by the appellant stated that:-
“ Q: So, you wanted to leave, is that what you're saying?
A: Yes, but there was no way, like at the time obviously if we had called someone it would have been, like, well why are you….my thoughts at the time anyway were, like, why did you call us, like, this late, like did something happen and, like from stories I had heard about [the appellant] is that…”
. In response to this incident, defence counsel applied for the jury to be discharged on the basis that the evidence given was prejudicial to the appellant, which application was refused, the trial judge stating that it was a measure of last resort.
. The second incident concerned a complaint from the jurors to the jury minder and conveyed to the Court that a defence witness, DL and two other young people appeared to be taking photographs of the jury as they were leaving the carpark. In response to this incident, defence counsel applied for the jury to be discharged on the basis that same had prejudiced the jury against the appellant as they now had a “ perception of intimidation from that witness.” This application was refused.
. The prosecution submitted that there should be a general inquiry of the jury as to whether they had any concerns to express to which the judge agreed. The judge expressed this inquiry in the following terms:-
“JUDGE: Good afternoon, [foreman], ladies and gentlemen of the jury. It has come to my attention in the course of the day that one or more of your number may have expressed some concern this morning about something that happened as you were assembling to resume jury duty this morning. So I wanted to acknowledge that and what I propose to do in that regard is this, I'm going to ask you to retire again briefly to discuss among your number whether there is any concern that any one or more of your number wish to bring to the Court's attention concerning anything that may have happened before you assembled to resume the trial, of the trial of these offences this morning. If that is so, in the context of the discussion you have when you retire to the jury room, when you reassemble and obviously take as long as you wish, within reason, when you reassemble, I will ask [foreman] to articulate on your behalf any concern there may be. And obviously in the absence of any concerns, I would simply propose to continue the trial. So that's what I propose to do, I'm going to ask you oh yes, I'm sorry, it seems that [foreman], I don't know whether it might be simpler to reduce anything you wish to say to writing in a note.”
And:- “ JUDGE: And then you can hand up the note to me, I'm going to ask you to do that right now unless it's a very short note indeed. I was going to give you an opportunity to discuss matters in the jury room, unless it's something you feel in a position to address right now, [foreman]? Thank you.”
The jury foreman replied:-
“FOREMAN: Yes, sorry, Judge that's been resolved.”
. The defence then submitted that it was not known what had been resolved with the jury and that the court should embark on an inquiry into the matter. The judge rejected this submission.
. It is submitted on behalf of the appellant that directions by the judge were unlikely to remedy any potential prejudice on the part of the jury and the jury ought to have been discharged.
. It is emphasised by Mr Bowman SC, now appearing for the appellant, in relation to the first incident, that the answer given by CD gave...
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