Director of Public Prosecutions v D.H.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 15 May 2023
• Neutral Citation: [2023] IECA 170
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 233/2021

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

D.H.

Appellant

[2023] IECA 170

Edwards J.

McCarthy J.

Donnelly J.

Record No: 233/2021

THE COURT OF APPEAL

Conviction – Sexual assault – Complaint evidence – Appellant seeking to appeal against conviction – Whether the trial judge erred in permitting recent complaint evidence in respect of multiple witnesses

Facts: The appellant, on the 5th of October 2021, was convicted by a jury in the Dublin Circuit Criminal Court of the single charge of sexual assault, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. He was subsequently sentenced to imprisonment for a period of 3 years and 6 months, with the final 6 months thereof suspended on conditions, the said sentence to date from the 13th of December 2021. The appellant appealed to the Court of Appeal against his conviction. A related motion sought leave to adduce new evidence at the hearing of the appeal. The appellant appealed his conviction on the following grounds: (I) the trial judge erred in permitting the prosecution to adduce evidence in respect of an allegation of an assault, other than the sexual assault, by the accused on the complainant upon learning that an allegation of sexual assault was being made against him; (II) the trial judge erred in permitting recent complaint evidence in respect of multiple witnesses; (III) the trial judge erred in failing to direct an acquittal at the close of the prosecution’s case in circumstances where the particulars of the count on the indictment, namely the date of the said offence, did not accord with the evidence; (IV) further or in the alternative, the trial judge erred in permitting the prosecution to amend the indictment after the close of its case and in response to a direction application made on behalf of the accused; (V) the conviction of the accused was unsafe in circumstances where the accounts offered by the complainant prior to and during the trial was materially inconsistent with that which was prepared for the purposes of a Victim Impact Statement resulting in an unfairness to the accused in his ability to effectively defend himself against the allegation.

Held by the Court that it was readily prepared to accept that the first two of the Willoughby principles (Willoughby v DPP [2005] IECCA 4) were satisfied by the appellant. However, as regards the third of those principles, while the Court had no difficulty in accepting that the proposed additional evidence was credible, namely, that the unedited Victim Impact Statement could be credibly attributed to the complainant both as to its execution and as to its contents, the Court was not persuaded that if that statement had been available to the defence at the time of the trial before the jury it might have had a material and important influence on the result of the case. The Court was not disposed to grant the relief sought in the appellant’s Notice of Motion. Consequentially, the Court also dismissed Ground of Appeal No. V. The Court rejected Ground of Appeal No. I to the extent that it was based upon breach of the rule against hearsay. Turning then to the objection based upon misconduct evidence, the Court thought that the potential for prejudice was, in fact, slight when considering the relative gravity of the claimed misconduct in the circumstances in which it was said to have occurred, compared with the gravity of the offence charged. In the circumstances the Court was not disposed to uphold Ground of Appeal No. I. The Court was satisfied that the trial judge was right to regard the complaints made to two of the complainant’s schoolfriends as having satisfied the conditions for admissibility. In the circumstances the Court was not disposed to uphold Ground of Appeal No. II. The Court was in no doubt that the trial judge was entirely correct in exercising her discretion to allow the amendment sought by the prosecution and to refuse the application for a direction. In the circumstances the Court was not disposed to uphold Grounds of Appeal Nos. III and IV respectively.

The Court dismissed the appeal against conviction.

Appeal dismissed.

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 15th of May 2023.

Introduction

1 On the 5th of October 2021 the appellant was convicted by a jury in the Dublin Circuit Criminal Court of the single charge 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 was subsequently sentenced to imprisonment for a period of 3 years and 6 months, with the final 6 months thereof suspended on conditions, the said sentence to date from the 13th of December 2021.

2 The appellant has appealed against both his conviction and the said sentence. This judgment deals with his appeal against his conviction, and a related motion seeking leave to adduce new evidence at the hearing of the appeal.

Evidence at trial relevant to the appeal

3 The jury heard that the complainant was born in 2001. She gave evidence that after the breakdown of her parents' marriage, her mother and the appellant entered into a relationship. The complainant subsequently resided with her mother, sister, and the appellant. In her evidence to the court of trial the complainant alleged that in October or November 2013 she and the appellant were at home alone in the sitting room of the house where they resided and that she had asked the appellant for a foot massage. She had moved over to the sofa on which the appellant was sitting and sat at the other end of it, and there placed her calves and feet on his lap.

4 The complainant stated that the appellant massaged her feet and then proceeded to move his hands higher up her legs. He then massaged the outside of her vagina over her leggings before sliding his hand under her leggings and rubbing the outside of her vagina over her underwear. He then slid his hand under her underwear and rubbed the outside of her vagina. The complainant was asked how she had reacted to this at the time, and she replied,

“I just absolutely froze. I didn't know what to do. And I remember I was looking at the clock and I was thinking of an excuse, anything to get out of it, and I just got up and I said I needed to go and do my homework and I ran into my bedroom”.

5 The complainant went on to say that the appellant subsequently followed her into the bedroom and saw that she was crying. She said that he started hugging her and apologising, and that he then asked her if he had touched her “ forky parts”, which she took to mean her vagina. The complainant did not respond but continued crying. She was 12 years old at the time.

6 The complainant stated that the first person to whom she relayed what had happened to her was her younger sister. She told her sister approximately a year later, in 2014. The sister did not give evidence at the trial, however. The first adult whom she told was the counsellor in her school, also in 2014. By that stage she was in secondary school. Again, the counsellor was not called to give evidence as to the complaint she received. The complainant also told some schoolfriends, referred to as “W” & “S”, respectively. These friends were called to give evidence as to the complaints they each respectively received. The complainant's mother was also informed at some point, although the complainant initially indicated some uncertainty both as to the circumstances in which this disclosure occurred and as to its date. The complainant thought that her mother had probably been informed by the school rather than by her, and that having been so informed her mother had collected her from school. The complainant's mother did not give evidence on any matter at the trial.

7 The complainant lived with her paternal grandparents thereafter, and subsequently moved to the United Kingdom to live with her father.

8 There was evidence in the case that the complainant had had a strained relationship with her mother and a good relationship with her father. At a certain point after the parents had separated, the complainant and her sister had been forbidden by their mother from seeking to contact their father, such was the toxic nature of the relationship between the mother and father. However, the complainant would, on occasion, avail of the opportunity of contacting her father during visits to her paternal grandparents' home. The evidence was that this continued until the complainant's mother found out about it and forbade any further such contact. Indeed, for a time the complainant was not allowed to visit the grandparents' home on account of this having occurred.

9 At the conclusion of the complainant's evidence-in-chief, the witness was tendered to the defence for cross examination. However, before counsel could commence her cross-examination the witness herself interjected to say “ I actually have something else to say that I know — Am I allowed to do that?” The trial judge then asked the jury to retire, and in their absence enquired of the witness “ what additional thing did you want to say?” The witness then responded:

“When my mother found out she confronted him in the living room and I remember I could hear it because, you know, we were in the room beside the living room with my sister and [the appellant] came in, was shouting at me saying he didn't do it and stuff like that and he grabbed my arm and he pushed me across the room. I don't know if that's relevant or not.”

10 Counsel for the prosecution confirmed that the complainant had alluded to the alleged confrontation incident in a supplemental statement that had been taken from her on the 20th of July 2021, and that this had been disclosed to the defence and moreover had been made the subject of a Notice of Additional Evidence. However, counsel for the accused had indicated to counsel for the prosecution...