Director of Public Prosecutions v A.M.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 11 July 2023 |
| Neutral Citation | [2023] IECA 205 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 41/2022 |
[2023] IECA 205
The President.
McCarthy J.
Kennedy J.
Record Number: 41/2022
THE COURT OF APPEAL
Conviction – Sexual assault – Newly discovered evidence – Appellant seeking to appeal against conviction – Whether the conviction of the appellant was unsafe and the trial was unfair by reason of newly discovered evidence
Facts: The appellant, on the 13th December 2021, was convicted of a single count 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. The appellant appealed to the Court of Appeal against conviction. The appeal proceeded on the following grounds of appeal: (1) the conviction of the appellant was unsafe and the trial was unfair by reason of newly discovered evidence which, if available at trial, might have had a material and important influence on the result of the case; (2) the judge erred in admitting misconduct evidence and highlighted the most prejudicial elements thereof in his charge; and (3) the judge erred in charging the jury on recent complaint where no such evidence was adduced.
Held by the Court that while the newly discovered evidence was unknown at trial and could not have reasonably been known or obtained for the trial, it was not persuaded that the new evidence would have had the necessary impact on the trial in that the Court not see that it would have caused the jury to have a reasonable doubt in light of the balance of the evidence on the issue. Accordingly, the Court was not persuaded that the conviction was unsafe on that ground. The Court held that the misconduct evidence was undoubtedly relevant to the offence charged. The Court held that the temporal aspect of the communications rendered the material relevant as did the nature of the exchanges. The Court found that the evidence was necessary to ensure the jury were fully aware of the relationship between the parties or indeed, and more significantly, the relationship as the appellant perceived it. The Court did not find any error in the admission of the evidence and rejected that ground. Regarding the contention that the judge’s initial direction to the jury must have left the jury confused, and that they may have thought the complaint evidence to the friend, the mother and stepfather all served to bolster the complainant’s credibility, where there was extensive cross-examination on complaints made by the complainant, together with the direction to the jury that there was no recent complaint evidence to support credibility, the Court did not agree that the jury were left under the incorrect impression.
The Court did not find favour with the grounds of appeal whether viewed on a standalone basis or cumulatively and accordingly dismissed the appeal.
Appeal dismissed.
JUDGMENT of the Court delivered on the 11 th day of July 2023 by Ms. Justice Isobel Kennedy.
. This is an appeal against conviction. On the 13 th December 2021, the appellant was convicted of a single count 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.
. The appellant is a Polish national and a long-term resident of Germany. The complainant is a grandniece of the appellant's wife. The offence is alleged to have occurred on an afternoon between the 10 th and 13 th March 2014 when the appellant and his wife were staying at the complainant's family home on the occasion of her confirmation. At the time of the alleged offending, the appellant was 60 years of age and the complainant was 12 years of age.
. In a statement made to An Garda Síochána in February 2019, the complainant alleged that following her confirmation ceremony on the 7 th March 2014, she became ill and was unable to attend school between the 10 th and 14 th March 2014. The complainant described that she spent these days in bed and that on a date unknown between the 10 th and 13 th March, the appellant entered her bedroom and got into her bed with her. They played games and took photos together on her iPad device. She alleged that he touched her inappropriately.
. The complainant and appellant remained in contact after this via Skype. During these conversations, the complainant referred to the appellant as “ uncle” and the appellant referred to the complainant as “ my treasure.” The appellant enquired as to whether the complainant's mother knew that they were in contact. He also asked whether the complainant was in bed and commented that it was a “ pity that I'm not there beside you.” These messages were recovered from the complainant's iPad and exhibited at trial.
. The complainant first disclosed the alleged sexual assault to a school friend during the course of a school trip in October 2018. Thereafter, in November 2018, she disclosed the incident to her mother and the investigation commenced.
. While 5 grounds of appeal were initially filed, grounds 4 and 5 were not advanced. The appeal proceeds on grounds 1–3 which we summarise as being:-
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1. The conviction of the appellant is unsafe and the trial was unfair by reason of newly discovered evidence which, if available at trial, might have had a material and important influence on the result of the case.
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2. The judge erred in admitting misconduct evidence and highlighted the most prejudicial elements thereof in his charge.
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3. The judge erred in charging the jury on recent complaint where no such evidence was adduced.
. This first ground of appeal arises from the disclosure post-conviction of the counselling notes of a Mr R which record the complainant as saying that “ the sexual abuse happened on more than one occasion.”
. Mr R made a statement confirming his experience as a counsellor, that he provided counselling to the complainant on the relevant dates and that the handwriting and signature on the counselling notes are his.
. The appellant now seeks the leave of this Court to adduce the statement and counselling notes as fresh evidence. This motion is grounded on the affidavit of a Ms. Vignerte, Solicitor, MacGuill & Company, sworn on the 6 th October 2022.
. It is submitted by the appellant that the statement and counselling notes fulfil the admissibility requirements set down in People (DPP) v Willoughby [2005] IECCA 4, People (DPP) v O'Regan [2007] 3 IR 805, People (DPP) v Dutton [2012] 1 IR 442 and People (DPP) v DC [2021] IESC 17.
. The appellant was unaware of the evidence at the time of the trial and could not reasonably have known or acquired them at that time. As averred in the affidavit, a request for disclosure was made on behalf of the appellant but due to a breakdown in communication and/or an oversight within the counselling service, the counselling notes were not disclosed.
. It is further submitted that had the counselling notes been disclosed prior to the appellant's trial, the fundamentally different account given by the complainant of multiple sexual assaults as opposed to her account given at trial of a single sexual assault might have had “ a material and important influence on the result of the case” as per the Willloughby Principles.
. As a result, it is argued that the appellant's constitutional right to effectively cross-examine his accuser was affected, resulting in defects in the fairness of his trial. Ref: In re Haughey [1971] IR 217 and Maguire v Ardagh [2002] 1 IR 385.
. It is said that inconsistent accounts is perhaps the most significant tool by which a complainant's credibility can be tested and undermined by an accused in the conduct of his defence.
. The appellant relies on the following portion of Hardiman J's judgment in O'Callaghan v Mahon [2008] 2 IR 514:
“[…] the use of prior inconsistent statements in particular and material undermining credibility in general, have been recognised for centuries as an effective way of contradicting a witness; that this can be demonstrated from cases both ancient and modern; that such statements are regarded as disclosable in criminal proceedings and as discoverable relevant and admissible in civil proceedings.”
. Further reliance is placed on Hardiman J's reference to his remarks in a previous judgment, O'Callaghan v Mahon [2006] 2 IR 32:
“In my view, it is a matter of common justice, and indeed common sense, that a witness who makes a grave allegation against another may be contradicted out of his own mouth where that is possible. If a right to do this were not assured, cross-examination would be gravely hampered, and even subverted. It is a statement of the obvious to say that the credibility of a particular statement made by a particular person is reduced or destroyed if he has made a contradictory statement on a previous occasion, unless that can be explained in some way. Conversely, consistency enhances the credibility of a statement. These propositions have been recognised for centuries in the common law.”
He continued:
“[…] the point is that it has long been established that the comparison of a witness's earlier account with that which he gives in evidence and the establishment of the consistency or inconsistency of evidence with a previous statement is a factor relevant, and sometimes critical, to credibility.”
. Applying the above to the present case, it is argued that had the defence been in a position to establish that the account given by the complainant in counselling was inconsistent with the evidence she gave at trial, or the account she gave to her friend or to her mother or to An Garda Síochána, such may have influenced the outcome of the trial. Attention is drawn to the fact that the verdict was a 10:2 majority.
. The importance of the...
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