Director of Public Prosecutions v M.B.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 12 June 2023 |
| Neutral Citation | [2023] IECA 199 |
| Docket Number | Record Number: 54/2022 |
| Court | Court of Appeal (Ireland) |
[2023] IECA 199
The President.
McCarthy J.
Kennedy J.
Record Number: 54/2022
THE COURT OF APPEAL
Conviction – Child cruelty – Joint enterprise – Appellant seeking to appeal against conviction – Whether the trial judge erred in law in incorrectly addressing the jury in relation to the law of common design
Facts: The appellant, on the 29th October 2021, was convicted of two counts of causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act 1997 and three counts of child cruelty contrary to s. 246 of the Children Act 2001 in relation to the injured party, his daughter. The appellant was tried jointly with a co-accused, his wife, the mother of the injured party. Count 6 on the indictment concerned the 2nd July 2019, where the child sustained a serious head injury inflicted by the co-accused, leaving her requiring permanent care for the rest of her life. The injuries were inflicted in her home by the co-accused whilst the appellant was at work. Count 7 related to a timeframe between the 28th June 2019 and the 2ndJuly 2019 where the child was disfigured as a result of severe burns to her hands and feet. Again, it was said that the injuries were inflicted by the co-accused. Counts 8, 9 and 10 were charges of child cruelty under the 2001 Act. Count 8 referred to the time frame between the 28th June and the 2nd July 2019 and the subject matter of that count concerned an incident of choking by the appellant rendering the child unconscious. Count 9 concerned the same time period, but was that of causing, procuring or allowing the child to be assaulted in the manner reflected in count 7. Count 10 concerned the 2nd July 2019 and was that of neglecting the child following the head injury. The appellant appealed to the Court of Appeal against conviction, relying on the following grounds: (i) the trial judge erred in law in refusing to direct the jury to find the appellant not guilty in relation to counts 6, 7 and 9; and (ii) the trial judge erred in law in incorrectly addressing the jury in relation to the law of common design.
Held by the Court that the judge did not err in refusing the application for a direction on counts 6, 7 or 9. Applying the principles in R v Galbraith (1981) 73 Cr App R 124 which were clarified by the Court in People (DPP) v M [2015] IECA 65 and the law on joint enterprise, the Court held that there was evidence from which the jury could infer an agreement to inflict injury on the child over a period of time and certainly within the timeframe of the counts preferred on the indictment. Moreover, the Court held that the offences fell within the scope of that agreement. The Court was entirely satisfied that there was evidence from which the jury could conclude that the acts of the co-accused were committed on foot of that enterprise and that the appellant was criminally responsible for the offences committed in furtherance thereof. It appeared to the Court that the judge was very clear in the manner he instructed the jury on joint enterprise; while succinct, his directions were specific and in clear language. Insofar as the judge did not highlight certain evidence, the Court held that there is no obligation on a trial judge to reprise the evidence in full; a judge is entitled to reprise as he or she feels appropriate and the charge must be considered in the round, bearing in mind the jury have heard all the evidence. On reading the judge’s charge, the Court found that he did not place greater emphasis on the respondent’s case. The Court was not persuaded that the judge failed to properly address the jury on the requisite mens rea. The Court did not agree with the defence that the jury could have apprehended that the statutory duty applied to the s.4 assault counts; if there was any possibility of that, it was removed by virtue of the re-charge. The Court was satisfied that the judge properly directed the jury on joint enterprise.
The Court, having rejected both grounds of appeal, dismissed the appeal against conviction.
Appeal dismissed.
JUDGMENT of the Court delivered on the 12 th day of June 2023 by Ms. Justice Isobel Kennedy.
. This is an appeal against conviction. On the 29 th October 2021, the appellant was convicted of two counts of causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act, 1997 and three counts of child cruelty contrary to s. 246 of the Children Act, 2001 in relation to the injured party, his daughter. The appellant was tried jointly with a co-accused, his wife, the mother of the injured party.
. Count 6 on the indictment concerns the 2 nd July 2019, where the child sustained a serious head injury inflicted by the co-accused, leaving her requiring permanent care for the rest of her life. The injuries were inflicted in her home by the co-accused whilst the appellant was at work.
. Count 7 relates to a timeframe between the 28 th June 2019 and the 2 nd July 2019 where the child was disfigured as a result of severe burns to her hands and feet. Again, it is said the injuries were inflicted by the co-accused.
. Counts 8, 9 and 10 are charges of child cruelty under the Children Act, 2001. Count 8 refers to the time frame between the 28 th June and the 2 nd July 2019 and the subject matter of that count concerns an incident of choking by the appellant rendering the child unconscious. This count is not the subject of this appeal.
. Count 9 concerns the same time period, but is that of causing, procuring or allowing the child to be assaulted in the manner reflected in count 7, that is the assaults between the 28 th June 2019 and the 2 nd July 2019.
. Finally, count 10 concerns the 2 nd July 2019 and is that of neglecting the child following the head injury, that count is not the subject of this appeal.
. This appeal rests with counts 6, 7 and 9 and is concerned with the doctrine of joint enterprise. Ground 1 relates to all three counts and ground 2 relates to counts 6 & 7 only.
. The evidence established that on the morning of the 2 nd July 2019 the appellant left for work at approximately 7:15 and arrived at 8:00. Later that morning, the co-accused, who was at home with their children, became aware that the injured party had wet herself and attacked her, leaving her unconscious.
. At 13:01 a video call took place between the appellant and his co-accused that lasted for 28 minutes. AA, ( initials anonymised), another of the appellant's daughters, gave evidence that she was standing beside her mother while this video call took place and that the co-accused said words to the effect of “I told — I told you I'm going to do it” and “Why didn't you stop me?” and the appellant appeared shocked. The parties exchanged a number of brief audio calls and the appellant then arrived home at 15:17. The appellant's son, CC, ( initials anonymised) indicated that on his arrival home, the appellant said words to the effect of “Why did you do that? You went on the wrong path. Why did you — why do you hurt [the injured party] all the time?”
. On arriving home, the appellant moved the injured party into the sitting room, opened the balcony door to allow air to circulate and attempted to administer CPR. The co-accused rubbed coconut oil into the child's skin in an attempt to hide her bruises. Both parties were reluctant to call an ambulance. AA and CC gave evidence that they were coached to say that the injured party had fallen in the shower and that their parents called for an ambulance straightaway.
. Phone evidence showed that the appellant commenced a 999 call at 20:01 which lasted only two seconds. At 21:25, he received an email about an item he was interested in on adverts.ie and he accessed this website to view the item. He called 999 again at 21:57 and sought an ambulance, claiming that his daughter had fallen in the shower and was unconscious, that she had fallen off her bicycle two days previously, hit her head and had been unable to get up afterwards.
. Shortly thereafter, emergency services arrived at the scene and found the injured party unconscious and unresponsive on a mattress in the living room. They became suspicious of her injuries and notified An Garda Síochána. The appellant told emergency services that the injured party had fallen off her bike, that she had been self-harming and that she was mentally unwell. On arrival at Temple Street Hospital, the injured party was critically ill and had to be intubated, ventilated and transferred to paediatric intensive care. In addition to a serious brain injury, the child was covered in extensive bruises, abrasions and burns. She had 28 scars. She never regained full consciousness.
. A photograph in evidence at the trial showed the injured party to be mark-free at a trip to the beach on the 28 th June 2019. Evidence was given by AA that after this trip, the co-accused put the palm of the injured party's hand to the hob of the oven and burned her, she also burned her with a hot knife and tied her hands and feet. The prosecution contended that the appellant was not working on the weekend of the 29 th and 30 th June.
. The children of the appellant and his co-accused; AA and CC said that the appellant and his co-accused were violent towards the injured party on many previous occasions. They alleged inter alia that the appellant had choked the injured party until she fell unconscious, lifting her off her feet into the air, that he had kicked and punched her and made fun of her difficulty walking after sustaining these injuries and that the co-accused pulled her hair out, leaving her with bald spots, that she bit her and that she would rouse her from sleep at night to beat her. It is noteworthy that the child slept in the room with her parents,...
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