Director of Public Prosecutions v G.D.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 03 November 2023
• Neutral Citation: [2023] IECA 301
• Court: Court of Appeal (Ireland)
• Docket Number: Bill No. 32/2018

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

Respondent

and

G.D.

Appellant

[2023] IECA 301

Edwards J.

McCarthy J.

Ní Raifeartaigh J.

Bill No. 32/2018

Appeal No: 29/2022

THE COURT OF APPEAL

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 3 ^rd of November 2023.

Introduction

1 . The appellant was originally tried before the Central Criminal Court in December 2021 on three counts (Nos. 1, 2 and 7) of rape contrary to s. 4 of the Criminal Law (Rape) Amendment Act 1990 (i.e. “the Act of 1990”), two counts (Nos. 3 and 4) of sexual assault contrary to s. 2 of the Act of 1990, and three counts (Nos. 5, 6 and 8) of sexual assault contrary to s. 2 of the Act of 1990 as amended by s. 37 of the Sex Offenders Act 2001. On the 21 ^st of December 2021 the appellant was convicted by unanimous verdict by jury of all counts in the indictment record, excluding count no. 4 in respect of which the appellant was acquitted.

2 . On the 24 ^th of January 2022 the appellant was sentenced to 8 years and 6 months' imprisonment on each of the s. 4 rape counts, and to 2 years' imprisonment on each of the sexual assault counts. All sentences were ordered to run concurrently and to date from the 21 ^st of December 2021.

3 . The appellant has appealed to this Court against both his convictions and sentences.

4 . This judgment deals with his appeal against his convictions.

Background:

5 . The alleged sexual offending the subject matter of the complaint was said to have occurred during the period from the 1 ^st of January 1998 to the 31 ^st of December 2002. It was alleged by the complainant – the appellant's younger brother – that the appellant had sexually assaulted and/or raped him in various locations including in the family home, at the home of an aunt and in a caravan at a seaside resort. The appellant was aged 14 to 18 years old at the time of the alleged offences, and the complainant was aged 9 to 14 years old. The offences, as particularised in the indictment, alleged that the appellant had on a number of occasions touched the complainant's penis both inside and outside his clothes, that he had penetrated the complainant's mouth with his penis on two occasions, and that he had anally raped the complainant on one occasion.

Grounds of Appeal:

6 . On the 24 ^th of January 2022, the appellant lodged a Notice of Appeal in which he outlined the two grounds on which he now seeks to appeal his conviction:

• (a) That the trial judge erred in fact and in law in restricting the scope of cross examination of the complainant with regard to his previous sexual history.

• (b) That the trial judge erred in fact and in law in permitting into evidence the testimony of a Mr. C.

First Issue: The s. 3 Application

Evidence and Procedural History

7 . The complainant gave evidence-in-chief on the first day of the trial, following which there was some cross-examination of him by counsel for the appellant for the remainder of that day, with the balance of his cross-examination then being adjourned until the following morning. On the second day of the trial, counsel on behalf of the appellant made an application to the Court under s. 3 of the Criminal Law (Rape) Act 1981 (“the Act of 1981”), as amended by s. 13 of the Act of 1990, seeking leave to cross-examine the complainant as to his sexual history. This section provides:

• “ (1) If at a trial any person is for the time being charged with a sexual assault offence to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience (other than that to which the charge relates) of a complainant with any person; and in relation to a sexual assault tried summarily pursuant to section 12—

  • (a) subsection (2) (a) shall have effect as if the words “in the absence of the jury” were omitted,

  • (b) subsection (2) (b) shall have effect as if for the references to the jury there were substituted references to the court […]

  […]

• (2) (a) The judge shall not give leave in pursuance of subsection (1) for any

  evidence or question except on an application made to him, in the absence of the jury, by or on behalf of an accused person.

  (b) The judge shall give leave if, and only if, he is satisfied that it would be unfair to the accused person to refuse to allow the evidence to be adduced or the question to be asked, that is to say, if he is satisfied that, on the assumption that the if the evidence or question was not allowed the jury might be reasonably satisfied beyond reasonable doubt that the accused person is guilty, the effect of allowing the evidence or question might reasonably be that they would not be so satisfied.

  […]”

8 . As is provided for under s. 4A of the Act of 1981, as inserted by s. 34 of the Sex Offenders Act 2001, the complainant was afforded the right to be heard in relation to the application, and was independently legally represented for that purpose.

9 . It was intimated by counsel on behalf of the appellant, in his application, that he wished to raise matters with the witness which, the defence would argue, had “ provoked or motivated the allegations” of sexual offending made by the complainant as against the appellant. These included the following:

• (i). A phone conversation the appellant had with his mother in late August 2015 during which he informed her that he was concerned about the complainant for a number of reasons. Those reasons being that he had seen a profile of the complainant on a gay dating website with the caption “[complainant's name], willing to do anything”. Further to this, the appellant claimed in this conversation that the complainant had had male strangers in the family home without the knowledge of the appellant or their parents, and that further to this the complainant was meeting males at a specified hotel.

• (ii). The fact that the parents of the complainant and appellant were, it was claimed by the appellant, “ distressed” by this information, leading to a phone conversation with the complainant about it. The complainant learned that the information had come to their parents from the appellant. Further, that in that phone conversation the complainant had denied the appellant's implicit suggestion that the complainant was homosexual, and he had further claimed to his parents that the appellant was lying.

• (iii). That the following weekend, a fracas had erupted between the complainant and appellant at the family home over the disclosures the appellant had made to their parents. The defence maintained that in the course of this argument, the complainant allegedly said that “ he would destroy [the appellant] for telling lies about him”.

• (iv). That the appellant was subsequently told to leave, and that when he had left the complainant allegedly “ continued to give out and was angry about what [the appellant] had said and said that [the appellant] was telling lies about him.”

• (v). That some short time after this, the complainant followed the appellant to his home, allegedly threatening to kill him. The father of the two men had followed the complainant in his car. Further, that at the appellant's home, the appellant had showed both the complainant and their father a photograph of the complainant on the gay dating website with the caption “ Willing to do anything”.

• (vi). That thereafter, the father had had to separate the two men who were arguing about the photograph, and that he took the appellant away in his car. Further, that as the father and the appellant were leaving the scene, the complainant allegedly “ was banging on the car saying that he would ruin [the appellant's] life”.

• (vii). That the following week, the parents of the two men had spoken with the complainant and offered reassurances to the effect that “ it was okay to be gay” and that they did not have an issue with him being gay. Further, that notwithstanding such support, the complainant maintained his denial that he was gay.

• (viii). That in the wake of these events, the complainant left the family home on several occasions to make a number of trips to England, claiming that he wanted to be on his own. Further, that his parents, concerned at this, perused his social media whereupon they discovered photographs of the complainant with an older male taken on a Parisian bridge. Amongst the photographs was one depicting a lock (amongst numerous other locks, that would later be suggested as being love locks) affixed thereto. The photographs further displayed rings on each respective man's left hand, perhaps indicating (the defence would suggest to the witness) engagement, and that the caption of one photograph had said that they were “ Mr. and Mr.”

• (ix). That having returned home, the complainant had maintained (falsely, the defence would be suggesting) that he was present in England on his own during the time in which he was away from the family home.

• (x). That in the immediate period prior to Christmas 2021, and just before the complainant made his initial disclosure of alleged abuse by the appellant, and having learned that the appellant was to be returning to the family home on Christmas Day, the complainant indicated his discomfort with the appellant returning home during the festive period, and had said that if the appellant was coming home then the complainant was going to leave the house. Further, that the parents had not given in to the complainant's demands and had insisted that everyone should come home for Christmas.

10 . These matters having been outlined to the trial judge, counsel on behalf of appellant submitted, in support of the application under s. 3 of the Act of 1990, as amended, that

“ And, as I have pointed out already, Judge, or certainly the case we're making is that when the —...