Director of Public Prosecutions -v- M.J., [2014] IECCA 21 (2014)

Docket Number:111/10
Party Name:Director of Public Prosecutions, M.J.
Judge:McKechnie J.
 
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THE COURT OF CRIMINAL APPEAL[C.C.A. No. 111 of 2010] McKechnie J. Herbert J. White J. BetweenThe People (at the suit of the Director of Public Prosecutions)Prosecutor/RespondentAndM.J.Accused/AppellantJudgment of the Court of Criminal Appeal Delivered on the 3rd day of June, 2014 by McKechnie J..Background:1. On the 27th July, 2006 at the Circuit Criminal Court, the accused person was convicted of four counts of indecent assault against one of his daughters, Ms. H.. This conviction was quashed on the 14th March, 2008 by the Court of Criminal Appeal, arising out of concerns in relation to the length of time and the circumstances in which the jury had deliberated ([2008] 2 I.R. 410). The retrial was transferred to the Dublin Circuit Court, on application being made pursuant to s. 32(1) of the Courts and Court Officers Act 1995. On the 22nd March, 2010, the accused was again convicted, by unanimous jury verdict, of the same four counts on the indictment.2. The particulars grounding the indecent assault charges, which were stated to be contrary to common law as provided for by s. 10 of the Criminal Law (Rape) Act 1981, read as follows.Count no. 1:that “[the accused person] did, on or about the 31st October, 1981 (Halloween) in his car at a gateway on the [(specified road in specified county)], indecently assault [Ms. H.] by making her masturbate him.”Count no. 2:that “[the accused person], did on a date unknown between the 1st November 1981 and the 31st December 1981, did [sic] force [Ms. H.] to masturbate him while he was in his car in County [(specified)].”Count no. 3:that “[the accused] did, on a date unknown between the 7th June 1981 and the 7th June 1983, indecently assault [Ms. H.] in his car on [(specified road in specified county)] by making her engage in masturbation of him.”Count no. 4:that “[the accused], did on a date unknown between the 31st December 1983 and the 31st March 1984 in County [(specified)] indecently assault [Ms. H.] by forcing her to perform oral sex on him.”3. The road location differed as between Count no. 1 and Count no. 3 but the county location was the same in all charges, being that in which the family home was located at the time.4. At a hearing subsequent to his conviction, he was sentenced by O’Donnell J. to six years imprisonment, with the final three being suspended on certain terms and conditions.5. By notice in writing dated the 18th June, 2010, the appellant applied to this Court for leave to appeal against his conviction, relying on ten grounds as specified in the said notice. These grounds can conveniently be considered in conjunction with the legal submissions advanced to support them, which when read therewith, can be referenced as follows:(1)the admissibility of evidence issue;(2)the refusal of the trial judge to grant a direction at the close of the prosecution’s case;(3)the failure of the said judge to discharge the jury at the conclusion of the charge;(4)the inadequacy of that charge and also the recharge, on the “right to silence”; and finally(5)to (8)the judge’s failure to give to the jury a “Cronin” type direction (The People (D.P.P.) v. Cronin [2003] 3 I.R. 377 (“Cronin”)).Grounds nos. 9 and 10 in the said notice have now been abandoned, with Grounds 5 to 8 inclusive, constituting what defence counsel described as his “slip stream points”.6. It should be noted that at the original trial the appellant also faced a number of other charges of indecent assault and of incestuous behaviour in relation to the complainant, but was acquitted of such charges. In addition, he was tried and acquitted in respect of a number of indecent assault claims made by another daughter of his, who features prominently in this case; Mrs. M..7. To help avoid confusion, which otherwise might occur because of the requirement to preserve anonymity, the following designations are applied to those individuals who are referred to in this judgment, in addition of course, to the accused/appellant himself, Mr. M.J.: Ms. H. is the complainant; her married sister is Mrs. M., whose husband is Mr. A.: and finally Mrs. B. is the wife of the appellant and the mother of both Ms. H. and Mrs. M..The Voir Dire:8. The trial commenced with a voir dire, in which the appellant challenged the prosecution’s intention to adduce evidence, relating to an alleged family confrontation which took place some time in the early 1990s, during which it was claimed that the accused had admitted to having sexually assaulted Ms. H.. This admission it was said, took place in the home of Mrs. M., some short time after all of the family members involved in the incident, had returned from being in a local public house (“the pub”). Four such members gave evidence on this issue: the complainant, Mrs. M. and Mr. A., and Mrs. B..9. At the conclusion of the evidence, counsel on behalf of the accused submitted that, in the exercise of its discretion, the Court should not permit the prosecution to lead such evidence before the jury. This application was presented on the following basis:(i) that a serious doubt existed as to what, if anything, was admitted, and in particular whether it related to sexual abuse;(ii) that even if such an admission was made, it was impossible to relate it specifically to the counts on the indictment in view of the other charges of a similar nature involving the complaint, of which the accused had previously been found not guilty;(iii) that given the significant inconsistencies in the evidence, described by counsel as “massive”, it would, in this particular case, be impossible for the accused to obtain a fair trial, if the normal course was followed, of leaving such matters to the jury – particularly so when the timeframe of events is also considered; finally and in any event,(iv) that if the accused person was compelled to defend himself against such evidence, given the antiquity of the relevant events, then the same would inevitably result in an unfair trial.10. In his ruling, the learned trial judge was satisfied that in relation to the family confrontation, there was sufficient evidence, of the matters put to the accused and of their nature, which the jury, if properly instructed, could take into account. He referred to the inconsistencies in the evidence, which undoubtedly existed, but held that the assessment thereof fell within the jury’s domain. He was conscious of the lapse of time involved, which he said would require continuous scrutiny by the Court. Finally he also stated that, “at the moment”, meaning as the evidence then stood, he would have no difficulty in giving a “Cronin” type direction.Grounds of Appeal: Ground No. 1: Admissibility Issue: 11. This ground of appeal, which relates to the family confrontation last mentioned, is based on exactly the same submission as made to the trial judge at the end of the voir dire. As stated above it involves four points, the last two of which can conveniently be linked and dealt with as part of Ground No. 2. Before considering the other matters raised under this heading however, some general observations are required.General Observations: 12. In his submission to this Court on this ground of appeal, counsel on behalf of the appellant opened, what he said was the relevant case law. He referred to R. v. Galbraith [1981] 2 All E.R. 1060 (“Galbraith”), Cronin and The People (D.P.P.) v. P.O’C. [2006] 3 I.R. 238 (or “P.O’C.”). The well-known passage from Galbraith was then quoted (para. 30 infra). Cronin was relied upon as stating the law regarding inferences of fact, and in particular what inferences an accused person is entitled to have drawn in his favour, with P.O’C., a delay case involving sexual offences, being referenced as having confirmed that a trial judge is under a duty at all stages of a trial to ensure the fairness of the process and of the trial itself.13. At the commencement of this hearing it was quite unclear, and even now it remains much the same, as to the precise legal basis upon which this ground of appeal is asserted. If it is, as it seems to be on at least one reading of the submissions, an admissibility point, the principles in Galbraith would not appear to be relevant in that regard. Even however if that be the case, there nevertheless undoubtedly remains a Galbraith point in the appeal which must be considered. For the avoidance of doubt therefore it thus seems appropriate to deal with the issue under both headings.14. Galbraith has been classically understood as setting out for a trial Court, guidance on how it should deal with an application, usually made at the close of the prosecution’s evidence, to have the charge(s) withdrawn from the jury, on the basis that even if properly instructed, no reasonable jury could convict on the admissible evidence presented before it. The infirmities which might deprive such evidence of all or of most of its probative value so as to justify granting such an application, are of course variable and are occasioned by many different circumstances. However, in ruling upon any such application, the judge is not technically deciding an issue of admissibility in any true evidential sense. What he is determining is whether, having considered the evidence as it stands, it is of such a character that it would be safe or unsafe to allow the jury to convict on it. If the latter, then in the absence of further evidence not so affected, the trial must be terminated; if the former, its evaluation becomes a matter for the jury.15. That type of submission is quite unlike an application usually made before but in anticipation of certain evidence, to the effect that what is intended to be lead, is not as a matter of “evidence” law, admissible. The test and principles, between the two situations, are altogether different and should not be confused. Firstly, some observations on the evidential point.16. At the pure admissibility level, the Director of Public Prosecutions (the “D.P.P.”) has referred the Court to May...

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