DPP v A.E.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 20 June 2022 |
| Neutral Citation | [2022] IECA 152 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No.: 147/2021 |
[2022] IECA 152
Edwards J.
Donnelly J.
Ní Raifeartaigh J.
Record No.: 147/2021
THE COURT OF APPEAL
Conviction – Rape – Memorandum of interview – Appellant appealing against conviction – Whether the trial judge erred in admitting the memorandum of interview of the accused
Facts: The appellant appealed to the Court of Appeal against his conviction by a jury on two counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990 and seven counts of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act 1997. The appellant raised three grounds of appeal as follows: (i) the trial judge erred in not acceding to an application on behalf of the appellant at the conclusion of the prosecution evidence to direct the acquittal on all counts on the indictment; (ii) the trial judge erred in admitting the memorandum of interview of the accused taken on the 22nd January, 2018 at a southside Garda station; and (iii) the trial judge erred in failing to accede to the jury’s request to re-hear the closing speech of defence counsel.
Held by the Court that grounds 1 and 3 of the appellant’s notice of appeal were rejected. In relation to ground 2 the Court allowed the appeal on the basis that the trial judge erred in admitting the memorandum of interview while emphasising that the error in admitting the memorandum of interview into evidence was the trial judge’s lack of engagement with the substantive points of the defence case in giving his reasons for so ruling. The Court held that the admissibility of that interview may be determined afresh in any new trial.
The Court held that counsel for the appellant would be heard on whether there was any reason why the Court should not remit the case for retrial.
Appeal allowed.
JUDGMENT of the Court delivered on the 20th day of June 2022 by Ms. Justice Donnelly
The appellant appeals against his conviction by a jury on two counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990 and seven counts of assault causing harm contrary to s. 3 of the Non-Fatal Offences Against the Person Act, 1997 (“the 1997 Act”). The offences occurred during the period from his brother's (C) eleventh birthday on a date in 2001 and the date when C left the family home on the 27th March, 2006. To ensure anonymity in circumstances where reference must be made to the evidence of a number of family members at trial, random initials have been used to identify the appellant and his family members.
The appellant was originally charged with ten counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990, seven counts of assault causing harm contrary to s. 3 of the 1997 Act and a count of production of an article capable of inflicting injury contrary to s. 11 of the Firearms and Offensive Weapons Act, 1990. A directed verdict was given on eight of the s. 4 rape charges at the end of the prosecution case. He was convicted of each of the assault counts and remaining s. 4 rape counts by unanimous verdict on the 16th April, 2021. He was acquitted on the count of production of the article contrary to s. 11 of the Firearms and Offensive Weapons Act, 1990. A sentence of nine years was imposed on the 28th July, 2021, with the final two years suspended on conditions, and backdated to the 5th February, 2020. He was given a five-year sentence on each of the assault charges.
The directed acquittals were given in respect of counts 3 to 10 inclusive. These counts alleged rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990 by penetration of the mouth with the penis during the period between the complainant's birthday in 2002 to a date when the complainant was aged sixteen. The complainant gave no evidence in respect of any of these allegations. The appellant was convicted of all other charges (bar the production of an article charge).
At the time of the oral rapes, C was between the ages of eleven and twelve. The appellant was aged sixteen to seventeen years.
The appellant raised three grounds of appeal as follows:
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(i) The trial judge erred in not acceding to an application on behalf of the appellant at the conclusion of the prosecution evidence to direct the acquittal on all counts on the indictment;
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(ii) The trial judge erred in admitting the memorandum of interview of the accused taken on the 22nd January, 2018 at a southside Garda station; and,
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(iii) The trial judge erred in failing to accede to the jury's request to re-hear the closing speech of defence counsel.
The appellant addressed all of these in written submissions. Only grounds 2 and 3 were expanded upon at the hearing of the appeal; counsel for the appellant indicated that she would rest on her written submissions in respect of ground 1.
By their nature, these grounds require an extensive consideration of the evidence that was placed before the jury at the trial, or in the case of ground 2, before the judge in the voir dire.
It is not doing a disservice to either the appellant or the complainant to describe the family circumstances as grim. There were four brothers and one sister in the family. The appellant was the eldest and his sister the youngest. The complainant was the middle child. It appears that their father was a violent figure who on one occasion carried out an arson attack on the family home. The commencement of the alleged sexual and physical violence occurred when the father was committed to custody to serve a prison sentence. In the course of cross-examination, C confirmed that his siblings and his father “ support” him in the making of these allegations.
In respect of the assault charges, C gave evidence that:
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a) He was abused as a child and that he was battered with baseball bats by the appellant at the family home and that “ it went on as the years went on.” He also described being hit with weapons and specifically mentioned guns, hurleys, darts and sticks;
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b) In respect of guns, he recalled the appellant putting the barrel of a loaded shotgun into his mouth, threatening him and making him hide the weapon; this occurred in the kitchen. He also described being hit with a baton with nails in it. A third specific allegation was that the appellant had thrown darts into his foot. These specific instances were charged as specific counts. There was an acquittal in respect of the count related to the shotgun;
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c) He said that these beatings happened when he was sent out robbing by the appellant and did not return with anything. He recalled that the beatings occurred “ nearly every day”;
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d) C also gave evidence of being “ [m]ade fight” with his other brothers by the appellant;
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e) The balance of the assault charges was particularised on the basis of one sample count per year when C was living in the family home.
C gave evidence of two s. 4 rapes that occurred when he was eleven. The first occasion was when he was made to “ suck [the appellant's] d***” on the top bunk in the back bedroom of the family home and the second was “ not long after the first time” in the front box room. This happened “ under the blanket” and again he was told to “ suck his d***”.
On cross-examination:
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a) C explained the delay in making a complaint was because he “ was ashamed of [his] life” and that he was still in fear of the appellant. Special measures were employed even though he was 33 at the time of the trial and he gave his evidence from behind a screen;
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b) In respect of the assault charges, counsel on behalf of the appellant said to C that the appellant accepted that “ there was physical violence but not to the extent that you describe it” and that he was “ grossly exaggerating”. This was not accepted. It was not put that he was never assaulted;
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c) It was specifically put to C that the instance with the gun did not happen at all. This was not accepted by C;
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d) He was not cross-examined in respect of the dart or the baton with the nails;
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e) It was put to him that the s. 4 rapes did not happen at all, but this was not accepted by C.
G, the sister of the appellant and the complainant, gave evidence that she remembered beatings that went on in the house. She specifically recalled the baton with the nails being used by the appellant on C and the scars that this left. She also recalled the appellant making C fight with his other brothers. She recalled C being hit with a handgun, but this was not related to the incident described by C, as that involved the alleged use of a shotgun in different circumstances. She also recalled the appellant sending his brothers out robbing and that if they did not do it “ they got killed for it” and did it because they were “ terrified” of him.
On cross-examination, G was challenged on her memory due to her young age and inconsistencies between her evidence and her statement, but she did not resile from her evidence. It was specifically put that “[the appellant] was violent towards your brothers, but not to the extent that you're telling the jury”. She did not accept this.
J, the second oldest of the brothers in the family, also gave evidence. In response to a question about what the appellant had done to C, J replied that “ [h]e would physically abuse him all the time. He would…most days anyway, just random hitting him, hitting him with things, objects. There was sexual abuse as well.” He specifically recalled that the appellant had thrown darts at C, and that there were guns and made up weapons, such as “ batons with nails in them.” He confirmed the evidence regarding being made to go out robbing by the appellant. He recalled an incident with a gun, but again this was not the same incident as the one...
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