DPP v Anthony Gavin

JudgeMrs Justice McGuinness
Judgment Date27 July 2000
Neutral Citation2000 WJSC-CCA 2578
Date27 July 2000
Docket Number[C.C.A. No. 187 of
CourtCourt of Criminal Appeal

2000 WJSC-CCA 2578


McGuinness, J.

Carroll, J.

O'Neill, J.

No. 187/99




R V OSBORNE 1905 1 KB 551


Criminal Law

Criminal; evidence; doctrine of recent complaint; appellant had been convicted of sexual assault; appellant appealing against conviction and sentence; whether complaint evidence ought to have been admitted at the trial given that it did not meet the primary criterion of demonstrating consistency; whether, even if the trial judge was correct in admitting the complaint, his manner of dealing with it in his charge to the jury was adequate; whether the fact that the judge encouraged the jury to continue their deliberations and consider their verdict at their hotel later that night rendered the trial unsatisfactory.

Held: Appeal allowed.

D.P.P. v. Gavin - CCA: McGuinness J. - 27/07/2000 - [2000] 4 IR 557

The appellant was convicted of an offence of sexual assault. The appellant appealed against both the conviction and sentence. McGuinness J, delivering judgment, held that the disputed evidence should not have been admitted. The evidence of the garda, which had been admitted, was hearsay and could not have been regarded as evidence of the truth of the complaint. In addition the procedures followed by the jury in their deliberations were improper. On these grounds the appeal would be allowed and the conviction quashed. A new trial would not be ordered.


JUDGMENT OF THE COURT DELIVERED BY Mrs Justice McGuinness on the 27th day of July 2000


This is an appeal against conviction and sentence. The Appellant was arraigned on a single count of sexual assault upon R. M. at a location in County Mayo, on 31st August 1998, contrary to Section 2 of the Criminal Law (Rape) (Amendment) Act 1990. Having pleaded not guilty he was tried before his Honour Judge Harvey Kenny and an eleven-member jury on 9th to 12th November 1998. He was convicted and sentenced to two years imprisonment, one year of which was suspended on condition that he reported to the Probation Service on release for counselling and appropriate treatment. The application for leave to appeal was heard by this Court on 26th June 2000 by which time the Appellant's custodial sentence had almost expired. He was due for release in August 2000. At the conclusion of the hearing before this Court the Court granted leave to appeal, allowed the Appellant's appeal and ordered his discharge from custody. Since the Appellant had served virtually the whole of his custodial sentence the Court did not order a new trial. The Court reserved the stating of its reasons for allowing the Appellant's appeal.


At the opening of the appeal the Court, by consent of the parties, permitted the amendment of the Appellant's grounds of appeal. The amended grounds of appeal were as follows:


1. The learned trial judge erred in admitting into evidence a complaint made by the alleged injured party to An Garda Siochana.


2. The learned trial judge further erred in admitting into evidence an alleged incident in the toilet of a hotel in which the Applicant was alleged to have engaged in an indecent act on the night of the alleged offence.


3. The learned trial judge's charge to the jury rendered the trial unsatisfactory in that:-


(i) he failed to explain to the jury the nature and purpose of evidence of complaint.


(ii) He failed to explain, having admitted into the evidence the said incident in the hotel toilet, the nature and purpose of similar fact evidence.


(iii) Further failed in giving an O'Casey type warning regarding the identification in the toilet.


(iv) Further rendered the trial unsatisfactory by giving the jury ambiguous instructions regarding their overnight stay in a hotel which may well have created the impression that they were entitled to further deliberate while in the hotel and in the absence of a member of the jury.


4. The sentence in all the circumstances was excessive.


At the time of the incident which gave rise to the charge against him, the Appellant was a Seminarian awaiting ordination and had spent three or four weeks in County Mayo during his summer vacation acting as a Sacristan at the local Shrine and staying in a nearby Bed and Breakfast.


During the course of the trial evidence was given by fourteen witnesses, including the accused. The Complainant R. M. gave evidence that he, together with friends, attended the wedding of a work colleague. The reception was held in a local hotel. Both the Complainant and other witnesses were very vague, and indeed incorrect, in their evidence, as to the date of the wedding but other independent evidence establishes that it took place on the 30th August 1998. On the way to the wedding the Complainant and his friends stopped at a pub in Claremorris where they watched a football match and had a number of drinks. They proceeded to the wedding where they partook of the meal at the wedding reception. They had booked into a Bed and Breakfast opposite the hotel; after the wedding meal they went to this Bed and Breakfast and collected keys. They then returned to the hotel where there was the customary dancing, accompanied by drinking at the bar. This appears to have ended at around 1.30 a.m. or a little later but a number of people, including the Complainant and his friends, remained in the hotel where they subsequently gained admittance to the Residents" Bar. There they remained drinking until in or about 4.30 a.m. Given the amount of drink which they had consumed it is scarcely surprising that the evidence as to when the Complainant and his friends left the hotel is not particularly clear. The Complainant, together with his friends M. M. and M. F. went to their Bed and Breakfast across the road from the hotel. A third friend, J. S., went to another Bed and Breakfast establishment. The Complainant gave evidence that he accompanied M. F. to his room and then went with M. M. to the bedroom they were sharing. He removed his jacket, shoes and socks, went to bed and fell asleep. He woke up at in or about 5.30 a.m. to find the Appellant, Mr Gavin, in bed behind him and pushing up against him. The Appellant was wearing a pair of underpants together with the Complainant's shoes and socks, but no other clothing. His underpants were pushed down his thighs somewhat.


The Complainant said that he then panicked and jumped out of bed and hit the Appellant. The Appellant was in fact quite severely injured. A general disturbance occurred in the house and the Complainant made a complaint to the owner of the Bed and Breakfast and brought him to see the Appellant who was then lying, apparently semiconscious, on the floor of the bedroom. Meanwhile the wife of the proprietor had summoned the Gardai, who arrived promptly. The Garda evidence is that they received the call at 5.45 a.m. and arrived at the house at 6.00 a.m. By this stage the Appellant, Mr Gavin, had regained consciousness and was putting on his clothes and the injured party made a complaint against him to the Gardai.


The evidence of Garda Peter Sarsfield, which was admitted by the trial judge after legal argument, was that the injured party, who was very agitated and aggressive at the time, complained to him that he had been awoken in his bed and found a man in his bed and he had his hand on his groin. At no stage did the Complainant state in his own evidence at the trial that the man who assaulted him had his hand on his groin.


The Appellant gave evidence on his own behalf. He stated that, while he was not a guest at the wedding, he was drinking in the hotel at around 10.00 p.m. on the night of 30th August 1998 in the company of two friends, who gave evidence confirming this fact. He drank three pints of beer and then returned to the Bed and Breakfast where he was residing. He explained that this was the last night of his stay in the area. He went to bed but was unable to sleep due to noise from neighbouring public houses. Around 1.30 a.m. he got up again and went back to the hotel. He first had a drink in the Function Room, where music was still playing. When the Function Room was cleared, he went to the Reception Area and then to the Residents" Bar when it reopened. Around 4.00 a.m., when he was sitting drinking a vodka in the Reception Area he got into conversation with the Complainant and his friends Mr F. and Mr M. The conversation was general in nature and somewhat sporadic; people were coming and going. When the Complainant and his friends were leaving the hotel the Appellant's evidence was that they invited him over to their Bed and Breakfast to have something to eat; he accepted and the four men went across to the Bed and Breakfast sometime before 5 a.m. It rapidly became clear that there was no food available there. The others accompanied Mr F. to his room and helped him to go to bed due to his advanced state of intoxication. The Complainant invited the Appellant to stay the night rather than return to his own Bed and Breakfast; he agreed. The Appellant, the Complainant and the Complainant's other friend, Mr M., then went to the bedroom which was a double room with two single beds. The Complainant and Mr M. lay down without removing their clothing; the Appellant undressed to his...

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