DPP v Arundel

 
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[2015] IECA 16

THE COURT OF APPEAL

The President

Birmingham J.

Edwards J.

214/12
DPP v Arundel
APPROVED
Mr. Justice Edwards
JUDGMENT
The People at the Suit of the Director of Public Prosecutions
V
George Arundel
Appellant

214/2012 - Ryan Birmingham Edwards - Court of Appeal - 27/1/2015 - 2015 IECA 16

CRIMINAL LAW RAPE (ADMT) ACT 1991 S2

CRIMINAL LAW RAPE (AMDT) ACT 1991 S4

NON FATAL OFFENCES AGAINST THE PERSON ACT 1997 S15

SEX OFFENDERS ACT 2001

O'MALLEY THE CRIMINAL PROCESS THOMSON ROUNDHALL 2009 PARA 23.13

Criminal law - Jury - Conviction - Offences of attempted rape, sexual assault, rape and false imprisonment - Appeal against conviction and sentence - Sought to have conviction set aside - Submitted that verdict of jury was against weight of evidence and subsequently perverse

Mr. Justice Edwards
1

This is a case in which the appellant was convicted by a jury on the 29th February, 2012, following a twelve day trial in the Central Criminal Court of offences of attempted rape contrary to common law, sexual assault contrary to s. 2 of the Criminal Law Rape (Amendment) Act 1991, rape contrary to s. 4 of the Criminal Law Rape (Amendment) Act 1991 and false imprisonment contrary to s. 15 of the Non Fatal Offences Against the Person Act 1997. The jury were unanimous in convicting the appellant on the counts of attempted rape, sexual assault and false imprisonment respectively. The appellant was convicted by a majority verdict of 10/2 on the count of rape contrary to s. 4.

2

The case was concerned with the detention against her will and sexual molestation of J N on the 23rd May, 2011, at a location in the southern half of the country. Following his conviction on all counts on the indictment, the appellant was sentenced on the 7th June, 2012, to imprisonment for a term of ten years on each count, to run concurrently back dated to the date on which he went into custody. The appellant was also directed to undergo a period of eighteen months post release supervision and was declared to be a sex offender for the purposes of the Sex Offenders Act 2001. The appellant appeals to this court against both his conviction and sentence in respect of all matters.

3

In respect of the conviction aspect of the case the appellant contends that his conviction is unsafe and unsatisfactory and seeks to have it set aside on one ground and one ground only. He contends that the verdict of the jury was against the weight of the evidence and was accordingly perverse.

4

It is necessary at this point to briefly rehearse the nature of the evidence that was before the jury and in that regard I am adopting the summary of para. 12 of the appellant's written submissions which seems to me to represent a succinct summary of the complainant's evidence. There was other evidence in the case to which I will also allude In a moment. The complainant's account of events was that she went out to an off-licence at approximately 21.15 on the 23rd May, 2011, to purchase alcohol and cigarettes. There was a male at the counter in the off licence at the time. She left with her purchases, stopped to light a cigarette and was grabbed from behind by a male who stated "you are keeping me company tonight". She was then dragged through a gap in a ditch into the adjacent field. She realised that it was the same male who had been at the counter in the off-licence shortly beforehand. The complainant was forced to sit on the ground on a flattened area of grass. She made repeated attempts to escape but was prevented or overpowered each time. The complainant alleged that her assailant then proceeded to attempt vaginal rape and to force her to perform oral sex. She then managed to overpower her assailant and called for help at the nearby shopping centre, and indeed the evidence was that she ended up at the entrance to the (named) public house and off licence in a state of some dishevelment and distress, and also covered in mud.

5

There was, as I have already mentioned, other evidence in the case of a forensic nature, and in particular concerning a subsequent medical examination of the injured party at the Sexual Assault Unit at a particular hospital. The injured party was found to have a significant number of bruises. In addition, the usual post alleged sexual assault medical examination was carried out and various swabs were taken from her. She was found to have semen on her vulva and abdomen that was later identified by means of DNA analysis as having the same DNA profile as that obtained from the blood of the appellant in this case.

6

Insofar as the case is made that the verdict of the jury was against the weight of the evidence and was perverse, this case is based entirely on alleged inconsistencies and matters of confusion that are said to have become apparent following the cross-examination of the complainant at a very considerable length by counsel for the appellant. The court finds it unnecessary to comment with respect to the propriety of the cross examination. However, in specific terms, the first complaint made is that considerable confusion arose with regard to the location of the alleged offences and in particular concerning the location of the specific entrance or gap leading into the field where the alleged offences were said to have taken place.

7

This is responded to by the respondent to this appeal in written submissions. Counsel for the respondent has invited the court to adopt his written submissions in respect of this complaint, and indeed the other complaints which the court will come to in a moment. The court readily does so in circumstances where it seems to this court that the points contained in those written submissions are entirely well made.

8

The point is made with respect to the first complaint that the locations of precisely where within the field the alleged offences were perpetrated, and the precise location of the entrance or gap into that field through which the complainant was dragged, were somewhat collateral issues. The respondent asks the court to note that, in any event, the locations at which the offences were committed within the field were in fact identified to the investigating members of An Garda Síochána by the complainant and the said locations were properly preserved and investigated by the gardaí. The point is further made that the complainant's evidence was that she had accurately pointed out the said locations to the investigating members without having re-entered the field. The court's attention has been drawn to various extracts from the transcript as supporting that contention. It was further submitted that it was the complainant herself who, whilst giving her evidence in chief, first highlighted to the court that the point of ingress identified on the maps produced was not that through which she had in fact been dragged. Once again, the court was referred to the transcript in support of that. The respondent contends that the complainant's evidence on this aspect of matters was both consistent and reliable, and that if there were indeed any inconsistencies on the evidence as a whole, it was a matter for the jury to consider the effect of those inconsistencies. This Court entirely agrees.

9

A second complaint is made that the complainant initially ruled out the suggestion that she had returned to the alleged crime scene with the guards in the aftermath of her complaint, and then later changed her evidence in regard to that. The appellant submitted that on day 2 of the trial, she gave evidence that she had not returned to the scene of the alleged incident with Garda O'Shea; and that she later then seemed to accept that she might have returned with Garda O'Shea, but suggested she had no memory of it as she had been traumatised. Responding to this, the respondent points out that there was no inconsistency in the evidence of the complainant. A number of specific passages in the transcript are identified to support this contention, in particular a transaction or exchange on day 2, p. 29, line 29 to day 2, p. 30, line 9 of the transcript where in cross examination the complainant was asked:

"Q.

So it was the 24th May that you were in the garda station and made your statement and having made your statement did anything else happen?

A.

I don't understand.

Q.

Did the guards bring you back down to the (named) off licence and ask you to retrace your steps.

A.

No."

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