DPP v B

• Jurisdiction: Ireland
• Judge: Mr. Justice Geoghegan
• Judgment Date: 15 November 2001
• Neutral Citation: 2001 WJSC-CA 1586
• Date: 15 November 2001
• Docket Number: [C.C.A. No. 83 of 1997]
• Court: Court of Criminal Appeal

DPP v B

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

PROSECUTOR/RESPONDENT

AND

B.

APPELLANT/APPLICANT

2001 WJSC-CA 1586

GEOGHEGAN J.

McCRACKEN J.

SMYTH J.

83/97

THE COURT OF CRIMINAL APPEAL

Synopsis:

- [2002] 2 IR 246

Facts: The appellant had been charged with offences arising out of an admitted incestuous relationship he had with his half-sister. Among these offences were three charges of rape. On arraignment before the Central Criminal Court he pleaded guilty to one of the rape charges and also to charges of unlawful carnal knowledge and sexual assault. The appellant was sentenced to four years imprisonment in respect of sexual assault, five years in respect of unlawful carnal knowledge and fifteen years in respect of the count of rape. The appellant sought to set aside his plea of guilty in respect of the count of rape and in respect of the count alleging sexual assault, although he had served his sentence in respect of the latter. The appellant claimed that at the time he entered his pleas of guilty he was unaware of a number of statements which were not in the original book of evidence and also was unaware of a diary kept by the complainant. In addition the appellant's Senior Counsel (on whose advice he pleaded guilty) was also unaware of these documents. The appellant did not seek to set aside the pleas in relation to charges of unlawful carnal knowledge. The appellant's Senior Counsel had no recollection of seeing the additional evidence but having read them gave evidence that there would have been material on which to cross-examine the complainant and while he could not swear that he would have advised him to plead not guilty he certainly would have advised that a number of further enquiries should be made.

Held by Geoghegan J. (McCracken J. and Smyth J. agreeing) in quashing the conviction and ordering a re-trial. The so called notes made by the complainant was a very strange document and undoubtedly showed the complainant to have been a seriously disturbed person. It was quite clear that a case could be made on behalf of the appellant that the complainant was a highly unreliable person with serious psychological problems, and it was certainly possible that a jury would feel it unsafe to convict on her evidence. There was no question of incompetency on the part of the Senior Counsel who advised the Appellant. On the information which he had before him, the court was quite satisfied that he gave perfectly proper advice. The present case was unique. The appellant's Senior Counsel might well have advised him to plead not guilty and the appellant might well have done so. A jury might have taken the view that the complainant was a highly unreliable and possibly unstable witness. It would not be safe to allow the conviction to stand and the court would order a re-trial.

Citations:

DPP, PEOPLE V MCDONAGH UNREP KEANE 6.4.2001

R V WELLINGS UNREP CA 20.12.1991

R V CLINTON 1993 1 WLR 1181

DPP V LYNCH UNREP BARRON 27.7.1999 2000/7/2757

1 Mr. Justice Geoghegan on the 15th day of November 2001

2 The Appellant was charged with some thirteen offences arising out of an admitted incestuous relationship he had with his half-sister J. Among these offences were three charges of rape, the events being alleged to have taken place on 16th October, 1994, 24th January, 1995 and 26th December, 1995. When he was arraigned before the Central Criminal Court on 7th April, 1997 he pleaded guilty to the count of rape alleged to have occurred on 16th October, 1994 and also to charges of unlawful carnal knowledge and sexual assault. He was sentenced to four years imprisonment in respect of sexual assault, five years in respect of unlawful carnal knowledge and fifteen years in respect of the count of rape. He now seeks to set aside his plea of guilty in respect of the count of rape and in respect of the count alleging sexual assault, although he has in fact served his sentence in respect of the latter.

3 The basis of his claim is that at the time he entered his pleas of guilty he was unaware of a number of statements which were not in the original Book of Evidence and also of one important exhibit, namely a form of diary kept by the complainant. He also alleges that, not only was he unaware of these documents, but the Senior Counsel on whose advice he pleaded guilty was also unaware of these documents. The Court took the unusual step of hearing oral evidence from Mr. Brendan Grogan S.C. as to his recollection of his state of knowledge when advising the Appellant.

4 The Appellant is now about fifty years of age and the Complainant is about forty six years of age. They are step-brother and step-sister and it is admitted that when the Complainant was in her teenage years she had sexual intercourse on a number of occasions with the accused, and had a child of which he was the father. He has pleaded guilty to charges of unlawful carnal knowledge relating to that period, and does not seek to set aside that plea.

5 The other charges against the Appellant relate to events which took place in 1994 and 1995 in which the Complainant alleges that the Appellant raped her on three occasions and sexually assaulted her on a further occasion. The Appellant was arrested and interviewed by the Gardaí on 13th November, 1996 and for some hours denied having raped the Complainant. However, some nine hours after his initial detention the Appellant was confronted with the Complainant and then made a statement in which he...