DPP v B (L)

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 11 February 2015
• Neutral Citation: [2015] IECA 37
• Court: Court of Appeal (Ireland)
• Date: 11 February 2015

[2015] IECA 37

THE COURT OF APPEAL

Birmingham J

Sheehan J.

Edwards J.

85/13

DPP v B (L)

The People at the Suit of the Director of Public Prosecutions

V

L.B.

Appellant

Criminal law - 22 counts of sexual assault - Jury verdict - Sentencing - Indictment - Whether indictment should be severed - Criminal Justice Act 1924 - Serious offences - Breach of trust - Systemic nature of offender - Children subject to grooming

Facts On 23 ^rd February 2013 the accused was found guilty of several counts of sexual assault. On 7 ^th March 2013 he was sentenced to eight years imprisonment. The accused sought to appeal on a number of grounds. Failure to sever the indictment in a situation where there were four complainants was the main ground advanced. An application was made at the outset of the trial to sever the indictment. Rules 6(3) Criminal Justice Act 1924 provides, when before trial or at any stage of a trial, the court is of the opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offence charged on indictment, the court may order a separate trial. There was evidence of the same starting point of how the events occurred and identical complaints made by the complainants.

Held It was clearly appropriate that there should be a joint trial. The judge said that failing to order a joint trial and failing to permit the evidence of the four complainants would have meant the jury would not have received the full picture. The accused went on to argue that the judge failed to discharge the jury in relation to certain evidence. The judge concluded evidence of similar activity involving other children would not have had any significant effect; it added nothing to the case. The judge held it was correct to reject the application to discharge the jury.

-None of the grounds advanced were made out. The court dismissed the appeal against conviction and affirmed the conviction.

In relation to sentence, so far as the question of totality was concerned, the court had to have regard to other sentences imposed in similar cases.

The sentence was out of line to such an extent that an error in principle was identified. The court was therefore required to set aside the sentences imposed in the Circuit Court and substitute it for a more appropriate sentence. The court reduced the term of eight years to six years imprisonment. It went further, suspending the final twelve months of that sentence, on condition that the accused participate on the sex offenders programme.

1 1. On the 23 ^rd February, 2013, the accused was found guilty of 22 counts of sexual assault. It is in the case that the judge had directed the jury to return a verdict of not guilty in respect of one count and that the jury acquitted the appellant on one further count. On the 7 ^th March, 2013, he was sentenced to what was described as an effective sentence of eight years I will refer in due course to the sentence in more detail.

2 2. A number of grounds of appeal have been advanced in both written submissions and in oral argument. The area of most focus has been on the failure to sever the indictment that in a situation where there were four complainants. It is the situation that an application was made at the outset of the trial to sever the indictment. Consideration of the question of joint trials of multiple offences or whether separate trials should be ordered begins with the Criminal Justice Act 1924 and in particular the rules that are set out in the schedule therein relating to the procedures for the indictments. Rule 3 provides that charges for any offence whether felonies or misdemeanours may be joined in the same indictment if these charges are found in the same facts or form a part of a series of offences of the same or similar character. Rules 6(3) provides; when before trial or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offence charged in indictment, the court may order a separate trial of any count or counts of such indictments.

3 3. The issue has arisen for consideration quite frequently in recent times in the cases of alleged sexual offences and more particularly has arisen in cases where what is involved is alleged offences committed against children. The argument today has focused on the inclusion of two complainants RM and DC where only one count is alleged to have been committed and that to have been committed at a time unspecified during a lengthy window period. The question is posed whether the case is one which if tried alone would have resulted in a conviction and indeed the question is posed whether if that case was to be considered in isolation that a prosecution would have been directed and would have proceeded.

4 4. Then so far as the complainant DL is concerned, there are two counts that are in issue. There is what has been referred to as the Bingo Hall count and there is also a count relating to inappropriate sexual activity which is alleged to have occurred on a couch in the same location as other offences are alleged to have occurred, but the couch not featuring in the other offences.

5 5. The authorities establish that there is a line to be drawn between two types of evidence, sometimes referred to as systems evidence and on the other side of the line similar fact evidence. Though it must be said immediately, that the language is not always used with precision and sometimes those two terms are used interchangeably. What is clear is that there is a line to be drawn and what is equally clear is that it is not always going to be easy to identify on which side of the line a particular case falls.

6 6. The case at hearing is one where the similarities of the accounts of the complainants are really striking both in terms of how the opportunity for abuse was set up, how the children were in effect groomed using the attraction of the computer and computer games and then the way in which the assaults were actually perpetrated, placing the child on the knee, fondling the genitals and so on.

7 7. The prosecutor summarised what each complainant had to say and that summary is quite instructive and bears repeating. In the case of DL her evidence was that the reason for visiting the home where the accused was, was to visit the mother of the accused who used to give them tea and cakes. She goes on to refer to the fact that they were invited to play computer games. She goes on give the fact that the door to room was closed by the accused. She refers to sitting on the accused's lap and the fact that her vagina was rubbed and she says underneath her underpants.

8 8. In the case of the complainant GD, she says that the point of contact as it were and the reason for visiting the house where the accused was, she refers to the invitation to play computer games, she refers to the door being closed by the accuse, she refers to sitting on his lap and she refers to her vagina being rubbed underneath her underpants.

9 9. In the case of RMcD, the reason for visiting the house where the accused was was to visit his parents, again she speaks of being invited to play computer games, again she mentions the door in the room, though that was not really probed to any great extent in her case and she refers to sitting on the appellant's lap. But she does say that her vagina was rubbed and in her case outside of her underpants.

10 10. In the case...