DPP v Baily

JurisdictionIreland
JudgeFinnegan J.
Judgment Date15 March 2010
Neutral Citation[2010] IECCA 25
Date15 March 2010
CourtCourt of Criminal Appeal

[2010] IECCA 25

COURT OF CRIMINAL APPEAL

Finnegan J.

Charleton J.

McMahon J.

11/09
DPP v Baily
THE (PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLICPROSECUTIONS)
.v.
JEROME BAILY
APPLICANT

DPP v MCNEILL UNREP CCA 31.7.2007 2007/20/4087 2007 IECCA 95

R v PETTMAN UNREP EWCA (CRIM) 2.5.1985

O'R (D) v DPP 1997 2 IR 273 1998/29/11641

CRIMINAL LAW

Sexual offences

Prejudicial evidence - Failure to discharge jury - Evidence of which no charges preferred - Evidence led by witness - Charge to jury - Background evidence - Admissibility of evidence - Prejudicial effect of evidence - Probative value of evidence - Whether impropriety or unfairness - Amendment to indictment - Substitution of dates of offences - Absence of prejudice - Application for direction of no case to answer - Evidence before court - Age of applicant - State of health of applicant - Injury in prison - Acknowledgement of conduct - Whether error in principle by trial judge - Whether failure to give sufficient weight to relevant matters - People (DPP) v McNeill [2007] IECCA 95 (Unreported, CCA, 31/7/2007); R v Pettman (Unreported, English Court of Appeal, 2/5/1995) and O'R(D) v DPP [1997] 2 IR 273 considered - Leave to appeal against conviction refused; consecutive sentence suspended (11/2009 - CCA - 15/3/2010) [2010] IECCA 25

People (DPP) v Baily

Facts The applicant appealed against his conviction and sentence in relation to four counts of indecent assault against young relations of his. He had been charged with a total of 27 counts but was not convicted on 23 of those. It was submitted on behalf of the applicant that the learned trial judge erred in failing to discharge the jury following upon evidence having been led from a witness of an alleged act of buggery and also and alleged rape when no such charges were before the court. It was further submitted that the learned trial judge erred in admitting into evidence by way of background evidence of alleged misconduct on the part of the applicant which was not the subject of any charge preferred in the indictment against the applicant. The applicant also raised issues regarding the admission of his Garda interview notes in full and the manner in which prosecuting counsel dealt with the applicants answers at interview in his closing speech. The applicant also appealed against the learned trial judge's amendment of the indictment so as to alter dates of offences and also the judge's decision not to grant a direction of no case to answer. The applicant also appealed the sentence imposed. He was sentenced on Counts 4, 8 and 12 to a period of imprisonment of 18 months the terms to run concurrently and was then sentenced on Count 3 to 18 months to run consecutive. The applicant was 75 years of age and in poor health.

Held by the Court of Criminal Appeal (Finnegan J. (ex tempore) (Charleton, McMahon JJ) in varying the sentence imposed: That in relation to the evidence regarding buggery and rape, the learned trial judge dealt appropriately with those matters in his charge to the jury and the charge of indecent assault could have encompassed rape and buggery. The evidence given by way of background evidence was not so prejudicial or so absent probative value that it should have been excluded. There was no impropriety and no unfairness and the evidence was admissible on the basis of it being probative and its probative value outweighed its prejudicial effect. There was no prejudice to the applicant arising out of the amendment of the indictment. The learned trial judge was correct in allowing the matter to proceed to the jury and furthermore there was no risk of unfairness and no improper stress by counsel for the prosecution on matters which were before the court by way of background information.

However, there was an error in principle in that sufficient weight was not accorded to various mitigating factors by the learned trial judge. A sentence of 18 months in respect of Counts 3, 4 and 8 was imposed to run concurrent and a sentence of 18 months in respect of Count 12 was imposed consecutive to the other sentences but was suspended in its entirety having regard to all matters and in particular the applicant's full admission of the circumstances of that offence.

Reporter: L.O'S.

1

Judgment of the Court (ex tempore) delivered on the 15th day of March 2010by Finnegan J.

2

The applicant in this case appeals against both conviction and sentence. The applicant was charged in total with twenty seven counts relating to sexual offences against young relations of his when they were of very tender years and approximately ten years of age or under. Of the twenty seven counts he was found not guilty on direction of the trial judge in relation to seventeen counts and the jury returned verdicts of not guilty on six counts, this making together a total of twenty three counts upon which he was not convicted. He was convicted on four counts, Counts 3, 4, 8 and 12 on the indictment.

3

Count No. 3 charges indecent assault on a male contrary to common law, the particulars being as follows: Jerome Bailey on a date unknown between the 7 th June 1976 and the 7 th June 1978 both dates inclusive at Downhill Hotel, Ballina, in the County of Mayo, did indecently assault one PO'C a male person. Count No. 4 is for the like offence but the particulars on this occasion relate to MO'C and the offencewas committed between the 21 st May 1975 and the 20 th May 1976. Count 8 again is a count of indecent assault and the assault in this case was again on MO'C and on dates between the 21 st May 1978 and, the indictment being amended to read this second date, the 30 th September 1982. Count No. 12 is an indecent assault on MO'C. On this occasion the venue was Bay View House, Ballyard, Tralee, Co. Kerry, and again the dates are between the 21 st May 1978 and, on the amendment of the indictment, the 30 th September 1982.

Conviction
4

The Notice of Appeal in relation to the conviction raises nine grounds of appeal two of which Grounds Nos. 3 and 4 were not pursued before this court. The grounds of appeal with which the court have to deal are as follows.

5

Ground 1. The learned trial judge erred in law or in fact or...

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