DPP v Brophy

CourtCourt of Criminal Appeal
JudgeO'Flaherty J.
Judgment Date30 January 1992
Neutral Citation1992 WJSC-CCA 246
Date30 January 1992
Docket NumberNo. 114/1990

1992 WJSC-CCA 246

Court of Criminal Appeal




No. 114/1990





R V LILLYMAN 1896 2 QB 167

R V OSBORNE 1905 1 KB 551






Indecent assault - Trial - Complaint - Evidence - Admissibility - Complaint not made promptly by complainant - Lack of corroboration - Conviction - Appeal allowed - Retrial not directed - Jury - Knowledge that majority verdict possible - Discretion of trial judge - Criminal Justice Act, 1984, s. 25 - (114/90 - Court of Criminal Appeal - 30/1/92) - [1992] ILRM 709

|The People v. Brophy|



Sexual offence - Complaint - Delay - Indecent assault - Proof - Condition precedent - Evidence that complaint made promptly - (114/90 - Court of Criminal Appeal - 30/1/92) - [1992] ILRM 709

|The People v. Brophy|



Crime - Trial - Retirement - Deliberations - Knowledge of majority verdict - Discretion of trial judge - (114/90 - Court of Criminal Appeal - 30/1/92) - [1992] ILRM 709

|The People v. Brophy|


Judgement of the Court delivered 30th January 199230/1/92 by O'Flaherty J.(reasons for quashing conviction and sentence 20/12/91)


Conviction by Dublin Circuit (Criminal) Court (His Honour Judge Devally) on charge of indecent assault on 14 year old girl; whether evidence of the fact of a complaint admissible where complaint not made at first available opportunity; conceded by prosecution that terms of complaint not admissible - held by CCA fact of complaint should not have been admitted and in the circumstances of the case the Jury ought to have been discharged; as veracity of complainant the sole issue, minute attention to details of evidence required in charge to Jury who must decide as to credibility of complainant; Section 25 Criminal Justice Act 1924 (majority verdicts) - while Trial Judge cannot accept a majority verdict unless at least 2 hours for deliberation have passed, it is for the Trial Judge in his discretion to decide whether he will advert at the outset to the Jury's possible entitlement to return a majorityverdict.


(Doc. No. 50420 BH)


Judgment of the Court delivered on the 30th day of January1992by O'Flaherty J.


Robert Brophy was on the 11th December, 1990, after a two day trial held before His Honour Judge Devally and a jury at the Dublin Circuit Criminal Court, convicted of indecent assault on a fourteen year old schoolgirl on the 28th December, 1989. The verdict reached by the jury was a majority one. The accused was sentenced to five years imprisonment in relation to the conviction.


He applied for leave to appeal against conviction and sentence which was refused by the learned trial judge and he then applied to this Court. On the 9th December, 1991, this Court decided that he had made out an arguable case and that leave to appeal should be granted but that theCourt would reserve its judgment to a later date. On the 20th December next, when the matter was in for mention, the Court indicated that the Court had come to the conclusion that both the conviction and sentence imposed should be quashed; that the appellant had served all that he could be expected to serve even if the conviction had been well-founded and, therefore, in those circumstances the Court would not propose ordering a retrial.


The Court now gives its reasons for this decision.


The accused was a stamp dealer who had a small shop in a shopping centre in Rathmines, Dublin. He did a great deal of his business by post and the shop, which was a small one, did not attract too many customers. He had, however, some constant customers and, in particular, a Mr. O'Connor, who had a very keen interest in stamps, who was a member of the staff of a bank and was someone who was inalmost daily contact with him by phone or otherwise. The accused was also interested in collecting stones; these were not precious stones at all but industrial-type stones. He could make what were described as "pendulums" with these stones which would often include a person's birthstone.


The complainant, with a schoolgirl companion, called to the accused's shop on Thursday the 21st December, 1989, where there were held conversations between the accused and the two girls. According to the accused, corroborated by the complainant's companion, it was at that stage that the accused offered to make two of these pendulums for the girls. According to the complainant, she had arranged with her friend to come back the next day, December 22nd but, according to the accused, the question of making the pendulums was discussed at the meeting of the 21st December and his shop was closed from and including the 22nd until the 28th December. The complainant said that she came tohis shop on the 22nd when this discussion about the pendulums took place. In any event she came on the 28th December with the object of collecting the pendulum that he had promised to make for her. She said, at first, that she had stayed with her father in Lucan the night before and, therefore, had journeyed in from Lucan (about 9 miles) and arrived at the shop at 1.00 p.m. (Her father and mother were separated; her mother lived in Templeogue, Dublin.) According to the accused, the complainant was at his premises at about 11.30 a.m. and told him that she had been there much earlier. According to the complainant, he had not the pendulum ready and said that he would require to go to his dwellinghouse to get the materials for it. His account was different. He said that he had collected his post earlier on and found an important order for stamps that he should fill. His custom-was to deal with orders as expeditiously as possible. He kept most of his stamp stock at his dwellinghouse where he had proper storage andwhere the stamps could be properly preserved. In addition, he swore that he had an alarm system guarding the house and, further, with regard to the very precious items, these would be kept in a bank. He said that he offered the complainant the option of going home but he was not prepared to leave her alone in the shop. The making of the pendulum was something that had slipped his memory.


It was agreed that they set out in the accused's car to his house which was a comparatively short distance away - about a ten or fifteen minute drive. Again, it is more or less agreed that they spent about one hour in the house. The complainant alleged that several acts of molestation took place while they were in his sittingroom. This involved touching the complainant's breasts outside her shirt and underneath her shirt on a number of occasions. The accused's version of events was that he was engaged in fulfilling the order; that the complainant engaged in cordial conversation with him; was interested in examining his large collection of videotapes as well as other curios,including his large collection of the stones, to which reference has already been made. Further, that there was no question of any interference at all with the complainant and that at about 1.15 p.m. he got a phone call on his mobile phone from Mr. O'Connor, the bank official, with whom he had arranged a meeting at 1 o'clock and Mr. O'Connor was understandably angry that he was not keeping that appointment because Mr. O'Connor, who had journeyed from College Street, Dublin, was anxious to make the 2 o'clock first race at Leopardstownracecourse.


A word should be said about this mobile phone. It was the only type of phone that the accused had and he brought it everywhere with him. When he was in the shop it was there and it is agreed that he brought the phone to his house. However, the complainant said that she did not hear the phone ring at all; the accused's version was that she must have heard the phone ring because she was right alongside the phone when it rang and must have heard theconversation that he had with Mr. O'Connor.


Sometime between 1.15 and 1.30 p.m. it seems clear that the accused drove the complainant back to the shopping centre, gave her some money (it may have been £4 or £5) and this, it was said, was to pay her bus fare to and from Lucan and, in the presence of a security man at the shopping centre, she alighted from the car and did not show any sign of distress; in fact, according to the security man she said to the accused: "I'll see you tomorrow". Thereafter, the complainant made the journey to her mother's house in Templeogue, where she stayed for some time and to whom she did not complain of any assault. Neither did she complain to others to whom she might have complained before meeting her mother. She then met up with some three girl companions before meeting with her father who had come in from Lucan with the intention of meeting her at about 3.00 p.m. and with the intention that she would stay with him for some time. The complainantwas in a distressed condition when she met her three companions as when she met her father. Further reference will be made to the significance of this later in the judgment.


In due course, the gardai came to investigate the matter and the accused was asked for a statement which he furnished on the 11th January, 1990, having consulted with his solicitor, Mr. Bill Jolley. What he said in the course of his statement was the subject of a line of cross-examination which, in due course, was conceded to be ill-directed and, therefore, it is important to point out that the accused said that the advice his solicitor gave him was to tell of the essential matters that took place between the complainant and himself. He was adamant, in the course of that statement as well as in his evidence at the trial, that he never touched the complainant, not...

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18 cases
  • DPP v D.R
    • Ireland
    • Court of Criminal Appeal
    • 1 January 1998
    ...that the complaint had been made as soon as was reasonably possible after the alleged incidents complained of. The People v. BrophyDLRM [1992] ILRM 709 applied. 2. That it was unfair to put a question in cross-examination to an accused the effect of which was to imply that if a complainant'......
  • DPP v M.S.
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    • 10 April 2019
    ...Evidence of recent complaint will be admissible if it satisfies the criteria pursuant to the decision in The People (DPP) v. Brophy [1992] ILRM 709. If the terms of the complaint are completely inconsistent with the complainant's evidence, then the evidence may be inadmissible in any given......
  • M.S. v DPP
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    • 22 December 2015
    ...the general credit of the witness), but does not amount to corroboration: see The People (Director of Public Prosecutions) v. Brophy [1992] I.L.R.M. 709, 716, per O'Flaherty J. It is also quite possible, of course, that had the junior doctor or treating nurse been identified, he or she migh......
  • DPP v MA
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    • 11 July 2002
    ...in this report:- The People (Attorney General) v. Cradden [1955] I.R. 130. The People (Director of Public Prosecutions.) v. Brophy [1992] I.L.R.M. 709. The People (Director of Public Prosecutions) v. Sweetman (Unreported, Court of Criminal Appeal, 23rd October, 2000). R. v. Lillyman [1896] ......
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