DPP v E.C.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 12 May 2016 |
| Neutral Citation | [2016] IECA 150 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 250/2010 |
| Date | 12 May 2016 |
Sheehan J.
Mahon J.
Edwards J.
Record No. 250/2010
THE COURT OF APPEAL
Crime & sentencing – Sexual offences – Multiple serious offences against children – Appeal against conviction
Facts: The appellant had been convicted of multiple counts of rape and sexual assault of three children. He contended his convictions were unsafe, alleging inter alia that disclosure by the prosecution was tardy and that rulings by the trial judge were incorrect. The matter now came on appeal from the Central Criminal Court.
Held by Mr Justice Edwards, that the appeal would be dismissed. In terms of the complaint regarding late disclosure, the Court noted that no disadvantage had been identified by the appellant in respect of the documentation received. In respect of the publicity given to the matter pre–trial, the Court considered that the decision not to further adjourn the trial was correct, albeit based on an incorrect legal basis. Further points of appeal on evidence were also without merit. O?Brien v The Director of Public Prosecutions [2014] IESC 39 considered.
In this case the appellant appeals against his conviction by a jury in the Central Criminal Court on the 20th of August, 2010, of multiple counts of various forms of rape and/or sexual assault of his three children ?J?, ?A?, and ?K?, respectively, following a thirty two day trial.
In summary, the jury convicted the appellant of eighty five counts in total. These break down into thirty two counts of sexual assault, seventeen counts of oral rape and thirty six counts of vaginal rape. Twelve of the sexual assault counts related to J, three related to A, and seventeen related to K. All seventeen counts of oral rape related to A alone. Finally, twenty four of the vaginal rape counts related to A, and twelve related to K.
The appellant received concurrent sentences ranging from three and a half years imprisonment to five years imprisonment in the case of the sexual assaults, and ranging from ten years imprisonment to life imprisonment in the case of the rape offences.
The appellant filed a Notice of Appeal against his conviction specifying a total of twelve grounds. This Court was informed by counsel for the appellant at the commencement of the appeal hearing that ground no's 5 and 6, respectively, as set forth in the Notice of Appeal, were being abandoned, and that the appeal would proceed relying on the ten remaining grounds which are as follows:-
? 1. The trial judge erred in law refusing to allow an adjournment of the case in circumstances where defence counsel had applied for such an adjournment on three occasions and where a large volume of disclosure had been provided by the prosecution two weeks in advance of the trial date.
2. The trial judge erred in law and fact by refusing to allow an adjournment of the case in circumstances where counsel applied for such an adjournment on the basis that media articles adverse to the appellant had recently been published in the press.
3. The trial judge erred in law and in fact in refusing applications on behalf of the appellant to have the trial adjourned to allow the appellant and his legal team sufficient time to view video footage that was necessary for the full and proper preparation of the defence case, particularly in circumstances where:-
(i) The appellant was denied proper facilities prior to trial to view all the said material
(ii) The appellant had not been given sufficient time to view the video-footage.
(iii) The prosecution had held the material for a long period prior to the trial before returning it to the appellant to allow it to be viewed.
4. The trial judge erred in law and fact by misdirecting the jury on the issue of corroboration and in particular by directing the jury that they could find that the condition of ?J? when he was placed in foster care as a young child was capable of amounting to corroboration of his oral testimony that the offences were committed against him by the appellant.
5. [Abandoned]
6. [Abandoned]
7. The trial judge erred in law by failing to charge the jury to the effect that the couch alleged to have been used in molesting ?A? was not present in the room at the relevant time.
8. The trial judge erred in law by refusing to accede to the application made by counsel for a directed acquittal on the counts relating to ?K? on the grounds that for a jury to return a guilty verdict on these counts would have been perverse even where as properly as possible directed by the learned trial Judge.
9. The trial judge erred in law and in fact in refusing to accede to the application made by counsel for the defence at the close of the prosecution case to direct the jury to direct acquittals on the counts relating to ?A?.
10. The trial judge erred in law and in fact in refusing to accede to the application made by counsel for the defence at the close of the prosecution case to direct the jury to direct acquittals on the counts relating to ?J?.
11. The trial judge erred in law and in fact and erred in the exercise of his discretion in allowing ?K? to give evidence by way of video-link despite the fact that she had at the time of the trial attained the age of 18 and was no longer a minor.
12. The evidence of the three complainants was inherently unreliable, in that:-
(a) they were recalling matters that allegedly occurred when they were young children;
(b) there were material conflicts between the evidence of each of the complainants;
(c) there were material conflicts between the evidence of the complainants and that of a number of other independent witnesses;
(d) there was no independent corroborative evidence to support the allegations;
(e) the extent and circumstances of the complaints of a sexual nature made by ?K? and ?A?, respectively, in relation to other persons was a matter that necessitated either the granting of a direction on all the counts on the indictment or a particular warning from the trial judge to the jury;
and in the circumstances, the trial judge erred in law and in fact, in failing to grant a direction on all the counts on the indictment and in failing to adequately warn the jury in respect of the risk of convicting on foot of their evidence.?
It is convenient to deal with ground no's 1 to 3 together as they all relate to the refusal, on a number of occasions, of the presiding judge at various pre-trial hearings, to adjourn the trial in response to applications made by defence counsel, in circumstances where, for diverse reasons, it was being alleged that the appellant's trial was not ready to proceed.
There were essentially three main reasons put forward at various stages as to why the trial was not ready to proceed. The first concerned late disclosure of a large volume of material which the defence contended it had not had time to assimilate. The second concerned adverse media coverage which the defence suggested necessitated an adjournment so as to allow the potential prejudice thereby created to sufficiently dissipate by operation of the so-called ? fade factor?. The third concerned a claim that the appellant and his legal team had not had sufficient time to review video footage that they deemed necessary for a full and proper preparation of the defence case. The ? material? the subject of the first complaint was overwhelmingly, though not entirely, comprised of the video recordings which were the subject of the third complaint. Accordingly, the first and third complaints can conveniently be considered together.
An initial application was made for an adjournment on these grounds in late April 2010, in circumstances where the trial was due to commence on the 21st of June, 2010, and was refused on the basis that the trial was at that point still quite some distance away. The application was then renewed on the 18th of May, 2010. On this occasion, the case was made that the appellant required to view some 1,500 hours of video tape, and had only completed 10% of that. This was because the tapes had only been released to the defence in March, 2010 following a change of solicitor by the appellant. In addition, certain documentary disclosure, comprising details of state care arrangements in respect of two of the alleged injured parties, and concerning when they had absconded from care, had not yet been received. There was also a very large volume of documentary material, characterised by counsel as being ? a warehouse of legal documentation?. Finally, it was submitted that the trial was unlikely to finish by the end of the legal year.
The video tapes in question were home videos recorded by the appellant over several years, and which had been seized by Garda? in the course of their investigations. It is common case that the video tapes do not record any incident of child sexual abuse.
The application of the 18th of May, 2010, was responded to, and opposed, by counsel for the respondent who pointed out that the case was initially returned for trial in 2008 and had been set down for trial in December, 2009. However, the initial trial date was vacated on the application of the defence for reasons similar to some of those being advanced in support of the adjournment application. All material that was within the power or procurement of the Director of Public Prosecutions to disclose had already been disclosed to the appellant's previous solicitors. With respect to alleged delay in making certain material available to his present solicitor, it was contended that this had not...
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