DPP v E.C.

JurisdictionIreland
JudgeMr. Justice Kearns
Judgment Date29 May 2006
Neutral Citation[2006] IECCA 69
CourtCourt of Criminal Appeal
Docket Number[C.C.A. No. 9
Date29 May 2006

[2006] IECCA 69

THE COURT OF CRIMINAL APPEAL

Kearns J.

O'Donovan J.

De Valera J.

[009/2003]
DPP v C (E)

BETWEEN

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT

AND

EC
APPLICANT

CRIMINAL LAW:

Sexual offences

Charge to jury - Delay in making complaint - Multiple complainants - Prejudice to accused - Whether direction of trial judge on issue of delay mandatory - People (DPP) v C(C) [2006] IECCA 1, [2006] 4 IR 287 followed -Appeal against conviction allowed and retrial directed (9/2003 - CCA - 29/5/2006) [2006] IECCA 69; [2007] 1 IR 749 - People (DPP) v C(E)

The applicant was convicted of sexual offences. The applicant appealed his conviction on the ground that the trial judge erred in failing to warn the jury in his charge of the dangers inherent in a trial which takes place many years after the offences alleged and the difficulties which such a trial creates for the defence.

Held by the Court of Criminal Appeal in quashing the conviction and ordering a re-trial that some sort of warning was essential and without such warning the conviction could not be regarded as safe.

Reporter: R.W.

1

Judgment delivered by Mr. Justice Kearnson the 29th day of May, 2006

2

At the Central Criminal Court in Dublin on the 18 th of December, 2002, the applicant was convicted by a jury on the following counts:-

3

(a) One count of unlawful carnal knowledge and five sample counts of indecent assault of A.K., a female under the age of 15 years, at 3 Woodfield Terrace, on certain datesbetween the 31 st of January, 1976, and the 30 th of June, 1977.

4

(b) Nine sample counts of indecent assault of S.K., a female under the age of 15 years, at 3 Woodfield Terrace, on certain dates between the 14 th of May, 1974, and the 13 th of May, 1978.

5

(c) One count of attempted rape and eight sample counts of indecent assault of F.G., a female under the age of 15 years, at 1 Heatherveiw Avenue, on certain dates between the 31 st of January, 1987 and the 8 th of November, 1988.

6

(d) Nine sample counts of indecent assault of C.G., a female under the age of 15 years, on eight occasions at 1 Heatherview Avenue, and on one occasion at the Savoy Cinema in Dublin, on certain dates between the 31 st of January, 1987 and the 8 th of November, 1988.

7

The trial took place over a period of four weeks. On the 12 th of March, 2003, the trial judge sentenced the applicant to the following:-

8

(a) On the count of attempted unlawful carnal knowledge of A.K., he sentenced the appellant to four years imprisonment. He also sentenced the appellant to twoyears imprisonment on one count of indecent assault and a total of five years for the remaining three counts of indecent assault. The two year and five year sentences were to run concurrently with one another and the four year sentence was to commence thereafter. Therefore on these charges the applicant was sentenced to a total of nine years imprisonment.

9

(b) On the nine counts of indecent assault of S.K., the trial judge sentenced the appellant to two years imprisonment in respect of one of these counts and five years for the remaining eight counts to run concurrently. Therefore he sentenced the applicant of these charges to a total of five years imprisonment.

10

(c) On the count of attempted rape of F.G., he imposed a sentence of ten years and sentences of five years on each of the eight counts of indecent assault of F.G., each to run concurrently.

11

(d) On the nine counts of indecent assault of C.G., he sentenced the applicant to five years imprisonment on all counts, all of them to run concurrently.

12

The sentences were backdated to the 7 th of November, 2002. The applicant's name was also registered on the register of sexual offenders.

13

Despite the multiple grounds of appeal lodged, Mr. Patrick Gageby, who is now Senior Counsel on behalf of the applicant, indicated at the outset of the hearing that the appeal would effectively be confined to a single ground of appeal. That was a ground which, by order made by a differently constituted membership of this Court on the 17 th of January, 2005, allowed the applicant (apparently by consent) to add to the original grounds of appeal the following ground as follows:-

"That the learned trial judge erred in failing to warn the jury in his charge of the dangers inherent in a trial which takes place many years after the offences alleged and the difficulties which such a trial creates for the defence."

14

While it is true to state that the learned trial judge did not give any such warning in the course of an otherwise comprehensive and detailed charge to the jury at the conclusion of the trial, no requisition was raised, either by counsel for the applicant or the respondent at the conclusion thereof, which would have alerted the trial judge to the fact that his charge had not contained such a warning. Mr. Gageby advised this Court that the omission was due to inadvertence on the part of counsel in the case. This was not disputed by Mr. Patrick McCarthy, Senior Counsel for the respondent, who, unlike Mr. Gageby, had appeared in the originaltrial. He accepted that counsel for the prosecution also had an obligation and responsibility to the court in this respect so that, if a warning was found by this court to have been necessary, the omission on his part to alert the trial judge would have been an inadvertence on his part also.

15

Mr. Gageby suggested that the possible and most likely reason for the failure to requisition lay in the fact that, prior to the commencement of the trial, there had been a seven day hearing in which the applicant had sought to restrain the trial from proceeding by reason of complainant delay. This was not part of the trial proper, but was an issue raised by way of motion preliminary thereto and was one heard and resolved on oral evidence by the trial judge. In refusing that application, the learned trial judge ruled, inter alia, that he was satisfied that the applicant's capacity to defend himself had not been impaired to such an extent that it would require the trial of the offences to be halted. Mr. Gageby suggested that the failure to revisit the issue of delay when charging the jury was possibly due to the fact that so much time had been spent in arguing the effects of delay in the absence of the jury before the trial began that counsel on both sides simply put the issue to one side in their minds thereafter.

16

The Court can only assume that this is why the respondent consented to the late addition of the ground of appeal in relation to delaywhich is set out above. Without conceding that a warning was in the circumstances of this particular case required to be given by the trial judge, counsel for the respondent in the course of this hearing did not seek to prevent the applicant from arguing or relying upon this ground, nor did he seek to rely upon the recent decision of in The Matter of Section 29 of the Courts of Justice Act, 1924: the People (Director of Public Prosecutions) v. Mark Cronin (unreported, Supreme Court, 3 rd March, 2006) which, broadly speaking, holds that a point not taken at trial should not, in the absence of an apprehension that a real injustice may occur, be permitted to be argued on appeal.

Relevant legal principles
17

In The People (Director of Public Prosecutions) v. P.J. [2003] 3 I.R. 550, this Court, (per McGuinness J.) commenting on the issue of delay, stated at p.568:-

"The dangers inherent in a trial which takes place many years after the offences alleged and the difficulties which such a trial creates for the defence has been repeatedly stressed both by this Court, by the High Court and by the Supreme Court ... the problems caused for the defence by delay on the part of a complainant were dealt with in great detail by Hardiman J. in his judgment in J.L. v. D.P.P. [2000] 3 I.R. 122. It has again andagain been pointed out that trial judges are obliged to issue appropriate directions and rulings to avoid the possible prejudicial effect of delay in sexual abuse cases."

18

In the same case (at p.570) the court further stated:-

"We fully concur with the conclusions reached by this Court in The People (Director of Public Prosecutions) v. R.B. (unreported, Court of Criminal appeal, 12 th February, 2003). It may not always be necessary for a trial judge, in charging the jury in this type of case, to go into such elaborate detail as to the effects of delay. In our view, however, he or she should deal reasonably fully with the various aspects of the problems caused by delay in the making of a complaint of this nature."

19

In The People (Director of Public Prosecutions) v. R.B., Denham J., in delivering the decision of the court, stated (at p.20):-

"The court is satisfied that in a case such as this where a long interval exists between the date of the offences alleged and the trial itself, the charge of the trial judge to the jury in this particular case was adequate and appropriate insofar as it dealt with the problems which flow from such delay, and insofar as a warning should be given as to how such cases should be approached by a jury in the course of its deliberation."

20

In that case, the form of the warning which had been given by Haugh J. in The People (Director of Public Prosecutions) v. R. B. (unreported, Court of Criminal Appeal, 12 th February, 2003), wasapproved, and the particular format of that warning was further approved in The People (Director of Public Prosecutions) v. P.J. [2003] 3 I.R. 550 and in The People (Director of Public Prosecutions) v. C.C. (Unreported, Court of Criminal Appeal, 2 nd February, 2006).

21

In the case of D.P.P. v. L.G. [2003]...

To continue reading

Request your trial
21 cases
  • B.S. v Director of Public Prosecutions
    • Ireland
    • Court of Appeal (Ireland)
    • 20 March 2017
    ...all trial Judges, as articulated by Haugh J. is to be found in the decision of the Court of Criminal Appeal in The People (DPP) v. E.C. [2006] IECCA 69. (5) The burden of a proof on an applicant in these cases is not discharged by merely making a general allegation of prejudice by reason of......
  • DPP v M.J.
    • Ireland
    • Court of Criminal Appeal
    • 3 June 2014
    ...CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7 DPP v B (R) UNREP CCA 12.2.2003 2003/13/2871 DPP v G (L) 2003 2 IR 517 2003/16/3458 DPP v C (E) 2007 1 IR 749 2006/17/3511 2006 IECCA 69 CRIMINAL PROCEDURE ACT 1993 S10 DPP v LAVERY UNREP CCA 19.3.2002 2003/17/3857 DPP v K (M) 2005 3 IR 423 2005/20/......
  • DPP v Cooke
    • Ireland
    • Court of Criminal Appeal
    • 11 May 2009
    ...CCA 10.7.1998 1998/16/5863 HEALY IRISH LAW OF EVIDENCE, 2004 DPP v MEEHAN 2006 3 IR 468 DPP v COLM MURPHY 2005 2 IR 125 DPP v C (E) 2007 1 IR 749 2006/17/3511 2006 IECCA 69 DPP v B (R) UNREP CCA 12.2.2003 2003/13/2871 DPP v CRONIN 2006 2 ILRM 401 DPP v CC UNREP CCA 2.2.2006 2006 IECCA 1 ......
  • H.S. v DPP
    • Ireland
    • Court of Appeal (Ireland)
    • 22 October 2019
    ...all trial Judges, as articulated by Haugh J. is to be found in the decision of the Court of Criminal Appeal in The People (DPP) v. E.C. [2006] IECCA 69. (5) The burden of a proof on an applicant in these cases is not discharged by merely making a general allegation of prejudice by reason of......
  • Request a trial to view additional results
1 books & journal articles

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT