DPP v A.C.

CourtCourt of Appeal
Docket Number[239/19]
JudgeBirmingham P.
Judgment Date01 Apr 2021
JurisdictionIreland
Neutral Citation[2021] IECA 100

[2021] IECA 100

THE COURT OF APPEAL

The President

McCarthy J

Kennedy J

[239/19]

Between
The People at the Suit of the Director of Public Prosecutions
Respondent
and
A.C.
Appellant

Conviction – Sexual assault – Delay – Appellant seeking to appeal against conviction – Whether the appellant was denied access to identifiable islands of fact so that his trial was unfair

Facts: The appellant, following a trial in the Dublin Circuit Criminal Court in May 2019, was convicted by a jury of 20 counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. Subsequently, he was sentenced to an effective aggregate term of seven years imprisonment. He appealed to the Court of Appeal against conviction. Some 20 grounds of appeal were formulated, but as counsel for the appellant made clear at the start of the appeal hearing, the grounds could be condensed down to two central propositions: (i) that the complainant’s evidence was so discredited that the trial judge ought to have granted a direction and instructed the jury to find the accused not guilty; and (ii) by reason of the delay that occurred before the matter came on for trial, that the appellant was denied access to identifiable islands of fact so that his trial was unfair, was not a trial in due course of law and should have seen the trial judge staying the proceedings. The appellant’s position was that there should have been a directed verdict of not guilty in accordance with the second limb of R v Galbraith [1981] 1 WLR 1039, or the trial judge should have stayed the proceedings, or directed a verdict of not guilty in accordance with the principles set out in The People (DPP) v P.O'C. [2006] 3 IR 238.

Held by the Court that the matters pointed to as islands of fact did not have, either individually or collectively, the significance contended for by the defence. The Court did not believe that it had been established that the absence of evidence on the topics identified had deprived the appellant of a realistic opportunity of an obviously useful line of defence. In the circumstances, the Court was satisfied that the judge was entitled to reject the P.O’C. application. The Court had not been persuaded that the trial judge should have acceded to either the Galbraith limb or the P.O’C. limb of the application. The Court had not been persuaded that the appellant was denied a trial in due course of law, or that the trial was unfair or the verdict unsafe.

The Court held that the appeal would be dismissed.

Appeal dismissed.

UNAPPROVED
NO REDACTION NEEDED

JUDGMENT of the Court delivered on the 1 st day of April 2021 by Birmingham P.

1

. Following a trial in the Dublin Circuit Criminal Court in May 2019, the appellant was convicted by a jury of 20 counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. Subsequently, he was sentenced to an effective aggregate term of seven years imprisonment. He has appealed against both conviction and sentence. This judgment deals with the conviction appeal only.

2

. The trial related to alleged offending between 1st September 1993 and 1st September 1996 in the victim's family home in the Ballymun area of Dublin. The complainant was a young boy of school-going age at the time of the alleged offending. The appellant is the brother of the partner of the complainant's father.

3

. Some 20 grounds of appeal were formulated, but as counsel for the appellant made clear at the start of the appeal hearing, the grounds can really be condensed down to two central propositions: (i) that the complainant's evidence was so discredited that the trial judge ought to have granted a direction and instructed the jury to find the accused not guilty; and (ii) by reason of the delay that occurred before the matter came on for trial, that the then accused now appellant was denied access to identifiable islands of fact so that his trial was unfair, was not a trial in due course of law and should have seen the trial judge staying the proceedings. In summary, the appellant's position is that there should have been a directed verdict of not guilty in accordance with the second limb of R v. Galbraith [1981] 1 WLR 1039, or the trial judge should have stayed the proceedings, or directed a verdict of not guilty in accordance with the principles set out in The People (DPP) v. P.O'C. [2006] 3 IR 238. To put the issues raised in context, it is necessary to refer to the factual background of the trial.

Background
4

. The complainant was born in 1982, and would have been between 11 and 13 years of age during the period referred to in the indictment.

5

. The sister of the appellant lived with her partner, who was the father of the complainant. Both suffered from alcoholism. As a result, the family home was a somewhat dysfunctional one. At the trial, the complainant gave evidence that the appellant came to stay at the family home, having been released on temporary release from prison where he had been serving a sentence. That the appellant had come to stay in the family home following his release was supported by two of the complainant's siblings: a brother and a sister.

6

. The brother gave evidence that he remembered that after he moved out, his brother, the complainant, started sharing a bedroom. At trial, there was evidence from the complainant that he had attended a local national school and that he had been in a special class which had both boys and girls in it, which was not the norm, with a named teacher. The complainant's evidence was that at a particular stage, he shared a room with the appellant and that there were bunkbeds in it. He told the jury that when he was in the top bunk, the appellant would be in the bottom bunk and would put his hand into the complainant's pyjama bottoms. The complainant alleged that the accused would molest him, would masturbate him and would sexually assault him. The complainant said that because of this, he experienced difficulties sleeping and he remembered the teacher of the special class putting him to sleep in a corner on occasions. This issue of being put to sleep in class, or being allowed to sleep in class, is relevant to one of the so-called ‘islands of fact’.

7

. The complainant's evidence was that the sexual assaults, which had continued for some two years and occurred well over 20 times, came to an end when the appellant broke his leg and could no longer walk up...

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