DPP v C.B.

CourtCourt of Appeal
Docket NumberRecord Number: 315/18
JudgeMs. Justice Isobel Kennedy
Judgment Date26 Mar 2021
JurisdictionIreland
Neutral Citation[2021] IECA 89

[2021] IECA 89

THE COURT OF APPEAL

Birmingham P.

Woulfe J.

Kennedy J.

Record Number: 315/18

Between/
The Director of Public Prosecutions
Respondent
and
C.B.
Appellant

Conviction – Sentencing – Sexual assault – Appellant seeking to appeal against conviction and sentence – Whether the trial judge erred in law and in fact in failing to sever the indictment prior to the commencement of the trial

Facts: The appellant, on the 7th November 2018, was convicted of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 and possession of child pornography contrary to s. 6(1) of the Child Trafficking and Pornography Act 1998. The appellant appealed to the Court of Appeal against conviction, relying on three grounds: (1) the trial judge erred in law and in fact in failing to sever the indictment prior to the commencement of the trial; (2) the judge erred in law and in fact in failing to discharge the jury despite the complainant’s mother alleging in evidence that the accused had abused other children; and (3) the judge erred in law and in fact in failing to give a corroboration warning in the course of his charge to the jury. The appellant was sentenced to a period of four years and six months on the sexual assault count with the final eighteen months suspended on terms. A sentence of one year was imposed on count 2 with the final three months suspended. The custodial element of the appellant’s sentence was due to expire. At oral hearing it was clarified that the appeal against sentence was concerned only with the conditions imposed. The mandatory condition was imposed for a period of three years from the appellant’s release from custody with a further condition that the appellant remain under the supervision of the probation services for the same period and comply with the directions and recommendations of the service and to undertake an appropriate therapeutic course for sex offenders as directed by the probation service. It was said that the appellant was subject to post-release supervision on his release from the custodial element of the sentence.

Held by the Court that it was not persuaded that the judge erred in refusing the application for severance. The Court held that the discharge of a jury is an extreme measure and one which it did not think was appropriate in this case. The Court held that the circumstances in this case did not mandate a warning be given. The Court held that the appeal against conviction would be dismissed.

The Court held that, in the circumstances, it saw no merit in the appeal against the sentence; the conditions imposed were fair and reasonable and entirely justified given the appellant’s convictions and previous conviction. The Court held that the appellant remained on the sex offenders register for life.

Appeal dismissed.

UNAPPROVED

JUDGMENT of the Court delivered on the 26 th day of March 2021 by Ms. Justice Isobel Kennedy.

1

. This is an appeal against conviction. On the 7th November 2018, the appellant was convicted of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 and possession of child pornography contrary to section 6(1) of the Child Trafficking and Pornography Act 1998.

Background
2

. The prosecution of the appellant arose from a statement of complaint made by the injured party, who was eleven years old at the time of offending, that she had been sexually assaulted by the appellant. The sexual assault occurred in the appellant's apartment in that he placed his hand on her vagina. The injured party said that the appellant had threatened her not to tell anyone or there would be problems.

3

. On the 11th August 2016, an off-duty member of An Garda Síochána saw the appellant in a café with young children, one of whom was the complainant. The garda was aware that the appellant had previously been convicted for possession of child pornography and raised a concern with the local garda station. As a result, members of An Garda Síochána spoke to the appellant and a referral was made to Tusla.

4

. Social workers met with the complainant's mother to give advice of “good touching bad touching”. Following this the complainant's mother asked her if the appellant had touched her and the complainant disclosed that he had. On the 13th September 2016, the complainant was interviewed in accordance with section 16(1)(b) of the Criminal Evidence Act 1992, as amended and she gave details of the appellant's conduct towards her including, inter alia, that the appellant invited her and her cousin to go swimming, that they changed together in the cubicle and the appellant exposed his penis in front of her, and that on one occasion the appellant took her shopping and bought her a bra.

5

. On the 15th September 2016 a search warrant was executed in respect of the appellant's property and a disc containing child pornographic material was discovered. The data creation date of the DVD was the 7th December 2008.

6

. On the 16th September 2016 the appellant was arrested and interviewed on three occasions. The appellant denied the allegations and stated that his interaction with the complainant was innocent, that he had taken pity on the family whom he felt to be socially deprived. In relation to the DVD of child pornographic material, the appellant claimed that he did not knowingly possess the disc and he believed it originated from the time when his house was first raided.

7

. On the 7th November 2018 the appellant was found guilty by unanimous verdict and he was subsequently sentenced to a term of four years and six months' imprisonment with the final eighteen months suspended on terms.

Grounds of appeal
8

. The appellant put forward four grounds of appeal but relies on three grounds as follows:-

  • (1) That the learned trial judge erred in law and in fact in failing to sever the indictment prior to the commencement of the trial.

  • (2) That the learned trial judge erred in law and in fact in failing to discharge the jury despite the complainant's mother alleging in evidence that the accused had abused other children.

  • (3) That the learned trial judge erred in law and in fact in failing to give a corroboration warning in the course of his charge to the jury.

Submissions of the parties
Ground 1-Failure to sever the indictment
9

. Mr Cody SC for the appellant focused on this ground of appeal, in truth, it may be said, this is the primary ground. Issue is taken with the trial judge's refusal to sever the counts on the indictment on two bases; firstly, that the judge erred in finding the existence of a nexus concerning the two counts and secondly, that the judge erred in the application of the principles as stated in The People (DPP) v. McNeill [2011] 2 IR 669.

10

. In refusing to accede to the application to sever the counts on the indictment, the trial judge concluded that the offences had a sufficiently common factual nexus as the allegations, if proven, took place in the same location, and involved young girls, whether in reality or in a visual mode, for the sexual gratification of the accused. The trial judge further stated that it would be a distortion of the truth to exclude the evidence regarding the DVD of child pornographic material in the appellant's possession from the jury as it is inextricably connected with the circumstances surrounding the alleged sexual assault.

11

. The trial judge then went on to consider the second point raised by counsel whether a refusal to sever the indictment would unfairly prejudice the appellant. In terms of the count concerning possession of child pornography, the trial judge observed that the appellant intended to put forward a defence of innocent possession arising from his past and, if the indictment was severed, this defence would go unchallenged. He concluded that the evidence of the complainant was necessary to put into context the true circumstances surrounding the possession charge. Likewise, the trial judge concluded that if the sexual assault charge was viewed in a vacuum it would give an incomplete picture of the appellant's interest in young girls and would allow his defence that he was taking pity on an impoverished family to go unchecked.

12

. The trial judge went on to state as follows:-

“[The appellant] stated that he had no sexual attraction “to that child” and later suggests “nor to any child.” In light of such an assertion, the alleged possession of child pornography involving young girls is an entirely relevant matter to make the evidence before the jury complete. I am satisfied that this evidence meets the test as laid down by the then Chief Justice in the McNeill case. Further, the probative value outweighs the prejudicial effect of this evidence. I am also satisfied that the evidence is not of such a scandalous nature that it would irredeemably destroy the jury's ability to deliberate on each count with an open mind or to use the words of O'Donnell J. in the McNeill decision; “Contaminate the reasoning and adjudication process of the jury.” To sever these two counts would not only provide two separate juries with a distorted picture, but would allow the accused to persist in his denials as well as his explanations, as given in his memos of interview, while at the same time curbing the prosecution's ability to rebut these.”

13

. In written and oral submission, it is said on the part of the appellant that he was significantly prejudiced by the joinder of the two separate counts, and that there was an insufficient “common factual origin”, as referred to in R v. Barrell and Wilson (1979) 69 Cr. App. R. 250, so as to justify the joinder of these counts. While there were certain incidental similarities, the core substance of the sexual assault charge was entirely unrelated to the materials grounding the child pornography charge

14

. The appellant refers to The People (DPP) v. McNeill ...

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