DPP v C.S.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 17 November 2020 |
| Neutral Citation | [2020] IECA 312 |
| Docket Number | Record Number: 324/16 |
| Court | Court of Appeal (Ireland) |
| Date | 17 November 2020 |
[2020] IECA 312
Birmingham P.
Edwards J.
Kennedy J.
Record Number: 324/16
THE COURT OF APPEAL
This is an appeal against conviction. The appellant was found guilty of nineteen counts including four counts of indecent assault and fifteen counts of sexual assault. The appellant was initially charged with 39 counts on the indictment in relation to two complainant sisters AB and LB but the appellant was only found guilty in respect of the counts relating to AB. On the 9th December 2016, the appellant received a sentence of seven years' imprisonment.
The appellant is the uncle of the complainant. The abuse occurred between the period of the 14th of April 1988 and the 24th of December 1994 when AB was between 10 and 16 years of age. The assaults took place in the home of the complainant's grandmother and in AB's family home. Two of these counts relate to specific incidents when the complainant was aged ten and sixteen years old respectively and the remaining counts are sample counts.
The complainant described how the abuse occurred in the sitting room after school when the appellant would sit beside her, then kneel in front of her, touch her legs, rub her shirt, sit to the left of her, unzip his trousers and take out his penis, put her hand on his penis, his hand on her hand and then pleasure himself. The appellant would also kiss her on the neck and touch her breasts and vagina. The complainant described that these assaults would occur two to three times per week and if her parents went out at weekends. The final instance of abuse, which is the subject of Count 39 on the indictment, took place when the complainant was sixteen years of age and involved the appellant getting on top of her, touching her breasts and vagina and digitally penetrating her. Shortly thereafter the complainant left school and began working and the abuse stopped.
The appellant put forward eight grounds of appeal but proceeded with seven of those grounds as follows:-
(1) The Learned Trial Judge erred in law in his ruling on the question of the admissibility of the evidence of the complainants at the outset of the case, in particular by deciding that the question could only be determined after the evidence had been admitted.
(3) The Learned Trial Judge erred in law and in fact in failing to issue a warrant so as to compel the attendance of PB at the trial in circumstances where it was established that he had material evidence to give to the Court.
(4) The Learned Trial Judge erred in law and in fact in failing to stay the Trial of the Appellant at the conclusion of the Prosecution case.
(5) The Learned Trial Judge erred in law and in fact in failing to warn the Jury of the dangers of convicting the Appellant on the uncorroborated evidence of the complainant.
(6) The Learned Trial Judge erred in law and in fact in failing to give an adequate account in his charge to the Jury of the Defence case in relation to the credibility of the complainant's testimony.
(7) The Learned Trial Judge's charge, taken as a whole, failed to sufficiently protect the Appellant's right to silence and privilege against self-incrimination, both in relation to the treatment of his custody interviews and his decision not to give evidence at Trial, and the Appellant was thereby deprived of his right to a fair Trial.
(8) The Learned Trial Judge erred in law and in fact in directing the Jury constituted of 11 members only, to continue with their deliberations.
On day one of the trial, counsel for the appellant made an application to the trial judge seeking to have the evidence of the complainants excluded due to issues with the manner in which the complaints were made to the Gardaí. This was based on the contention that there were two complainants, each of whom had made a number of statements to the same member of An Garda Síochána but who had asserted in those statements that they had not discussed the matter between themselves.
It was also contended that an unfairness arose in that the member of An Garda Síochána had not made any notes, and so it is said that it was unclear as to how the two complainants had apparently separately come to make their statements to An Garda Síochána. In effect it is contended that the issue of collusion arose and ought to have been determined by the judge in the context of admissibility.
The trial judge did not accede to the application, instead stating that any unfairness that may arise could only be dealt with once all of the evidence had been heard and an application could be made at that point.
The appellant submits that the trial judge erred in ruling on the issue of the admissibility of the complainant's evidence and in particular was erroneous in ruling that the issue could only be determined after the evidence has been heard. Moreover, it is said that in refusing to determine this issue at the outset of the trial and prior to the evidence of the complainants, the trial judge erred in law in failing to hear evidence from the investigating Garda as to the circumstances in which the statements of the complainants were taken.
The appellant submits that the trial judge failed to engage with the specific facts of the instant case in terms of the delay which preceded the making of the allegations in question and the fact that each of the complainants made detailed entries in notebooks whilst maintaining that they had not spoken to each other in relation to the case.
The respondent submits that the trial judge's approach was correct as the issues raised by the appellant went to weight rather than admissibility. The respondent refers to The People (DPP) v. MS [2019] IECA 120, where the possibility of contamination or collaboration, inadvertent influence or suggestibility were found to be matters directed to weight and the probative value of evidence and therefore an issue for the jury.
The application on behalf of the appellant was moved prior to any evidence following prosecution counsel's opening remarks. The application concerned the admissibility of the complainants' evidence and was in substance grounded on the fact that the two complainants made a number of statements to the Gardaí in early 2013, each complainant produced a notebook detailing the accounts of incidents and counsel expressed a particular concern regarding the manner in which the accounts given by the witnesses to the Gardaí interacted with their notebook entries. In truth, the basis for the application was founded on the possibility of collusion.
Moreover, when the complainants first approach the Gardaí in early 2013, a complaint was made on behalf of the appellant regarding the absence of notes on the part of the Gardaí.
Counsel on behalf of the appellant at trial readily conceded that his was a novel application but nonetheless contended that his application was appropriate notwithstanding the fact that an alternative remedy may be available at a later stage in the trial.
Counsel for the respondent pointed out that the appellant's legal team were informed there were no notebook entries but that statements were disclosed to the defence concerning the approaches made by the respective complainants.
It appears that the statement made by Garda Quinn stated, inter alia, as follows: –
“I obtained statements from both [] and [] of [] in relation to the allegations of sexual assault over a number of years against their two uncles, [] and CS of []”.
The trial judge refused to determine the issue of admissibility prior to the commencement of evidence and, inter alia, stated as follows: –
“Now obviously if that unfairness leads to an unfair trial, then it is open to Mr Guerin to apply to this Court on the PO'C basis. But I'm not going to accede to his application at this – in relation to admissibility…”
It is apparent from a perusal of the transcript of the judge's ruling concerning this application, that he was alert to the issue of collusion. Indeed in the course of his ruling, he indicated that an application could be made should matters arise which would render the trial unfair or which would tend to fatally undermine the evidence of the complainants in some way.
The issues of collaboration, collusion, inadvertent influence and/or contamination were addressed by this Court in the decision of The People (DPP) v. MS [2019] IECA 120. In that case the issues concerned contamination, copycat evidence and suggestibility. The argument was advanced that before such evidence could be deemed admissible, it was necessary for the prosecution to exclude such possibilities. In MS, this Court found that the possibility of an issue such as collusion, save in the most exceptional cases, is an issue directed to weight and therefore falls for assessment by a jury. The fact of communication or contact between complainants prior to trial is not, in and of itself, indicative of collusion. In fact, to expect no discussion whatsoever between siblings is unrealistic.
In the present case, the height of the application was that the first complainant contacted the Gardaí and made a complaint, following which she returned in January 2013 bearing a notebook containing detailed accounts of her complaints, which was compiled in the intervening period. The second complainant then approached the Gardaí with a notebook containing a detailed account of complaints. The concern was voiced, but without elaboration, about the interaction between the accounts given in interview by the complainants and the accounts contained in the notebooks.
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