DPP v Counihan
| Jurisdiction | Ireland |
| Judge | Peart J.,Edwards J. |
| Judgment Date | 23 February 2015 |
| Neutral Citation | [2015] IECA 60 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [144/13] |
| Date | 23 February 2015 |
[2015] IECA 60
THE COURT OF APPEAL
The President
Peart J.
Edwards J.
[144/13]
Conviction – Sexual assault – Rape – Appellant seeking to appeal against conviction – Whether conviction was safe
Facts: The appellant, in April 2013, was convicted of four counts of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990, and of two counts of rape contrary to s. 4 of the 1990 Act. In June 2013, the appellant was sentenced to eight years imprisonment in respect of the s. 4 rape counts and to five years imprisonment in respect of the sexual assaults, all sentences to run concurrently from April 2013, with the final 12 months of the sentences suspended on conditions. The judge explained how his normal practice is of dictating a note of the evidence at the end of each day and sending it electronically for transcription but the system broke down. In the circumstances, the trial judge recounted for the jury the evidence of the complainant, and he detailed the examination-in-chief of the appellant. He referred, in respect of other evidence, to the speeches of Counsel. The appellant appealed to the Court of Appeal against his conviction on the basis that the trial was unsatisfactory and the conviction unsafe. The nine grounds of appeal were that: (i) the trial judge should have withdrawn the case from the jury because of delay in prosecuting the trial and failure of the investigating authorities to obtain and preserve relevant evidence concerning the complainant”s mobile phone and other telephones; (ii) the trial judge was in error in refusing a defence application for a direction at the conclusion of the prosecution case; (iii) the trial judge erred in ruling admissible the complaint made by the complainant to her mother in December 2002; (iv)-(vii) a series of grounds complain that the trial judge failed to give a proper and full summary of the evidence to the jury, including the cross-examination of the prosecution witnesses other than the complainant, and by failing to summarise the evidence of the defence witnesses; (viii) the trial judge should have brought to the attention of the jury inconsistencies between the complaint made by the complainant to her mother and the details of the abuse that she gave in evidence; (ix) the trial judge should have given an adequate corroboration warning, and specifically, should have acceded to a defence requisition that he address the jury on the absence of medical evidence to corroborate the complainant”s testimony.
Held by the President that the case was like many similar cases in which repeated sexual abuse over a period of time is alleged; the essential question for the jury was whether they accepted the evidence of the complainant in respect of one or more of the sexual assault and s. 4 allegations and the other rape allegations in each period. The Court held that it was impossible to find fault with the approach of the Police Officer in England and acquitted her of any neglect of duty or any obligation. The Court was satisfied that the trial judge was correct in deciding that the complaint was admissible and in rejecting the proposition that there was inconsistency to a degree that would render it inadmissible. The Court was satisfied that the evidence was properly admitted and found it unnecessary to deal in detail with each of the headings but was satisfied to say that it was admissible as a complaint, that the alleged inconsistency was not of a nature that would exclude the evidence, even if one accepted the degree of inconsistency that was suggested, and secondly, that it was admissible under the heading of rebuttal or intending to rebut the allegation of recent invention or fabrication. The Court was satisfied that the trial judge was not to be faulted for having failed to give a corroboration warning. The Court was satisfied that the trial was satisfactory and that the conviction was safe. The Court was satisfied that there was no question in the circumstances of any unfairness to the appellant in what he did, and indeed the prosecution might have had good grounds for complaining that its case was not fairly or fully presented. The Court found it impossible to endorse the practice adopted by the trial judge as it would not have been impossible to devise a different and better solution than the one he adopted.
The President held that the conviction was safe, that the trial was satisfactory and that the appeal must accordingly be dismissed
Appeal dismissed.
On 18th and 19th April 2013, the appellant was convicted of four counts of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001, and of two counts of rape contrary to s. 4 of the Criminal Law (Rape)(Amendment) Act 1990. On 10th June 2013, the appellant was sentenced to eight years imprisonment in respect of the s. 4 rape counts and to five years imprisonment in respect of the sexual assaults, all sentences to run concurrently from 19th April 2013, with the final 12 months of the sentences suspended on conditions. The appellant appeals against his conviction but not the sentences.
The offences were charged in the indictment to have been committed on occasions between 1st June 2002 and 30th November 2002. The complainant, who was then a 14-year old girl, had travelled from her home in England to visit her natural father, the appellant, who lived in County Kilkenny, and she travelled over on three separate occasions. The offences are alleged to have occurred during the second and third visits. There was dispute at the trial about the timing and duration of the visits but it is clear that each one extended over a number of weeks. On the first visit, the complainant stayed with the appellant's daughter, but on the other two occasions she resided in the family home. There was no evidence of any impropriety during the first visit, but the complainant testified as to sexual abuse that was perpetrated on her by the appellant during the periods of the second and third visits. Her evidence was that she suffered sexual assaults in a variety of forms, including sexual touching by the appellant and being required to feel him and masturbate him. In addition, there were the s. 4 rape charges which encompassed oral sex. These incidents happened, according to her evidence, in different locations including the family home of the appellant and when she was travelling with him by car, and also on occasions when he brought her to motorcycle rally events.
The complainant's mother gave evidence at the trial that each visit extended over a period of about five weeks. The first visit was in April/May 2002, on which occasion the girl was brought to Ireland by one of the appellant's sons. The second visit was in June/July when she was brought over to Ireland by the appellant himself, travelling on a motorcycle. The third visit was said to have begun on 7th September and to have ended in October 2002. On that occasion, it was the appellant's niece who brought the complainant from England to Ireland.
The evidence given at the trial was that the matter came to light on 13th December 2002, when the complainant spoke to her aunt in England, that is, her mother's sister. The aunt notified the mother to whom the girl spoke and repeated the complaints that her father had been touching her, by which she meant intimate touching of a sexual nature, and that this had happened during the period of her second and third visits to Ireland. The mother contacted the appellant by text message and phone call. At first, he denied that anything untoward had happened. However, the mother said that the appellant had then rung back and admitted that he had been guilty of inappropriate sexual behaviour with his daughter. The girl's mother also testified that the appellant had proceeded in subsequent text messages and in a conversation that happened in Rosslare, County Wexford in July 2003, to admit that he had committed sexual abuse with his daughter.
The appellant sent letters to his daughter, which were sent some time after December 2002 and before June 2003, when the mother spoke to a Police Officer in England about this abuse. She gave the Police the two letters which were read to the jury at the trial and provided as exhibits in the case. The mother also showed the Police Officer her mobile phone which had text messages from the appellant. The Police Officer copied down details of the messages including the date and time and the message in each case which began on 13th December 2002, that is, the date on which the girl complained to her mother about having been abused and on which the mother said that she had contacted the appellant. The text on 13th December at 11.36 read ‘do you want me to hand myself up to the Police?’ The last text of which evidence was given was on 28th April 2003 at 08.12pm when the message was ‘there is not a day goes by when I regret what I done. I am so sorry, love you loads’.
The evidence consisted, accordingly, of the testimony of the complainant in respect of the abuse that she described as having happened during her second and third visits in 2002; her mother, who described receiving the complaint from her daughter on 13th December 2002, and her subsequent conversations with the appellant including phone conversations and the text messages. She also described the meeting that she said took place in Rosslare in July 2003, when she confronted the appellant personally and she testified that he again admitted the abuse of his daughter. The occurrence of this meeting was denied by the appellant in the course of his evidence to the trial. The...
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