DPP v E.D.

JurisdictionIreland
CourtCourt of Criminal Appeal
JudgeMr. Justice Herbert
Judgment Date17 February 2006
Neutral Citation[2006] IECCA 3
Docket Number[C.C.A. No. 201
Date17 February 2006

[2006] IECCA 3

COURT OF CRIMINAL APPEAL

Kearns J.

Herbert J.

Butler J.

No. 201/2004
DPP v D (E)
DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
E.D.
APPLICANT

CRIMINAL LAW (AMDT) ACT 1935 S6

CRIMINAL LAW (AMDT) ACT 1935 S1

B v DPP 1997 3 IR 140

Z v DPP 1994 2 IR 476 1994 2 ILRM 481

O'R (D) v DPP 1997 2 IR 273

DPP v F (E) UNREP SUPREME 24.2.1994 1994/2/557

CRIMINAL LAW (RAPE) ACT 1981 S10

COURTS OF JUSTICE ACT 1947 S16

F (S) v DPP UNREP GEOGHEGAN 17.12.1997 1998/6/1486

R v RACKHAM 1997 2 CAR 222

CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S4(1)

CONSTITUTION ART 50

CONSTITUTION ART 38.1

CONSTITUTION ART 40.3

DPP v BYRNE 1994 2 IR 236

D v DPP 1994 2 IR 465

EUROPEAN CONVENTION ON HUMAN RIGHTS ACT 2003 ART 6 SCHED 1

EVANS, IN RE 1995 CLR 452

JUDGES RULES r7

CRIMINAL JUSTICE ACT 1984 (TREATMENT OF PERSONS IN CUSTODY IN GARDA SIOCHANA STATIONS) REGS 1987 SI 119/1987

CRIMINAL PROCEDURE ACT 1993 S3(1)(a)

CRIMINAL LAW:

Indictment

Sexual offences - Large number of counts on indictment - Lack of specificity - Charges alleged offences occurred on date within one quarter of calendar year - Whether charges described with reasonable specificity - Whether applicant prejudiced in defence - R v Evans [1995] Crim L R 245 and R v Terrance John Rackham [1997] 2 Cr App R222 considered; People (DPP) v F(E) (Unrep,SC, 24/2/1994) applied - Criminal Justice (Administration) Act 1924 (No 44), s 4 and sch 1 - Criminal Procedure Act 1993 (No40), s 3 - Constitution of Ireland, 1937,Article 38.1 - Leave to appeal refused on ground of lack of prejudice (201/2004 - CCA - 17/2/2006) [2006] IECCA 3; [2007] 1 IR 484; DPP v D(E)

Facts: the applicant was convicted by a jury of unlawful carnal knowledge and was sentenced to two years imprisonment on the first count, five years on each of the other 15 counts, to run concurrently. He sought leave to appeal against his conviction on the grounds, inter alia, that the number of counts on the indictment was prejudicial and that there was a lack of specificity in the counts in the indictment.

Held by Herbert J in dismissing the application for leave to appeal that the number of counts on the indictment did not amount to overloading and was not prejudicial to the applicant.

That the statutory obligation to provide such particulars as may be necessary for giving reasonable information as to the nature of the charges could only be satisfied if the indictment was so framed as to inform the accused in plain and unambiguous language what it was that each count in the indictment alleged he had done and with sufficient particularity as the circumstances of the case would allow to enable the accused to marshal his mind on more important evidence to counter those allegations. In this case, an unduly rigid approach to drafting the indictment and insufficient attention was given to the actual times and dates indicated by the complainant. However no miscarriage of justice occurred actually occurred in the case.

Reporter: P.C.

1

JUDGMENT of the Court delivered the 17th day of February, 2006 by Mr. Justice Herbert

2

E.D. was convicted by a jury at on 6 th October, 2004, on 16 counts of indecent assault and 16 counts of unlawful carnal knowledge of C.D. He was sentenced to two years imprisonment on the first count of indecent assault, to five years imprisonment on each of the other 15 counts of indecent assault to run concurrently with the two years and the five years imprisonment on each of the 16 counts of unlawful carnal knowledge to run concurrently with each other and with the other sentences, all to date from the 6 th October, 2004. An application for leave to appeal against both conviction and sentence was refused by the learned trial judge.

3

E.D. now seeks leave from this Court to appeal against his conviction on the following grounds:-

4

2 "1. That the learned trial judge erred in law in refusing the application on behalf of the applicant to limit the evidence to incidents which could be attributed to the counts on the indictment.

5

2. That the learned trial judge erred in law in refusing to limit the amount of counts in the indictment on the application on behalf of the applicant and that the number of counts on the indictment was prejudicial to him.

6

3. That the learned trial judge erred in law in refusing an application for a direction on behalf of the applicant at the conclusion of the prosecution case on the basis that the number of counts in the indictment and the receipt of evidence not attributable to any count on the indictment gave rise to a prejudice against him.

7

4. That the trial was unsatisfactory in the circumstances."

8

In the first 16 counts the applicant was charged, as a male person, with indecently assaulting C.D., a female person, in the County of L. contrary to common law and as provided by s. 6 of the Criminal Law Amendment Act, 1935:-

9

Count 1-on a date unknown between the 8 th day of November, 1972, and the 31 st day of December, 1972, both dates inclusive,

10

Count 2-on a date unknown between the 1 st day of January, 1973, and the 30 th day of April, 1973, both dates inclusive,

11

Count 3-on a date unknown between the 1 st day of May, 1973, and the 31 st day of August, 1973, both dates inclusive,

12

Count 4-on a date unknown between the 1 st day of September, 1973, and the 31 st day of December, 1973, both dates inclusive,

13

and so on in four monthly periods to count 16 where the offence is charged as having occurred:-

"On a date unknown between the 1 st day of September, 1977, and the 8 th day of November, 1977, both dates inclusive."

14

The subsequent counts, 17-32 inclusive, charged that the applicant, a male person had unlawful carnal knowledge of the same C.D., a female person, in the County of L. contrary to s. 1 of the Criminal Law Amendment Act, 1935 on a date unknown between the same dates inclusive as are specified in the first 16 charges.

15

During the period covered by these 32 counts, C.D. was aged between seven years and thirteen years.

16

At the very commencement of the trial, Mr. Sweetman, Senior Counsel, representing the applicant, objected to the form of the indictment. It was common case that the complainant had alleged that the various incidents of sexual misbehaviour of which complaint was made had taken place at five particular locations only, namely, when she was being brought home from school by the applicant in his car, in and around a pig shed across the yard from her home, in the bedroom of her home where she shared a bed with another sister, when she was a passenger on his motor cycle and, while the applicant was repairing their father's car. Counsel for the applicant argued that counsel for the prosecution should be directed by the learned trial judge to identify which counts on the indictment referred to which of these alleged incidents. He argued that only these counts should be permitted to go before the jury. He further asserted that the leading of evidence of generalised allegations which could not be specifically related to any particular counts thus identified, was of no probative value and was prejudicial to the applicant's constitutional right to a fair trial. He argued that the applicant's constitutional right to a trial with fair procedures superseded the right of the People to prosecute. In this respect he relied upon the decision in "B" v. The Director of Public Prosecutions [1997] 3 I.R. 140 at p. 201 per Denham J., and "Z" v. The Director of Public Prosecutions [1994] 2 I.R. 476 per Finlay C.J.

17

Counsel for the prosecution argued that the alleged offending misbehaviour had occurred on very many occasions at each of the indicated locations over a period of six years or thereabouts. He submitted that a long period of time had elapsed, between 22 and 27 years (by reference to the evidence actually given at the trial, since this misbehaviour had taken place) and, the complaint could not be expected in fairness to identify a particular incident as having occurred on a specific date at a specific location. A requirement, he said, for such particularity would render prosecutions of this nature impossible which would be contrary to the requirements of public justice. He referred to a decision of "DO' R" v. The Director of Public Prosecutions (Unreported, High Court, Kelly J., 27 th February, 1997).

18

In reply, counsel for the applicant asserted, that the applicant was entitled to a fair and separate trial on each count on the indictment which demanded the calling of relevant and identifiable evidence, so that general allegations must, through their lack of specificity with regard to the counts charged, necessarily result in evidence being led before the jury, whose prejudicial impact far exceeded its probative value. He submitted that the calling of such evidence would render it impossible to know on what basis the jury reached its verdict and raised the real likelihood that the jury might avail of evidence in respect of one count to support a finding of guilt in respect of another.

19

The learned trial judge, while acknowledging that the matter was, "a well known dilemma", ruled that the trial should proceed on the indictment as laid. He stated that he would not make a theoretical decision in advance of the evidence and that counsel for the applicant could address the Court at a later stage with regard to the state of the evidence in respect of particular counts on the indictment.

20

In the case of The Director of Public Prosecutions v. "E.F." (Unreported, Supreme Court, 24 th February, 1994), the indictment contained 9 counts, - five in respect of one, "K.B." and, four in respect of one, "P.F.", - of indecent assault contrary to common law and as provided by s. 10...

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  • D (K) v DPP
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    ...By way of response, counsel on behalf of the respondent referred to the decision in the case of the The People (DPP) v. E. D. [2007] 1 I.R. 484. I would say in passing that that decision appears to me to deal with a somewhat different situation and does not provide much in the way of assist......
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    ...13 Counsel for the appellant opened the decision of the Court of Criminal Appeal in The People (Director of Public Prosecutions) v E.D. [2007] 1 I.R. 484 to the trial judge. That case had also been concerned with the adequacy of the particularisation in an indictment in an indecent assault ......
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