DPP v D.C.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 20 December 2019
• Neutral Citation: [2019] IECA 367
• Docket Number: Record No: CA133/2018
• Court: Court of Appeal (Ireland)
• Date: 20 December 2019

[2019] IECA 367

THE COURT OF APPEAL

Edwards J.

Whelan J.

McCarthy J

Record No: CA133/2018

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

V

D.C.

APPELLANT

Conviction – Sexual offences – Unfair trial – Appellant seeking to appeal against conviction – Whether the trial judge’s conduct of the trial was objectively unfair

Facts: The appellant, on the 22nd of February 2018, was convicted by a jury in the Central Criminal Court of the following offences: three counts of rape, contrary to s. 2 of the Criminal Law (Rape) Act 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990; one count of rape by an Irish citizen in a place other than in the State, contrary to s. 4 of the 1990 Act and s. 2(1) of the Sexual Offences (Jurisdiction) Act 1996; six counts of sexual assault of a child by an Irish citizen in a place other than in the State, contrary to s. 2 of the 1990 Act and s. 2(1) of the 1996 Act; and five counts of rape, contrary to s. 4 of the 1990 Act. The appellant was sentenced on the 23rd of April 2018 to fifteen years’ imprisonment with the final year thereof suspended on conditions, in respect of each of the rape counts; and to six year’s imprisonment in respect of each of the sexual assault counts, all sentences to run concurrently and to date from the 8th of February 2018. The appellant appealed to the Court of Appeal against his conviction on all counts. In connection with his appeal the appellant brought a motion seeking leave to adduce further evidence. The Court agreed to hear the evidence de bene esse, and to rule during its judgment on whether or not the appellant could rely upon it. In oral submissions, counsel for the appellant informed the Court that he would be focussing on three main areas in his presentation of the appeal: first, a contention that the trial was unfair in several material respects, but in particular on the basis that the trial judge’s conduct of the trial was objectively unfair; secondly, grossly prejudicial material in the nature of evidence of other alleged misconduct not the subject of any charges before the court ought not to have been admitted in evidence, being allegations made by a sister of the complainant that had been placed before the jury, thereby irredeemably prejudicing the appellant in the eyes of the jury and rendering his trial unsatisfactory and unsafe; and thirdly, that fresh evidence had come to light, which the Court was asked to take account of, suggesting that the complainant had recanted and admitted that she lied when giving her evidence at the trial.

Held by the Court that, having considered the numerous issues raised by the appellant on this appeal, it had not been disposed to uphold any of his complaints and was satisfied both that his trial was satisfactory and that his conviction was safe.

The Court held that the appeal against conviction would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 20th day of December 2019 by Mr. Justice Edwards .

Introduction

1 On the 22nd of February 2018 the appellant was convicted by a jury in the Central Criminal Court of the following offences:

• three counts of rape, contrary to s.2 of the Criminal Law (Rape) Act 1981 as amended by s. s.21 of the Criminal Law (Rape) (Amendment) Act 1990 (“the Act of 1990”), those being counts no's 1, 16 and 17 on the indictment;

• one count of rape under s.4 by an Irish citizen in a place other than in the State, contrary to s.4 of the Act of 1990 and s.2(1) of the Sexual Offences (Jurisdiction) Act, 1996 (“the Act of 1996”), being count no 2 on the indictment;

• six counts of sexual assault of a child by an Irish citizen in a place other than in the State, contrary to s.2 of the Act of 1990 and s.2(1) of the Act of 1996, those being counts no's 5, 6, 7, 8, 9, and 10 on the indictment;

• and five counts of rape under section 4, contrary to s.4 of the Act of 1990, those being counts no's 4, 11, 13, 14 and 15 on the indictment.

2 The appellant was sentenced on the 23rd of April 2018 to fifteen years’ imprisonment with the final year thereof suspended on conditions, in respect of each of the rape counts; and to six year's imprisonment in respect of each of the sexual assault counts, all sentences to run concurrently and to date from the 8th of February 2018.

3 The appellant has appealed against his conviction on all counts.

4 In connection with his said appeal the appellant brought a motion seeking leave to adduce further evidence. The Court agreed to hear the evidence de bene esse, and to rule during its judgment on whether or not the appellant can rely upon it.

The Grounds of Appeal

5 In oral submissions to this court, counsel for the appellant informed us that he would be focussing on three main areas in his presentation of the appeal. First, a contention that the trial was unfair in several material respects, but in particular on the basis that the trial judge's conduct of the trial was objectively unfair. Secondly, that grossly prejudicial material in the nature of evidence of other alleged misconduct not the subject of any charges before the court and that ought not to have been admitted in evidence, being allegations made by MC, a sister of the complainant TC, had been placed before the jury, thereby irredeemably prejudicing the appellant in the eyes of the jury and rendering his trial unsatisfactory and unsafe; and thirdly, that fresh evidence has come to light, which this court is asked to take account of, suggesting that the complainant has now recanted and admits that she lied when giving her evidence at the trial.

6 It is more convenient for the purposes of this judgment to deal with these three main headings of complaint in reverse order. Accordingly, we will consider and rule in the first instance on the application seeking leave to rely on fresh evidence, and, if necessary, deal with the substantive complaint based on the alleged fresh evidence. Then we will deal with the complaint about the inappropriate admission before the jury of misconduct evidence, and finally we will deal with the allegations that the trial was not conducted fairly by the trial judge.

The complainant's evidence at trial

7 The complainant in the case was the appellant's daughter, TC. We know from her affidavit sworn in connection with this appeal that she was born on the 9th of April 1999. She gave evidence by video link over seven days at the trial, during five of which she was under cross-examination. The jury learned that the appellant was originally partnered with, although not married to, JC with whom he had two daughters TC and MC. JC has since died of a brain aneurysm. His relationship with JC was a second relationship. The appellant had earlier had two daughters with a previous partner. Accordingly, TC has one full sister, namely MC, and two half-sisters, KC and SC, respectively, all older than her.

8 The court has reviewed the transcript and the core of TC's testimony in chief was to the effect that on the day after her mother JC died, i.e., on the 11th of March 2006, she was vaginally raped by the appellant in the then family home in a provincial town in the west of Ireland. Subsequently the appellant and his then girlfriend, RC, who is now married to him, together with TC and MC, went to live in New Zealand. While there they lived temporarily in various dwellings before obtaining a home of their own. While in one of these dwellings, described by her as being in an estate, the appellant and RC were drinking, and a row broke out in the presence of TC and MC. RC and MC were then, in TC's words, “kicked out”, leaving TC alone with the appellant. During the period the appellant was alone with TC he anally raped her.

9 TC further described being repeatedly sexually abused by the appellant, both in New Zealand, and upon their later return to Ireland. She said that he would put his fingers in her private place and she recalled him on one occasion smelling his fingers having done so.

10 TC also testified that following the initial incident of anal rape there were repeated further such instances while they were living “in a white house”. TC had up to that point shared a room with MC but in this house she had her own bedroom. These further anal rapes would take place in that bedroom. She stated, “he would just come in and he'd just pull down my trousers and he would just bend me over” … “like I was a rag doll”. During these incidents the appellant would always address TC as “J”, being her late mother's first name. He regularly told TC “You have to die, you have to die”. TC described an incident that occurred following receipt of her fifth-class school photograph. She disliked the photograph and pleaded with the appellant to get rid of it, saying that she felt she was ugly in the photo. The appellant became angry and assaulted her physically, following which she retreated to her room upstairs and attempted to hang herself from a lamp shade. The appellant entered the room as she was doing this. He approached the bed where she was and took hold of her kissing her neck slowly and calling her beautiful. He then pulled up her skirt and raped her. TC was unsure if he had raped her anally or vaginally on this occasion but was certain that he had raped her. She explained that her uncertainty arose because there had been an occasion where she had been subjected to both forms of rape but was unsure if this had been the occasion.

11 TC stated that on another occasion she was “grounded” for having run up a large phone bill and was alone sitting on a sofa with her legs tucked underneath her in the sitting room of the house they were then residing in in Ireland. The appellant approached her, removed her trousers, lowered his own trousers and then had vaginal sexual intercourse with her.

12 On another occasion TC said she was anally raped by the appellant in...