DPP v D (G)

• Jurisdiction: Ireland
• Judge: O'Donnell
• Judgment Date: 14 February 2011
• Neutral Citation: [2011] IECCA 35
• Docket Number: 24/10
• Court: Court of Criminal Appeal
• Date: 14 February 2011

[2011] IECCA 35

COURT OF CRIMINAL APPEAL

O'Donnell J.,

Budd, J.,

O'Keefe, J.

24/10

DPP v D (G)

Between:

The People at the Suit of the Director of Public Prosecutions

V

G D

Applicant

DPP v B (R) UNREP CCA 12.2.2003 2003/13/2871

DPP v J (P) 2003 3 IR 550

DPP v G (L) 2003 2 IR 517

DPP v C (C) 2006 4 IR 287

CRIMINAL LAW

Delay

Warning - Tailoring warning to facts of case - Appeal against conviction - Sexual and indecent assaults - Swimming coach - No cross-examination as risk of revealing inadmissible evidence - Consequence of tactical decision - Admissibility of evidence of offences not covered by indictment - Multiple allegations of abuse - Difficulty in framing indictment - Whether degree of prejudice minimal where case dependent on credibility of complainant - Unedited memoranda of interview handed to jury in error but retrieved - Whether retrieval of un-edited memoranda or interviews and replacement of same by edited memoranda excited jury suspicions - Corroboration - Similar fact evidence - People (DPP) v B(R) (Unrep CCA 12/2/2003); People (DPP) v J (P) [2003] 3 IR 550; People (DPP) v G (L) [2003] 2 IR 517; People (DPP) v CC [2006] 4 IR 287 - Conviction quashed; retrial ordered (24/2010 - CCA - 4/2/2011) [2011] IECCA 35

People DPP v D(G)

1 The Court is in a position to give its judgment today as in the light of the decision to which it has come, the Court wishes that the parties would be in a position to know the outcome of the case today so that the retrial which the Court will order should not be further delayed.

2 In this case the Applicant was convicted on the 4 ^th November 2009 after a trial lasting five days on thirty-five counts of sexual and indecent assault alleged to have been committed over a period ranging from 1981 to 1993, during which time he had been the manager of a swimming pool in New Ross and also the coach of swimming teams based at that pool.

3 There were five complainants in total with thirty-five counts: two complainants who could be described as casual swimmers and three swimmers who were members of swimming teams being coached by the Applicant. The Applicant was convicted by the jury and sentenced to a total of six and a half years imprisonment by the trial judge. On this appeal a number of points have been argued and the Court will deal with them in sequence.

4 First, it was argued that the trial judge had wrongly admitted evidence from one complainant - namely testimony that the complainant had shown bruising on his buttocks or lower back to his brother shortly after the incident of which he complained. It is argued on behalf of the Applicant that this evidence should not have been admitted because of a difficulty posed for the defence. A statement from the complainant's brother was included in the Book of Evidence in which he said that he had no specific memory or recollection of being shown bruising. However, the statement also contained other matters considered (by the accused's lawyers) to be inadmissible relating to a complaint of abuse by the accused, having been made by the complainant to his father who was by the time of the trial deceased. On that basis it was said by counsel for the Applicant that the defence could not risk cross-examining the brother on the issue of bruising for fear of adducing evidence relating to the rest of the statement which had not been adduced in evidence. This rather convoluted reasoning is unpersuasive. The Court is satisfied that it was a matter for the defence to take whatever course it considered appropriate on the advisability of cross examining this complainant or his brother but must accept the consequences of that decision. The fact is that this evidence of the complainant showing bruising to his brother was relevant and therefore admissible

5 The second and closely related ground was that it was argued that the trial judge had wrongly permitted evidence to be given by one complainant of another incident of abuse not covered by the indictment and also by a separate complainant of an incident which may not have been covered by the indictment. In the first instance, the complainant had indicated that a similar incident of abuse had occurred in Dublin while travelling to a swimming gala. In the case of the second complainant it was said that the abuse may have occurred on another occasion. In both cases the Court is satisfied that there was no error on the part of the trial judge in not discharging the jury. It is in the nature of these cases that the evidence of a complainant may recount multiple incidents of repeated abuse. That is their evidence, the veracity of which the jury must decide. The difficulty is often in framing an indictment rather than the giving of the evidence. It cannot be said here that the evidence was elicited by the prosecution in any unfair way and the degree of prejudice, if any, which it caused to the accused is difficult to consider as significant in the light of the fact that it is simply another incident being referred to by a complainant in a case which turns essentially on that complainant's credibility. It is not akin to the introduction of new evidence from other witnesses of similar alleged wrongdoing by the accused, which could well prejudice the accused since it might be thought to make more credible the complainants account. Accordingly, the Court does not accept this point.

6 Third, counsel relies on an incident which occurred in relation to the statements, or more correctly, the interviews of the accused with the gardaí. These had been edited and no complaint is made about that, but the original statements rather than the edited versions were, by mistake, given to the jury as they were leaving the courtroom to consider their verdict but retrieved before they left the courtroom. It is accepted that the jury did not see or read the contents of the unedited statements and that they remained within the container in which they were placed and were recovered. The point made on behalf of the Applicant is that this incident was bound to excite suspicion on the part of the jury and either by itself or in conjunction with the other matters complained of, should have led to the jury being discharged. In this case the Court is satisfied that this point does not have substance. Juries are very well aware of their obligations to decide a case on the merits and on the evidence which has been adduced to them. There are many incidents which happen in Court where a jury may speculate as to what is occurring out of their presence. They are instructed to decide the case only on the evidence they have heard. It seems entirely inappropriate for this Court to seek to determine issues on the basis of its own speculation as to what the jury may in turn have speculated. In this case the Court is satisfied that this incident unfortunate though it was, cannot be said to have made the trial unsatisfactory.

7 The fourth point relied on is what is described as the failure of the trial judge to give a corroboration warning. This is dealt with on day 5 of the transcript, page 73 and commencing at line 28. The circumstances are that following some debate, the trial judge made it clear that she did not consider it appropriate to give a corroboration warning in this case. This is a decision within the discretion of the trial judge, and she was fully entitled to so rule. However it is said that the judge then went on to use the word "corroboration" in discussing the obligation of the jury to treat each of the counts as separate incidents and to determine them on their own merits...