DPP v D. McG

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 23 March 2017
• Neutral Citation: [2017] IECA 98
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 199/2016
• Date: 23 March 2017

Between/

The Director of Public Prosecutions

Respondent

- and–

D. McG

Appellant

[2017] IECA 98

Mahon J.

Birmingham J.

Mahon J.

Edwards J.

Record No. 199/2016

THE COURT OF APPEAL

Conviction – Sexual offences – Inconsistent verdicts – Appellant seeking to appeal against conviction – Whether jury verdicts were perverse and inconsistent as between one another

Facts: The appellant was tried by a jury at the Central Criminal Court in relation to thirty eight counts of sexual crimes involving his step children, M and L, committed between 2001 and 2010, and was found guilty of all but three of the counts on the 21st April 2016. Counts one to thirteen related to M. These included one count of sexual assault contrary to s. 2 of the Criminal Law (Rape Amendment) Act 1990 and six counts of oral rape and six counts of anal rape contrary to s. 4 of the 1990 Act. The appellant was acquitted of one of the sexual assaults counts, one of the oral rape counts and one of the anal rape counts. He was found guilty of the remaining ten counts by majority verdict. On 20th June 2016 the appellant was sentenced to terms of imprisonment of twelve years in respect of each of the s. 4 offences, five year terms in respect of the sexual assaults committed against L and a three year term in respect of the single count of sexual assault committed against M. All sentences were directed to run concurrently and to date from 21st April 2016. He was also ordered to undergo twelve months of post release supervision. The appellant appealed to the Court of Appeal against his conviction on the following grounds: (i) the refusal of an application to sever the indictment which resulted inter alia in the appellant facing trial in respect of two separate complainants; (ii) the refusal of an application to discharge the jury when prejudicial evidence unconnected with the case was given in its presence; (iii) the jury verdicts were perverse and inconsistent as between one another.

Held by the Court that the refusal to sever the indictment was a decision properly made within the discretion of the trial judge. Equally the court was satisfied that the collusion concern was without foundation. The Court was satisfied that the reference to the “accusations” was, while unfortunate and potentially prejudicial to the appellant nevertheless sufficiently brief and lacking in detail as not to warrant a discharge of the jury in the circumstances; it occurred at a relatively early stage in the trial, was not again referred to and was unlikely to have featured to any significant degree in the minds of the jurors. The Court was satisfied that the trial judge’s refusal to grant a direction in respect of the counts against L was correct; any issues relating to inconsistency or reliability of evidence was a matter for the jury. Equally, the Court was satisfied that the verdicts returned in respect of the allegations made by M were not perverse or inconsistent; it was open to the jury to reach different verdicts in relation to the different counts on the evidence presented, and indeed the fact that they did so suggests that they paid particular attention to the evidence relating to each of them.

The Court held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 23rd day of March 2017 by Mr. Justice Mahon

1 The appellant was tried by a jury at the Central Criminal Court in relation to thirty eight counts of sexual crimes involving his step children, M and L committed between 2001 and 2010, and was found guilty of all but three of the counts on the 21st April 2016.

2 Counts one to thirteen related to M. These included one count of sexual assault contrary to s. 2 of the Criminal Law (Rape Amendment) Act 1990; six counts of oral rape and six counts of anal rape contrary to s. 4 of the Criminal Justice (Rape Amendment) Act 1990. The appellant was acquitted of one of the sexual assaults counts, one of the oral rape counts and one of the anal rape counts. He was found guilty of the remaining ten counts by majority verdict.

3 On 20th June 2016 the appellant was sentenced to terms of imprisonment of twelve years in respect of each of the s. 4 offences, five year terms in respect of the sexual assaults committed against L and a three year term in respect of the single count of sexual assault committed against M. All sentences were directed to run concurrently and to date from 21st April 2016. He was also ordered to undergo twelve months of post release supervision. The appellant has appealed against both his conviction and sentence. This judgment relates to his conviction appeal only.

4 The appellant and his family, including his wife and her four children moved to Ireland from South Africa in 2001. The complainants' are the two younger children who were aged five and ten years at that time. Over the period of the abuse the family lived in four different locations in Co. Cork. M's abuse took place in three of the locations while he was aged between ten or eleven years and seventeen years. L's abuse took place in two of the locations when she was aged between six years and twelve years.

5 M gave detailed evidence as to the abuse perpetrated on him. He described how the appellant on occasion called him into a bedroom and offered him money to show him his private parts and allow him be touched by the appellant. Other sexual favours for which he was paid money by the appellant included acts of oral rape and anal rape. M was also shown pornographic dvd's and magazines by the appellant In the course of this abuse M gave evidence as to instances of self harm and one attempt to hang himself.

6 L's account of the sexual abuse perpetrated on her related to instances of sexual assault when the appellant touched her vagina and digitally penetrated her. She also related to a number of occasions when she was subjected to oral rape. She also gave evidence of being paid money by the appellant and of instances when she was photographed by him. L did not allege that the appellant had shown her pornographic dvd's or magazines by the appellant.

7 Three grounds of appeal are promoted on behalf of the appellant. They are:-

(i) the refusal of an application to sever the indictment which resulted inter alia in the appellant facing trial in respect of two separate complainants;

(ii) the refusal of an application to discharge the jury when prejudicial evidence unconnected with the case was given in its presence;

(iii) the jury verdicts were perverse and inconsistent as between one another.

The refusal to sever the indictment

8 At the commencement of the trial, the appellant sought to have the indictments severed in respect of the counts relating to the two complainants. It was argued on behalf of the appellant that the evidence relating to the counts in respect of one complainant could not be cross admissible as regards that of the other, and vice versa. It was submitted that the probative value of such evidence did not outweigh its prejudicial effect because, inter alia, there was insufficient similarity or nexus between the accounts of both complainants. It was submitted on behalf of the respondent that while it was accepted that the evidence of one complainant could not corroborate that of the other, such evidence could nevertheless be deemed cross admissible.

9 In her ruling refusing the application to sever, the learned trial judge stated as follows:-

‘Now, in this case, the subject matter of this trial, there are some differences in the proposed evidence to include the taking of photographs and videos of the second named complainant, L. However, having considered all of the submissions and read the case law which was open to me, I am satisfied that there are sufficient aspects of similarity in the proposed evidence to enable the evidence of the complainants to be admissible or, as Mr. Justice Hardiman states in the decision of DPP v. McCurdy, terms the evidence to be cross admissible in order to show a system or to rebut accident.

In considering the proposed evidence, I am influenced by the decision of Mr. Justice Barron and in particular his analysis of the principles applicable in these types of categories of cases where he stated that the rules of evidence should not be permitted to offend common sense. I have also considered the decision of DPP v. J.C. [2015] 14th November, where the Court of Appeal considered in that case the evidence which included allegations of abuse alleged against the accused man by his extended family by marriage and in that particular case the aspects of which were considered, it seems, by the Court of Appeal, included that the allegations were made against the accused that he had abused members of his extended family, that is, his extended family by marriage. They occurred for the most part in the residence of the accused. At the time most of the counts appeared in the same boundaries of time and, in particular, the matters alleged are all quite similar. The Court went on to say ‘in other words…’ this is, I should say, a quotation from the trial judge's decision in that case,

‘In other words, the allegation that the accused coerced or forced or made the complainant put the complainant's hand down his penis and in my view the instance may not have all been exactly the same, but there is sufficient striking similarity to allow the counts to proceed before the same jury and on the same indictment, so I refuse the application to sever the indictment.’

As I say, that was a quotation from the trial judge's ruling in the decision of JC.

In this case I do not consider the genders of the complainants to be of significance. The following matters appear to me to be areas of similarity;

(i) first of all that the complainants are the accused man's stepchildren;

(ii) secondly, both were minors at the time of the...