DPP v D. McG
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 22 March 2018 |
| Neutral Citation | [2018] IECA 86 |
| Docket Number | Record No. 215/2016 |
| Court | Court of Appeal (Ireland) |
| Date | 22 March 2018 |
[2018] IECA 86
Record No. 215/2016
THE COURT OF APPEAL
Conviction – Sexual offences – Evidence – Appellant seeking to appeal against conviction – Whether trial judge erred in law in admitting into evidence certain alleged admissions made by the appellant when same ought to have been excluded
Facts: The appellant was tried before a jury at the Central Criminal Court and unanimously convicted on the 3rd June 2016 of seventeen counts of sexual assault and rape. He was sentenced on the 4th July 2016 to concurrent imprisonment terms ranging from five years to twelve years. It was also directed that there be post release supervision for a period of five years from the date of his release from prison. The appellant appealed to the Court of Appeal against conviction on the following grounds: (i) the trial judge erred in law in admitting into evidence certain alleged admissions made by the appellant when same ought to have been excluded; (ii) the trial judge erred in admitting into evidence and/or failing to appropriately edit the memorandum of interview with the accused with the result that the jury were unlawfully prejudiced against him.
Held by the Court that the trial judge properly exercised his discretion to admit the evidence of witnesses; the evidence was reasonably summarised by the trial judge in the course of his charge to the jury. The Court was satisfied that the admission of this evidence did not render the trial unfair. The Court held that the questions put to the appellant in the course of his garda interview could not be said to be particularly prejudicial as they were of a type which one commonly comes across in the course of the interviewing of accused persons by gardaí. In the Court’s view no unfairness arose by the admission into evidence of a portion of the garda interview, particularly having regard to the extensive and comprehensive nature of the trial judge’s charge to the jury.
The Court held that the appeal would be dismissed.
Appeal allowed.
The appellant was tried before a jury at the Central Criminal Court and unanimously convicted on the 3rd June 2016 of seventeen counts of sexual assault and rape. He was sentenced on the 4th July 2016 to concurrent imprisonment terms ranging from five years to twelve years. It was also directed that there be post release supervision for a period of five years from the date of his release from prison. This is the appellant's appeal against conviction.
The seventeen counts are summarised as follows:-
• Count nos. 1 to 10 inclusive: 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.
• Count nos. 11, 16 and 17: Rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990.
• Count nos. 12, 13, 14, and 15: Rape contrary to s. 48 of the Offences Against The Person Act 1861 and s. 2 of the Criminal Law (Rape) (Amendment) Act 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990.
The complainant in respect of all counts was the appellant's step daughter, B. The appellant, B's mother and B's three siblings moved to Ireland from abroad in 2011. B was then eleven years old. They lived in four different addresses in County Cork during the period when the sexual abuse of B took place, and when she was between the ages of eleven and fifteen. B alleged that the appellant abused her on a fairly regular basis, and usually when her mother was out of the house working. The abuse included the appellant digitally penetrating B's vagina, touching her breasts, requiring her to touch his penis, oral rape, attempted sexual intercourse and one incident of abusing her in the shower. The abuse occurred at the different addresses at which the family lived, including the home of B's maternal grandmother. One incident took place in the appellant's car. An older sister of the complainant recalled that the complainant alleged to her and her grandmother in 2005 that particular incidents of abuse had taken place. She gave evidence that when confronted by her grandmother the appellant admitted that these incidents had indeed occurred. Similar evidence was given by the grandmother. The complainant's mother gave evidence to the effect that the appellant had admitted incidents of sexually abusing the complainant to her. When questioned by gardaí the appellant denied the allegations but did admit touching the complainant's breasts in the course of tickling her.
The grounds of appeal submitted on behalf of the appellant are:-
(i) The learned trial judge erred in law in admitting into evidence certain alleged admissions made by the appellant when same ought to have been excluded. (This ground was stated by counsel for the appellant, Mr. Munro SC, as being the primary focus of the appeal).
(ii) The learned trial judge erred in admitting into evidence and / or failing to appropriately edit the memorandum of interview with the accused with the result that the jury were unlawfully prejudiced against him.
The focus of this ground of appeal is the evidence of what was said to and by the appellant on a date in August 2005 at the home of the complainant's grandmother, JT. Evidence in relation thereto was given by the complainant, JT, the complainant's mother, Mrs. McG and the complainant's sister, Ms. McG.
In the course of her evidence on the first day of the trial, the complainant gave a graphic account of the allegations of rape and sexual assault which formed the basis of the various counts with which the appellant was charged. She went on to recall a discussion or conversation which took place in the home of her grandmother in the course of the period of her living in her grandmother's home between the summer of 2005 and January 2006. In the course of her examination in chief by Mr. O'Leary, counsel for the prosecution, the following was stated:-
‘Q. And was there something said by D. McG in your presence to I think your grandmother in (address)?
A. It was my grandmother and my mother, yes.
Q. Yes. But I only want you to say what you heard him saying, you understand, it's not what somebody else said to you, it's what you remember Mr McG himself saying to you or to them, but in your presence, you understand me?
A Yes. I remember him admitting to some of the stuff that he had done to me, he..
Q When was that roughly, were you living in your Nan's house?
A. I had not moved in just yet.
Q. Okay?
A. It was just before I moved in.
Q. All right?
A. Like literally a day before I moved in, I went to my grandmother's house one night after a row with D. McG.
Q. Okay?
A. And I'd had enough, so I -
Q. Yes?
A. Sorry.
Q. You said something to your grandmother?
A. Yes.
Q. As a result of that your grandmother presumably contacted D. McG - isn't that right?
A. Yes.
Q. She presumably said something to him?
A. Yes.
Q. And then as a result of that he came over to your grandmother's house; is that right?
A. Yes.
Q. And you were there, and your mother was there, is that right?
A. Yes, and my sister.
Q. And your sister?
A. Yes.
Q. And - and what do you remember him saying, that's all - all I'm interested in?
A. He said that he had done some stuff to me, he wouldn't specify exactly, but he just said like, ‘I only did some of the small things, none of the big things’.’
At the conclusion of the complainant's evidence the learned trial judge, in the absence of the jury, was addressed by counsel for both sides in relation to the issue of the admissibility of the evidence (referred to above) given by the complainant, and also in relation to the proposed calling by the prosecution of the complainant's grandmother, mother and sister to give evidence in relation to the purported admissions made by the appellant in the complainant's grandmother's house in 2005. In the course of his submissions to the learned trial judge, Mr. McGrath SC (for the appellant), said:-
‘Now, Judge, the difficulty, I say, that this evidence has is that it is not admissible under any exception to the hearsay rule. My friend has made it clear that it is not - he is not seeking to admit what (the complainant) said, as evidence of recent complaint and that-- and so therefore what my friend must be seeking to admit this is as a form of admission. And in my respectful submission the evidence does not amount to an admission for a number of reasons. Firstly, if I could ask the Court to look to the evidence, proposed evidence of (Mrs. McG), this is not a case where, for example, the normal position where an accusation is made, for example, in the presence of an accused person of criminal wrongdoing and the accused person admits either expressly, or by implication, or by his conduct, or possibly indeed by his silence, to the accusation. And that would be, in my respectful submission, that would be the evidence which the Court would be entitled to admit as a classic exception to the hearsay rule, as an admission against interest. But none of the evidence which it is proposed to call amounts to such evidence when one drills down into it.’
Mr. McGrath SC went on to make detailed submissions in relation to the purposed evidence to be given by the grandmother, mother and sister of the complainant. Mr. O'Leary SC submitted that the evidence was admissible, that it was probative and did not offend against the rule against hearsay.
At the conclusion of these submissions, the learned trial judge briefly ruled as follows:-
‘All right, in relation to the three statements of (the grandmother, mother and sister of the complainant), I'm going to allow those in the limited circumstances in which you've outlined, Mr O'Leary....
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