DPP v D.N.

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Hedigan
Judgment Date31 July 2018
Neutral Citation[2018] IECA 279
Date31 July 2018
Docket Number145/2017
BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
AND
D N
APPELLANT

[2018] IECA 279

145/2017

THE COURT OF APPEAL

Crime & sentencing – Sexual offences – Sexual assaults and rape – Appeals against conviction and sentence dealt with separately

Facts: The appellant had been convicted of 4 counts of sexual assault and two counts of oral rape carried out on a child known through his work at a school. He was sentenced to 8 years imprisonment with a period suspended. He sought to appeal against both his conviction and sentence, with each being dealt with by separate judgments.

Held by the Court that the appeal would be dismissed. The appellant’s ground of appeal in respect of the refusal to issue a corroboration warning was considered, but the Court was satisfied the trial judge had not fallen into error by refusing the application.

JUDGMENT of the Court delivered on the 31st day of July 2018 by Mr. Justice Hedigan
The Appeal
1

On the 9th of March 2017, the appellant was convicted by a Jury in the Central Criminal Court on two counts of oral rape and on four counts of sexual assault contrary to s.4 and s.2 of the Criminal Law (Rape) (Amendment) Act 1990 respectively. On the 15th of May 2017, the appellant was sentenced to eight years' imprisonment in respect of each s.4 count, and to four years for each s.2 count, both sentences to run concurrently. The sentences were to commence on the lawful termination of a sentence the appellant was then serving for a separate offence. He now appeals against conviction and sentence. This judgment deals only with conviction.

Background
2

The appellant was convicted for offences of rape and sexual assault that took place between approximately March 2005 and September 2006. The complainant was a boy aged twelve when the offending behaviour began, which included oral rape and sexual assault.

3

The complainant was still in primary school education at this time, where the appellant was involved in the Board of Management. He was known to the appellant. He often helped him with gardening, as this was a keen interest of his. The complainant was allowed and invited into the appellant's parochial home. Occasionally, the appellant would bring the complainant to another house of his. Offending behaviour took place at both locations. The appellant would ask the complainant sexually motivated questions and get him to engage in sexual acts including oral sex and digital penetration of the anus. The complainant gave evidence that the first instance of the offending began in the appellant's bedroom, where the appellant exposed his penis to the complainant and asked him to put it in his mouth, which he did. The complainant gave evidence to the effect that he did not understand what he was doing.

4

The offences came to light after the complainant went to his GP in late 2013/2014 due to pain arising from the injuries caused by the digital penetration to which he was subjected. The complainant revealed to his mother that the appellant had ‘groomed’ him and this was brought to the attention of the school. The appellant was questioned in relation to the offences in 2014. He denied the claims and subsequently pleaded not guilty when the offences were brought to trial.

Personal Circumstances
5

The appellant was born on the 30th of May 1952. He is originally from Dublin and served different areas of Dublin as a priest for a number of years, before moving to another county where the offences took place. He was the parish priest in the area in which the complainant lived and was involved in the management of the local school. He was regarded as being of good character before the offences emerged and was a respected member of his local community in his role as a priest.

Sentence
6

The appellant was sentenced to eight years' imprisonment in respect of each s.4 rape count and to four years' imprisonment for each s.2 sexual assault count, both sentences to run concurrently. The sentences were to be consecutive to a sentence he was currently serving also in respect of sexual offences against a minor. The appellant was placed on the sex offenders register and four years of post-release supervision was also imposed.

Submissions of the Appellant
Conviction
7

Mr Bowman Senior Counsel for the appellant informed the court that the appeal against conviction was now based on one issue only. This was that the trial judge erred in refusing an application made by counsel for the appellant to give a corroboration warning to the jury. While it is accepted that under s.7 of the Criminal Law (Rape) (Amendment) Act, 1990, discretion is generally given to a trial judge in determining whether a corroboration warning is warranted in a case, there clearly are circumstances whereby such a warning should be given. The appellant referred the court to DPP v. J.E.M. [2001] 4 IR 385, where the Court of Criminal Appeal endorsed the principles set out in the well-known cases of R. v. Makanjuola [1995] 1 WLR 1348DPP v. P.J. [2003] 3 IR 550, and DPP v. Gentleman [2003] 4 IR 22 at p. 25. These cases establish that where there are certain inconsistencies and vagueness going beyond what is normal, there may be grounds for the judge to give an appropriate warning. There will have to be an evidential basis for suggesting that the witness may be unreliable. The court is also referred to the judgement of Geoghegan J in The People (DPP) v Ryan [2010] IECCA 29 where it was stated (at. p 7 of the report):

‘an appellate court would not interfere with that discretion but, as in the case of all discretionary orders, an appellate court may interfere if, on the facts of any particular case, a failure to give a warning was manifestly a wrong exercise of the discretion.’

This principle was reiterated by Birmingham J (as he then was) in DPP v KC [2016] IECA 278, where it was held (at para 25) that:

‘The starting point for consideration of this issue is that the decision to issue a warning or not is a matter for the trial judge's discretion. The Court will be slow to intervene with the exercise of that discretion by a trial judge and a court will intervene only if it appears that the decision was made upon an incorrect legal basis or was clearly wrong in fact.’

These principles apply equally in this case. Counsel for the appellant requested the warning on the following basis:

‘I would ask the court to consider giving it, and I know it must be rooted in the evidence as opposed to anything else and I do say there are inconsistencies, not least of all the presentation of the confirmation documentation confirming the date upon which the confirmation took place and clarification that we are still dealing with March 2006 to June 2006 allied to the fact that in the civil proceedings we...

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1 cases
  • DPP v C.B.
    • Ireland
    • Court of Appeal (Ireland)
    • 26 March 2021
    ...and in accordance with the evidence in refusing to give a corroboration warning. The respondent refers to The People (DPP) v. DN [2018] IECA 279 where Birmingham P. stated as follows:- “As set out in the authorities cited above, it is a matter for the discretion of the trial judge whether a......

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