DPP v Eamon Flanagan and Another

• Jurisdiction: Ireland
• Judge: Mr. Justice John MacMenamin
• Judgment Date: 24 November 2014
• Neutral Citation: [2014] IECCA 43
• Court: Court of Criminal Appeal
• Docket Number: [CCA No. 223 & 224/2011]
• Date: 24 November 2014

[2014] IECCA 43

COURT OF CRIMINAL APPEAL

MacMenamin J., Moriarty J., Herbert J.

[CCA No. 223 & 224/2011]

BETWEEN:

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Prosecutor/Respondent

AND

EAMON FLANAGAN AND SEAMUS FLANAGAN

Accused/Applicants

Appeal – Criminal Court – Quashed Conviction – Rape –Evidence – Credibility – Intimidation

Facts: The first-named applicant was tried at the Central Criminal Court on one count of rape, contrary to common law as provided for by s.48 of the Offences Against the Person Act, 1861, and s.2 of the Criminal Law (Rape) Act, 1981, as amended by s.21 of the Criminal Law (Rape) (Amendment) Act, 1990. The second named applicant was, at the same time, tried on one count of rape contrary to s.48 of the Offences Against the Person Act, 1861, and s.2 of the Criminal Law (Rape) Act, 1981, as amended by s.21 of the Criminal Law (Rape) (Amendment) Act, 1990; and also one count of rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act, 1990. The two applicants, who were brothers, were tried jointly over six days in May, 2011. Both applicants were convicted of the charges against them by a majority of 10 to 2 and sentenced to four years imprisonment. However, due to credibility issues surrounding the alleged victim, allegations of witness intimidation by the Gardi and a lack of forensic evidence, the applicants were admitted to bail by a different panel of the Court soon after their conviction.

Held by Justice MacMenamin in light of the evidence and testimonies provided to the Court that there was no evidence that the witness Daniel Lynch was manipulated by the applicants or anyone else. In stating that the case had a number of very singular, “ exceptional” features Justice MacMenamin stated that the case hinged, very significantly indeed, on Daniel Lynch’s corroboration evidence. Acknowledging that the complainant’s own evidence contained a number of inconsistencies, Daniel Lynch’s evidence purporting to place the two applicants, very near, or actually in Room 233, was not contested at the trial. The defence case, as put by counsel at the trial, was that even if the applicants and complainant met, no sexual contact took place. However, it was acknowledged that the omission to contest the point of the alleged encounter at the door, which would normally be a matter of importance, was now to be seen in the context of Daniel Lynch’s affidavit produced at the trial, but after conviction, and in light of the entirety of his evidence before the Court. According to the Court, it was clear that Daniel Lynch did not stand over the testimony which he gave at the trial. It was stated that it was credible that the circumstances of the taking of crucial evidence from Daniel Lynch at Downey’s Garage could, in the light of the information which had emerged since, have been the subject of a serious challenge at the trial; had that information been available to the defence. Justice MacMenamin summarised the new evidence before the court as follows: first, there was Daniel Lynch’s repudiation of his own evidence; then, the additional information concerning the circumstances of his interaction with members of An Garda Síochána; there was also, the relevant additional material regarding the extent of his inebriation on the night, his self-medication, and his stated fear derived from what he claimed was said by the gardai, to the effect that he might be “ in the frame” for a seven year sentence. This was, therefore, not only a case which involved a sworn affidavit from a prosecution witness controverting evidence which he gave at the trial, but also one where new and relevant material evidence had emerged which could not reasonably have been known or procured by the accused or their counsel. Acknowledging the subsequent garda investigation which took place in light of those issues, it was acknowledged by the Court that the two members of An Garda Síochána had been exonerated from misconduct. It was further acknowledged that there was no indication that there was any want of due diligence in preparing the defence of the case at hand. Daniel Lynch’s evidence went essentially unchallenged in a number of areas, something that inevitably would not have occurred, had the defence team, then retained, been apprised of the material which was now available. According to the Court, it was evident, that the trial and conviction, through no fault of either counsel for the prosecution or counsel for the defence, or the trial judge, was unsatisfactory and unsafe. Consequently, the Court quashed the applicants’ convictions and determined that there would be no application for a retrial.

Mr. Justice John MacMenamin

Judgment of the Court of Criminal Appeal delivered by Mr. Justice John MacMenamin on the 24th day of November, 2014

1 1. At the conclusion of the appeal, this Court quashed the applicants’ convictions and noted that counsel for the Director of Public Prosecutions had indicated that there would be no application for a retrial. The Court now gives its reasons for its order.

2 2. The first-named applicant was tried at the Central Criminal Court on one count of rape, contrary to common law as provided for by s.48 of the Offences Against the Person Act, 1861, and s.2 of the Criminal Law (Rape) Act, 1981, as amended by s.21 of the Criminal Law (Rape) (Amendment) Act, 1990. The second named applicant was, at the same time, tried on one count of rape contrary to s.48 of the Offences Against the Person Act, 1861, and s.2 of the Criminal Law (Rape) Act, 1981, as amended by s.21 of the Criminal Law (Rape) (Amendment) Act, 1990; and also one count of rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act, 1990. The two applicants, who are brothers, were tried jointly over six days in May, 2011. Both applicants were convicted of the charges against them by a majority of 10 to 2 and sentenced to four years imprisonment. But as a result of the events described in this judgment, the applicants were admitted to bail by a different panel of this Court soon after their conviction.

3 The Circumstances

4 3. The background circumstances of this case are unusual, if not unique. On the afternoon and evening of the 2nd March, 2008 the applicants were in the Red Cow Inn. The two men were in the company of a male friend of theirs, Daniel Lynch. They had met by arrangement with the intention of socialising there. The brothers booked a room to stay overnight in the hotel. While in the Red Cow Inn, the three men fell into the company of a group of women, including the complainant, C. M.

5 4. Daniel Lynch engaged in conversation with C.M. It appears that all the parties had consumed a great deal of alcohol. After a time, Daniel Lynch and C.M decided to leave the company of their friends, and go to the bedroom which. Seamus Flanagan, the second applicant, had booked earlier. C.M and Daniel Lynch presented themselves at the reception desk to get a key to the room. They were told that the room had not been paid for. As Daniel Lynch had no money, he tried unsuccessfully to contact the applicants by mobile phone. However, the complainant, C.M., decided to pay for the room and did so. She was provided with a key card. Both parties then retired to Room 233, and engaged in consensual sexual activity, including vaginal and anal intercourse, and oral sex.

6 5. What happened afterwards lies at the centre of this appeal. Absent corroboration as to what happened in the hotel room, the prosecution case substantially consisted of the word of one person against that of two others. This is to be seen in light of the fact that what is alleged to have occurred, took place within a space of 90 seconds, in a time window, established by CCTV evidence, of at most 4½ minutes, or perhaps very significantly less than that time span, in a hotel room adjoining other hotel rooms.

7 C.M.’s Evidence

8 6. C.M testified at the trial that, after a time, she and Daniel Lynch ordered room service. She told the jury she ordered a bottle of white wine, a bottle of Bulmer's Cider and two vodka and Red Bulls. She told the jury that when the room service did not arrive, Daniel Lynch went to leave the room to see what had happened. Her evidence was that, before either she herself, or Daniel Lynch, left the room to get the drinks there was a knock on the door. She believed it was room service. Her testimony at the trial was that Daniel Lynch answered the door, let the two applicants into the room, and very soon afterwards left the room in order to search for the drinks.

9 7. The complainant’s evidence was that, after Daniel Lynch left, the second-named applicant, Seamus Flanagan, raped her vaginally for less than one minute, and then anally for a matter of seconds. She testified that Eamon Flanagan, the first named applicant, then raped her vaginally for a very short period of time.

10 Inconsistencies in the Complainant’s Evidence

11 8. For the purposes of this appeal, counsel for the applicants submitted a written document to this Court identifying inconsistencies in the complainant’s testimony in Court. This raises the question as to whether the quality of the prosecution case was such that this conviction was safe. What follows is not intended in any way to denigrate the witness, but rather to demonstrate the extent of the prosecution case.

12 9. During the trial, the complainant conceded on cross-examination that she had told the gardaí that she and Daniel Lynch both awaited room service in the bedroom having had consensual sex. In two statements given to the gardaí during the investigation, however, she said that when the knock came on the door it was she herself who answered it, that both applicants were at the door, and that Daniel Lynch was, at the time, still...