DPP v Egan

JurisdictionIreland
JudgeFennelly J.
Judgment Date26 March 2010
Neutral Citation[2010] IECCA 28
Date26 March 2010
CourtCourt of Criminal Appeal
Docket Number[C.C.A. No. 195 of 2009]
DPP v Egan
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLC PROSEUCTIONS
Respondent

and

SEÁN EGAN
Applicant

[2010] IECCA 28

No. 195/09

COURT OF CRIMINAL APPEAL

CRIMINAL LAW

Sexual offences

Defence - Child under 17 years of age - Defence of honest belief that child 17 or more years of age - Burden of proof - Standard of proof - Evidence of honest belief - Statutory interpretation - Whether defence of honest belief should be raised on evidence - Whether burden of proof of defence of honest belief lies with accused - Whether accused must show evidence of honest belief - Whether standard of proof is on balance of probabilities - Evidence - Admissibility - Relevance - Prejudice - Cloth with unidentified seminal stain found in accused's car - Whether evidence relevant - B (A Minor) v DPP [2000] 2 AC 428; CC v Ireland [2005] IESC 48, [2006] 4 IR 1; People (DPP) v Bambrick [1999] 2 ILRM 71; People (DPP) v Davis [2001] 1 IR 146; People (DPP) v Halligan (Unrep, CCA, 13/7/1998); People (DPP) v Kelly [2000] 2 IR 1; People v MacEoin [1978] IR 27 and People (DPP) v McDonagh [2001] 3 IR 201 distinguished; Convening Authority v Doyle [1996] 2 ILRM 213; R v Carr-Briant [1943] 1 KB 607 and R v Daniel [2003] 1 Cr App R 6 considered - Criminal Law (Sexual Offences) Act 2006 (No 15), s 3 - Criminal Law Amendment Act 1935 (No. 6), s 1(1) - Leave to appeal refused (195/2009 - CCA - 26/3/2010) [1010] IECCA 28

People (DPP) v Egan

Facts: The applicant was convicted in 2009 in the Central Criminal Court of engaging in a sexual act with a child under the age of 17 years, contrary to s. 3 Criminal Law (Sexual offences) Act 2006. Four grounds of appeal were advanced to the effect that the jury verdict was inconsistent as the jury convicted thon the charge of engaging in a sexual act with a child whereas they acquitted him on the charge of rape on the same occasion and they acquitted him of a similar offence where the evidence was virtually identical, the judge wrongfully admitted into evidence clothes found in the car of the applicant with unidentified seminal stains on it and that the trial judge misdirected the jury as to the burden of proof of "honest belief" as to age, pursuant to s. 3(5) Criminal Law (Sexual Offences) Act 2006. The applicant submitted that a similar mode of considering the defence as provocation in a murder trial should have been adopted, with the obligation being on the defendant to raise the defence and the prosecution to rebut the defence and prove the case beyond reasonable doubt. The issue of the reversed burden of proof also was raised. The applicant had been 20 years of age at the time of the alleged offences and the complainant and her friends were schoolgirls.

Held by the Court of Criminal Appeal (Fennelly, Herbert, Gilligan JJ.) per Fennelly J. that the grounds of appeal failed, as these matters were for the jury. As to the first two grounds, the jury was entitled to discriminate as between witnesses. The evidence of clothes in the car was correctly admitted and did not establish conclusively any connection with the applicant. The arguments as to the defence at issue also had to fail as the judge did not rule and was not asked to rule at the close of the prosecution case on whether the defence might be raised. The jury convicted the applicant on the basis of a ruling more favorable that the burden of proof on the balance of probabilities. The Court would not decide whether a higher burden of proof was appropriate

Reporter: E.F.

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S3(1)

CRIMINAL LAW (SEXUAL OFFENCES) ACT 2006 S3(5)

DPP v KELLY 2000 2 IR 1

B (A MINOR) v DPP 2000 2 AC 428

INDECENCY WITH CHILDREN ACT 1960 S1(1) (UK)

DPP, PEOPLE v MAC EOIN 1978 IR 27

DPP, BAMBRICK 1999 2 ILRM 71

DPP, PEOPLE v KELLY 2000 2 IR 1

DPP, PEOPLE v DAVIS 2001 IR 146

DPP, PEOPLE v MCDONAGH 2001 3 IR 201

DPP, PEOPLE v HALLIGAN UNREP CCA 13.7.1998 1999/8/1747

C (C) & G (P) v IRELAND UNREP SUPREME 12.7.2005 2005/7/1439 2005 IESC 48

R v DANIEL 2003 1 CAR 396

R v CARR-BRIANT 1943 1 KB 607

CONVENING AUTHORITY v DOYLE 1996 2 ILRM 213

1

1. On the 18th June, 2009, the applicant was convicted in the Central Criminal Court by a jury presided over by Charleton J., of an offence of engaging in a sexual act with a child under the age of 17 years contrary to s. 3(1) of the Criminal Law (Sexual Offences) Act 2006 (hereinafter "the Act of 2006"). He was sentenced to fifteen months imprisonment.

2

2. He applied to this Court for leave to appeal against the conviction.

3

3. The trial took six days. There were four counts on the indictment: two counts of rape and two of a sexual act with a child. There were two complainants. The jury acquitted the applicant of both counts of rape and of one count of engaging in a sexual act with a child but convicted on the other.

4

4. Counsel on behalf of the applicant, Mr. Erwan Mill-Arden, S.C., advanced four grounds of appeal:

1

The jury verdict was inconsistent insofar as the jury convicted the applicant on the charge of engaging in a sexual act with a child, whereas they acquitted him of the charge of rape on the same occasion;

2

The jury verdict was inconsistent insofar as they convicted the applicant in respect of the charge of engaging in a sexual act with a child in one case but acquitted him of a similar offence with another child in the other where the evidence was virtually identical;

3

The learned trial judge was wrong in law in admitting into evidence a piece of cloth found in the applicant's car, which had unidentified seminal stains on it;

4

The learned trial judge misdirected the jury with regard to the burden of proof of "honest belief" provided for in s. 3(5) of the Criminal Law (Sexual Offences) Act 2006.

First Ground: Inconsistency with Acquittal on Rape Charge
5

5. The first ground is patently unarguable. To be fair, counsel made it clear that he was advancing this ground on instructions. It is axiomatic that there is a difference between the offence of rape and the offence of engaging in a sexual act with a girl under a specified age. The first requires proof of the absence of consent; in the second case consent is no defence. It is not in any way inconsistent for a jury to acquit of the first but convict of the second. This ground fails.

Second Ground: Inconsistency with Acquittal on Charges Relating to First Complainant
6

6. The second ground is also without merit. The first two counts on the indictment related to the complaint made by one complainant of sexual acts by the applicant on the 10th January, 2007. The second two counts concerned sexual acts alleged by a different complainant on a different date. Each complainant gave her own separate and distinct account. The jury was perfectly entitled to discriminate betweenthe two complainants as witnesses, to believe one fully and to conclude that the other had not convinced them beyond reasonable doubt. It is enough for them to have a reasonable doubt as to the truthfulness of the account of one of the complainants. In any event, a perusal of the transcript discloses ample grounds entitling the jury to distinguish between the two cases. Counsel for the applicant, in his closing argument to the jury, referred extensively to alleged inconsistencies in the story of the first complainant, which were quite different from the case of the second. The fundamental principle is that these are matters for the jury. This ground also fails.

Third Ground: Admissibility of Cloth with Seminal Stain
7

7. The third ground relates to the admission into evidence of a piece of cloth found by the gardaí in the applicant's car. According to the complainant's evidence, the sexual act in which the applicant engaged with her took place in that car. She said that following intercourse the applicant took a cloth out of the glove compartment of the car and that he wiped his penis with it. The gardaí, in the course of their forensic examination of the applicant's car, found a piece of cloth in the glove compartment. They took photographs of it, which were presented to the complainant during her evidence. She identified the cloth. No objection was made to the admissibility of the evidence of the garda search of the car, their photographing of the cloth or the evidence of the complainant identifying the cloth. The objection now made is based on the forensic or scientific evidence, to which it is now necessary to refer.

8

8. The cloth was examined by Dr. David Casey of the Forensic Science Laboratory at garda headquarters. He gave evidence of finding semen on the cloth. He was unable to determine the age of the seminal stain.

9

9. Dr. Yvonne O'Dowd from the Forensic Science Laboratory at University College Dublin also gave evidence of examining the cloth. She found the semen stain of an unknown human male. No blood or other sample had been taken from the applicant. Thus there was no means of establishing any D.N.A. connection with him.

10

10. Counsel objected at the trial to the admissibility of the evidence of the two scientific witnesses. He pointed out that they could not assign any date to this piece ofevidence or link it with any person. It was open to any one of a number of possible innocent explanations, including various hypotheses of sexual activity in the car other than with the complainant. In these circumstances, counsel submitted that the admission of the evidence was grossly dangerous and prejudicial. The learned trial judge ruled that the evidence was admissible. He pointed out that the prosecution merely alleged that it supported the account of the complainant. As to its prejudicial effect, he noted all the possibilities but said that the jury could apply their shrewdness and common sense. He did not believe that it was prejudicial.

11

11. The Court is...

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3 cases
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