DPP v EH

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 05 February 2019
• Neutral Citation: [2019] IECA 30
• Docket Number: [182/14]
• Court: Court of Appeal (Ireland)
• Date: 05 February 2019

[2019] IECA 30

THE COURT OF APPEAL

Birmingham P.

Birmingham P.

Edwards J.

Kennedy J.

[182/14]

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

EH

APPELLANT

Conviction – Sexual offences – Admission of evidence – Appellant seeking to appeal against conviction – Whether trial judge erred in law and in fact in refusing to admit certain evidence of mobile phone communications

Facts: The appellant, on 7th February 2014, following a trial in the Circuit Court, was convicted by majority verdicts of two counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) Amendment Act 1990 and two counts of defilement of a child contrary to s. 3 of the Criminal Law (Sexual Offences) Act 2006. Subsequently, he was sentenced to a term of six years imprisonment on 27th June 2014, the sentences to date from that day. He appealed to the Court of Appeal against that conviction on the ground that the trial judge erred in law and in fact in refusing to admit certain evidence of mobile phone communications sent and received by the complainant and thereafter refusing leave to the appellant to cross-examine the complainant about those texts in circumstances where the said messages had the potential to undermine the credibility of the complainant and her allegations against the appellant.

Held by the Court that the trial judge was correct in concluding that the statutory threshold had not been met. It seemed to the Court that nobody reading the exchanges in full would conclude that their impact was such that a jury not hearing about them might reasonably be satisfied beyond reasonable doubt of the guilt of the appellant, but a jury that heard about them might not have been so satisfied. The Court held that no doubt had been raised about the fairness of the trial or the safety of the verdict.

The Court held that it would dismiss the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 5th day of February 2019 by Birmingham P.

1 On 7th February 2014, following a trial in the Circuit Court, the appellant was convicted by majority verdicts of two counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) Amendment Act 1990 (as amended) and two counts of defilement of a child contrary to s. 3 of the Criminal Law (Sexual Offences) Act 2006. Subsequently, he was sentenced to a term of six years imprisonment on 27th June 2014, the sentences to date from that day. He now appeals against that conviction. While the original notice of appeal identified a number of issues which it was proposed to canvass and a motion was brought seeking to add a number of other grounds, in fact, the appellant, through his counsel, made clear that one ground, and only one ground of appeal was being pursued. That ground of appeal was formulated as follows:

‘[t]hat the trial Judge erred in law and in fact in refusing to admit certain evidence of mobile phone communications sent and received by the complainant and thereafter refusing leave to the appellant to cross-examine the complainant about these texts in circumstances where the said messages had the potential to undermine the credibility of the complainant and her allegations against the appellant.’

2 Before turning to consider the issues raised by the single ground that is being pursued, it may be helpful to say something about the procedural history of the case.

3 The complainant was born in February 1996, while the appellant was born in October 1964. The appellant lived in a quiet, rural area of the locality. When the complainant was eleven years of age, her family moved to the townland where the appellant lived with his wife and family. Thereafter, the appellant and the complainant lived across the road from each other. The Court below heard that in the late summer of 2009 when the complainant was thirteen years of age, she had been in the habit of walking the dog owned by the family of the appellant. In August or late summer 2009, it was alleged that the appellant had hugged the complainant and then in October, progressed to putting his hands up her top and feeling her chest. In October 2009, the complainant went to the home of the appellant in relation to seeking sponsorship for a charity project that she was undertaking. The jury heard that the appellant had brought her into his room and had then got on top of her on the bed in his room. The injured party's mother called to the house looking for the appellant and matters were therefore interrupted. The evidence of the complainant at trial was that the appellant had tried to kiss her during that year. She proceeded to outline that in March 2010 that the appellant had called her into an apartment or “granny flat” in his house, and at that stage, produced a purple vibrator which he inserted into her vagina. Her evidence to the jury was that she bled after this event. Later that year, he put his hands down her pants and also touched her chest while she was cleaning out a shed that was on his property.

4 In summer 2010, in or around July, the appellant spent time in hospital. When he came out of hospital, he asked the injured party over to his house and brought her upstairs, into the granny flat again, and there he had sexual intercourse with her. At trial, there was evidence from the injured party, and this was not really in dispute, that she and the appellant were texting each other on a daily basis. Hundreds of texts passed between the two phones.

5 On 19th August 2010, Gardaí called to the area where both parties lived in relation to an entirely unrelated matter. While Gardaí were in the area, the appellant and complainant arrived back from the nearby town. The appellant had been giving the complainant a lift home.

6 When phones were seized and examined by Gardaí, there was what was described as a litany of highly sexualised text messages passing between the two. The complainant was medically examined and it was noted that there was a tear to her hymen, which was abnormal and strongly suggestive of vaginal penetration. The home of the appellant was searched and a purple vibrator was seized. It was identified by the complainant as the object that was used to penetrate her.

7 On 13th September 2010, the appellant was detained and interviewed. In the course of interviews, the appellant denied sexual intercourse with the complainant and denied any form of sexual assault. He did, however, admit to the phone contact, saying that this had been instigated by the injured party. It was suggested that the complainant was making all of this up and the defence contention was that the complainant had found the purple vibrator in the house while going through cupboards or presses while babysitting.

8 The appellant was charged with five offences. His first trial commenced in June 2013 and was presided over by Judge Donagh McDonagh. That trial ended with the jury being discharged in a situation where, at a time after the complainant had given evidence, a juror realised that he recognised somebody involved in the case.

9 In October 2013, the second trial began before Judge Tom Teehan, and after a six-day trial, the jury disagreed and were discharged. In the course of this trial, one count on the indictment was the subject of a directed verdict of not guilty.

10 On 4th February 2014, the appellant's third trial began before Judge Teehan who, it bears highlighting, was the same trial Judge that had presided over the trial that ended with a disagreement.

11 The relevance of the fact that the trial which resulted in a conviction was the third trial is to be found in the fact that because there had been two earlier trials, the presiding Judge and counsel started the case with some considerable degree of familiarity about the issues. The effect of this was that debates were somewhat truncated and arguments were sometimes formulated by reference to what had occurred on previous occasions. As a result, the transcript of the February 2014 trial at times does not make easy reading for a reader unfamiliar with the background to the trial. It was for this reason that the Court did not conclude the hearing of the appeal when it was first listed, but instead put the matter back so that the text communications referred to in the sole ground of appeal could be accessed, isolated and made available to the Court.

12 While the ground of appeal is couched in terms of the Judge's refusal to admit evidence in relation to mobile phone communications and not permitting cross-examination in relation to texts, the issue at trial was about the extent to which the defence would be free to explore the complainant's prior sexual history.

13 The defence's interest in this issue was connected to the fact that there was evidence before the Court from the Medical Director of the Community Child Centre,...