DPP v F McL

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 25 October 2016
• Neutral Citation: [2016] IECA 307
• Docket Number: No. 225/14
• Court: Court of Appeal (Ireland)
• Date: 25 October 2016

[2016] IECA 307

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Sheehan J.

Mahon J.

No. 225/14

The People at the Suit of the Director of Public Prosecutions

Respondent

V

F. McL.

and

B.W.

Appellants

Conviction – Indecent assault – Corroboration warning – Appellants seeking to appeal against convictions – Whether the charge in relation to corroboration was adequate

Facts: The appellants, FMcL and BW, on the 1st August, 2014, were each convicted of a number of counts of indecent assault. Subsequently on the 13th October, 2014, FMcL was sentenced to terms of two years imprisonment on certain counts, the sentences to run concurrently with each other and a consecutive sentence of two years on a further count with the final six months suspended. BW was sentenced to a term of two years imprisonment on one count and two concurrent terms of one year's imprisonment in respect of other counts, all his sentences were suspended in their entirety. Both FMcL and BW appealed to the Court of Appeal against their convictions. The following grounds were advanced on behalf of FMcL: 1) the refusal to sever the indictment and order separate trials; 2) the adequacy of the charge in relation to corroboration; 3) the adequacy of the charge in relation to delay; 4) a failure on the part of the trial judge to distinguish the corroboration warning and delay warning; 5) the inadequacy of the charge in relation to system evidence and the approach to separate counts on the indictment; 6) general unfairness – under this heading there was a complaint that the judge's summary of the evidence and her charge was biased against the applicant and unfair and that despite being requisitioned, she failed to put the defence case. There was also a complaint that the judge unfairly excluded evidence which the defence sought to introduce and to rely on in order to meet the allegations. The following grounds were advanced on behalf of BW: 1) complaints about the charge in relation to corroboration; 2) the issue of corroboration and system evidence; 3) complaints about how the issue of delay was dealt with in the charge; 4) separate trials.

Held by Birmingham J that so far as the appellant FMcL was concerned, there was nothing to render the proceedings unsatisfactory, or his conviction unsafe. However insofar as BW was concerned, Birmingham J noted that he raised issues of concern to the Court in relation to the treatment of system evidence/corroboration so far as the issue had any relevance to him.

Birmingham J held that the Court would dismiss the appeal of FMcL and affirm the convictions. Birmingham J held that in the case of BW, the Court would quash the conviction. The Court would hear counsel on whether or not a new trial should be ordered.

Appeal allowed in part.

JUDGMENT of the Court delivered on the 25th day of October 2016 by Mr. Justice Birmingham

1 On the 1st August, 2014, the appellants FMcL and BW were each convicted of a number of counts of indecent assault. Subsequently on the 13th October, 2014, FMcL was sentenced to terms of two years imprisonment on certain counts, the sentences to run concurrently with each other and a consecutive sentence of two years on a further count with the final six months suspended. BW was sentenced to a term of two years imprisonment on one count and two concurrent terms of one year's imprisonment in respect of other counts, all his sentences were suspended in their entirety.

2 By way of background, it should be explained that there were two complainants in the case, GS whose date of birth was the 31st August, 1957 and KS his younger brother whose date of birth was the 1st January, 1961. FMcL faced nineteen counts on the indictment in respect of offences alleged to have occurred between 1963 and 1974. Twelve of these counts were alleged to have been committed against GS. These were said to have occurred between 1963 and 1974. Seven counts were alleged to have been committed against KS and these were alleged to have been committed between 1966 and 1973. Of these seven counts, five were alleged to have occurred at a time when the co-accused BW was present and abused KS in a similar fashion. These offences, when both appellants were said to be present, occurred between 1971 and 1973. BW faced five counts relating to these incidents. Both FMcL and BW now appeal against their convictions.

3 Each appellant has advanced a number of grounds of appeal though there is some element of overlap. The grounds advanced on behalf of FMcL might be summarised as follows:

• Refusal to sever the indictment and order separate trials.

• The adequacy of the charge in relation to corroboration.

• The adequacy of the charge in relation to delay.

• A failure on the part of the trial judge to distinguish the corroboration warning and delay warning.

• Inadequacy of the charge in relation to system evidence and the approach to separate counts on the indictment.

• General unfairness – under this heading there is a complaint that the judge's summary of the evidence and her charge was biased against the applicant and unfair and that despite being requisitioned, she failed to put the defence case. There is also a complaint that the judge unfairly excluded evidence which the defence sought to introduce and to rely on in order to meet the allegations

4 The grounds relied on by BW might be summarised as follows:

• Complaints about the charge in relation to corroboration.

• The issue of corroboration and system evidence.

• Complaints about how the issue of delay was dealt with in the charge.

• Separate trials.

The refusal to order separate trials

5 This issue has been raised, though in slightly different terms by both appellants. The issue first surfaced on the 15th July, 2014, the first day of the trial, when counsel on behalf of the first appellant, FMcL, indicated that he was seeking to have the indictment severed. Counsel contended that his client was in effect facing three trials, these he identified as a trial involving the counts where GS was the complainant, a trial were KS was the complainant and he categorised as a third trial those counts where KS was the complainant and when the allegation was that both co-accused were present and that each in turn engaged in acts of abuse. Counsel submitted that there was nothing in the evidence of KS that could corroborate what GS said as neither complainant said they were present when the other was abused. Counsel was particularly concerned with one specific count on the indictment, count 14, where the allegation was that his client abused KS in his bedroom, at a time when he was recuperating from a childhood illness. He submitted that if the jury concluded that FMcL was so malevolent as to do that, that they would be prejudiced when considering the evidence of the other complainant.

6 Counsel for the other appellant, BW, did not make an application for separate trials at that stage, but rather indicated that she was reserving her position depending on how the particular evidence unfolded. Counsel referred to concerns that she had if certain remarks made by the co-accused, FMcL, during his first garda interview were put in evidence. In fact evidence in relation to that garda interview was not led, so that issue never resurfaced in the manner envisaged.

7 Senior counsel for BW raised the issue of separate trials at the conclusion of the evidence of GS. At that stage, counsel for BW said that following the conclusion of the evidence of GS that it was clear that he was not making any allegations against her client BW, to the extent of saying that BW had never laid a hand on him. Reminding the Court that she had reserved her position at the start of the trial, she then formally applied for separate trials. It must be said the application at that stage was a surprising one and frankly it seems quite misconceived. GS had given his evidence in accordance with his statement in the book of evidence and nothing new had emerged to embarrass BW. There was no reason why the trial judge should depart from her earlier ruling refusing separate trials.

8 In relation to the substantial application on the first day, the trial judge took time to consider the matter before ruling on the issue. In the course of that ruling she commented:

'I note from the decision in DPP v. G.(L) there is a recommendation from the Court of Criminal Appeal that a trial judge should preferably ideally rule in advance on whether the evidence on the counts relating to the two complainants is cross admissible at the time of the application for separate trials is being made. This is not a straightforward matter, in the context where one has not heard the evidence, but on the basis of the information contained in the indictment in terms of location and dates, and on the basis of what I am told by the DPP about the manner of commissioning of offences and what I am told are patterns that will emerge in the course of the trial, in terms of how – things happened. It is submitted to me that there is system evidence and on that basis I propose to allow these charges to go ahead together and I refuse the application to sever.'

9 In this case, the prosecution were claiming so far as certain counts on the indictment were concerned that KS was abused by both co-accused present at the same time, and each behaved in an identical manner. It is inconceivable that these offences would not be dealt with together. So, the real question is whether the counts which alleged abuse of GS by FMcL should have been dealt with separately. In the Court's view there are many factors present to justify a joint trial. The nature of the physical abuse described by each of the complainants was very similar. Both complainants were saying that they were abused by trusted employees of their parents business, who took advantage of their parents'...