DPP v G.C.

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Edwards
Judgment Date21 February 2017
Neutral Citation[2017] IECA 43
Docket NumberRecord No: 2015/88
Date21 February 2017
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
V
G. C.
Appellant

[2017] IECA 43

Edwards J.

Birmingham J.

Sheehan J.

Edwards J.

Record No: 2015/88

THE COURT OF APPEAL

Conviction – Indecent assault – Error in law – Appellant seeking to appeal against conviction – Whether trial judge erred in law and in fact

Facts: The appellant was convicted by a jury at Naas Circuit Criminal Court on 17th December 2014 of two counts of indecent assault contrary to common law and as provided for by s. 6 of the Criminal Law Amendment Act 1935, and three counts of indecent assault contrary to common law and as provided for by s. 10 of the Criminal Law (Rape) Act 1981. The appellant was sentenced to two years imprisonment on counts 1 and 3, respectively, which was to date from 24th March 2015. The appellant was further sentenced to three years imprisonment on counts 25, 35 and 36, respectively, with the final 12 months of the said sentences suspended in each case upon conditions, the said sentences also to date from 24th March 2015. All five sentences were to run concurrently. The appellant appealed to the Court of Appeal against his conviction on the grounds that trial judge erred in law and in fact in: (i) refusing to direct the particularisation of the indictment by the prosecution; (ii) permitting the prosecution to lead evidence of matters not referred to by the prosecution in opening the case to the jury; (iii) refusing to discharge the jury on the opening of the case following the statement by the prosecution that the respondent had come to the conclusion that this was a strong case in directing a prosecution; (iv) refusing to discharge the jury on the opening of the case following the emphasis placed by prosecuting counsel on the physical and mental health of the alleged injured party as explanation for her delay in reporting the allegations; (v) permitting the prosecution to lead hearsay evidence from L.F. that S.D. had warned her not to stay overnight with the appellant as a child; (vi) permitting the prosecution to lead evidence from the alleged injured party’s counsellor and General Practitioner; (vii) failing to direct a not guilty verdict on counts 1, 3, 4, 5, 6, 7 and 8, where there was no evidence upon which the jury might properly conclude beyond a reasonable doubt that the appellant was guilty; (viii) failing to direct a not guilty verdict on counts 35 and 36, where there was no evidence upon which the jury might properly conclude beyond a reasonable doubt that the appellant was guilty; (ix) failing to direct a not guilty verdict on count 25 where the digital recording of the evidence was unclear and on one interpretation or listening, there was no evidence upon which the jury might properly conclude that the appellant was guilty beyond a reasonable doubt; (x) failing to withdraw the case from the jury on the basis that it was impossible for the appellant to receive a fair trial in circumstances where he had been indicted on 37 counts, the case had been opened on that basis, and the prosecution had failed to lead any evidence in respect of 27 thereof; (xi) failing to withdraw the case from the jury on the grounds of delay.

Held by the Court that the trial might have run more smoothly and efficiently if a better particularised indictment had been preferred, but in circumstances where a solution to the perceived problem was adopted by the trial judge in the legitimate exercise of his discretion, and it was one that did not in fact result ultimately in any unfairness, the Court was not disposed to characterise the trial judge’s approach as having been erroneous in principle. The Court was satisfied that counsel for the prosecution did not stray beyond the bounds of propriety in outlining what evidence the prosecution would be relying upon, and what the prosecution case would be, concerning why there had been delay in reporting the alleged abuse. The Court was satisfied that the complaint that the trial judge ought to have withdrawn count 25 from the jury was not made out. The Court rejected the complaint that it was impossible for the appellant to receive a fair trial in circumstances where he had been indicted on 37 counts, the case had been opened on that basis, and the prosecution had failed to lead any evidence in respect of 27 thereof. The Court held that while it was regrettable that a small amount of hearsay evidence was given by L.F. before the jury, it was not so prejudicial as to have justified the trial judge in discharging the jury. The Court was satisfied that the evidence that witnesses gave before the jury concerning the complainant’s medical and psychological state was both relevant and probative in terms of providing a possible explanation for her delay in formally reporting the matter.

The Court held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on 21st February 2017 by Mr. Justice Edwards .
Introduction
1

In this case, the appellant was convicted by a jury at Naas Circuit Criminal Court on 17th December 2014 of two counts of indecent assault contrary to common law and as provided for by s. 6 of the Criminal Law Amendment Act 1935, and three counts of indecent assault contrary to common law and as provided for by s. 10 of the Criminal Law (Rape) Act 1981.

2

There had initially been thirty seven counts on the indictment, each of which alleged indecent assault. Of the original thirty seven counts just ten were allowed to go to the jury those being counts numbers 1, 3, 4, 5, 6, 7, 8, 25, 35 and 36. The jury convicted the appellant by a majority verdict on counts numbers 1, 3, 25, 35 and 36 respectively on the indictment and acquitted him on the remaining five counts.

3

The appellant was sentenced to two years imprisonment on counts numbers 1 and 3, respectively, which was to date from 24th March 2015. The appellant was further sentenced to three years imprisonment on counts numbers 25, 35 and 36, respectively, with the final 12 months of the said sentences suspended in each case upon conditions, the said sentences also to date from 24th March 2015. All five sentences were to run concurrently.

4

The appellant now appeals against his conviction. There is also a cross-appeal by the Director of Public Prosecutions pursuant to s. 2 of the Criminal Justice Act 1993, seeking a review of the sentences imposed on each of the offences of which the appellant was convicted on the grounds that they were unduly lenient. This judgment is only concerned with the appeal against the appellant's conviction.

Summary of the Relevant Evidence
5

All of the counts in respect of which the appellant was convicted involved a single complainant, S.D. At the date of the trial, the complainant was a married woman aged 43 and was herself the mother of two girls aged 17 and 14 years. As a child, the complainant had lived at a particular address in County Kildare (‘address no 1’) from the age of four. Her family had moved into the house at that address, which was in a housing estate, in March 1975. They later moved again to a bungalow in another part of County Kildare (‘address no 2’) in July 1985 when the complainant was 14 years old. The original family home of the complainant's mother (‘address no 3’) was located approximately two miles from address no 1 and this was where the complainant's grandfather lived with his two sons, of whom the youngest was the appellant, G.C.

6

The complainant and her younger brother made frequent visits with their mother to address no 3, and during the summer holidays the complainant's father would drop the complainant and her brother up there when he was going to work and they would spend all day up there. The indecent assaults were said to have started at address no 3 when the complainant was about six years old and involved the accused masturbating in front of her in the barn. The complainant said it happened again that year while she was six years old. The complainant stated that during the time she lived at address no 1 she visited address no 3 four days out of seven, and during the school holidays she was there five days a week. As time went on the type of abuse became more serious and involved the accused putting his hands inside her vagina. These more serious incidents of indecent assault occurred initially at address no 3 but subsequently the complainant was also abused in this fashion at address no 1. Later again, the complainant was also subjected to sexual assaults at address no 2 after the family had moved there, when she was 14 years old and in secondary school. At this time, the sexual assaults consisted of acts of oral sex perpetrated by the accused on the complainant. The abuse stopped when the complainant was about 14 and a half years old when she made disclosures to other members of her family in phased stages.

Grounds of Appeal
7

The appellant seeks to appeal his conviction on the following grounds:

(i) The trial judge erred in law and in fact in refusing to direct the particularisation of the indictment by the prosecution.

(ii) The trial judge erred in law and in fact in permitting the prosecution to lead evidence of matters not referred to by the prosecution in opening the case to the jury, the prosecution having resisted the appellant's request to particularise the indictment on the basis that the prosecuting case would be fully particularised in the opening.

(iii) The trial judge erred in law and in fact and in fact in refusing to discharge the jury on the opening of the case following the statement by the prosecution that the respondent had come to the conclusion that this was a strong case in directing a prosecution.

(iv) The trial judge erred in law and in fact in refusing to discharge the jury on the opening of the case following the emphasis placed by prosecuting Counsel on the physical and...

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3 cases
  • DPP v K.A.
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    ...And secondly, the complaint in relation to the 999 call is also absolutely admissible and highly probative evidence.' 6 In DPP v. GC [2017] IECA 43, Edwards J. in delivering the court's judgment approved and endorsed the following statement from R v. Valentine [1996] 2 Cr App R 213, as fo......
  • Donoghue v Connolly
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    ...maintain his innocence in respect of the alleged offences. There is a publicly available judgment of the Court of Appeal ( DPP v. G.C. [2017] IECA 43, Edwards J.) rejecting the Defendant's appeal. The evidence of the prosecuting guard was not contested in this respect. This witness was in a......
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