DPP v G.H.

• Jurisdiction: Ireland
• Judge: Mr. Justice McCarthy
• Judgment Date: 08 May 2020
• Neutral Citation: [2020] IECA 130
• Docket Number: [19/2019]
• Court: Court of Appeal (Ireland)
• Date: 08 May 2020

BETWEEN

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

G.H

APPELLANT

[2020] IECA 130

Birmingham P.

McCarthy J.

Ní Raifeartaigh J.

[19/2019]

THE COURT OF APPEAL

Conviction – Rape – Unsatisfactory trial – Appellant seeking to appeal against conviction – Whether the trial was unsatisfactory

Facts: The appellant, on 21st November 2018, following a seven-day trial in the Central Criminal Court, was convicted in respect of one count of rape and four counts of sexual assault by majority jury verdicts. The appellant had pleaded not guilty to four counts of sexual assault, contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001, and three counts of rape, contrary to s. 2 of the Criminal Law (Rape) Act 1981, as amended by s. 21 of the Criminal Law (Rape) Act 1990. The appellant was sentenced to a term of seven years’ imprisonment with the final eighteen months of the sentence suspended for a period of three years in respect of count three, for the offence of rape, and to a term of five years’ imprisonment for the remaining counts of sexual assault. Those sentences were to run concurrently and backdated to 21st November, 2018. The appellant lodged an appeal against conviction and sentence, but the sentence appeal had not been pursued. The appellant submitted the following grounds of appeal: (i) that the judge erred in failing to give the jury a corroboration warning when requested to so by counsel for the appellant; (ii) that the judge erred in misdirecting the jury on the issue of consent and his instructions to the jury on this issue, insofar as it was relevant to the case, could only have served to have confused the jury; (iii) that when an overall view is taken, the trial was unfair, unsafe, and unsatisfactory; and (iv) that the judge erred in failing to give a so-called good character instruction.

Held by the Court of Appeal that it had not been persuaded to uphold any ground of appeal. The Court held that it had not been persuaded that the trial was unsatisfactory, or the verdict unsafe.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered by Mr. Justice McCarthy on the 8 ^th day of May 2020

1 On 21 ^st November 2018, following a seven-day trial in the Central Criminal Court, the appellant was convicted in respect of one count of rape and four counts of sexual assault by majority jury verdicts. The appellant had pleaded not guilty to four counts of sexual assault, contrary to s.2 of the Criminal Law (Rape) (Amendment) Act, 1990, as amended by s.37 of the Sex Offenders Act, 2001, and three counts of rape, contrary to s.2 of the Criminal Law (Rape) Act, 1981, as amended by s.21 of the Criminal Law (Rape) Act, 1990. The appellant was sentenced to a term of seven years’ imprisonment with the final eighteen months of the sentence suspended for a period of three years in respect of count three, for the offence of rape, and to a term of five years’ imprisonment for the remaining counts of sexual assault. Those sentences were to run concurrently and backdated to 21 ^st November, 2018. The appellant lodged an appeal against conviction and sentence, but the sentence appeal has not been pursued.

General Background

2 The complainant and the appellant lived in the same part of the country and shared a keen interest in horses and ponies and equestrian matters generally. The written submissions of the appellant summarise the narrative of the complainant and the allegations made by her against the appellant. It was accepted by the Director that the appellant’s account in that regard is an accurate one, and so we draw on it in providing a background to the issues raised on this appeal. In order to protect the complainant’s right to anonymity, we have referred to the complainant and appellant by initials. We have done likewise in the case of witnesses who gave evidence at trial, to the extent that it is necessary to refer to their evidence. Almost all witnesses would have had some involvement with horses and ponies. Because the equestrian community is a small one, we have avoided references to specific geographical areas. More unusually, to the extent that references will be made to particular horses and ponies, for reasons which will emerge, we have changed the names of the horses and ponies in question. We do so because we feel that to refer to a number of horses and ponies by name could lead to the identification of a particularly stables and livery service, and, by extension, to identification of the complainant.

3 The appellant had a farm and stable yard where he stabled horses and offered a livery service. The complainant lived in the same area, in a neighbouring village. The complainant’s family and the appellant’s family knew each other very well, sharing a common interest in horses and ponies, and moving in the same circles. The appellant was a family friend of the complainant’s family and they would see each other at pony clubs and showjumping events.

4 It is important to appreciate that each of the seven counts that appeared on the indictment related to specific incidents and specific allegations. Unlike many cases with multiple counts on the indictments, these were not sample counts or representative counts. Five of the seven counts on the indictment resulted in convictions by majority verdicts and two counts gave rise to disagreements among the jury. Subsequently nolle prosequis were entered in respect of those two latter counts. .

5 The complainant, Ms O.C, gave evidence that from the age of twelve onwards, one of her ponies was named “Maisie”. When she rode Maisie at competitions, her uncle asked her to ride a pony for the appellant, Mr. H, who would also attend these competitions with his son. When Ms. O.C turned 16 years in June 2010, her godmother gave her a horse called “Pirate” as a gift. The horse was brought to the farm and yard of the appellant in August or September, where it was trained by a man called K. The arrangement was that the horse was stabled at the yard of Mr. H and also that he was trained there. Ms. O.C would come to the premises to groom, wash, and ride the horse, as well as muck out the stables. Ms. O.C stated that she tried to get to the yard most evenings and weekends, but it would depend on what was happening at school. Normally, her mother or older sister would bring her to the stables, but sometimes, the appellant, Mr. H, would collect her from school. Ms O.C’s mother gave evidence to say that she used to bring O.C to the farm but when her own mother became ill and was dying, the appellant would pick up O.C from school.

6 The first alleged incident of sexual assault, Count 1 on the indictment, occurred in approximately November 2010. Ms. O.C’s evidence was that in “maybe November —”, when she would have been 16 years of age, she went to the premises to ride Pirate. As she was in the stable preparing, she left to get the tack, when Mr. H followed her out. Ms. O.C said that Mr. H pinned her against the wall, attempted to kiss her, and put his hands up her top, underneath her clothes, touching her sides and breasts. She said she asked him to stop and that she pushed him away and pinched him. She said that the appellant asked her not to pinch him because his partner C would see the marks. The complainant did not tell anyone about this incident at the time.

7 Ms. O.C. said that the second incident, which was the subject of Count 2 of the indictment, took place a short time after the first, “a few days or a week following”. The complainant had returned to the yard and had finished riding her horse when the incident occurred. She noted that she was in the tack room, sitting on the edge of the tack box, while waiting for the horses to cool down in order to be clipped when the appellant entered. Together she and Mr. H had “a few bottles of Miller”. He then pushed her backwards in an attempt to kiss her. She said she could feel the weight of Mr. H’s stomach on her and that he touched her sides, inside her clothing. She said that Mr. H later brought her home and she told no one about the incident.

8 In respect of the third count on the indictment, a rape count, Ms. O.C described the offence taking place in late Winter 2010 when she was sixteen years old. The circumstances behind the offending were that, early one morning, Mr. H had collected the complainant from her parents’ house so that the two of them could train the horses. Ms O.C said that Mr. H brought her into the kitchen of the house on the farm, and they had a few drinks. She said that she wanted to smoke, and the appellant suggested going upstairs so that they could smoke out the bedroom window. The complainant said they did go upstairs, where she was raped. She described the incident as follows:-

“[s]o, I was just sitting at the edge of the window, kind of half sitting, and I was smoking the cigarette out the window and G was standing and he was smoking as well. And when he threw his cigarette out the window, kind of, he kind of half lifted me over to the bed. He laid me down on the bed. And he placed my two legs up and he came in between me. And I asked him to stop, I told him I was only 17. His answer was ‘I was 17, but I was years above my age’. He took off one leg of my pants and he’d been touching me. I just froze. I was sick. He placed his penis inside me. And I could just feel him going up and down. Then I just remember he walked out and into the bathroom and I just put on my pants. He came back in and he told me he had stained his top, that he’d have to change it. I was so hurt.”

9 Insofar as the fourth incident is concerned, the complainant said that this occurred at a pony club meeting on a Friday night at the showgrounds of the county town in the first three months of 2011, when the complainant was still...