DPP v G (L)
| Jurisdiction | Ireland |
| Judge | Keane C.J |
| Judgment Date | 21 May 2003 |
| Neutral Citation | 2003 WJSC-CCA 3458 |
| Court | Court of Criminal Appeal |
| Date | 21 May 2003 |
2003 WJSC-CCA 3458
THE COURT OF CRIMINAL APPEAL
Keane C.J.
Lavan J.
Abbott J.
AND
Citations:
CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S6(3)
CRIMIMAL JUSTICE (ADMINISTRATION) ACT 1924 SCH 1 r3
DPP V KELLY (BRENDAN) 2000 2 IR 199 2000/7/2696
AG V DUFFY 1931 IR 144
R V SIMS 1946 1 KB 534
B V DPP 1997 3 IR 140
DPP V BROADMAN 1975 AC 421
O'C (P) V DPP 2000 3 IR 87
CONSTITUTION ART 38.1
O'CONNELL, STATE V FAWSITT 1986 IR 362
COURTS OF JUSTICE ACT 1924 S29
CRIMINAL LAW (RAPE) (AMDT) 1990
DPP V HERNON UNREP CCA 3.12.2001
CRIMINAL LAW (AMDT) 1935 S1(1)
CRIMINAL LAW (AMDT) 1935 S3
O'B V PATTWELL 1994 2 ILRM 465
DPP V E (F) UNREP SUPREME 24.5.1995 1997/2/557
COURTS OF JUSTICE ACT 1928 S5(1)(B)
Synopsis:
CRIMINAL LAW
Appeal
Sexual offences - Charge to jury - Separate trials - Delay - Burden of proof - Whether directions given by trial judge to jury inadequate - Criminal Justice (Administration) Act 1924, section 6(3) (118/2001 - Court of Criminal Appeal - 21/5/2003)
DPP v G (L) - [2003] 2 IR 517
The applicant was convicted of having inter alia raped his sister and assaulted another sister. He was refused leave by the trial judge to appeal in respect of the convictions and sentence and appealed from that refusal to the Supreme Court.
Held by the Court of Criminal Appeal (Keane C.J., Lavan and Abbott JJ) in treating the application for leave to appeal as an appeal and quashing the convictions that the directions given by the trial judge to the jury were not adequate. Having regard to the time which had elapsed between the commission of the offences and his trial the court was satisfied that the interests of justice would not be met by an order for a re-trial.
JUDGMENT of the Court delivered the 21st day of May 2003 , by Keane C.J.
The applicant was convicted by a jury in the Central Criminal Court on the 11 th July 2000 of having raped his sister, J., on a date unknown between the 1 st July 1973 and the 30 thJune 1978 and of three counts of having indecently assaulted her on dates unknown between the same dates. He was further convicted by the jury of having indecently assaulted M. also his sister, on a date unknown between the 9 th July 1974 and the 28 thJuly 1976. The presiding judge, Murphy J, sentenced the applicant to a term of imprisonment of 3½ years in respect of the rape conviction, a concurrent term of 18 months imprisonment in respect of the conviction for indecently assaulting M. and a concurrent term of 18 months imprisonment in respect of the three counts of having indecently assaulted M. Having been refused leave by the trial judge to appeal in respect of the convictions and sentence, he has now appealed from that refusal to this court.
All of the offences were alleged to have been committed in what was then the family home of the applicant and the two complainants, in a Dublin suburb. The first complainant was born on the 1 st June 1965 and, accordingly, would have been aged between 8 and 13 at the relevant time. The second complainant was aged between 4 and 6 when she was alleged to have been indecently assaulted by the applicant. The applicant was born on the 17 th August 1958 and, accordingly, was aged between 14 and 19 during the period in respect of which the charges concerning the first complainant were brought and between 15 and 17 during the period in respect of which the charge concerning the second complainant was brought.
The applicant and the two complainants were one of a family of 12 children, 6 boys and 6 girls, who lived with their parents in extremely poor circumstances, first in the inner city, and later in the house in the suburbs. In her evidence at the trial, the first complainant gave evidence of the applicant having had penetrative sexual intercourse with her in the family home on a number of occasions, beginning when she was approximately 7 or 8 and ending when she left primary school at the age of 13. She said this happened on 15 or 20 occasions. She also gave evidence of other contacts of a sexual nature which had occurred between the applicant and herself during the same period. She also gave evidence of an occasion when she was alone in the house with the applicant and thought that the same conduct was going to occur again and she intended to hit him with a hot poker but instead hit herself in the face with the poker.
In cross-examination, the complainant said she had a sister, A., who was six years older and to whom she was particularly close. She said that she had told her and the second complainant of this conduct. She also told two other sisters and a brother what had been happening. A. had died on the 13 th September 1997.
The complainant said that the first time she fully realised the nature of what had happened to her as a child was in 1986 after her eldest daughter was born. She said at that stage she received counselling and also saw two doctors. She agreed, however, that she did not go to the gardaí until 1997 following an altercation between her mother and the second complainant. She said that sometime earlier, in 1998, she had discussed what had happened when she was a child with the applicant and said to him "you abused me when I was a child." She said that his response was to say "No we were only messing. I didn”t".
The second complainant gave evidence of an incident which she said occurred on a Hallowe'en night when she was aged either 5 or 6 and the applicant tried unsuccessfully to have vaginal intercourse with her but ultimately had oral sex with her. She said that at some time unspecified but much later in life she raised the question of his conduct with the applicant and he said "Well can we just not forgive and forget it now." She said that she had at some stage gone to a doctor and that she had also discussed the episode with her sister, the first complainant, and that, after she had had an altercation with her mother, she had decided to go to the gardaí with the first complainant.
The applicant gave evidence and denied that the sexual conduct of which the complainants had given evidence had ever occurred. A number of members of his family, including his father, three sisters and two brothers also gave evidence and said that they were unaware of any such sexual episodes having occurred in the house during the periods in question. The applicant, in his evidence, said that he had lived away from home for a period of some 16 months during the period when it was alleged the episodes in question were taking place. He said that he had stopped living in the house as from the age of 21 when he got married.
The trial judge directed the jury to find the applicant not guilty in respect of 3 of the 6 counts of having indecently assaulted the first complainant. He was unanimously convicted on the remaining three counts of having indecently assaulted the first complainant and by a 10/1 majority verdict of one count of having raped the first complainant. (One of the jury was excused by the trial judge during the course of the trial.) He was unanimously convicted of the count of having indecently assaulted the second complainant.
The grounds of appeal relied on at the hearing were:
(1) That the trial judge was wrong in law in not acceding to an application on behalf of the applicant to direct separate trials in respect of each complainant;
(2) That the trial judge was wrong in law in not acceding to an application on behalf of the applicant to prevent the continuation of the trial on the grounds of delay;
(3) That the trial judge failed to set out the relevant principles of law relating to the offence of rape;
(4) That the trial judge failed adequately to direct the jury on the burden and standard of proof, the meaning of a reasonable doubt and the presumption of innocence;
(5) That the indictment failed to provide adequate particulars of the date of commission of the alleged offences and the prosecution failed to adduce evidence in respect of each count on which the jury would have been entitled to reach the verdict that they did.
Counsel on behalf of the applicant applied to the trial judge before the case was opened to the jury on the 3 rd July 2000 for an order directing separate trials in respect of the 12 counts relating to the first complainant on the one hand and the single count relating to the second complainant on the other, which application was refused by the trial judge.
It was accepted on behalf of the applicant on the hearing of the appeal that a broad discretion was vested in the trial judge as to whether or not to order separate trials and that the necessity to make such an order only arose where particular features of the case made a joint trial of the several counts prejudicial or embarrassing to the accused. It was submitted, however, that in the present case the evidence in respect of the counts concerning the first complainant would not be evidence in respect of the count concerning the second complainant and vice versa. It was said that, in such circumstances, there was a danger that the jury would have regard to the cumulative effect of evidence in respect of offences of the same character. Alternatively, it was submitted that, if the counts were not severed, it was incumbent on the trial judge to give a clear direction to the jury that they should consider the counts in respect of the first complainant on the one hand and the count in respect of the second complainant on the other hand separately. It was submitted that no such direction had been given in the present case.
Section 6(3) of the Criminal Justice (Administration) Act 1924provides that
"Where, before...
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