DPP v Garvey

• Jurisdiction: Ireland
• Judge: Mr. Justice Hedigan
• Judgment Date: 31 July 2018
• Neutral Citation: [2018] IECA 280
• Docket Number: [156/17]
• Court: Court of Appeal (Ireland)
• Date: 31 July 2018

The People (at the suit of the Director of Public Prosecutions)

Respondent

And

Sean Garvey

Appellant

[2018] IECA 280

[156/17]

THE COURT OF APPEAL

Crime & sentencing – Sexual offences – Sexual assault – Appeals against conviction and sentence dealt with separately

Facts: The appellant had been convicted of a single count of sexual assault carried out on a child. He was sentenced to 7 years imprisonment with a period suspended. He sought to appeal against both his conviction and sentence, with each being dealt with by separate judgments.

Held by the Court that the appeal would be dismissed. The appellant's grounds of appeal in respect of the evidence of the complainant child, the lack of a corroboration warning and failure to give reasons did not reveal any grounds for overturning his conviction.

JUDGMENT of the Court delivered on the 31st day of July 2018 by Mr. Justice Hedigan

1 The appellant was convicted on 17th May, 2017 following a trial by jury in the Cork Circuit Criminal Court of a count of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by section 37 of the Sex Offenders Act 2001. He was sentenced on 1st June, 2017 to seven years imprisonment with the last two years suspended. The appellant has appealed against conviction and severity of sentence, however this appeal deals with the conviction aspect only.

Background

2 The offence in question is alleged to have occurred on 6th February, 2016. The complainant was 10 years old at the time of the offence. The evidence of the complainant was given to the jury by way of DVD. She had previously been interviewed by specialist Gardaí for the purposes of giving evidence in court. She was cross-examined by the defence via video-link before the jury. The complainant alleged that on the night in question, she was at a sleepover at her friend's house. Both girls were sleeping in the same bedroom. Her friend's mother's partner was the appellant. Both were present in the house. At some time during the night, the complainant stated that she was woken from her sleep, and found herself in the appellant's arms. He convinced her to go out to the landing and asked her to go downstairs with him, as he wanted to talk to her about something. She asked to go to the bathroom, which she did. She stated that the appellant pushed open the door of the bathroom after a time and dragged her downstairs. All the lights were off in the house. He took her into a room and sat her on the couch. At this stage, the complainant stated that she was attacked by the appellant as he put his hands down her pyjamas. He touched her private parts as well as putting his hands up her top, groping her breast area. She stated that she fought him off by kicking him and ran back upstairs to her friend's room. She locked the door. She told her friend's mother what had happened the following morning upon which her friend's mother contacted the complainant's own mother.

Grounds of Appeal

3 The learned trial judge erred in law in refusing the appellant's application for a direction in the case.

4 The learned trial judge erred in law in failing to give a corroboration warning in the particular circumstances of the case.

Submissions of the Appellant

5 It is submitted that the learned trial judge erred in law in refusing the appellant's application for a direction in the case. The application was based upon what is commonly referred to as the second leg in the case of R v. Galbraith, whereby some evidence exists in a case, however, it is 'of a tenuous character [...] because of inherent weakness or vagueness or because it is inconsistent with other evidence'.

6 Counsel for the appellant draws attention to the inconsistencies given in the complainant's evidence: for example, the fact that she had an iPad to contact others and that she was using the iPad after the alleged assault; the difficulties in terms of the mechanics of what occurred, for example, that the lights were off throughout the house; the fact that the girls' room was very close to where the mother of the complainant's friend was sleeping and that the complainant's friend's mother stated in evidence that she had heard nothing on the night in question; the fact that the complainant stated that she locked the door and that her friend's mother opened the door from the outside, as she had a key; the evidence of the friend's mother that were no keys for the doors in the house; the fact that the complainant gave evidence of her clothes being pulled at when she was wearing a tight-fitting crop-top; the fact that the complainant told her friend's mother that what had happened only involved the appellant touching her belly area.

7 It is submitted that in this case there were numerous inconsistencies, and matters which simply did not seem believable - nobody had heard anything and the sheer mechanics of what occurred appear improbable. All of these are matters go to the very core of the credibility and the reliability of the evidence of the complainant. In circumstances where the complainant's evidence was the only evidence against the appellant in the case, the learned trial judge erred in law in failing to grant a direction in this matter.

8 It is submitted that the learned trial judge erred in law in failing to give a corroboration warning in the particular circumstances of the case. Even if the inconsistencies in the case are not sufficient for this Court to conclude that the learned trial judge erred in refusing to grant a direction, they are sufficiently serious such that the learned trial judge should have given a corroboration warning in the case.

Submissions of the Respondent

9 The learned trial judge considered the application and correctly refused to grant the application for a directed verdict. The evidence of the complainant was consistent and free from vagueness in the essential matters – that she was sexually assaulted by the appellant. Counsel cites the decision of DPP v M [2015] IECA 65, wherein it was stated in dealing with the issue of the refusal to grant a direction:

'Approaching matters in that way, this Court finds itself in agreement with the respondent that in the present case the trial judge's decision on the application for a direction was a legitimate exercise of his discretion, and one that was made within jurisdiction. The mere fact that aspects of the complainant's evidence might be characterised by some, as counsel for the appellant sought to do, as 'bizarre' and 'extraordinary' and 'outside of the norm' did not render it unfair that the jury should be asked to consider that evidence. Whether it was correct...