DPP v H. M

• Jurisdiction: Ireland
• Judge: Mr Justice Edwards
• Judgment Date: 30 August 2021
• Neutral Citation: [2021] IECA 240
• Docket Number: Record No: 26CJA/20 & 16/20 & 25CJA/20 & 18/20
• Year: 2021
• Court: Court of Appeal (Ireland)

Between/

Director of Public Prosecutions

Applicant/Respondent

and

H. M.

Respondent/Appellant

And Between/

Director of Public Prosecutions

Applicant/Respondent

and

B. O.

Respondent/Appellant

[2021] IECA 240

The President

Edwards J.

Kennedy J.

Record No: 26CJA/20 & 16/20 & 25CJA/20 & 18/20

Bill No: DUDP 147 / 2018

THE COURT OF APPEAL

Convictions – Female genital mutilation – Directions – Appellants seeking directions – Whether a joint medical examination of the injured party was warranted

Facts: The appellants were tried on indictment before a jury at Dublin Circuit Criminal Court, and on the 28th of November 2019 were each convicted of: (i) an offence of female genital mutilation (FGM) contrary to s. 2 of the Criminal Justice (Female Genital Mutilation) Act 2012; and (ii) an offence of child cruelty contrary to s. 246(1) of the Children Act 2001. The alleged injured party in both cases was their daughter. The appellants each received custodial sentences. They each appealed to the Court of Appeal against both their convictions and sentences. The appeal was listed for hearing on the 7th and 8th of October, 2021. By a Notice of Motion dated the 21st of January 2021, the appellant father sought the following orders: (1) an order pursuant to s. 3(3) of the Criminal Procedure Act 1993 permitting the applicant to adduce at the hearing of the appeal the additional evidence of Mr MacGuill, Professor Essén and Dr Phelan; (2) if necessary, an order pursuant to s. 3(3) of the 1993 Act providing for directions as to other steps to be taken in regard to and arising from the matters referred to. Pursuant to paragraph 2, the appellant father sought a specific direction that in advance of the appeal hearing the injured party should be required to submit to a joint medical examination by experts in FGM nominated by the prosecution and by the defence respectively, and if necessary be required to travel abroad for the purposes of being so examined. By a Notice of Motion also dated 21 January 2021, the appellant mother sought the following orders: (1) an order pursuant to s. 3(3) of the 1993 Act permitting the applicant to adduce at the hearing of the appeal the additional evidence of Ms Kinane and Professor Essén; (2) if necessary, an order pursuant to s. 3(3) of the 1993 Act providing for directions as to other steps to be taken in regard to and arising from the matters referred to; (3) an order providing for the amendment of the Grounds of Appeal by the inclusion of the following ground of appeal - “Having regard to the evidence adduced on foot of an order providing for the hearing of fresh evidence in the appeal herein including in particular the evidence as set out in the report of Professor Birgitta Essén exhibited therein, and having regard to all the circumstances, the verdict is unsafe and the trial was unsatisfactory”. At page 44, lines 23 to 26 of the transcript of 25 March 2021 counsel stated: “Dr I.’s legal representatives have indicated that he would have no difficulty complying with the request or direction from the Court and I do ask the Court to ask Dr I. to review the 2019 video and to indicate whether this affects the opinion and comments that he has made which are before the Court.”

Held by the Court that it may assist it in arriving at a definitive view on where the interests of justice lay to hear the proposed testimony to be adduced by the appellants from Professor Essén, and to hear her being tested in cross-examination. The Court therefore permitted evidence to be adduced from her for that limited purpose. The Court held that in the interests of fairness and balance, the prosecution should also recall their experts, i.e., Mr Paran, Dr Harty and Dr Hodes, to respond to any views expressed by Professor Essén. The Court wanted Dr Harty to give sworn oral evidence before it concerning her attempts at further examination, and the actual further examination conducted by her on the 19th of October 2019, which matters were undisclosed before the trial, and to submit to cross examination by counsel for the appellants in regard to that should they wish to do so. The Court would facilitate any party who wished to have their expert or experts testify by video link. The Court was of the view that a joint medical examination of the injured party was not warranted on the evidence before it and it refused to the direction sought in that regard. In the Court’s assessment, the dispute between the experts was capable of being resolved in the context of the limited hearing of additional evidence that it was proposing, on the basis of examination and cross-examination of the relevant experts concerning their expertise and experience, concerning what was or was not said to be capable of being seen on the various colposcopy recordings, and concerning the manner of conducting, and what was found in the course of, the various physical examinations that had taken place. The Court was not disposed to direct Dr I., who was not an actual witness at the trial, to comment on the colposcopy recording of the examination of the injured party on the 19th of October 2019, in circumstances where he did not wish to do so and had been independently advised not to do so. The Court did not consider that it would assist it with respect to the issues it had to decide on the appeal to have Dr I.’s views on that recording.

Motions for directions.

JUDGMENT of the Court delivered on the 30th day of August, 2021 by Mr Justice Edwards

Introduction

1 The accused/appellants in these two related cases are the applicants in the motions before the Court. For simplicity, and for the avoidance of confusion, they will hereinafter be referred to simply as “the appellants”, or where necessary individually as “the appellant HM” and “the appellant BO”. They are husband and wife, respectively, and are the parents of a little girl “S”.

2 The appellants were tried on indictment before a jury at Dublin Circuit Criminal Court, and on the 28th of November 2019 were each convicted, of (i) an offence of female genital mutilation (“FGM”) contrary to s.2 of the Criminal Justice (Female Genital Mutilation) Act, 2012; and (ii) an offence of child cruelty contrary to s.246(1) of the Children Act 2001. The alleged injured party in both cases was “S”. The appellants each received custodial sentences. They have each now appealed to this Court against both their convictions and sentences. The appeal is listed for hearing on the 7th and 8th of October, 2021.

3 This judgment is in respect of applications by the appellants pursuant to s.3(3) of the Criminal Procedure Act 1993 seeking directions from this court in advance of the hearing of their appeals in respect of certain matters.

The Court's Jurisdiction to Give Directions

4 Section 3 of the Criminal Procedure Act 1993 sets out the jurisdiction of the Court of Appeal on the hearing of appeals against either conviction or sentence in criminal matters. Subsection (1) lists the substantive orders that the Court may make on the hearing of an appeal against conviction, while subs. (2) similarly specifies the substantive orders that the Court may make on the hearing of an appeal against sentence. Subsection 3 then sets out the Court's entitlement to give procedural directions, and it provides:

“(3) The Court, on the hearing of an appeal or, as the case may be, of an application for leave to appeal, against a conviction or sentence may—

• (a) where the appeal is based on new or additional evidence, direct the Commissioner of the Garda Síochána to have such inquiries carried out as the Court considers necessary or expedient for the purpose of determining whether further evidence ought to be adduced;

• (b) order the production of any document, exhibit or other thing connected with the proceedings;

• (c) order any person who would have been a compellable witness in the proceedings from which the appeal lies to attend for examination and be examined before the Court, whether or not he was called in those proceedings;

• (d) receive the evidence, if tendered, of any witness;

• (e) generally make such order as may be necessary for the purpose of doing justice in the case before the Court.”

The Directions Being Sought

5 For the purposes of these motions we are concerned only with the appeal against conviction. To place the directions being sought in context it is necessary to review the grounds of appeal against conviction which are to be advanced.

6 In the case of the appellant HM, by a Notice of Appeal dated the 29th of January 2020 it is indicated that he proposes to appeal his conviction on the grounds that:

• 1. The appellant did not receive a trial in due course of law in that he did not have available to him appropriate expert evidence that would have allowed him to challenge the evidence proposed by the respondent concerning injury to his daughter.

• 2. The appellant did not receive a trial in due course of law where the translation of his testimony in both evidence in chief and cross-examination before the jury was so inaccurate that the appellant was denied the right to give evidence in his own defence.

• 3. The trial was unsatisfactory in that the defence relied on purported expert opinion in relation to a crucial issue which after the trial was proved not to have been founded on an appropriate examination of relevant materials and which misled the defence.

7 The said Notice of Appeal then contains the further assertion:

“The appellant reserves the right to amend the within grounds of appeal and/or adduce further grounds of appeal upon inter alia physical examination of the injured child.” (this Court's emphasis).

8 In contrast, the Notice of Appeal, dated 20 February 2020, filed by the appellant BO only puts forward a single ground of appeal against conviction, namely, that:

“1. The verdict of the jury on both counts was perverse.”

9 However,...