DPP v Hardiman

JudgeMacken, J.
Judgment Date19 October 2011
Neutral Citation[2011] IECCA 69
CourtCourt of Criminal Appeal
Date19 October 2011

[2011] IECCA 69


Macken, J.

Budd, J.

O'Keeffe, J.

[Rec. No. CCA 67/10]
DPP v Hardiman


DPP v K (B) 2000 2 IR 199

DPP v MEEHAN 2006 3 IR 468

DPP v MURPHY 2005 2 IR 125

DPP v COOKE UNREP CCA 11.5.2009 2009/15/3450 2009 IECCA 55



Severance - Sexual assaults - Sisters - Whether trial judge correct to refuse to sever indictment - Whether trial judge correct to admit corroborative evidence - Whether evidence of disturbance after assault can amount to corroboration - Judge's charge - Whether sufficient to draw jury's attention to important elements of case including any defence raised - Whether onus on accused to give explanation - Appeal refused (67/2010 - CCA - 19/10/2011) [2011] IECCA 69

People (DPP) v Hardiman

Facts The applicant was convicted following a trial in respect of a number of sexual offences. The applicant received various sentences ranging from two to five years. It was contended by the applicant that the convictions were unsafe in that the trial judge failed to sever the indictment so as to provide for separate trials in respect of each complainant. There was no corroboration in the individual cases and there was an obvious danger that the evidence of one complainant would be taken as the evidence of the other complainant. It was also submitted that the jury should have been discharged during the course of the trial and that evidence was admitted in the trial which was more prejudicial than probative. Issue was also taken with the fairness of the trial judge's charge to the jury.

Held by the Court of Criminal Appeal (Macken J delivering judgment) in refusing leave to appeal against conviction. There was no evidence of any prejudice to the accused in the evidence of either complainant as a result of the way in which the trial had been run. No error in law could be identified in the manner in which the trial judge had dealt with the application to sever the indictment. There was no automatic entitlement to have a jury discharged in circumstances where evidence had been given inadvertently in the course of a trial. The trial judge had reminded the jury that there was no corroborative evidence and had furnished warnings regarding the possible corroboration contended for by the prosecution. A charge to the jury did not have to include every single comment adduced on behalf of the defence or the prosecution, but must fairly draw the jury's attention to the important elements in the case. There was no risk that the trial was unfair arising from the content of the trial judge's charge.

Reporter: R.F.


Judgment of the court delivered by Macken, J. on the 19th day of October, 2011


This is an application for leave to appeal against conviction and sentence. The present judgment, in the usual way, is concerned only with the application for leave to appeal against conviction. The applicant faced fifty-one charges against two women, who were young girls at the time of the events. One count was in respect of buggery contrary to s.61 of the Offences Against the Person Act, 1861, against one of the girls, as well as a series of 39 counts of indecent assault against the same girl, and a further series of 20 counts of indecent assault against another girl. All the charges on one set date from between 1972 and 1979 and from 1978 to 1980 on count 1. In respect of the twenty indecent assaults, the subject of the remaining counts, these dated from 1968 to 1973.


On the 11 th December, 2009, following a trial at Galway Circuit Criminal Court, the applicant was convicted on all the foregoing counts, and, on the 24 th February, 2010, was sentenced as follows:

Count 1:

Five years imprisonment.

Counts 2 to 30:

Two years imprisonment to run concurrently with each other, and with the sentence imposed on count 1.

Counts 31 to 51:

Two years imprisonment in respect of each offence to run concurrently with each other, but to run consecutively to the sentence of five years imprisonment imposed on count 1, with the last year of

each such two year sentence imposed in respect of counts 31 to 51 to be suspended on terms.


By a Notice of Application for Leave to Appeal dated the 12 th March, 2010, the applicant sought leave to appeal. Insofar as the grounds are concerned, these are the following:


The convictions were unsafe, and against the weight of the evidence, in that:


1. the trial judge failed to sever the indictment so as to provide for separate trials in respect of each complainant;


2. the jury should have been discharged during the course of the trial upon the application of the accused;


3. evidence was admitted in the trial which was more prejudicial than probative;


4. the trial judge characterised evidence as being corroborative evidence which did not in law constitute the same;


5. the trial judge misdirected the jury in the course of his charge:


(i) By inviting the jury to place undue weight upon the fact that the accused did not give evidence.


(ii) By inviting the jury to discount the effect of conflicts within the prosecution evidence.


(iii) By failing to put the defence case properly to the jury.


Helpful written submissions were filed both on behalf of the applicant and of the respondent, which the Court had an opportunity to consider. Counsel on behalf of the applicant contends in oral submissions to this Court that there were, ultimately, two issues in these proceedings: (a) whether, on the evidence of the first complainant, the guilt of the applicant was established beyond reasonable doubt on each of counts 1 to 30; and (b) whether the guilt of the applicant was established beyond all reasonable doubt by the evidence of GC, supported by the evidence of MM, in respect of counts 31 to 51.


These stated issues are identical to issues arising, in the most general sense, in every criminal trial, since the prosecution must establish by admissible evidence that an accused is guilty beyond reasonable doubt of the charge(s) laid. Of more relevance are the specific grounds set out above invoked on behalf of the applicant in contending that this was not so, and that the convictions were unsafe. This Court deals with the application on the basis of the grounds as lodged.

Background Trial Context

An application was made on behalf of the applicant at the commencement of the trial to sever the indictments, on the basis that this "would alleviate some of the difficulty which has been recognised by the Court of Criminal Appeal for persons in the position of the applicant". This statement must be seen in the specific evidential context of this case. The indictment concerns two girls, and relates to acts of sexual abuse by a next door neighbour over a ten year period, commencing with one sister in 1968, and with the other sister in 1972, the abuse taking place both in the accused man's house and in the complainants' house. Mr. Giblin, senior counsel, contended there was an obvious danger in this case that a jury would make up for the absence of detail in an individual count, by having regard to evidence on other counts and to the fact that there are two complainants (in the present case, sisters). On its face, it is said, it is prejudicial to try an accused on an indictment of the current type "unless there is good reason from the point of view of the prosecution", for example, in the case of system evidence, which counsel did not consider was being contended for.


Mr. Fahy, senior counsel on behalf of the prosecution, in response, invoked the relevant section of the Criminal Justice Administration Act, 1924, which provides:


2 "(3) Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment."


Counsel pointed out that the matter is one entirely for the discretion of the trial judge and was not in any way mandatory. There was, in his view, an element of "a system" in the fact that the abuse, in general, took place in the absence of the mother of the two sisters (because she had to go out to work, and held down two or three jobs to provide for her family), and in the absence of their father who had an alcohol problem, and was either away from the house, or when in the house, was incapable of looking after the children. Counsel also contended that the offences were committed with an element of opportunity, and from that point of view the indictment had been framed in the manner in which it was. Counsel invoked the decision of Barron, J., in the DPP v. BK [2000] 2 I.R. 199, in which were summarised the principles emerging from the case law (dealt with extensively in that case), on the question of system evidence on the one hand, and similar fact evidence on the other hand, counsel adopting the following statement from that case:

"The rules of evidence should not be allowed to offend commonsense, so where the probative value of the evidence outweighs its prejudicial effect it may be admitted …".


Mr. Fahy did not suggest that the present case came strictly within the principles set out in that case, but did suggest that there was an "element of system" in the evidence which grounded the indictment, and it was therefore proper they be dealt...

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