DPP v E.I.
| Jurisdiction | Ireland |
| Judge | Mr. Justice McCarthy |
| Judgment Date | 07 March 2019 |
| Neutral Citation | [2019] IECA 73 |
| Docket Number | [199/2017],[C.A. No. 199 of 2017] |
| Court | Court of Appeal (Ireland) |
| Date | 07 March 2019 |
[2019] IECA 73
THE COURT OF APPEAL
McCarthy J.
Birmingham P.
McCarthy J.
Kennedy J.
[199/2017]
Conviction – Sexual assault – Discharge jury – Appellant seeking to appeal against conviction – Whether the trial judge fell into error in failing to discharge the jury when requested to do so
Facts: The appellant appealed to the Court of Appeal against his conviction on the 12th of December 2016 at Waterford Circuit Court on two counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) Amendment Act 1990. On the 25th of April 2017 he was sentenced to three years’ imprisonment with the final year suspended. The appellant relied on the propositions that the trial judge fell into error in: (a) his refusal of the application for a direction by the appellant; (b) the manner in which he exercised his discretion in refusing to give a corroboration warning; and (c) his failure to discharge the jury when requested to do so.
Held by the Court that the judge was right not to discharge the jury because the error was capable of being remedied by, exceptionally, permitting defence counsel to reopen her speech to address it; such a course would have fitted seamlessly into the course of the trial as the last step taken prior to the debate about the error was counsel’s speech. The Court thought that the judge fell into error in refusing the application to be permitted to do so because of the seriousness and significance of the error and the large place it had taken in the defence case as advanced to the jury by counsel; the credibility of the complainant was fundamental and anything by way of evidence of fresh complaint or inconsistent with her version as given in evidence took on a particular importance. The Court thought accordingly that the refusal went beyond the undoubtedly wide margin of discretion vested in the judge.
The Court held that the conviction was unsafe and unsatisfactory. The Court accordingly quashed it.
Appeal allowed.
This is an appeal by the Appellant against his conviction on the 12th of December 2016 at Waterford Circuit Court on two counts of sexual assault contrary to Section 2 of the Criminal Law (Rape) Amendment Act, 1990. On the 25th of April 2017 he was sentenced to three years” imprisonment with the final year suspended.
The appellant is the father of the complainant. At trial, the complainant said that she regularly stayed with him, her stepmother and her brother at weekends. On the weekend of the 30th of January 2015, when she was thirteen, and was staying with the appellant, he showed her a pornographic video. Following that, when she was lying on her bed, he sexually assaulted her by removing her shorts and inserting his finger into her vagina. He removed it, licked it, and placed it back inside her again. The complainant said that he then attempted to penetrate her with his penis but she left the room.
On the following day, the 31st of January 2015, the complainant went into the appellant's room to use the shower in the en-suite bathroom – the only shower in the house. After using it she re-entered the bedroom to find him sitting on the bed, and following which he proceeded to sexually assault her for a second time.
Her evidence in chief was given in the form of an electronically recorded interview conducted by specialist Gardaí. The prosecution case was reliant on the uncorroborated evidence of the complainant.
The complainant's mother D. R. said that the complainant rang her on the 31st of January 2015 at approximately 7 or 9 a.m. (she was abroad and not sure as to the time due to the differences in time zones) and was ‘quite upset’. She wanted to go home (she was still in her father's house) but the witness did not understand why. Her daughter told her she didn't feel well. She told her that if she wished to go home she could do so but should wait to be collected (her step-father could not drive). The complainant rang her again around midday, from home, and then around midnight Irish time. On the latter occasion she was hysterical, crying and could not sleep. She could not understand what she was saying but told the witness that her dad had touched her. Mrs R. told her to call her step-father Y. R. She told her that her father had ‘touched me in my private parts’; the witness became hysterical herself. It was suggested to her in cross-examination that she had not told the Gardaí that in the course of the first phone call that her daughter was ‘upset’ in answer to which she said that her daughter was ‘strange’; the witness was surprised as the complainant liked going to the accused's house. The complainant's step-father Mr. R., in his evidence described the fact that, as we understand it, at the time of the third phone call, the complainant told him that on the previous night that when they were watching a pornographic film, the appellant invited her to take off her clothes and, as the witness put it, ‘tried to touch her everywhere.’ Notwithstanding her protests, the complainant had also told the appellant, the witness said, as to the events after the shower on that morning that the accused ‘tried to touch’ her. He described her tears and state of upset during the course of that day as well as her desire for her mother's company and assistance.
During the course of her speech to the jury, Ms. Morgan counsel for the appellant (as he now is) heavily emphasised what she understood to be the evidence of the complainant's mother and step-father and, in the case of her mother, her understanding was erroneous. The relevant passage from the speech is as follows:-
‘The call to mum, ‘I'm sick.’ The call to mum later on Saturday afternoon, nothing about what is now alleged. And then finally the call in the late hours of Saturday evening where the allegation is made. But it's not that allegation that's made in the evening of Saturday; it's an allegation but an allegation of an entirely different nature. Because what she says to mam on the phone on Saturday evening is; ‘He tried to touch me.’ Very, very different than what's now being alleged. ‘He tried to touch me.’ Now her mum describes that she was upset and distressed and she did a very sensible thing, she went and she asked that she would talk to her stepdad who was in the house and take it more at a slower pace or whatever. And he talks to her and he gave evidence as well and he was told that my client had tried to touch her. Not that he had touched her, not that he had penetrated her, not that he had exposed his penis but that he had tried to touch her. That was the extent of the allegation. Small beans relative to what is being alleged now. But you see, like all things the story grows.’
This error was pointed out by the judge after counsel's speech and he referred to the fact that counsel apparently believed that ‘ the daughter had complained that the dad had simply tried to touch her in her private part’ whereas, of course, the mother's evidence had been to the effect that her father had actually touched her. The judge further said that he...
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