DPP v J.C. (No. 1)

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 14 November 2015
• Neutral Citation: [2015] IECA 343
• Docket Number: 124/13
• Court: Court of Appeal (Ireland)
• Date: 14 November 2015

[2015] IECA 343

THE COURT OF APPEAL

Birmingham J.

Sheehan J.

Edwards J.

124/13

The People at the Suit of the Director of Public Prosecutions

Respondent

V

J.C. (No. 1)

Appellant

Conviction – Sexual offences – Severance of indictment – Appellant seeking to appeal against conviction – Whether severance should have been ordered

Facts: The appellant, on the 7th February, 2013, following a six day jury trial at Limerick Circuit Criminal Court, was convicted on ten counts of indecent assault alleged to have occurred between 1988 and 1992 against the younger sister and nieces of the appellant's former wife and three counts of sexual assault alleged to have occurred between 2001 and 2011 against the appellant's son and daughter. Prior to the commencement of the trial, the defence made an application to the trial judge to sever the indictment and in so doing relied on the judgment of the Court of Criminal Appeal in DPP v B.K. [2000] 2 IR 199 and s. 6(3) of the Criminal Justice Amendment Act 1924. The appellant submitted in the first instance that the counts, insofar as they related to separate complainants, should have been tried separately. He then went on to say that even if he was not entitled to have the counts severed in that way, when further analysed the counts broke down into two separate tranches and the trial judge ought to have severed the indictment in that way. On the 3rd May, 2013 the appellant was sentenced to ten years imprisonment with the final two years of that sentence suspended. The appellant appealed to the Court of Appeal against conviction and sentence on the grounds that severance should have been ordered, the trial judge failed to properly summarise the defence case and the trial judge failed to deal adequately with the issue of delay. The appellant also submitted that the trial judge had erred in his ruling when he suggested that there was a striking similarity between the offences, citing Attorney General v Duffy [1931] IR 144. The respondent contended that the trial judge was correct in refusing to sever the indictment, relying on DPP v BK [2000] 2 IR 199, DPP v B [1997] 3 IR 140, DPP v OS (Unreported, Court of Criminal Appeal, 28th July, 2004), Martin McCurdy v DPP [2012] IECCA 76 and CC v DPP (No. 2) [2012] IECCA 86.

Held by Sheehan J that, while the trial judge did not refer in detail to the appellant's submissions in the course of his ruling and while the prosecution did not seek to describe all complaints as having a striking similarity, it was nevertheless the case that the similarities were such as to properly allow the jury to consider the evidence in one case as supportive of that in another. Sheehan J held that the trial judge's ruling demonstrated that he approached the application for severance carefully and took into account the relevant legal principles. Sheehan J argued that severing the indictment would have resulted in the jury getting an incomplete picture. Sheehan J held that, while it did not form part of the trial judge's ruling, it was germane that the evidence of the appellant's wife regarding his admission that he had abused her niece was evidence that was relevant not only to the niece's complaint but was also relevant evidence in respect of all other counts on the indictment. The Court held that this piece of evidence provided strong support for the correctness of the judge's ruling. The Court therefore held that the trial judge properly exercised his discretion when he refused to sever the counts. The Court was satisfied that the defence case as well as the inconsistencies which arose in cross examination were sufficiently identified to the jury by the trial judge and as such no unfairness resulted to the appellant.

Sheehan J held that he would dismiss the appeal against conviction.

Appeal dismissed.

Judgment of the Court delivered on the 14th day of November 2015 by Mr. Justice Sheehan

1 On the 7th February, 2013, following a six day jury trial, the appellant was convicted on ten counts of indecent assault alleged to have occurred between 1988 and 1992 and three counts of sexual assault alleged to have occurred between 2001 and 2011.

2 The appellant was sentenced to ten years imprisonment with the final two years of that sentence suspended. He now appeals against conviction and sentence.

3 This judgment is concerned solely with the appeal against conviction.

4 In his written submissions, the appellant challenged his conviction on five separate grounds which were set out as follows:-

1. That the learned trial judge erred in law and in fact in refusing the application of counsel for the appellant at the outset of the trial to sever the indictment either wholly or in part due to the prejudicial affect of there being six complainants in the case.

2. The learned trial judge failed to properly or adequately instruct the jury on the question of corroboration in his charge. Without prejudice to the generality of this complaint, the learned trial judge failed to properly or adequately instruct the jury as to the meaning of corroboration and what, if any, evidence in the case was capable of constituting corroboration.

3. That the learned trial judge failed to properly sum up the evidence for the jury in the case. Having given a detailed and comprehensive summary of the evidence of each complainant and having highlighted details of the prosecution case, the judge erred in law in not summarising or even referring to any of the details elicited in cross examination of the prosecution witnesses and in failing to summarise adequately or at all any or any part of the case advanced by the defence.

4. The learned trial judge erred in law and in fact in failing to address the jury in relation to cross contamination between witnesses.

5. The learned trial judge failed to adequately warn the jury in the specific circumstances of this case of the care required and the dangers involved when considering cases of a sexual nature that go back a long time.

5 In the course of the oral hearing, Mr. McGrath S.C. for the appellant helpfully informed the Court that he was not proceeding with the corroboration point and went on to further limit his appeal when he stated that his main ground was that severance should have been ordered, that the second point concerned the trial judge's failure to properly summarise the defence case and that the third point concerned the failure of the trial judge to deal adequately with the issue of delay.

6 In order to consider these grounds of appeal it is necessary to set out the background to the offences.

7 The appellant was charged with ten counts of indecent assault and three counts of sexual assault. Counts 1 to 8 and 12 and 13 on the indictment all relate to complaints by the younger sister and nieces of the appellant's former wife and occurred between 1988 and 1992.

8 Counts 9, 10 and 11 relate to complaints of sexual assault by the appellant's son and daughter and these assaults are alleged to have taken place in 2001, 2002 and 2011 respectively.

9 The first complainant was EK, to whom counts 1 to 5 on the indictment relate. She is a younger sister of the appellant's former wife and told gardaí that on four occasions at the appellant's former family home and on another occasion while in his car, the appellant had made her put her hand on his penis. She alleged that this had occurred in the context of playing a game while looking for money in the appellant's pocket which had a hole in it, when at the appellant's home. In the case of the offence which took place in the appellant's car, it occurred in the context of him putting her on his lap to give her a driving lesson at a lake in the locality of the family home. On the last occasion he was alleged to have put her hand behind her back and forced her to masturbate him. The complainant EK said she was nine or ten years old when the first four counts occurred and the incident in the car occurred when she was eleven or twelve.

10 The second complainant was PW, who was a niece of the appellant's former wife. In her statement of complaint to the gardaí she said that when she was seven years old, she asked the appellant for money while he was at home and that the appellant hid the money near his private parts and that she had to put her hand on to his penis. She also claimed that on one occasion the appellant took her and a friend who she was now unable to identify picking holly around Christmas time. At one point on that trip the appellant sent her friend away and took her over to a tree where he grabbed her hand behind her back and made her rub his penis. Counts 6 and 7 relate to PW.

11 The third complainant was SW, another niece of the appellant's former wife. In her statement to gardaí she alleged that the appellant had put her right hand behind her back while in the sitting room of his home when she was around six years of age and made her move her hand up and down on his penis. This relates to count 8 on the indictment.

12 The fourth complainant was AC, the appellant's daughter from his former marriage. She said in her statement that in 2001 or 2002 when she was staying with the appellant in the home he shared with his new partner and their child in a town some miles away, the appellant came into the bathroom while she was there and stood beside her, grabbed her hand and made her put it...