DPP v J. O'C

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 18 February 2015
• Neutral Citation: [2015] IECA 30
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 157/2012
• Date: 18 February 2015

[2015] IECA 30

THE COURT OF APPEAL

Ryan J.

Birmingham J.

Edwards J.

Record No: 157/2012

DPP v J. O'C.

APPROVED

Mr. Justice Edwards

JUDGMENT

The People at the Suit of the Director of Public Prosecutions

Respondent

V

J. O'C.

Appellant

Trial on indictment - 29 counts of sexual assault - s.2 Criminal Law (Rape) (Amendment) Act 1990 - Plea of not guilty-Eight years imprisonment - Appeal against conviction - Grounds of appeal - Whether trial judge erred in law or fact - Safety of conviction

Facts The appellant faced trial on indictment on 29 counts of sexual assault contrary to s. 2 Criminal Law (Rape) (Amendment) Act 1990. He pleaded not guilty upon arraignment. There were four female complainants, three of which were from the same family, and another girl. On the 23rd March 2012, at the end of a ten day trial, a jury convicted the appellant by an 11:1 majority verdict in respect of counts 1 to 18 inclusive, and counts 20 to 29 inclusive, on the indictment. Later on the same day the jury also returned a guilty verdict on count 19, this time by a majority of 10:2. The total sentence imposed was one of eight years imprisonment. The appellant sought to appeal against conviction in respect of all the offences. The main evidence against the accused was that of each of the four complainants. The appellant argued the conviction was unsafe and unsatisfactory and sought to have it set aside. The appellant argued that the respondent failed to give, and the trial judge erred in failing to direct the respondent to give, adequate particulars of the offences alleged; that the trial judge erred in law or fact in failing to grant separate trials in relation to each of the four complainants; that the trial judge erred in law or fact or in a mixed question of law and fact in acceding to an application by counsel for the prosecution to amend the indictment and in failing to discharge the jury upon each application being made to him; and that the trial judge erred in admitting into evidence before the jury evidence of the suspension of the appellant”s questioning in the early hours of the 31st August 2010 and all consequential material.

Held The ruling wasby a highly experienced and conscientious trial judge. The Court agreed with counsel for the respondent that the issues raised and advanced by counsel for the appellant were all matters that were properly for the jury to assess and weigh in their consideration of the evidence.

-The appellant failed to sustain any of his pleaded grounds of appeal. The conviction was deemed safe, the ruling of the trial judge upheld and the appeal dismissed.

Mr. Justice Edwards

1 This is a case in which the appellant faced trial on indictment in the Circuit Criminal Court for the South Western Circuit and County of Kerry in respect of 29 counts of sexual assault, contrary to s.2 of the Criminal Law (Rape) (Amendment) Act1990 to which he had pleaded "not guilty" upon arraignment on the 8^th March, 2012.

2 There were four female complainants: three girls from one family, L.H., S.H., and N.H., respectively, and another girl, G.K..

3 L.H.'s allegations spanned the period from the 1^st March, 2004 to the 30^th June, 2008. There were seventeen counts of sexual assault on the indictment relating to abuse of her, one for each three month period during that time span. N.H.'s allegations spanned the period from the 1^st December, 2003, to the 31^st October, 2008. There were eight counts of sexual assault relating to abuse of N.H., each covering a three month period during the relevant time span. S.H.'s sole allegation of sexual assault was the subject of a single count, charged as occurring between the 1^st April, 2003, and the 30^th June, 2003. Finally, there were three discrete counts of sexual assault relating to abuse of G.K., each of which was initially alleged to have occurred on a date unknown between the 1^st July, 2003, and the 31^st August, 2003. However, the indictment was amended in the course of the trial to expand the dates to cover a period from the 1^st July, 2002, to the 31^st August, 2003.

4 On the 23^rd March, 2012, at the end of a ten day trial, a jury convicted the appellant by an 11:1 majority verdict in respect of counts 1 to 18 inclusive, and counts 20 to 29 inclusive, on the indictment. Later on the same day the jury also returned a guilty verdict on count 19, this time by a majority of 10:2.

5 Following his conviction, the appellant was sentenced, on the 4^th May, 2012, to imprisonment for a term of three years on each count in respect of counts 1 to 17 inclusive (i.e., those relating to the complainant L.H.) and each such sentence was to run concurrently with the others. These sentences were backdated to the 23^rd March, 2012, i.e., to the date on which he went into custody.

6 The appellant was further sentenced on the 4^th May, 2012, to imprisonment for a term of two years on each count in respect of counts 18 to 25 inclusive (i.e., those relating to the complainant N.H.) and each such sentence was to run concurrently with the others in that group, but consecutively to the sentences in the first group i.e., those in respect of counts 1 to 17 inclusive.

7 The appellant was further sentenced on the 4^th May, 2012, to imprisonment for a term of one year in respect of count 26 (i.e., that relating to the complainant S.H.) and this sentence was to run consecutively to the sentences in respect of counts 18 to 25 inclusive.

8 Finally, the appellant was further sentenced on the same date to imprisonment for a term of two years on each count in respect of counts 27 to 29 inclusive (i.e., those relating to the complainant G.K.) and each such sentence was to run concurrently with the others in that group, but consecutively to the sentence for count 26.

9 The total sentence imposed was one of eight years imprisonment.

10 The appellant appeals against his conviction in respect of all the offences.

11 The principal evidence against the accused was the evidence of the four complainants.

The evidence of L.H.

12 L.H. was a nineteen year old college student at the time of the trial. She has two sisters and a brother. Her brother is the oldest; her sister S.H. is next and is just over two years older than L.H., and the youngest in the family is N.H., who is eleven months younger than L.H..

13 The H sisters' parents ran a family business. In addition, their father and mother each had part time employments. Prior to 2009, there were a number of drivers employed in the parents' family business, one of whom was the appellant. During the week the appellant drove a council van, but at the weekends he worked for the H's in their business.

14 The appellant was also the partner of the H sisters' aunt, who resided in their mother's old family home. The appellant and this aunt had been going out for as long as L.H. could remember.

15 L.H testified that as she was growing up the appellant was always in the house where she lived with her parents and siblings. He used to meet her aunt there on days when the aunt used to come to their house, leave her car there and go with the appellant to his home in another town in the same county. He used to call every other day as well. She stated he was there more often than he was not. He was also there on many evenings. L.H. stated that her parents trusted the appellant. He made himself at home in their house and treated it like it was his own.

16 L.H described being in fifth class in primary school, being aged ten or eleven, and making her confirmation during that school year. Their mother had organised a babysitter to mind L.H. and her sisters after school. The babysitter lived next to the school. However, as they grew older, and particularly if the day was fine, they would not go to the babysitters and would walk home.

17 L.H. described an incident that occurred about a month before her confirmation. On the day in question she and her sisters had walked home. Their parents were both at work when they arrived home, although their father was due home before long. L.H. was watching television alone in the main living room when the appellant came in and sat beside her on the three seater couch. L.H stated that

"then, as time goes on, he just pushed himself close, like moved closer to and put his hand on your thigh and just keep rubbing it and just keep going up and down and he just make his way towards your private part." L.H. was clothed at the time. The incident lasted only a few minutes. She claimed the appellant desisted because "he probably heard a car", either that belonging to her father or her aunt.

18 L.H. told the jury that numerous similar incidents happened over the next number of years until she was in third year in secondary school. Sometimes he would put his hand up her top and touch up her top as well. It mostly happened on the three seater couch in the main living room.

19 After L.H. moved from primary school to secondary school in September, 2005, she and her older sister S.H. used to travel home from school by bus. They would be dropped off at a handball alley close to their home and usually both of their parents would be at work. Sometimes the appellant was there when they got home. They would see his council van from the handball alley. On other occasions he would arrive after they came home. L.H. described an incident in September, 2005, where, having come in from school, she was using a computer in the sitting room to go on Bebo, a social media site, when the appellant came in and sat on the arm of an adjacent chair. She stated"he started doing what he usually did", and described him rubbing her thigh and stated that he then made his way inside her pants and started sticking his finger into her private part, and moving it up and down. He again stopped after some minutes because, she stated, "someone must have came home".

20 L.H. told the jury that thereafter...