DPP v J.O'C.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 26 January 2023 |
| Neutral Citation | [2023] IECA 14 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No.: 236/2021 |
[2023] IECA 14
McCarthy J.
Kennedy J.
Donnelly J.
Record No.: 236/2021
THE COURT OF APPEAL
Conviction – Sexual assault – Perverse verdicts – Appellant seeking to appeal against conviction – Whether the verdicts of the jury on the two counts on which they convicted by majority were perverse
Facts: The appellant was charged with twenty two counts on indictment of sexual assault pursuant to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990 in relation to two complainants, his granddaughters, with an age difference between them of approximately six years. Of the twenty two counts on indictment, the first fifteen related to the first complainant who was the elder of the two sisters. The appellant was convicted of two counts and was acquitted by direction of the trial judge of eleven counts in respect of the first complainant. The jury disagreed on two further counts alleging sexual assault on the first complainant. The other seven counts related to the second complainant in respect of which the appellant was acquitted on all counts (six by direction of the trial judge and one by jury verdict). The appellant appealed to the Court of Appeal against conviction. The appeal was based upon the following three grounds: (i) the indictment should have been severed between the two complainants as failing to do so prejudiced the appellant’s right to a fair trial; (ii) the trial judge should have directed a verdict of not guilty in respect of all counts relating to the second complainant, the refusal of which denied the defence strong grounds for an application to discharge the jury; and (iii) the verdicts of the jury on the two counts on which they convicted by majority were perverse, as there was nothing to distinguish those counts from the counts on which the jury disagreed.
Held by the Court that merely because accusations are made by family members against a relative, who may have discussed the matter together and with other family members, does not mean that there cannot be probative value in the content of their various accounts. The Court held that there was probative value in the content of the complainants’ various accounts. The Court held that nothing in the evidence caused a concern that this was a case in which the indictment required severance because of concern about collusion or innocent mutual contamination. The Court had regard to the fact that undoubtedly count 16 was left to the jury because it was an offence which was alleged to have occurred in 2008, a period in which it was “mathematically possible” for the offending to have taken place having regard to the timeline of the evidence of both complainants and of their mother. The Court held that in leaving the single count related to the second complainant to the jury, the trial judge was engaging in an entirely appropriate exercise of her discretion. The Court was satisfied that this was not a case which came anywhere near the threshold for demonstrating that the verdict was perverse. The Court held that the jury was entitled to accept or reject all or part of the first complainant’s evidence having regard to the evidence in the trial as a whole.
The Court dismissed the appeal against conviction.
Appeal dismissed.
JUDGMENT of the Court delivered by Ms. Justice Donnelly on this 26th day of January, 2023
The appellant was convicted by a jury of two counts of sexually assaulting his granddaughter (“the first complainant”) in his own home pursuant to s.2 of the Criminal Law (Rape)(Amendment) Act, 1990. His appeal against conviction raises legal issues which revolve primarily around the fact that, in the same trial, he also faced counts (of which he was acquitted) of other alleged sexual assaults against another granddaughter.
The appellant was charged with 22 counts on indictment of sexual assault pursuant to s.2 of the 1990 Act in relation to two complainants, who were sisters, with an age difference between them of approximately six years. Of the 22 counts on indictment, the first 15 related to the first complainant who was the elder of the two sisters. The appellant was convicted of two counts and was acquitted by direction of the trial judge of eleven counts in respect of the first complainant. The jury disagreed on two further counts alleging sexual assault on the first complainant. The other seven counts related to the younger granddaughter (“the second complainant”) in respect of which the appellant was acquitted on all counts (six by direction of the trial judge and one by jury verdict). The fact that this was a joint trial in which he was acquitted of the majority of the counts, especially all counts in respect of the second complainant, forms the factual context for the grounds of appeal.
All 22 counts arose from incidents which allegedly took place upstairs in the appellant's home. At trial, counsel for the appellant made an application to sever the indictment between the two complainants, which was refused. He made an application for a direction in respect of all counts concerning the second complainant which was granted in respect of all but one count of the seven counts.
The two counts referable to the first complainant in respect of which the jury convicted concerned:
a) the year 2004 during which she turned from eight to nine years old and,
b) the year 2005 during which she turned from nine to ten years old.
The first complainant gave evidence at trial that the abuse occurred on five or six separate occasions at a time when either or both of their grandparents would collect her from school and bring her to their home to be minded. Her evidence alleged that she was first sexually assaulted by the appellant at the age of eight and that these were committed against her up to the age of eleven or twelve. She alleged the assaults would occur when the appellant brought her to bed to read a story or practise reiki on her, and during these activities he would fondle her private parts and her breasts under her pyjamas. The abuse, she said, ceased when she did not need anyone to take her to bed. She said she disclosed the instances of sexual assault when she was aged approximately thirteen and the visits to her grandparents' house, for the purpose of being minded, stopped then.
She was cross-examined about her age at the time of disclosure and her evidence that this coincided with a particularly well-known murder case in Cork, the investigation of which commenced in January 2005 with the legal process concluding circa October 2006. If so, this would have put her age at ten or perhaps eleven years of age. The first complainant replies that she did not know 100% her age at time of disclosure, all she remembered was that they were discussing the case on the TV. Notes from a counsellor she had attended at age sixteen were put to her. In those notes it was recorded that she had said that her grandfather touched her once. She accepted that the counsellor was an accurate person and that she accurately recorded the full extent of what was said.
As a result of her evidence that the abuse occurred five or six times, counsel for the appellant requested that the trial judge direct verdicts in respect of the 15 counts referable to her. The trial judge directed verdicts of not guilty in respect of 11 of the counts, but left counts 1 to 4 inclusive to be decided by the jury.
The second complainant also gave evidence of being collected from school by the appellant. She said the appellant would take a “nap” after returning from work and she would go upstairs to his room. Her evidence was that “games” would be played and during these games, the appellant would fondle her private parts over her pyjamas. She said that the offending commenced when she was approximately “seven or eight” years old and ceased when she was approximately “nine or ten” when the visits to her grandfather's home ceased.
On cross-examination, she said the visits to the home ceased when she was “nine or ten”. She was challenged about whether the abuse could have occurred between the ages of seven and ten as the visits to her grandfather had ceased in 2011 when she was aged nine or ten.
The complainants' mother gave evidence that the disclosure of abuse by the first complainant took place when the complainant was thirteen years old. She confirmed that the second complainant made a disclosure of abuse around the year 2011. On cross-examination, the mother said that the first complainant commenced seeing a counsellor in November 2011. She was not in a position to confirm that neither the HSE nor TUSLA placed any prohibition on the appellant engaging with his other grandchildren following the disclosures.
After the prosecution evidence was complete, an application to dismiss all seven counts referable to the second complainant was made. This application was primarily based upon a conflict of evidence between all prosecution witnesses in relation to the dates on which the second complainant was at her grandparents' house. The trial judge directed not guilty verdicts in respect of all counts except one, leaving count 16 to be decided by the jury.
The appellant also gave evidence in the trial in which he estimated that the visits to the home had stopped in or about 2006 at which time his daughter moved home from London and temporarily lived in the house. His daughter gave evidence that the period of time she lived in the house was six to eight weeks. The appellant denied that any abuse took place and said that he rarely read stories to the complainants but if he did so, it would be downstairs.
At the conclusion of the trial, the issue paper given to the jury contained five counts: these were counts 1, 2, 3, 4 and 16 as they appeared on the indictment. The jury...
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