DPP v J.G. (2)

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 23 February 2018
• Neutral Citation: [2018] IECA 43
• Docket Number: Record No. 249/2015
• Court: Court of Appeal (Ireland)
• Date: 23 February 2018

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

J G

APPELLANT

[2018] IECA 43

Record No. 249/2015

THE COURT OF APPEAL

Crime & sentencing – Sexual offences – Multiple counts of sexual assault and rape – Evidence of appellant's sisters

The appellant had been charged with multiple sexual offences including indecent assault, sexual assault and rape carried out against a child who lived nearby. The appellant had already pled guilty of sexual assault carried out against his sisters, and now appealed against his conviction in respect of the admission of his sister's evidence, the handling of the complainant's evidence and the issue of delay.

Held, that the appeal would be allowed in respect of the admission of his sisters' evidence. The Court was satisfied that the admission of this evidence had a prejudicial effect and may have led to the jury convicting on that evidence alone. The appeal was dismissed in respect of the submissions as to the complainant's evidence and the issue of delay.

Appeal allowed and submissions invited as to a retrial.

JUDGMENT of the Court delivered on the 23rd day of February 2018 by Mr. Justice Mahon

1 The appellant has appealed his convictions for fourteen sexual offences following unanimous jury verdicts at the Central Criminal Court on the 8th July 2015. The offences included one count of indecent assault contrary to common law and as provided by s. 10 of the Criminal Law (Rape) Act 1981, eight counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 and five of rape, contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. On the 9th October 2015 the appellant was sentenced to thirteen years imprisonment with the final five years suspended on conditions, in respect of one of the s. 4 Rape offences with the remaining thirteen counts taken into consideration. An earlier trial of the appellant in 2013 concluded with a jury disagreement.

2 The appellant and his family were close friends with the complainant's family and lived in close proximity to them. The offences were committed between September 1990 and July 1994 when the complainant was aged between four and eight years and the appellant was in his early fifties. The offending occurred in the appellant's home on occasions when the complainant and his two marginally older sisters stayed overnight in the appellant's home on occasions when their parents were away. The offending included indecent and sexual assaults, oral and anal rape. The first complaint made by the complainant to the gardaí was on the 7th July 2010 when he was about twenty four years old, some sixteen years after the last offence committed by the appellant. The appellant was interviewed by the gardaí within months of the complaint being made and a direction to prosecute was issued by the respondent in November 2012.

3 An unusual feature in the case concerned the fact that the appellant pleaded guilty to offences of sexually assaulting the complainant's two older sisters within the same period of time, at Castlebar District Court. Complaints against the appellant were made by the two sisters in July 1994 whereupon the appellant was prosecuted, pleaded guilty and was sentenced in January 1995. He was released from prison in May 1997. Between then and July 2015 when he went into custody in relation to the offences involving the complainant, he lived at home conviction free. The complainant maintains that he did not avail of the opportunity to make any complaint against the appellant at the time his sisters made their complaints, or indeed at any time between then and 2010, because he was in fear of the appellant.

The grounds of appeal

4 Twenty one separate grounds of appeal are made by the appellant. These have been summarised under three headings by the respondent in her written submissions and the Court is satisfied that they adequately encompass the essentially four points of the appeal outlined by Mr. McGuinness S.C. on behalf of the appellant at the commencement of the appeal. They are:-

(i) The decision by the learned trial judge to admit the accounts provided by the complainant's sisters into evidence was erroneous;

(ii) the learned trial judge was wrong to refuse to discharge the jury in the light of the complainant's words and his demeanour in the course of his cross examination, and

(iii) the learned trial judge erroneously or inadequately charged the jury in relation to the issues of delay and corroboration.

The admissibility of the evidence of the complainant's sisters

5 The statements of the proposed evidence of the complainant's sisters were served on the appellant as additional evidence on the 17th October 2014. A voir dire on the first day of the trial was held for the purposes of determining whether or not the sisters evidence and the related convictions of the appellant ought to be admitted into evidence and in the course thereof similarities between the offences committed against the complainant's sisters and those alleged by him were considered. It was summarised on behalf of the respondent that the following similarities as between the sisters' abuse by the appellant and the complainant's allegations are evident:-

(a) All the abuse took place in the early 1990's.

(b) All three children were in the appellant's care while their parents were away.

(c) All the offences took place in the same house, namely the appellant's house, and likely, the same bed.

(d) All three children were siblings.

(e) All three children were of a similar age.

(f) Other children were present in the room when the sexual offending took place.

(g) In the course of the offending the appellant lay in bed with the children and read them bedtime stories.

(h) On all occasions the appellant waited for other children present to fall asleep before engaging in the abuse.

(i) All the children were told not to tell any third party.

(j) There was significant similarity as between the detail of the offending involving all children. In particular the appellant inserted his finger into each child's anus.

6 It was also submitted that there was no evidence of collusion as between the complainant and his sisters.

7 The dissimilarities emphasised on behalf of the appellant included the detail and nature of the sexual offending (to the extent that there were such differences) and the differences in the sex of this complainant and his two sisters. It was pointed out that the only common thread was the digital penetration of all three children's anus. The fact that the appellant readily acknowledged his guilt in relation to the offences committed against the complainant's sisters and the contesting of the complaints made by the complainant also were highlighted as radical differences between the offending alleged to have been committed against the complainant and that actually committed against his sisters.

8 Following the voir dire, the learned trial judge ruled in favour of the admission of the accounts provided by the sisters in relation to the offences committed against them by the complainant. He said:-

'...It's hard to, when one looks across the cases, to discern an approach that is absolutely consistent or indeed use of language that is absolutely consistent. Terms such as system, similarity, striking similarity are used interchangeably and indeed as described in one of the English judgments are compendious terms in this context. It really all springs out of what I think was identified by O'Donnell J. in a slightly different context in the McNeill case such as a tension between that which would appear to be logically relevant and that which would, although logically relevant, interfere significantly with the possibility of a fair trial. But it does seem that in circumstances where leaving aside expressions such as system and similarity, whether striking or otherwise, that where the individual circumstances of the evidence in the particular case are such to lend particular probative force and probative force that equals or indeed outweighs the obvious prejudicial effect of such evidence it would be admissible and it's admissible for a number of purposes, including the traditional one of rebutting defences that may be available, that is identified in the earlier authority but also as identified in the case opened by Mr. Condon as, if accepted as being corroborative, of the evidence in the current case. There are features in this case that are somewhat different to some of the other cases. The evidence from the other sources is not being introduced by way of them being complainants in the case. They have gone beyond that status because their account in relation to these matters has been validated by the accused himself by his admissions and subsequent plea of guilty.... The question is whether the misconduct admitted in those circumstances has features or took place in circumstances that lend particular probative force in the circumstances of the current allegations. I accept Mr McGuinness's basic principle that simple wrongdoing, even of a similar kind on other occasions, would be insufficient to trigger admissibility...However, it seems to me that cases establish that such evidence is admissible because there's an inherent improbability of several persons making up exactly similar stories. Now, stories are not exactly similar because there are obvious differences in terms of the allegations here and the activities admitted to in other cases but there are some striking similarities. First of all the complainant in this case and the victims in the other two cases (were all very) young at the time of the conduct or the alleged conduct. They were all siblings, members of the same family. The allegations that arise here and the offences committed in the other cases arise in some cases the same venue and in similar circumstances in some of the categories of allegation...