DPP v J.G.

• Jurisdiction: Ireland
• Judge: Mr. Justice Birmingham
• Judgment Date: 23 February 2018
• Neutral Citation: [2018] IECA 42
• Docket Number: [290/2016]
• Court: Court of Appeal (Ireland)
• Date: 23 February 2018

[2018] IECA 42

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Edwards J.

Hedigan J.

[290/2016]

The People at the Suit of the Director of Public Prosecutions

Respondent

V

J.G.

Appellant

Conviction – Sexual offences – Corroboration warning – Appellant seeking to appeal against conviction – Whether judge erred in refusing to give a corroboration warning

Facts: The appellant was found guilty of six counts in relation to allegations of sexual assault, and a further three counts of indecent assault against Ms B.Z., and was convicted of one count of indecent assault in relation to Ms A.Z. Both complainants were younger sisters of the appellant. The appellant’s trial took place at the Central Criminal Court in Castlebar before Hunt J between the 19th July, 2016 and 28th July, 2016. The appellant appealed to the Court of Appeal against the convictions. Three issues were raised in the course of the appeal, these being: (i) a contention that the judge erred in failing to accede to an application for the severance of the indictment so that the allegations made by Ms A.Z. would not be heard in the same trial as the complaints made by Ms. B.Z.; (ii) that the judge erred in refusing to give a corroboration warning in relation to the evidence that had been given by Ms B.Z.; (iii) a complaint that the verdict in relation to count 24 was perverse (Ms A.Z. was the complainant on that count).

Held by the Court that the matters that jumped from the pages of the transcripts in terms of similarity between the accounts of the two complainants were the relationship between each of the complainants and the appellant, being that of younger sister – older brother, the fact that in each case acts of abuse were alleged to have occurred in the family home and indeed in the same bedroom. In those circumstances, the Court held that the trial judge acted well within his discretion in deciding not to sever the indictment. The Court held that the conclusion that the trial judge reached in relation to Ms B.Z. was one that was open to him; if the evidence of Ms B.Z. is considered in isolation then it cannot be accepted that the judge was compelled to issue a warning. The Court was not persuaded that the fact that a warning was being given in respect of a different complainant removed the discretion and mandated that he give a warning in respect of Ms B.Z. the Court held that, concerning count 24, the verdict of the jury meant that the jurors were in agreement that the ingredients of sexual assault had been established to their satisfaction beyond reasonable doubt.

The Court held that it was not persuaded that the trial was unsatisfactory or that the verdicts were unsafe. The Court held that the appeal should be dismissed.

Appeal dismissed.

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

1 The appellant's trial took place at the Central Criminal Court in Castlebar before Hunt J between the 19th July, 2016 and 28th July, 2016. There were two complainants in the case and both were sisters of the accused. The offences ranged in time from 30th September, 1979 to 31st December, 1986 in relation to one complainant, Ms. A.Z., and from 1st January, 1976 to 28th October, 1983 in relation to the second complainant, Ms. B.Z. The appellant was found guilty of six counts in relation to allegations of sexual assault, and a further three counts of indecent assault against Ms. B.Z., and was convicted of one count of indecent assault in relation to Ms. A.Z.

2 He has now appealed the convictions. It should be pointed out that he had stood trial on 65 counts in all relating to the two complainants. He had stood trial on four charges of rape relating to Ms. A.Z., and 29 counts of indecent assault or sexual assault in respect of the same complainant. Counts 35 to 65 related to the second complainant, Ms B.Z. and were counts of indecent or sexual assault.

3 Three issues are raised in the course of this appeal, these being:

i. A contention that the judge erred in failing to accede to an application for the severance of the indictment so that the allegations made by Ms A.Z. would not be heard in the same trial as the complaints made by Ms. B.Z.

ii. That the judge erred in refusing to give a corroboration warning in relation to the evidence that had been given by Ms B.Z.

iii. A complaint that the verdict in relation to count 24 was perverse. Ms A.Z. was the complainant on this count.

4 To provide context for the issues raised in the appeal it is necessary to say a little more about the evidence that was before the jury and a little about the individuals who are central to the case. It should be noted that the appellant's date of birth was 10th May, 1959. Counts 1 – 34 related to the counts involving the complainant Ms A.Z. Offences were alleged to have occurred between 30th September, 1979 and 31st December, 1986 when Ms A.Z. was between the ages of 10 and 17 years. Counts 1 – 4 alleged rape offences against the appellant whereas the remainder of the counts alleged indecent or sexual assault offences. The jury retired to consider all counts relating to Ms A.Z. apart from count 3, in respect of which the trial judge directed a not guilty verdict be returned by the jury. The jury returned not guilty verdicts in respect of all counts, apart from count 24, in respect of which a guilty verdict was returned. Counts 35 – 65 on the indictment related to indecent or sexual assault counts against the other complainant, Ms B.Z., and were alleged to have occurred between 1st January, 1976 and 28th October, 1983 when Ms B.Z. was aged between 15 years and 23 years old. In this case the jury returned guilty verdicts in respect of counts 41, 42, 47, 48, 49 and 50, not guilty verdicts in respect of counts 35 to 40 and the balance of the counts resulted in not guilty by direction verdicts. So far as the complainant Ms A.Z. is concerned, the allegation was of untoward sexual activity occurring within her bedroom at times when her sister B.Z. was not present, activity occurring in a car owned and driven by the defendant, who took her for drives in it, and activity in a pit in a garage which the defendant used to service cars. The allegations made by Ms B.Z. were that the appellant would come into her room at night time and would touch her breasts over her clothing, at a time when her sister Ms A.Z. was in the same bed.

5 At trial and again at the hearing of this appeal, counsel for J.G. in contending that this is a case where the indictment should have been severed has focused on the dissimilarities between the complaints made by the two sisters. He draws attention to the difference in ages of the two sisters at the time of the alleged offences. The offences allegedly involving Ms A.Z. commenced when she was just ten, while the offences alleged by Ms B.Z. related to a time when she was between 15 and 22 years. The allegations made by Ms A.Z. were all together more serious, involving actual rapes, as well as acts of digital penetration and other forms of sexual assault committed in various locations while the allegations made by Ms B.Z. were confined to the touching of her breasts while she was in bed. The respondent says that while it is obvious that there were certain dissimilarities, there were also significant similarities. Both complainants were younger sisters of the appellant and both allege being abused by their brother in the same bedroom which they shared. The judge dealt with the matter as follows:

‘… I think we can certainly fairly observe that B.K....