DPP v J. McG
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 18 June 2020 |
| Neutral Citation | [2020] IECA 160 |
| Docket Number | Record Number: 111/19 |
| Court | Court of Appeal (Ireland) |
| Date | 18 June 2020 |
[2020] IECA 160
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 111/19
THE COURT OF APPEAL
This is an appeal against conviction. On the 22 nd March 2019, the appellant was found guilty of 11 counts of indecent assault contrary to Common Law as provided for by section 62 of the Offences Against the Person Act 1861 and 7 counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 in respect of four complainants. On the 10 th May 2019, the appellant received a sentence of 13 years' imprisonment with the final 12 months suspended.
By way of background, the offences took place between 1984 and 1993. Three of the four complainants are siblings and the fourth complainant, AD, was a childhood friend of GB and PB. The appellant was a second cousin of the mother of the siblings and was regarded as a family friend. At the time of the offending the appellant was employed in fruit and vegetable distribution and the complainants worked for him at various stages in some capacity.
The appellant was found guilty of ten counts of indecent assault in respect of PB, related to events which took place during 1985 and 1989 when PB was between 14 and 18 years of age. PB described a particular occasion on which he was babysitting in the appellant's sister house and the appellant gave him a glass of Coke laced with alcohol before proceeding to assault him in the bathroom. The assaults also took place at the appellant's home in Dublin and at a caravan park in Wexford. The assaults comprised of acts of masturbation, anal penetration and oral sex.
The appellant was found guilty of six counts of sexual assault in respect of GB, who is the younger brother of PB, between 1990 and 1993. The assaults took place at two locations in Dublin where the appellant was living at the times involved. The assaults often involved the presence of alcohol and comprised of acts of masturbation in the appellant's bedroom where the appellant would get into bed with GB and masturbate the complainant before proceeding to masturbate himself.
The appellant was found guilty of one count of indecent assault in respect of AD, between 1984 and 1986 when he was between 13 and 14 years of age. The complainant gave evidence that he was working for the appellant at the time and went on a trip to the caravan park in Wexford with PB and another individual. AD went to the campsite bar and had several drinks before returning to the caravan in a state of intoxication. He got into bed and the appellant was in bed beside him and began to touch his genitals, AD pushed his hands away, but he continued to touch his genitals inside his underwear and gyrate against AD's back.
The appellant was found guilty of one count of sexual assault in respect of KN, between 1991 and 1993 when she was between 22 and 23 years of age. KN is the older sister of GB and PB. At the time, KN was working for the appellant in a clerical role. The appellant and KN attended a shop opening together and KN consumed alcohol which led to the appellant offering her a lift home and he proceeded to bring her to his house on the basis that he didn't want her mother to see her in that state. KN gave evidence that she went to sleep in a bedroom in the appellant's house and awoke to the appellant spooning her from behind. She could feel the appellant's penis against her, and he attempted to pull her underwear to one side so that he could insert his penis into her vagina. The appellant also attempted to unclip her bra. Despite her protestations, the appellant kept trying to open her legs and insert himself inside her until eventually he rolled off and went to sleep.
PB gave evidence that he made statements to Gardaí in this matter on 4 th of August 2016, having previously spoken to members of his family including KN and GB on the preceding day and at a family wedding the week before. GB also made a statement to the Gardaí on 4 th August 2016 and KN made a statement on 17 th August 2016. AD was contacted by Gardaí on 14 th August 2016 for the purposes of investigating the complaints made by PB and he indicated that he wished to make a complaint in respect of the appellant and did so on 17 th August 2016.
The appellant puts forwards eight grounds of appeal:-
(1) That the trial judge erred in refusing the application to sever the indictment and in allowing system evidence to be adduced in relation to all complainants.
(2) That the trial judge erred in refusing an application for a direction on all counts on the basis of delay and that the concern was evidenced by the particular verdicts returned by the jury.
(3) That the trial judge erred in failing to adequately emphasise the effects of delay on the evidence to be considered by the jury.
(4) That the trial judge erred in raising the issue of sample counts in her charge to the jury when the trial had been prosecuted on the basis of specific counts.
(5) That the trial judge erred in charging the jury that the system evidence relied on by the prosecution was capable of being corroborative of each complainant's account.
(6) That the verdict returned by the jury in relation to count number 25 was repugnant to the evidence available to the jury to consider.
(7) That the trial judge erred in refusing an application to discharge the jury and in allowing the jury to consider system evidence with regards to the first complainant in counts number 16, 18, 19 and 20, which related to the Wexford location, in circumstances where verdicts of not guilty were directed by the trial judge in relation to all counts relating to that location and the second complainant, those counts being counts 38-47.
(8) That the trial judge erred in refusing the application to discharge the jury by the defence on the basis that the defendant was prejudiced by the compounding of the following issues:
(i) The refusal to sever the indictment, and
(ii) That the jury had heard a significant amount of evidence which related to counts that would no longer be considered by them as the trial judge had directed verdicts of not guilty, and
(iii) That the majority of the remainder of counts to be considered by the jury were amended to allow the issue of whether the complainants were under 15 years or over 15 years to be considered by the jury.
The submissions filed on behalf of the appellant address grounds (iii), (iv) and (v) together and grounds (vii) and (viii) together. Considerable emphasis was placed on ground (i) in oral submission, whilst Mr Greene SC for the appellant indicated that he was not advancing any particular criticism of the delay warning which is the subject of ground (iii), but that there was a concern for the overall safety of the conviction.
(1) That the Trial Judge erred in refusing the application to sever the indictment and in allowing system evidence to be adduced in relation to all complainants.
An application was made to sever the indictment and allow the appellant to be tried separately in respect of each of the complainants. Counsel for the appellant argued before the trial judge that while there were certain apparent similarities between the counts relating to each complainant, this commonality was not sufficient to amount to system evidence and furthermore, was not sufficient to outweigh the prejudice present as a result of the multiplicity of counts, the possibility of cross-contamination and the issue of delay.
In refusing the application to sever the indictment the trial judge noted the following:-
“Matters which the Court notes are one, the similarity of the ages of the boys at the time of the alleged offending, 13 and 14. And secondly, the locations of the alleged abuse, in addition to all the other matters that I've already referred to. While there is obvious difference between the case of [GB and PB] and that of KN in terms of her gender and the alleged nature of the sexual assault, the issues of similarity would appear to outweigh them in terms of one, the position of employer/employee, two, the family friendship with the accused, three, the use of alcohol in the context of alleged subsequent offending, four, the alleged abuse occurred in the accused's family home along with that of the two boys as alleged by Ms KN and her two brothers. Further, there is also a similarity in time of alleged offending between Ms KN which was January ‘93 to October ‘93, and GB which is allegedly January ‘91 to September ‘93.
The dissimilarities are, therefore, in my view not sufficient to bring it outside the alleged system of offending or would justify the indictment being severed. Therefore, while the facts are not identical, the case law has held they need not be so. In all the circumstances, I am satisfied that there is contained in the allegations sufficient evidence of a system of evidence in this case which permits the complaints to be heard together in the context of the allegations made which are such at this time.”
The appellant submits that in a multi-complainant case there comes a point where the sheer weight and number of allegations causes the force and probative value of allegations given to fall away and be replaced by a wholly prejudicial state of affairs. Moreover, that the prejudice was compounded by delay and the familial connection between three of the complainants.
The respondent says that the trial judge was correct in her ruling and, as conceded by the appellant, there was a clear commonality of features between the complaints.
The respondent refers to The People (DPP) v. D. McG [2017] IECA 98, where the Court of Appeal cited the following extract with approval when dealing with...
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