DPP v K (B)

• Jurisdiction: Ireland
• Judgment Date: 13 December 1999
• Date: 13 December 1999
• Docket Number: [C.C.A.
• Court: Court of Criminal Appeal

Court of Criminal Appeal

[C.C.A. No. 60 of 1998]

The People (Director of Public Prosecutions) v. B.K.

The People (at the suit of the Director of Public Prosecutions)

Respondent

and

B.K.

Applicant

Cases mentioned in this report:-

Attorney General v. Duffy [1931] I.R. 144.

Attorney-General's Reference (No. 1 of 1992) [1993] 1 W.L.R. 274; [1993] 2 All E.R. 190.

B. v. Director of Public Prosecutions [1997] 3 I.R. 140; [1997] 2 I.L.R.M. 118.

D.P.P. v. P. [1991] 2 A.C. 447; [1991] 3 W.L.R. 161; [1991] 3 All E.R. 337.

Harris v. Director of Public Prosecutions [1952] A.C. 694; [1952] 1 All E.R. 1044.

Makin v. Attorney-General for New South Wales [1894] A.C. 57.

Reg. v. Boardman [1975] A.C. 421; [1974] 3 W.L.R. 673; [1974] 2 All E.R. 958.

Reg. v. Ludlow [1971] A.C. 29.

Rex. v. Sims [1946] 1 K.B. 531; [1946] 1 All E.R. 697.

R. v. Huijser [1988] 1 N.Z.L.R. 577.

The People (Attorney General) v. Thornton [1952] I.R. 91.

Criminal law - Evidence - Similar fact evidence - System evidence - Probative value - Prejudice to accused - Whether inherently improbable that several persons made up similar stories - Whether particular feature common to all cases.

Criminal law - Evidence - Attempt - Whether criminal intention proven - Whether several inferences possible - Whether direction to jury sufficient - Distinction between evidence of attempt and evidence of intention.

Application for leave to appeal.

The facts have been summarised in the headnote and are fully set out in the judgment of the Court of Criminal Appeal delivered by Barron J.,infra.

On the 11th December, 1997, the applicant was convicted of attempted buggery by the Circuit Criminal Court (His Honour Judge O'Connor and a Jury) and was sentenced on the 9th March, 1998, to seven years imprisonment. His application for leave to appeal was refused and an appeal against this refusal was lodged with the Court of Criminal Appeal on the 27th March, 1998.

The application was heard by the Court of Criminal Appeal (Barron, O'Higgins and Quirke JJ.) on the 18th October, 1999.

The applicant was convicted on several counts of attempted buggery and indecent assaults against various young males. The applicant sought leave to appeal against both conviction and sentence. His grounds for appeal were that each of the counts, as far as they related to a different boy, should have been tried separately and he was thus prejudiced by being charged with more than one offence in the same indictment. This would effectively provide corroboration where there was none in law.

He further appealed on the basis that certain counts of attempted buggery should not have been allowed to go to the jury as there was insufficient evidence of these attempts.

Held by the Court of Criminal Appeal (Barron, O'Higgins and Quirke JJ.), in allowing the appeal, quashing the convictions and directing that there should be no retrial, 1, that the test as to whether several counts should be heard together was whether the evidence in each count, would be admissible on each of the other counts. To be so admissible, it would be necessary for the probative value of such evidence to outweigh its prejudicial effect. Further, that the rules of evidence should not be allowed to offend common-sense.

• Reg. v. Ludlow [1971] A.C. 29;Makin v. Attorney-General for New South Wales[1894] A.C. 57 andReg. v. Boardman[1975] A.C. 421 followed.

2. That similar fact evidence was inadmissible on the basis that just because a person might have acted in a particular way on one occasion did not mean that such person acted in the same way on some other occasion. However, system evidence was admissible because the manner in which a particular act has been done on one occasion suggested that it was also done on another occasion by the same person and with the same intent.

Attorney General v. Duffy [1931] I.R. 144;Rex. v. Sims[1946] 1 K.B. 531 andReg. v. Boardman[1975] A.C. 421 followed.

3. That multiple accusation evidence was admitted in two main types of cases; firstly, to establish that the same person committed each offence because of the particular feature common to each and secondly, where the charges were against one person only, to establish that offences were committed by the inherent improbability of several persons making up exactly similar stories, or by showing a practice which would rebut accident, innocent explanation or denial.

• Rex. v. Sims [1946] 1 K.B. 531; Reg. v. Boardman[1975] A.C. 421;D.P.P. v. P.[1991] 2 A.C. 447;R. v. Huijser [1988] 1 N.Z.L.R. 577 and B. v. Director of Public Prosecutions[1997] 3 I.R. 140 followed.

4. That an act, other than mere preparation, from which can be reasonably inferred an intention to commit an offence and not intention alone, was sufficient to establish an attempt to commit a crime. If several inferences, one of which was innocent, were possible, then that innocent inference was the one to be drawn, and a jury must be thus directed.

The People (Attorney General) v. Thornton [1952] I.R. 91 applied.Attorney-General's Reference (No. 1 of 1992)[1993] 1 W.L.R. 274 followed.

Cur. adv. vult.

In accordance with the provisions of s. 28 of the Courts of Justice Act, 1924, the judgment of the court was delivered by a single member.

Barron J. 13th December, 1999

After a four day trial the applicant was convicted on the 11th December, 1997, on count number 8 of the indictment which charged him with attempted buggery on a date unknown between the 1st April, 1982, and the 30th September, 1989, with one J.M.D., a male person and on count number 9 of attempted buggery on a date unknown between the 1st April, 1985, and the 30th September, 1988, with one J.H., a male person. He was also tried on count number 1, being indecent assault against W.M.D., a male person on a date unknown between the 1st January, 1983, and the 31st December, 1987, and count number 2, buggery on a date unknown between the 1st January, 1983, and the 31st December, 1987, with W.M.D.

Counts number 3, 4, 5 and 6 were wrongly included on the indictment since the applicant had not been returned for trial on those charges. Count number 7 charged the applicant with indecent assault against a male person on a date unknown between the 1st January, 1981, and the 31st December, 1988, against one T.M., a male person. Count number 10 charged the applicant with indecent assault on a date unknown between the 1st April, 1985, and the 31st December, 1991, against a male person, one T.H.

At the commencement of the trial, counsel on behalf of the applicant applied to have each of the counts relating to different male persons heard separately. Counsel for the prosecution offered to withdraw the counts in relation to two of the persons concerned. The judge accepted this offer and, accordingly, notwithstanding the submissions on behalf of the applicant, the trial continued against the applicant on four counts which involved three separate individuals. Counts number 7 and 10 were not proceeded with.

At the end of the case for the prosecution, counsel on behalf of the applicant sought a direction that there was no evidence to go to the jury of attempted buggery in relation to counts number 8 and 9. This application was refused.

All four counts were left to the jury. It disagreed on counts number 1 and 2 and convicted on counts number 8 and 9.

The applicant was sentenced to seven years imprisonment in respect of counts number 8 and 9 to run concurrently. His application for leave to appeal was refused. He now seeks leave to appeal against both conviction and sentence.

There are two main grounds of appeal:-

• (1) that each of the counts so far as they related to a different boy should have been tried separately; and

• (2) there was no evidence of an attempt to commit buggery and counts number 8 and 9 should not have been allowed to go to the jury.

Counsel for the applicant made his submission under the provisions of s. 6(3) of the Criminal Justice (Administration) Act, 1924. This provision is as follows:-

"Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment."

Counsel submitted that to allow the counts relating to the different boys to be tried together would in effect provide corroboration where there was none in law.

Counsel for the prosecution submitted that the counts were properly joined on the same indictment. She relied upon rule 3 of the first schedule to the same Act. This rule provided:-

"Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character."

She further submitted that there was a sufficient similarity between the offences - they were all alleged to have been committed against young boys in the applicant's care in Trudder House, a residential home for traveller children run by the Eastern Health Board, which justified a joint trial.

While there may be cases where the trial judge may be able to charge a jury so that an accused is not unfairly prejudiced where evidence admissible on one count is inadmissible on another, in most cases the real test whether several counts should be heard together is whether the evidence in respect of each of several counts to be heard together, would be admissible on each of the other counts.

For such evidence to be so admissible, it would be necessary for the probative value of such evidence to outweigh its prejudicial effect. In practice, this test is applied where...