DPP v K.C.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 21 June 2018 |
| Neutral Citation | [2018] IECA 195 |
| Docket Number | Record No. 57/2017 |
| Court | Court of Appeal (Ireland) |
| Date | 21 June 2018 |
[2018] IECA 195
THE COURT OF APPEAL
Mahon J.
Birmingham P.
Mahon J.
Edwards J.
Record No. 57/2017
Conviction – Indecent assault – Failure to discharge jury – Appellant seeking to appeal against conviction – Whether the trial judge erred in failing to discharge the jury
Facts: The appellant, on the 22nd October 2015, at Dublin Circuit Criminal Court, was convicted following a unanimous jury verdict of guilty in respect of fifty six counts of indecent assault contrary to common law. The appellant was sentenced on the 2nd November 2016 to concurrent terms of nine years imprisonment in respect of each of the counts, with the final four years of the said sentences suspended on certain conditions. It was further ordered that the said sentence commence upon the lawful termination of an earlier sentence of nine years imprisonment imposed in respect of indecent assault. The appellant appealed to the Court of Appeal against the conviction on the grounds that the trial judge erred in: (i) failing to discharge the jury in circumstances where, after cross examination of the complainant in respect of his absence from the family home on a date when abuse allegedly occurred, additional evidence was disclosed and adduced by the prosecution which contradicted the evidence previously adduced by the prosecution; (ii) permitting the indictment to be amended in circumstances where the appellant was unduly prejudiced by such amendments; and (iii) failing to discharge the jury in circumstances where, during the course of the trial, prejudicial material had been published on the internet in respect of the appellant.
Held by the Court that the additional count sought to be introduced in this case was one within the general framework of the allegations being made against the appellant; it represented a real issue in the case that required to be addressed by the jury. It was, in the Court's view, well within the discretion of the trial judge to allow the additional count at what was a relatively early stage in the trial and before the completion of the cross examination of the complainant by defence counsel. The Court could not identify any particular injustice that was caused by the introduction of the additional count and it dismissed that ground of appeal. The Court also dismissed the ground relating to the trial judge's leave to allow Mr Marken to give evidence. The Court held that while the jamboree brochure which had been included in the Book of Evidence may have established that a scouts' jamboree took place within the dates stated it could never of itself have amounted to proof that all who attended the event did so for its entire duration; evidence from Mr Marken was therefore relevant and admissible. The Court noted that the trial judge specifically asked the jury if any of them had seen the internet postings in question and none had apparently done so. The Court held that there was no reason to believe that any member of the jury would have misled the court on that issue and that it was not unreasonable to have taken them at their word. The Court noted that, whether or not any such postings had been seen by any member of the jury, they received a very firm and unequivocal direction to the effect that their duty was to decide the case solely on the evidence heard in court. In those circumstances the Court held that the trial judge was correct to refuse the defence application to discharge the jury.
The Court held that it would dismiss the appeal.
Appeal dismissed.
This is an appeal against the conviction of the appellant at Dublin Circuit Criminal Court on the 22nd October 2015 following an unanimous jury verdict of guilty in respect of fifty six counts of Indecent Assault contrary to Common Law. The appellant was sentenced on the 2nd November 2016 to concurrent terms of nine years imprisonment in respect of each of the counts, with the final four years of the said sentences suspended on certain conditions. It was further ordered that the said sentence commence upon the lawful termination of an earlier sentence of nine years imprisonment imposed in respect of the indecent assault of a sister of the appellant.
The offences occurred between 1980 and 1985 when the complainant, a younger brother of the appellant, was aged between nine and fourteen years, and while the appellant was aged between eighteen and twenty three years. The complainant and the appellant, together with their parents and a number of siblings, lived in a small family home in Dublin. The complainant maintained that he was sexually abused by the appellant on a regular basis over the period of approximately five years. The complainant gave evidence that the abuse started approximately two months after an accident which saw another brother tragically killed. The abuse varied between the appellant groping the complainant's private parts, to the complainant being forced to masturbate the appellant, to the complainant being anally penetrated by the appellant. The complainant maintained that he developed chronic nightmares and a stammer as a result of the abuse he suffered. He first reported the abuse to the gardaí in 2014.
The grounds of appeal relied upon by the appellant are three in number, and they are:-
(i) the learned trial judge erred in failing to discharge the jury in circumstances where, after cross examination of the complainant in respect of his absence from the family home on a date when abuse allegedly occurred, additional evidence was disclosed and adduced by the prosecution which contradicted the evidence previously adduced by the prosecution. The said additional evidence undermined the cross examination conducted by the defence, causing severe prejudice to the appellant;
(ii) the learned trial judge erred in permitting the indictment to be amended in circumstances where the appellant was unduly prejudiced by such amendments, and
(iii) the learned trial judge erred in failing to discharge the jury in circumstances where, during the course of the trial, prejudicial material had been published on the internet in respect of the appellant.
The application by the prosecution to add an additional count arose in the following circumstances. The Book of Evidence included a brochure or booklet relating to a scout's jamboree held in Portuma, County Galway between the 29th July 1985 and the 9th August 1985 to which the complainant was said to have attended. The documents stated the following:-
'All troops available of the official jamboree travel package will be transported to Portumna on Tuesday the 20th July 1985. The method of transport will be train and / or bus depending on the geographical location of the troop concerned. The first and last jamboree train will arrive at Roscrea railhead and be met by a fleet of buses which will transport the troops to Portumna camp site. All the other trains..will arrive at Ballinasloe railhead and he same shuttle bus will be provided. Troop travel arrangements will be advised one month prior to camp.'
None of the counts preferred against the complainant at the commencement of the trial referred to any incident of abuse in the period 29th July to 9th August 1985, the period corresponding with the holding of the scout's jamboree. It transpired however, in the course of the complainant's evidence that the complainant alleged that he was abused on the weekend of the 3rd August 1985 and he provided specific details of that incident. While the complainant recalled attending the scout's jamboree he was uncertain as to whether he spent the entire two weeks at the jamboree, or had been at home for some part of it. He said however he was at home at the time that a horse (called Cuban Crisis) won a race at Galway races as he recollected celebrating at home with members of his family who had been handsomely rewarded from a bet placed on that horse. It was established that the date of the race won by Cuban Crisis was the 3rd August 1985.
The following extracts from the transcript of the complainant's direct evidence are relevant:-
'Q. Now, you went away then on the scouting jamboree and so you were away from the home from that - for that period of time; how long were you away for?
A. It was only a couple of days because it went on - I'm not quite sure if it went on for two weeks or whatever it was, but because there's so many different scouts that wanted to go to it, you only get a couple of days at a time.
Q. So you returned home from Galway then; did you?
A. Yes.
Q. Back to (address)?
A. Back to (address), yes.
Q. And did anything else ever happen to you then?
A. Well yes, I remember it was the August weekend, I think it was..
Q. When you say the August weekend..
A. I think it was the August weekend because it was my mother and father's 25th anniversary and they had gone away to Jersey, and there is -
Q. You're still talking the same year here, is that right?
A. Oh yes, sorry, yes. We're talking '85.
Q. Yes. And so the August weekend is the Bank Holiday weekend; am I right, is that what you're referring to?
A. Yes, I think - I'm not 100 per cent if it was the August Bank Holiday weekend, or it was in around that time.
Q. And so what do you remember of that then, your parents were away, you said, in Jersey for their wedding anniversary; is that right?
A. Yes, for their anniversary, yes. And (KC) and I think it was my brother-in-law and six other people had put money on a horse that...
Q. And so you were saying people had put money on a horse; is that right?
A. They had put money on a horse, yes.
Q. Do you remember the name of the horse?
A. I don't.
Q. And what do you...
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