DPP v Kelly
| Jurisdiction | Ireland |
| Judge | BARRON J. |
| Judgment Date | 13 December 1999 |
| Neutral Citation | 2000 WJSC-CCA 2696 |
| Docket Number | 60/98 |
| Court | Court of Criminal Appeal |
| Date | 13 December 1999 |
2000 WJSC-CCA 2696
THE COURT OF CRIMINAL APPEAL
Synopsis
Criminal Law
Criminal; similar fact evidence; joinder of counts on indictment; applicant had been tried on two counts of attempted buggery, one count of buggery and one count of indecent assault; applicant had been convicted on the two counts of attempted buggery and had been sentenced to seven years imprisonment; applicant seeking leave to appeal against the conviction and the sentence; whether each of the counts in so far as they related to a different boy should have been tried separately; whether there was a sufficient degree of nexus between the counts of attempted buggery and the other counts to justify their being heard at the same time; whether the inclusion of the facts relating to the counts of indecent assault and buggery created an unfair prejudice resulting in an unsatisfactory trial; whether the trial judge should have allowed the counts relating to attempted buggery to go to the jury; whether the evidence relating to one of the counts of attempted buggery was admissible in relation to the other count of attempted buggery; whether further matters rendered the trial unsatisfactory and the convictions unsafe.
Held: The joinder of the two counts of attempted buggery with the counts of indecent assault and buggery was incorrect; the trial judge should have acceded to the direction in relation to one of the counts of attempted buggery; the trial was unsatisfactory and the convictions unsafe; appeal allowed; no retrial should be ordered.
D.P.P. v. Kelly - CCA: Barron J., O'Higgins J., Quirke J - 13/12/1999 - [2000] 2 IR 199
The applicant was convicted and sentenced to seven years' imprisonment on two counts of sexual offences while the jury disagreed in relation to two other charges. The applicant argued that each of the counts so far as they related to a different victim should have been tried separately and that there had insufficient evidence to justify a guilty verdict in relation to one of the charges. The court accepted these arguments, holding that the joinder of counts 1 and 2 with counts 8 and 9 (on which he was found guilty) was incorrect. The evidence with regard to counts 1 and 2 did not have the necessary nexus to justify their being heard at the same time as the other two counts. The failure of the trial judge to properly direct the jury made the conviction unsafe. The convictions would be quashed and a retrial would not be ordered.
Citations:
CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S6(3)
CRIMINAL JUSTICE (ADMINISTRATION) ACT 19241924 SCHED 1 RULE 3
AG V DUFFY 1931 IR 144
R V SIMS 1946 1 KB 531
R V LUDLOW 1971 AC 29
R V BOARDMAN 1975 AC 421
MAKIN V AG FOR NEW SOUTH WALES 1894 AC 57
HARRIS V DPP 1952 AC 694
DPP V P 1991 2 AC 447
R V HUIJSER 1988 1 NZLR 577
B V DPP 1997 3 IR 140
DPP, PEOPLE V THORNTON 1952 IR 91
ATTORNEY GENERALS REFERENCE NO 1 OF 1992 UNDER S36 OF THE CRIMINAL JUSTICE ACT 1972, IN RE 1993 CLR 274
CRIMINAL JUSTICE ACT 1972 S36 (UK)
JUDGMENT of the Court delivered on the 13th day of December 1999by BARRON J.
After a four day trial the appellant was convicted on the 11th December 1998 on count 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 John MacD., a male person and on count No. 9 of attempted buggery on a date unknown between the 1st April, 1985 and the 30th September, 1988 with one Joseph H., a male person. He wasalso tried on count 1 being indecent assault against William MacD., a male person on a date unknown between the 1st January, 1983 and the 31st December, 1987 and count 2 buggery on a date unknown between the 1st January, 1983 and the 31st December, 1987 with William MacD.
Counts 3, 4, 5 and 6 were wrongly included on the indictment since the appellant had not been returned for trial on those charges. Count 7 charged the appellant with indecent assault against a male person on a date unknown between the 1st January, 1981 and the 31st December, 1988 against one Thomas M., a male person. Count 10 charged the appellant with indecent assault on a date unknown between the 1st April, 1985 and the 31st December, 1991 against a male person, one Thomas H.
At the commencement of the trial counsel on behalf of the appellant applied to have each of the counts relating to different male persons heard separately. Counsel for the prosecution offered to withdraw thecountsin relation to two of the persons concerned. The judge accepted this offer and, accordingly, notwithstanding the submissions on behalf of the appellant the trial continued against the appellant on four counts which involved three separate individuals. Counts 7 and 10 were not proceededwith.
At the end of the case for the prosecution, counsel on behalf of the appellant sought a direction that there was no evidence to go to the jury of attempted buggery in relation to counts 8 and 9. This application was refused.
All four counts were left to the jury. It disagreed on counts 1 and 2 and convicted on counts 8 and 9.
The appellant was sentenced to seven years imprisonment in respect of counts 8 and 9 to run concurrently. His application for leave to appealwas refused. He now seeks leave to appeal against both conviction andsentence.
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 go to the jury.
Counsel for the appellant made his submission under the Provisions of Section 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 inan 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 Director 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 apart of 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 appellant's care in Trudder House, a residential home fortraveller 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 there is a similarity between the facts relating to the several counts. On the one hand, there is system evidence which is so admissible; and, on the other hand, there is similar fact evidence, which is inadmissible. In the latter case, the reason is that justbecause a person may have acted in a particular way on one occasion does not mean that such person acted in the same way on some other occasion. System evidence on the other hand is admissible because the manner in which a particular act has been done on one occasion suggests that it was also done on another occasion by the same person and with the sameintent.
There is a clear line of division between these two types of evidence even though it may be difficult in an individual case to say which side of the line the particular case falls. While the Court uses the expressions "system evidence" and "similar fact evidence" to distinguish the two types of evidence, in some of the authorities to which we refer the words "similar facts" are used to describe what we refer to as "system". This in itself does not affect the reality of the distinction.
The basic test is applied to ensure that the effect of the natural prejudice which will arise from similarity of allegation is overborne by the probative effect of the evidence.
In Attorney General v. Duffy 1931 IR 144 the accused was charged with four separate counts of indecent assault and gross indecency against four different male persons on four different occasions. All the counts were heard together. It was held that the convictions could not stand and that a retrial would be ordered. The basis of the decision was that to try the four offences together was in effect to supply corroboration for each of them when in law there was no such corroboration. As Kennedy C.J. put it at p. 149:
"Human nature, however, is too strong to have allowed the jury to disregard a cumulative effect of evidence given at the same trial in respect of fourdistinct offences of almost precisely the samecharacter."
The need for corroboration is no longer necessary in such cases, but the sentiment expressed is still the basis for excluding similar fact evidence. A similar sentiment was expressed by Lord Goddard C.J. in...
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