DPP v L (M)

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 27 April 2015
• Neutral Citation: [2015] IECA 82
• Judgment citation (vLex): [2015] 4 JIC 2701
• Court: Court of Appeal (Ireland)
• Date: 27 April 2015

[2015] IECA 82

THE COURT OF APPEAL

The President

Sheehan J.

Edwards J.

129/13

DPP v L (M)

Between

The People at the Suit of the Director of Public Prosecutions

and

M. L.

Appellant

Criminal Law – Sexual Assault – Appeal - Corroboration Warnings

Facts:

The appellant was convicted in relation to sixty counts of sexual assault against six sisters. The appellant was sentenced to four years in prison with the final twelve months suspended in respect of 37 counts. In relation to 23 counts, the appellant was sentenced to seven years in prison with the final two suspended if the appellant engaged in a treatment programme for sex offenders while in custody. The court also directed that the appellant be subject to a two year post-release supervision order and for the sentences to run concurrently. The appellant appealed primarily on the ground that the trial judge failed to give the jury a clear corroboration warning.

Held by Sheehan J:

The court was satisfied that the appellant”s concerns about remarks made by counsel for the respondent in her closing address were adequately dealt with by the trial judge”s charge. The court determined that the trial judge had explained the issues of credibility to the jury and they had been left in no doubt as to the case being made by the defence. The court also held that although the trial judge”s corroboration warning failed to adequately contextualise the warning in general or specific terms, the overall effect of what was said in relation corroboration benefitted the appellant. As a result, the court dismissed the appeal.

1 JUDGEMENT of the Court of Appeal delivered by Mr. Justice Sheehan on the 27th day of April 2015

Introduction

2 1. Following an eighteen day trial, the appellant was found guilty by a majority verdict on 60 counts of sexual assault against six sisters over a ten year period between 1994 and 2005. Apart from count 21, where the offence occurred in the appellant's car, all the other offences were committed in the family home.

3 2. In respect of 37 counts for which the maximum sentence is five years, the appellant was sentenced to four years imprisonment with the final twelve months suspended. In respect of 23 counts for which the maximum sentence is fourteen years imprisonment, the appellant was sentenced to seven years imprisonment with the final two years suspended on condition that the appellant engage in a sex offenders treatment programme while in custody. The Court further directed that the appellant be subject to a two year post-release supervision order and directed all sentences to run concurrently.

4 3. The appellant filed a notice of appeal in respect of all convictions and the Director of Public Prosecutions filed a notice pursuant to s. 2 of the Criminal Justice Act 1993, seeking to have the seven year sentences reviewed by this Court on the ground of undue leniency.

5 4. This judgment is concerned only with the conviction appeals.

Grounds of Appeal

6 5. The appellant filed a number of grounds of appeal, though at the oral hearing he submitted that his primary ground of appeal was the failure of the learned trial judge to give a clear corroboration warning. Other grounds relied on by the appellant were:-

7 (a) The failure of the learned trial judge to discharge the jury following prejudicial remarks made by prosecution counsel in her closing address and a further related ground that, having refused to discharge the jury, the learned trial judge was insufficiently condemnatory of the prosecution counsel's remarks in his charge to the jury;

8 (b) The failure of the learned trial judge in his charge to adequately address the evidence that related to the credibility of the complainants and, in particular, the failure to address key matters relating to conflicts in the evidence which impacted on credibility, and;

9 (c) That the learned trial judge erred in failing to direct the jury that each of them was required by their oath not to return a verdict with which they did not agree.

10 6. In order to consider these grounds of appeal it is necessary to set out the background to the offences.

Background

11 7. The complainants were six sisters who alleged that the appellant had sexually abused them over a period of ten years when he lived in their family home as their mother's partner from in or about 1994, when the youngest complainant was six months old, until in or about May 2005. When the appellant moved into the family home, seven sisters were living there at the time. According to their mothers evidence the sexual relationship between herself and the appellant had ended after the first couple of years in or about 1996.

12 8. At trial, the six complainants all gave evidence describing the nature of the abuse and the circumstances in which the abuse took place. Each of the six complainants gave evidence that the abuse had occurred a couple of times a week and over a prolonged number of years. Each described the abuse as comprising of frequent, and sometimes daily, touching of the breasts and vagina of each complainant in addition to forced masturbation, simulated and oral sex in respect of most complainants.

13 9. Each stated that the abuse mainly occurred in the appellant's bedroom but also in the sitting room and bathroom of the house apart from one complainant's evidence that one incident had occurred in the appellant's car. Five of the six complainants gave evidence that upon their return from school each day, the appellant would knock on the floor of his upstairs bedroom demanding a cup of coffee. The abuse would commence when one of the complainants went to his room with his cup of coffee. Five of the complainants gave evidence that the appellant would either be naked or if wearing underpants or a towel he would expose himself. Other evidence was also given by five of the complainants that the appellant forced them to watch pornographic films in his company. Four of the complainants stated that the appellant wore a studded belt, ring and an attached chain on his penis. The mother of the complainants confirmed that the appellant had worn such items and the studded belt, ring and chains were exhibited at the trial.

14 10. Four of the complainants gave evidence of being forced to perform oral sex upon the appellant and another complainant also gave evidence that she had been requested to perform oral sex but had refused. Evidence was also given by four of the complainants that the appellant had given yoghurts, sweets or money to them after the abuse had occurred. Three of the complainants also specifically gave evidence of the appellant using baby oil as a lubricant during the incidences of sexual abuse.

15 11. Three of the complainants gave evidence of another sister being present while they were being sexually assaulted or having seen the appellant assault one of her sisters. A fourth complainant, who did not confirm her sister's evidence of sexual assault when she was present, gave evidence that they both watched a pornographic video together with the appellant.

16 12. The first complainant gave evidence that she and her other sister, A.F., withdrew their previous complaints made in 2003 under threat of being thrown out of the family home and that they had nowhere else to go. A.F. subsequently reiterated that reason to the trial court.

17 13. In 2005, M.F. made a disclosure to her sister A.F., who took her to a Dublin Hospital and also to An Garda Síochána. The other complainants then made statements and these were taken over a period between May and September 2005. The eldest sister had left the family home when she was approximately seventeen years of age and did not make any complaint against the appellant.

18 14. Following his arrest, the appellant was interviewed by the gardaí. He denied all the offences and said that the complaints were complete lies.

19 15. The Court proposes to consider the grounds of appeal marked (a) to (c) above and then go on to consider the submissions of both parties on the question of corroboration.

Failure to Discharge the Jury

20 16. In the course of her closing address to the jury, counsel for the respondent referred to the fact that the eldest sister had not complained and suggested that this might have related to her age. Counsel for the appellant objected to these remarks and applied for the jury to be discharged because of their prejudicial nature. Counsel for the respondent, while conceding that it was prejudicial to bring the issue of the eldest daughter's lack of complaint into the case at that stage, submitted that the matter could be adequately dealt with by the learned trial judge in his charge. In the course of that charge the learned trial judge said the following with regard to these remarks:

"There was a suggestion in this, could I say, that I think I should correct really, that you were asked to draw an inference from the fact that L.F. had left home at sixteen to seventeen, and that there was no complaint laid by her and that you were to draw an inference from her because she was older, in fact, than the others and had left perhaps, I think she said she was born in 1982. That should not take part of your - take up time as part of your considerations or deliberations. There is no evidence to suggest as to why she left home, and I think it would be wrong if you were to draw an inference from that, that perhaps could be adverse to M.F. in his dealings with the other children."

21 17. Following his charge, counsel for the appellant requisitioned the learned trial judge on this matter submitting that a more forceful condemnation of prosecution counsel's remarks was required. The learned trial judge refused to comply with this requisition.

22 18. This...