DPP v LG

• Jurisdiction: Ireland
• Judgment Date: 21 May 2003
• Date: 21 May 2003
• Docket Number: [C.C.A. No. 118 of 2001]
• Court: Court of Criminal Appeal

The People (Director of Public Prosecutions) v. L.G.

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

Prosecutor

and

L.G.

Accused

[C.C.A. No. 118 of 2001]

Court of Criminal Appeal

Criminal law - Evidence - Separate trials - Prejudice or embarrassment in defence - Multiple accusations - Whether evidence on one count inadmissible on another - Similar fact evidence - Whether corroboration required - Direction to jury - Whether deficiencies in indictment - Sample charges - Criminal Justice (Administration) Act 1924 (No. 44) s. 6(3) and sch. 1 r.3.

Criminal law - Rape - Delay - No evidence of continuing relationship of dominion over complainants - Application not brought by way of judicial review for prohibition - Discretion of trial judge - Directions to jury on question of delay - Credibility of complainants - Constitution of Ireland 1937 Article 38.1.

Criminal law - Trial - Standard of proof - Presumption of innocence - Direction to jury on meaning of "reasonable doubt".

The accused was convicted by a jury in the Central Criminal Court on the 11th June, 2000, of the rape of his sister, J., on a date unknown between the 1st July, 1973 and the 30th June, 1978 and of three counts of indecently assaulting her on dates unknown between the same dates. He was further convicted by the jury of indecently assaulting M., also his sister, on a date unknown between the 9th July, 1974 and the 28th July, 1976.

The accused having been refused leave to appeal in respect of the convictions and sentence, appealed that refusal to the Court of Criminal Appeal.

The grounds of appeal relied on were, inter alia, that the trial judge was wrong in law in not acceding to an application on behalf of the accused to direct separate trials in respect of each complainant; that the trial judge was wrong in law in not acceding to an application on behalf of the accused to prevent the continuation of the trial on the ground of delay; that the trial judge failed to set out the relevant principles of law relating to the offence of rape; and that the trial judge failed adequately to direct the jury on the burden and standard of proof, the meaning of reasonable doubt and the presumption of innocence.

Held by the Court of Criminal Appeal (Keane C.J., Lavan and Abbott JJ.), in allowing the appeal, quashing the convictions and directing that there should be no retrial, 1, that the trial judge was entitled to exercise his discretion by refusing the application for separate trials. However, it was incumbent on the trial judge to direct the jury in clear terms that they should consider the evidence in respect of the counts relating to the first complainant on the one hand and the second complainant on the other hand, separately, and should come to a separate determination in respect of the counts as to the first complainant and the count as to the second complainant.

The People (Director of Public Prosecutions) v. B.K. [2000] 2 I.R. 199 and Attorney-General v. Duffy[1931] I.R. 144applied. R. v. Sims [1946] 1 K.B. 531 and Reg. v. Boardman [1975] A.C. 421 approved.

2. That, if the court of trial was entitled to quash an indictment on the ground of delay where an application for an order of prohibition could have been, but was not, applied for, such an application should be made before the case was opened and preferably before the accused had pleaded to the indictment and been put in the charge of the jury. Accordingly, the trial judge was correct in refusing to withdraw the case from the jury on the ground of delay.

The People (Director of Public Prosecutions) v. P.O'C. (Unreported, Court of Criminal Appeal, 27th January, 2003) followed.

3. That, given the very significant delay that had elapsed, the trial judge's charge to the jury did not contain adequate warnings of the dangers of a conviction in respect of any of the counts after so great a lapse of time. There was no indication to the jury of the problems that this inevitably would create for the defence in preparing for trial. The jury should have been told by the trial judge that, in assessing the credibility of the complainants, they would have to have borne in mind that they had not complained to the gardaí until more than 20 years had elapsed. Nor were they told that, while on one view it was understandable that no complaint had been made while the complainants were still children or adolescents, there was no satisfactory explanation given as to the delay which ensued from 1986 until 1997 in making any complaint, although it was obvious that, at that stage, they were not in any sense under the dominion of the accused.

4. That the issues of corroboration and delay should have been dealt with separately in the trial judge's charge to the jury and should not have been conflated as they were in this case.

5. That, given that the constituents of the offences of rape and unlawful carnal knowledge of a girl under the age of fifteen were significantly different, it should have been pointed out to the jury that, if they accepted the first complainant's evidence that sexual intercourse had taken place between her and the accused on one or more occasions, that would only justify a conviction of rape if they were satisfied that she had not consented to the intercourse. The jury should then have been directed that, if they were satisfied that consensual sexual intercourse had taken place, they could find the accused guilty of unlawful carnal knowledge.

• O'B. v. Pattwell [1994] 2 I.L.R.M. 465 applied.

6. That, while the court was far from saying that there is any specific formula which trial judges as a matter of law must employ when explaining the standard of proof required of the prosecution or the nature of "a reasonable doubt", it was satisfied that, in this case, the directions given were not as clear and detailed as they should have been. The trial judge did not explain in any detail to the jury what the law would regard as "a reasonable doubt", nor did he remind the jury of the distinction between the standard of proof required in criminal cases and that required in civil cases.

Cases mentioned in this report:-

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

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

O'B. v. Pattwell [1994] 2 I.L.R.M. 465.

P.O'C. v. Director of Public Prosecutions [2000] 3 I.R. 87.

The People (Director of Public Prosecutions) v. E.F. (Unreported, Supreme Court, 24th February, 1994).

The People (Director of Public Prosecutions) v. Hernon (Unreported, Court of Criminal Appeal, 3rd December, 2001).

The People (Director of Public Prosecutions) v. B.K. [2000] 2 I.R. 199.

The People (Director of Public Prosecutions) v. P.O'C. (Unreported, Court of Criminal Appeal, 27th January, 2003).

Reg. v. Boardman [1975] A.C. 421; [1974] 3 W.L.R. 673; [1974] 3 All E.R. 857.

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

State (O'Connell) v. Fawsitt [1986] I.R. 362; [1986] I.L.R.M. 639.

Application for leave to appeal.

The facts of the case are summarised in the headnote and are more fully set out in the judgment of the Court of Criminal Appeal delivered by Keane C.J., infra.

On the 11th July, 2002, the accused was convicted by a jury in the Central Criminal Court (Murphy J.) of rape and indecent assault and was sentenced on the 28th May, 2001, to a term of imprisonment of three and a half years and two concurrent terms of eighteen months. His application for leave to appeal was refused and an appeal against this refusal was lodged on the 6th June, 2001 and heard by the Court of Criminal Appeal (Keane C.J., Lavan and Abbott JJ.) on the 12th May, 2003, where the application for leave to appeal was treated as the appeal.

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.

Keane C.J. 21st May, 2003

The accused was convicted by a jury in the Central Criminal Court on the 11th July, 2000, of having raped his sister, J., on a date unknown between the 1st July, 1973 and the 30th June, 1978 and of three counts of having indecently assaulted her on dates unknown between the same dates. He was further convicted by the jury of having indecently assaulted M., also his sister, on a date unknown between the 9th July, 1974 and the 28th July, 1976. The presiding judge, Murphy J., sentenced the accused to a term of imprisonment of three and a half years in respect of the rape conviction, a concurrent term of eighteen months imprisonment in respect of the conviction for indecently assaulting M. and a concurrent term of eighteen months imprisonment in respect of the three counts of having indecently assaulted M. Having been refused leave by the trial judge to appeal in respect of the convictions and sentence, he has now appealed from that refusal to this court.

All of the offences were alleged to have been committed in what was then the family home of the accused and the two complainants in a Dublin suburb. The first complainant was born on the 1st June, 1965 and, accordingly, would have been aged between eight and thirteen at the relevant time. The second complainant was aged between four and six when she was alleged to have been indecently assaulted by the accused. The applicant was born on the 17th August, 1958 and, accordingly, was aged between fourteen and nineteen during the period in respect of which the charges concerning the first complainant were brought and between fifteen and seventeen during the period in respect of which the charge concerning the second complainant was brought.

The accused and the two complainants were one of a family of twelve children, six boys and six girls, who lived with their parents in extremely poor circumstances, first in the inner city and later in a house in the suburbs. In her evidence at the trial, the first complainant gave evidence of the accused having had...