DPP v M
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 27 March 2015 |
| Neutral Citation | [2015] IECA 65 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 166/2011 |
| Date | 27 March 2015 |
[2015] IECA 65
Birmingham J.
Sheehan J.
Edwards J.
Record No: 166/2011
THE COURT OF APPEAL
Criminal Law - s. 48 of the Offences Against the Person Act 1886 - s. 2 of the Criminal Law (Rape) Act 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990 - Appeal against conviction - Safety of Conviction
Facts:
The appellant was convicted of rape contrary to s. 48 of the Offences Against the Person Act and s. 2 of the Criminal Law (Rape) Act 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990. He was sentenced to 12 years imprisonment and appealed against his conviction. The appellant argued that the trial judge erred in refusing to grant a direction and for failing to withdraw the case from the jury. The appellant's second ground of appeal was that the jury's verdict was perverse and contrary to the evidence. For these reasons the appellant said his conviction was unsafe and should be set aside.
Held by Edwards J:
The court clarified that it was for the jury to assess the prosecution's evidence even if it contained weaknesses or inconsistencies. A conviction would only be set aside if the evidence was so infirm that no jury would be able to convict upon it. Furthermore the withdrawal of a case from a jury should only be exercised if there was a risk of wrongful conviction. The court determined that the trial judge's decision on the application for a direction was within his discretion. It was for the jury to assess the prosecution evidence and complainant's evidence and decide what was credible and reliable. The court held that the prosecution's evidence was properly before the jury and it was open to them to convict the appellant. The court had no reason to believe the appellant's trial was unsatisfactory or that his conviction was unsafe. The court dismissed the appeal.
In this case the appellant was convicted on the 15th of April 2011 by the unanimous verdict of a jury at his trial before the Central Criminal Court of a single count of rape contrary to common law as provided for by s.48 of the Offences Against the Person Act, 186 and s. 2 of the Criminal Law (Rape) Act, 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990.
On the 11th of July 2011 the appellant was sentenced to 12 years imprisonment and directed to undergo 10 years post release supervision.
The appellant now appeals against his conviction.
Although seven discrete grounds of appeal are pleaded in the Notice of Appeal, not all of them were proceeded with and the essence of the appeal can be distilled down to two points:
The first is that the learned trial judge erred in refusing to grant a direction and withdraw the case from the jury at the end of the prosecution case. The second is that the verdict of the jury was perverse and contrary to the evidence.
In consequence, the appellant contents that his trial was unsatisfactory, and his conviction is unsafe and ought to be set aside.
The complainant in the case was S.A., a daughter of the appellant who was 11 years of age at the time of the trial. She gave her evidence by video link.
She recalled a time when she was about eight years of age when she was living with her father and mother, three brothers and a sister. She agreed that the family had lived in a number of places before settling in a location in Co Kildare. The complainant, upon being asked ‘ Did anything happen in those other houses? Did your father do anything to you in those other houses?’, replied ‘ Yes, he did’ and that ‘ He sexed me.’ When asked to explain what was sexing, the complainant explained ‘ when you do it, the woman has the baby’. She added: ‘ It's when you take off your clothes and then you sleep in bed together and you get on top of each other’, ‘ [a]nd you just you go up and down on people and then that's it.
The complainant stated that she knew that a man's private part was called ‘ a penis or willy’. When asked ‘ Now, does the man do anything with that in sexing?’, she replied: ‘ He does’, ‘ He rubs it off your private’, ‘ Like, when he's going up and down, he puts his private in your private’. When asked to confirm that, ‘ …,when you say sexing and that your father did sexing to you, he put his willy into your private, is that right?’, she replied ‘ Yes, he did.’
The complainant was asked:
Q. So, I want to ask you about the day before you went to the police station. Now, on that day, S.A., you didn't go to school; isn't that right?
A. I didn't.
She was then later asked:
Q. Okay. So, you get into bed, S.A., and you're wearing your Mickey Mouse top and a skirt; is that right?
A. Yes.
Q. And did your father, …, come into the room when you were in bed?
A. He did. He would often do that.
Q. All right. And when he came into the room, and you were in the bed, where did he go?
A. He went into bed with me.
She was further asked:
Q. And were you wearing your Mickey Mouse top and your skirt still?
A. Well, he took them off me, he did.
Q. So, he took off your clothes and he took off his own clothes; is that right?
A. Yes.
Q. And he got into bed with you; is that right?
A. He did, yes.
Q. And did he do anything to you, S.A., that you didn't like?
A. He sexed me.
Q. And is that the same thing that you talked about a few minutes ago, that he put his willy into your private?
A. He did I yes.
Q. He did. And when he put his willy into your private, which you use for going to the toilet, did he do anything then?
A. He went up and down on me.
The evidence of the complainant was that she was ‘sexed’ on many occasions, but specifically on the night before an occasion on which she went with other family members to the Garda Station in the place where they were living, which visit, according to other evidence adduced, had taken place on the 28th of September 2007.
There was evidence in the case from a number of Gardaí concerning the appellant's arrival at the Garda Station in question on the 28th of September 2007 with his family, following which all of his children were taken into care. The complainant and her younger sister were placed in immediate foster care. The reason for this was not made explicit to the jury, and was unstated throughout the trial.
The complainant herself, in the course of being cross-examined, told the jury of her recollection of the occasion of the visit to the Garda station:
Q. Okay. Now, just going back to the day that we the family went to the garda station, you're telling us that your Dad is looking for a new house?
A. That's what he said.
Q. All right. And he went off into the garda station, did he?
A. He did.
Q. And did you and your Mum and your sister and your brothers stay in the car?
A. Yes, we all did, except my Dad because he went in.
Q. Okay. And then did somebody come out?
A. Yes, a guard came out and told us to come in.
Q. Okay. And when you got into the garda station, I think I read somewhere in the papers that you were given chips?
A. We were.
Q. And tell me, S. A., after that day, did you ever see your Dad again?
A. No, I've never seen him since that day again, I've never seen him.
The complainant told the jury that she was living with ‘A’ and ‘B’, at the time of the trial. ‘A’ and ‘B’ are foster parents to her, and ‘A’ gave evidence before the jury.
The complainant stated that typically she and her sister would go up to bed and that ‘ after a while my Dad would come up and pretend he's saying good night but he'd actually do sexing us.’ The complainant, both when interviewed at a specialist child sexual abuse investigation unit and also when giving evidence, stated that she had also been ‘sexed’ by a number of others including her birth mother, her two brothers, and two unrelated girls who had resided for a time with the appellant and his family. The complainant suggested, inter alia, that at various times the appellant, his wife, all the children in the house, and the two unrelated girls were in the parental bedroom and that they were engaging in sexual activity with one another. One of the unrelated girls, and also one of the two brothers that were said to have ‘sexed’ the complainant, were called as witnesses by the prosecution and both witnesses denied all allegations of misconduct. The defence required that the video recordings of the interviews with the complainant at the aforementioned specialist child sexual abuse investigation unit be played to the jury.
The evidence was that the complainant's first disclosure was when she told her foster mother ‘A’ about being ‘sexed’. She regards her ‘A’ as her ‘Mam’. She said in the course of her evidence that everyone was involved in ‘sexing’ but her dad was the worst. She admitted that she herself had ‘sexed’‘R’ whom she described as her niece, but who is in fact the granddaughter of her foster mother and a special needs child. The details of the complainant's admission, concerning what she had done to ‘R’, were confirmed by ‘A’ in graphic terms.
The complainant was extensively and forensically cross-examined. This was a re-trial and the complainant had given evidence at an earlier trial (again by video link) and had also been cross-examined at that earlier trial. It was suggested to her that various aspects of her evidence in the current trial were inconsistent with what she had said on the previous occasion.
The complainant, when asked specifically in cross-examination, about the night before going to the Garda Station stated:
Q. We were dealing with the situation the night before you...
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