DPP v M.A.
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 21 June 2022 |
| Neutral Citation | [2022] IECA 136 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No: 161/2019 |
[2022] IECA 136
Edwards J.
McCarthy J.
Kennedy J.
Record No: 161/2019
THE COURT OF APPEAL
Conviction – Sexual offences – Supplementary ground of appeal – Appellant seeking to appeal against conviction – Whether the interests of justice favoured the appellant being given an opportunity to ventilate the intended supplementary ground of appeal against his conviction
Facts: The appellant, on the 13th of May 2019, came before the Circuit Criminal Court charged with one count of rape contrary to s. 48 of the Offences Against the Person Act 1861, and s. 2 of the Criminal Law (Rape) Act 1981; and one count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990. Both counts were alleged to have occurred on the 29th of October 2015, at Dollymount Beach, Clontarf, Dublin. The appellant pleaded not guilty to all charges. On the 24th of May 2019, following a deliberation period of seven hours and three minutes, the jury returned an 11-1 verdict of guilty in respect of the count of rape, and a ‘disagreement’ in respect of the count of sexual assault. The respondent, the Director of Public Prosecutions, subsequently entered a nolle prosequi in respect of the sexual assault charge. On the 11th of July 2019, the appellant was sentenced to 8 years’ imprisonment, the final 18 months of which were suspended conditionally. The appellant appealed against his said conviction on the basis that: (i) the trial judge erred in law in her rulings and/or in her directions; (ii) without prejudice to the generality of the foregoing, the trial judge permitted evidence which should not have been permitted, in particular evidence of recent complaint; and (iii) the verdict of the jury was contrary to the weight of the evidence and was perverse. The Notice of Appeal also contained a fourth ground of appeal which complained that: (iv) the sentence imposed was excessive in all the circumstances. The conviction appeal was heard before the Court of Appeal on the 16th of July 2020 following which judgment was reserved. The Court issued its judgment on the 22nd of December 2020 and dismissed the appeal against conviction on all three grounds: [2020] IECA 367. By a Notice of Motion dated the 19th of July 2021 the appellant, represented by his new legal team, sought (in effect) to re-open the appeal against the appellant’s conviction. The Notice of Motion sought: “an Order amending the Grounds of Appeal herein to include the following ground: ‘Having regard to the issues highlighted by the defence regarding the reliability of the second “recent complaint” witness that the prosecution proposed to call, the learned trial Judge erred in refusing to hold a voir dire in relation to that evidence before ruling it inadmissible’.” Leading counsel for the appellant sought to emphasise that while it was an attempt to reopen the appeal against conviction, it was not an attempt to re-open or re-litigate a ground or grounds of appeal that had already been rejected, but rather that the leave of the Court was being sought to argue a further ground that was not argued at the hearing on the 16th of July 2020. It was submitted on behalf of the appellant that the intended supplementary ground was cogent and clear, and that the appellant had put forward a basis in law and in fact to demonstrate ‘a possibility of injustice, of a mistrial, or of evidence having been wrongly admitted’ (O’Higgins C.J. in The People (Director of Public Prosecutions) v Kelly [1982] I.R. 90). In the circumstances, it was contended that the interests of justice favoured the appellant being given an opportunity to ventilate the intended supplementary ground of appeal against his conviction before the Court.
Held by the Court that it did not believe that the appellant had crossed the threshold required to justify the Court in re-opening the previously determined conviction issue. The Court held that there were no exceptional circumstances, there was no adequate explanation for the matter being raised at a late stage, and there was nothing that persuaded the Court that intervention was necessary to avoid manifest injustice.
The Court held that the relief sought in the motion of the 19th of July 2021 would be refused.
Relief refused.
JUDGMENT of the Court delivered on the 21st day of June 2022 by Mr Justice Edwards
On the 13th of May 2019, the appellant came before the Circuit Criminal Court charged with one count of rape contrary to section 48 of the Offences Against the Person Act 1861, and section 2 of the Criminal Law (Rape) Act 1981; and one count of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990. Both counts were alleged to have occurred on the 29th of October 2015, at Dollymount Beach, Clontarf, Dublin. The appellant pleaded not guilty to all charges.
On the 24th of May 2019, following a deliberation period of seven hours and three minutes, the jury returned an 11–1 verdict of guilty in respect of the count of rape, and a ‘disagreement’ in respect of the count of sexual assault. The DPP subsequently entered a nolle prosequi in respect of the sexual assault charge.
On the 11th of July 2019, the appellant was sentenced to 8 years' imprisonment, the final 18 months of which were suspended conditionally.
The appellant appealed against his said conviction on the basis that:-
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(i) The trial judge erred in law in her rulings and/or in her directions.
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(ii) Without prejudice to the generality of the foregoing, the trial judge permitted evidence which should not have been permitted, in particular evidence of recent complaint.
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(iii) The verdict of the jury was contrary to the weight of the evidence and was perverse.
The Notice of Appeal also contained a fourth ground of appeal which complained that:
(iv) The sentence imposed was excessive in all the circumstances.
As frequently occurs in cases where both conviction and sentence are appealed against, the Court determined that it would hear only the appeal against conviction in the first instance. If that appeal were to be successful on any of the grounds relied upon then the appeal against sentence would simply fall away. However, and conversely, if the conviction was upheld, the appeal against sentence could, and would, be addressed later at a separate hearing.
The conviction appeal was heard before this Court on the 16th of July 2020 following which judgment was reserved. The Court issued its judgment on the 22nd of December 2020 and dismissed the appeal against conviction on all three grounds. See the judgment in The People (Director of Public Prosecutions) v M.A. [2020] IECA 367.
Following delivery of this Court's said judgment in respect of the appellant's appeal against his conviction, the concurrent appeal against the severity of the appellant's sentence remained extant and in due course that sentence appeal was listed for hearing on the 15th of October 2021. In the meantime, however, the appellant had changed legal teams and a different solicitor and a different counsel, from those who had represented him previously were then instructed to act on his behalf.
By a Notice of Motion dated the 19th of July 2021 the appellant, represented by his new legal team, now seeks (in effect) to re-open the appeal against the appellant's conviction. The Notice of Motion seeks:
“an Order amending the Grounds of Appeal herein to include the following ground:
‘Having regard to the issues highlighted by the defence regarding the reliability of the second “recent complaint” witness that the prosecution proposed to call, the learned trial Judge erred in refusing to hold a voir dire in relation to that evidence before ruling it inadmissible’.”
Leading counsel for the appellant, Barry McGrory Q.C. has sought to emphasise that while it is an attempt to reopen the appeal against conviction, it is not an attempt to re-open or re-litigate a ground or grounds of appeal that have already been rejected, but rather that the leave of the court is being sought to argue a further ground that was not argued at the hearing on the 16th of July 2020.
In response to this motion, we indicated that we wished to be addressed as to whether it was open to this Court, in any circumstances at all and, if so, in the circumstances of the case, to permit an additional ground of appeal against conviction to be canvassed after the court had already given judgment upholding the conviction and rejecting the complaints made in the Notice of Appeal in respect of it (in circumstances where there was no suggestion that some new or newly discovered fact had since come to light). We invited the parties to file submissions addressing these issues. We indicated that we would hear oral arguments concerning them on the 16th of November 2021, and to facilitate this the Court would further adjourn the outstanding sentence appeal to a later date (to be fixed in due course).
Accordingly, this judgment is in respect of the issues arising on the appellant's said motion dated the 19th of July 2021.
The motion was grounded upon an affidavit of Mr James MacGuill, solicitor, sworn on the 19th of July 2021. In paragraphs 4 to 7 inclusive Mr MacGuill makes the following averments (with appropriate anonymising redactions by this Court):
4. By way of a brief synopsis of the argument to be made if leave is granted, I say that the second ‘recent complaint’ witness was Garda [K.G.]. She was called by the prosecution on the premise that the complaint made to Garda [K.G.] was part of the same continuum as the complaint that the complainant made to her friend [S] immediately after the incident. The value of Garda [K.G.]'s...
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