DPP v A.M.

• Jurisdiction: Ireland
• Judge: Ms. Justice Kennedy
• Judgment Date: 20 December 2022
• Neutral Citation: [2022] IECA 309
• Court: Court of Appeal (Ireland)
• Docket Number: Record Number: 232/2019

Between/

The Director of Public Prosecutions

Respondent

and

A.M.

Appellant

[2022] IECA 309

The President

McCarthy J.

Kennedy J.

Record Number: 232/2019

THE COURT OF APPEAL

Conviction – Rape – Discharging the jury – Appellant seeking to appeal against conviction – Whether the trial judge erred in failing to accede to a defence application to discharge the jury

Facts: The appellant, on the 26th July 2019, was convicted of six counts on the indictment: counts 1 and 2 related to offences of rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981, as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990; counts 4, 5, 6 and 7 related to offences of rape contrary to s. 4 of the 1990 Act. The appellant appealed to the Court of Appeal against his conviction on two grounds as follows: (1) the trial judge erred in law and in fact, or in a mixed question of law and fact, in failing to accede to a defence application at the conclusion of the trial to discharge the jury in circumstances where the complainant had intentionally and gratuitously introduced misconduct evidence which was prejudicial and of no probative value before the jury, reflecting upon and touching upon the character of the defendant, to include previous convictions recorded against him; and (2) the trial judge erred in law or in fact in failing or refusing to grant an application for a direction at the request of counsel for the defence at the conclusion of the prosecution case.

Held by the Court that the appeal focused on the refusal of the trial judge to discharge the jury; whilst two grounds of appeal were filed, the written submissions confirmed that the second ground was subsumed into the first ground for the purpose of the appeal. Addressing the issue of the application to discharge the jury, the Court was not persuaded that the judge erred in her ruling. The Court held that whilst the evidence was potentially prejudicial, the judge properly analysed the evidence, the context of the introduction of the evidence, and the circumstances in which the application was made to discharge the jury.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on the 20th day of December 2022 by Ms. Justice Kennedy.

1 . This is an appeal against conviction. On the 26th July 2019, the appellant was convicted of six counts on the indictment; counts 1 and 2 relate to offences of rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s.2 of the Criminal Law (Rape) Act, 1981, as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act, 1990. Counts 4, 5, 6 and 7 relate to offences of rape contrary to s. 4 of the Criminal Law (Rape)(Amendment) Act, 1990.

Background

2 . The complainant is a Slovakian national. She came to Ireland in 2009 with her two children to join her long-term partner who was already living in the jurisdiction. The complainant met the appellant, a Polish national, at a time when she was experiencing difficulties in her relationship with her partner. The appellant offered the complainant accommodation for herself and her two children at his house. The arrangement being that she would not be charged rent, but she was expected to clean the house.

3 . The first count of rape relates to an incident which was alleged to have occurred on the 1st January 2013. The parties had attended a New Year's Eve party and while driving home the following morning, the appellant explained to the complainant that there is a Polish tradition whereby on New Year's morning men sleep with their wives or partners. The complainant gave evidence that following this conversation, the appellant came into her bedroom and instructed her to go with him to his room. She said that he was shouting very loudly and produced a pistol. She gave evidence that she went to his bedroom and had sex with him for a moment, following which the appellant took her to collect the children. The complainant said that after this incident she moved out of the appellant's house and returned to live with her partner.

4 . The second count of rape relates to an incident which occurred between the 1st February 2013 and the 30th April 2013. At this point in time, the complainant, her partner and their two children had moved to a new address and the complainant's partner was working for the appellant in his garage. The complainant gave evidence that while her partner was at work in the garage, the appellant asked her for oral sex in the living room of this new house while one of her children was present in the room. She said that he sat down on the sofa, opened his trousers and began to masturbate. It is the complainant's evidence that the appellant grabbed her and asked her to sit on him, at which point they had vaginal sex.

5 . The appellant was in Poland for a period between 2013 and 2016. In August or September 2016, he made contact with the complainant as he was coming to Ireland to visit their daughter who had been born in late 2013. At this point, the complainant, her partner and her three children were living at a further new address and the appellant came to stay with them at this address for a period of approximately two weeks. During this time, the complainant alleges that the s. 4 rape offences contained in counts 4, 5, 6 and 7 occurred where she would be forced by the appellant to massage his penis and perform oral sex on him.

Grounds of Appeal

6 . The appellant appeals his conviction on two grounds as follows:

“1. The Learned Trial Judge erred in law and in fact, or in a mixed question of law and fact, in failing to accede to a Defence application at the conclusion of the trial to discharge the jury in circumstances where the complainant had intentionally and gratuitously introduced misconduct evidence which was prejudicial and of no probative value before the jury, reflecting upon and touching upon the character of the Defendant, to include previous convictions recorded against him;

2. The Learned Trial Judge erred in law or in fact in failing or refusing to grant an application for a direction at the request of Counsel for the Defence at the conclusion of the Prosecution case.”

Submissions of the Appellant

The refusal of the trial judge to discharge the jury or to direct verdicts of not guilty.

7 . The grounds are in effect considered as one in the appellant's written and oral submissions. In support of their submission that prejudicial evidence was put before the jury, the appellant refers to certain sections of the transcript which may be summarised, inter alia, as follows:

It is the appellant's position that this prejudicial evidence was proffered gratuitously in situations where it was not relevant to the question being asked.

• • An allegation by the complainant that the appellant takes cocaine.

• • An allegation by the complainant that he had had previous dealings with the Gardaí: “Well, Police were there [the appellant's house] before and as always they didn't find anything. They had some report on him but they didn't find anything because he always knew how to arrange things.”

• • An allegation by the complainant of a previous drug search at the house: “Well, all of this happened before, earlier, and they were searching the house because of the drugs and they knew what kind of beast this person was and how could I defend myself against such a human, I was worried for my daughter.”

• • Allegations by the complainant of the appellant drug dealing, being part of the Mafia, having murdered a person and having threatened his wife: “But he is a terrible person. He is a drug dealer. He is mafia. He murdered a person in Russia. He is the—he is wanted in Poland and he also was in prison in Ireland for three years because he was threatening his wife. So what kind of person is that.”

• • Allegations by the complainant's partner that the appellant is a thief, that he was under the influence of drugs and that those who worked for him feared him: “he is just a thief and he is an animal. He takes things from other people. Also this car that is depicted in the photograph numbered 1, [the appellant] took it from another person. He took the key. He was beating that person, took a key and took that car. I remember that about this particular car because I went with him to get that car. He was violent with everybody because he was under the influence of drugs all the time because everybody that works for [the appellant], they are afraid of him because they are selling drugs for him.”

8 . The appellant cites McGrath on Evidence (3rd ed) at paras 9–15 wherein it is stated that evidence of the bad character of an accused is inadmissible, and that the prosecution cannot adduce such evidence as part of its case or seek to elicit it by cross-examination of the accused or witnesses called on his or her behalf. The People (DPP) v Murphy [2005] IECCA 1 is similarly relied on. In McGrath it is noted that evidence of the accused having been convicted of criminal offences, having served time in prison or having a history of violence clearly constitutes evidence of bad character.

9 . The appellant submits that the admission of evidence of bad character poses a serious threat to the fairness of a criminal trial and that, therefore, it can be contended that the exclusionary rule in respect of bad character evidence is required by Article 38.1 of the Irish Constitution. McWilliam J in King v Attorney General [1981] IR 233 is cited in support of this.

10 . The appellant, in respect of his submission relating to bad character evidence, further relies on The People (DPP) v Keogh [1997] IEHC 87, wherein Kelly J expressed the view that “the adducing of such evidence would run counter to the basic concept of justice inherent in our legal system.”

11 . Where misconduct or bad character evidence is...