DPP v M.B.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Mahon |
| Judgment Date | 03 November 2016 |
| Neutral Citation | [2016] IECA 333 |
| Docket Number | Record No. 151/2016 |
| Court | Court of Appeal (Ireland) |
| Date | 03 November 2016 |
[2016] IECA 333
THE COURT OF APPEAL
Mahon J.
Birmingham J.
Sheehan J.
Mahon J.
Record No. 151/2016
Conviction– Sexual offences– Reliability of witness– Appellant seeking to appeal against conviction– Whether the trial judge erred and was wrong in law in refusing an application to disallow the tendering of evidence by a witness
Facts: The appellant was charged with ten counts. Two were of indecently assaulting Ms A on dates unknown between 19th April 1983 and 18th April 1985 in different, but adjoining locations, in Co. Laois contrary to Common Law and as provided for by s. 10 of the Criminal Law (Rape) 1981. The other eight counts were of rape contrary to Common Law as provided for by s. 48 of the Offences against the Person Act 1861 and as provided for by s. 2 of the Criminal Law (Rape) Act 1981, in which the alleged victim was also Ms. A. The alleged rapes occurred within the same date line and in the same general location as were alleged in the indecent assault counts. Following a seven day trial the appellant was convicted on one of the indecent assault charges in the Central Criminal Court on 16th March 2016. He was sentenced on 30th May 2016 to two years and six months imprisonment, said sentence to date from 9th May 2016. The appellant appealed to the Court of Appeal against his conviction on the following grounds: (1) The trial judge erred and was wrong in law in refusing an application to disallow the tendering of evidence by witness number 2, Mr B, in circumstances where it was reliant upon what the witness indicated he observed when he was five years old, and subsequently admitted to be four years old, in excess of thirty years later, or indeed in failing to hold an enquiry as to whether such evidence reached a standard as to which a jury could rely upon it in considering a verdict; (2) The trial judge erred and was wrong in law in failing to give a warning to the jury in all the circumstances of the case as to the reliability of witness number 2 or a warning to urge caution in considering his testimony.
Held by Mahon J that, having distinguished R v Malicki [2009] EWCA Crim 365, in the circumstances of this case the decision of the trial judge to deem the reliability of the evidence of Mr B to be a matter for consideration by the jury to have been correct. In the Court’s view, the trial judge gave a near perfect direction to the jury as to how they should approach the reliability and credibility of witnesses who gave evidence in the case. Mahon J held it to have been clear, concise and easily understood. Mahon J noted that, in ease of the appellant, the trial judge gave the jury a delay warning. Furthermore, Mahon J noted that the jury had had the benefit of a lengthy, detailed and robust cross examination by Mr. Peart S.C. of Mr. B on behalf of the appellant. Mahon J noted that the trial judge in her charge to the jury recounted the evidence of Mr B and the extent to which that evidence was sought to be undermined in cross examination. Mahon J held that it was well within their competence to accept or reject all, or parts of, Mr B’s evidence as to what he believed he saw over thirty years previously. Equally, Mahon J noted that the jury were well aware that Mr B was recounting events of many years previously, and at a time when he was aged four or five years old.
Mahon J held that the appeal should be dismissed.
Appeal dismissed.
The appellant was convicted in the Central Criminal Court on 16th March 2016 of one count of indecent assault, contrary to Common Law and as provided for by s. 10 of the Criminal Law (Rape) 1981. He was sentenced on 30th May 2016 to two years and six months imprisonment, said sentence to date from 9th May 2016. The appellant has appealed his conviction and sentence. This judgment relates solely to his conviction appeal.
The appellant was charged with ten counts in total. Two were of indecently assaulting Ms. A on dates unknown between 19th April 1983 and 18th April 1985 in different, but adjoining locations, in Co. Laois. The other eight counts were of rape contrary to Common Law as provided for by s. 48 of the Offences against the Person Act 1861 and as provided for by s. 2 of the Criminal Law (Rape) Act 1981, in which the alleged victim was also Ms. A. The alleged rapes occurred within the same date line and in the same general location as were alleged in the indecent assault counts. Following a seven day trial the appellant was convicted on one of the indecent assault charges, Count 4, the particulars of which are that:-
‘… (M.B.), a male person, did on a date unknown between 19th April 1983 and 18th April 1985 (both dates inclusive) in a shed (subsequently amended to a field) at Ballycarroll, Portarlington, in the County of Laois indecently assaulted (Ms. A) a female person.’
The appellant's grounds of appeal are as follows:-
(1) The learned trial judge erred and was wrong in law in refusing an application to disallow the tendering of evidence by witness number 2, Mr. B, in circumstances where it was reliant upon what the witness indicated he observed when he was five years old, and subsequently admitted to be four years old, in excess of thirty years later, or indeed in failing to hold an enquiry as to whether such evidence reached a standard as to which a jury could rely upon it in considering a verdict.
(2) The learned trial judge erred and was wrong in law in failing to give a warning to the jury in all the circumstances of the case as to the reliability of witness number 2, Mr. B, or a warning to urge caution in considering his testimony.
Mr. B and Ms. A are brother and sister respectively. Mr. B was four years old at the time of the alleged indecent assault in respect of which the appellant was found guilty, although he initially believed himself to have been five years old.
On the second day of the trial, and as Mr. B was about to be called as a witness for the prosecution, Mr. Peart S.C. on behalf of the appellant made an application (in the absence of the jury) to have the evidence of Mr. B excluded. His application was primarily based on the fact that Mr. B was four years old, probably about four and three quarter years old, whereas he believed himself to have been five years old, at the time of the alleged indecent assault, and that the evidence of a four year old, some thirty one years later, should be deemed by the court to be unreliable. While the age issue was the primary motivation for the application to exclude Mr. B's evidence, reference was also made to the fact that the evidence of Ms. A, which had concluded at this point in time, was in some respects inconsistent with the information provided in the statement of Mr. B, particularly as to the location of the assault on his sister.
In contending for the exclusion of Mr. B as a witness, Mr. Peart stated:-
‘… I am relying as my strong point on the fact that he does not even know his own age and that he was four, not five and that .. he does not even know how old he was when he says this occurs. He has got it wrong. I am saying that it is hopelessly unreliable for the reason that he was allegedly five, transpires to be four, and he is now trying to say what happened thirty one years later. But I am saying that even if we needed to have extra reasons why his evidence is unreliable, one can first of all say it contradicts other evidence already given if he gives his evidence that way and secondly I would say that it is uncorroborated and in fact you would have expected, if there is any reliance to be put on it at all, you would have expected the complainant to have said not only did this happen but my brother saw it and she does not…’
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