DPP v M.B.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 29 March 2023 |
| Neutral Citation | [2023] IECA 85 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 183/2022 |
[2023] IECA 85
The President.
Edwards J.
Kennedy J.
Record Number: 183/2022
THE COURT OF APPEAL
Crime & sentencing – Sexual offences – Multiple offences including sexual assault – Appeal against conviction
Facts: The appellant had been convicted of nine counts of sexual assault contrary to s 2 of the Criminal Law (Rape) (Amendment) Act, 1990 and twelve counts of invitation to sexual touching contrary to s 4 of the Criminal Law (Sexual Offences) Act, 2017. He had been engaged by the complainant’s parents as a childminder. He now sought to appeal against conviction arguing that the case should have been withdrawn from the jury.
Held by the Court, that the appeal would be allowed. The Court was persuaded that this was an exceptional case which would have justified the issue of a direction by the trial Judge, and that whilst re-examination of the complainant did take place, it was not sufficient to confirm that the events complained of took place.
JUDGMENT of the Court delivered on the 29 th day of March 2023 by Ms. Justice Isobel Kennedy.
This is an appeal against conviction. On the 22 nd June 2022, the appellant was convicted of nine counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990 and twelve counts of invitation to sexual touching contrary to s. 4 of the Criminal Law (Sexual Offences) Act, 2017.
The appellant was the complainant's childminder from December 2019 until April 2020 when the complainant was seven years of age. His parents gave evidence of having hired the appellant from a childminding website to mind their two sons. He was hired for the position because he had a car and so could drive the complainant to school. The evidence disclosed that the appellant began by minding the boys at their own home but following the Covid-19 pandemic lockdown, minded them at his house while their parents worked from home.
The appellant's employment was terminated by the boys' parents on the 23rd April 2020 after the complainant told them that the appellant had shown him a video clip which showed a child being hit with a leather belt on the bottom by his father.
The alleged offending came to light on the 6th May 2020, when the complainant demonstrated to his mother sexualised conduct which he said was shown to him by the appellant; this involved him moving his hand up and down his penis. A short time later that same day, he again demonstrated sexual conduct; this time he lay and then sat on his mother and moved his hips backwards and forwards. He demonstrated the conduct to his father also. Thereafter, his father attended the Garda Station and an investigation ensued.
On the 14th May 2020 a two-hour interview was conducted with the complainant pursuant to s. 16 of the Criminal Evidence Act, 1992 and in accordance with Good Practice Guidelines. During this interview, the complainant described that the appellant would “lay down” and the complainant would move “backwards and forwards” on top of him while the appellant told him to “go faster or slower.” The complainant also described that sometimes his legs would be outside the appellant's legs and sometimes they would be inside his legs.
The complainant further outlined incidents where the appellant rubbed his penis. He stated that “his hand would go up and down then round in a circle then up and down” and that “when he's done doing it then I do it.” When asked how often these incidents occurred he said, “it did happen a lot of times I think” and that the appellant had told him it was “private.” This type of touching was described as both over and under clothing. During this interview, the complainant was able to recollect the layout of the rooms and furniture in the appellant's house.
The complainant was cross-examined by counsel at trial and indicated he had difficulty recalling the events, culminating in the following:
“Q. … Did [the appellant] ever touch your penis that you can remember?
A. No.
Q. Okay. And did [the appellant] ever get you to jump and down on him or move around or anything like that, that you can remember?
A. No.”
The appellant relies on the following three grounds of appeal:
“1. The learned Trial Judge erred in law in failing to direct an acquittal of the Appellant on each count on the indictment.
2. The learned Trial Judge erred in law and in fact in failing to exercise the inherent jurisdiction of the Court to stop the trial proceeding to verdict in circumstances in which the trial had become unfair to the Appellant.
3. The learned Trial Judge erred in law in allowing the trial to proceed to verdict having regard to the circumstances of the case and the evidence of the Complainant/Injured Party given during the trial.”
It is the appellant's position that the evidence given by the complainant during his cross-examination was that the alleged offending behaviour had not actually occurred.
Further, it is submitted that it is clear from the answers given by the complainant that he did not have a clear recollection of the relevant events and did not actually understand the things which he said during the Child Specialist Interview.
At the conclusion of the prosecution case, counsel for the accused applied for direction of not guilty on all counts relying on R v Galbraith [1981] 1 WLR 1039 and The People (DPP) v M [2015] IECA 65; the principles arising from which were summarised by this Court in The People (DPP) v MS (No.2) [2020] IECA 309 as follows:
“It is well established by this Court that the withdrawal of the case from the jury is one which should only arise as an exceptional measure. It is also well established that the judge in deciding whether or not to withdraw the case from the jury must examine the case as a whole and must only withdraw the case if the evidence is so unsatisfactory, contradictory or unreliable that no jury, properly charged, could convict upon it.”
It is submitted that the complainant's answers in cross-examination rendered the evidence “so unsatisfactory, contradictory or unreliable that no jury, properly charged, could convict upon it” and as such, this exceptional jurisdiction ought to have been invoked.
It is the appellant's position that further compelling evidence would have been required to support any contention that the complainant's direct testimony was reliable in a way that the answers given on cross-examination were not. Moreover, that the evidence in cross-examination could not be characterised as mere inconsistency and so the trial judge ought to have granted the application.
Counsel for the accused also sought to invoke the inherent jurisdiction of the court to stop the trial in terms of People (DPP) v PO'C [2006] 3 IR 238; that the trial proceed no further on the basis of unfairness.
It is submitted that the manner in which the Child Specialist Interview was conducted was unfair as there was a failure to fully explore or contextualise the allegations. It is said that the interviewers were unaware of the complainant's autism and ADHD diagnoses. Issue is taken with the fact that the complainant's younger brother who was present for much of the alleged offending was not interviewed and it is said that there was no reason why the complainant himself could not have been interviewed a second time. In connection with this, it is submitted that there was a possibility that there was an innocent explanation for the disclosures made by the complainant.
The appellant complains that the failure to grant a direction in itself constitutes unfairness. The argument is advanced that if an adult complainant gave similar evidence in cross-examination, a direction would be granted.
The appellant further complains that the cross-examination of a child witness in the circumstances of the present case created particular difficulties which rendered the trial process unfair to the appellant, namely, the restrictions placed on the cross-examination of a child witness by virtue of best practice. It is said that in the circumstances, the defence were entitled to assume the allegations were negatived by the complainant's own evidence.
The respondent wholly refutes the appellant's position that the evidence disclosed that the alleged offending behaviour had not actually occurred. It is submitted that when it was put to the complainant that the appellant “never did anything to you that he shouldn't have done, anything wrong or bold”, the complainant merely confirmed that he understood what he was being asked and that this being his actual response was confirmed by the trial judge. Further, it is noted that as the appellant's position is that the alleged offending behaviour had not occurred, he was not placed at a disadvantage by the complainant's failure to recollect all of the offending nor were the defence's alternative theories proffered at trial curtailed by same.
It is the respondent's position that the cross-examination of the complainant cannot be assessed in a vacuum, but the entire body of evidence must be assessed; the complainant's direct testimony, the evidence of the complainant's parents, the evidence of the appellant's neighbour, a Mr G, the evidence of the recent complaint, the complainant's recollection of the layout and furniture of the appellant's house and the memoranda of interview. It is further submitted that the evidence should be assessed in light of all of the surrounding circumstances including the complainant's ADHD diagnosis and young age at the time of the offending.
The respondent says that on any objective assessment, the account given by the complainant of the...
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