DPP v M.D.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Edwards |
| Judgment Date | 07 June 2018 |
| Neutral Citation | [2018] IECA 277 |
| Docket Number | Record No: 79/2017 |
| Court | Court of Appeal (Ireland) |
| Date | 07 June 2018 |
[2018] IECA 277
THE COURT OF APPEAL
Edwards J.
Mahon J.
Edwards J.
Hedigan J.
Record No: 79/2017
Crime & sentencing – Sexual offences – Sexual assaults and rape – Appeals against conviction and sentence dealt with separately
Facts: The appellant had been convicted of multiple counts of serious sexual offences carried out against his nephew. He was sentenced to 10 years imprisonment. He sought to appeal against both his conviction and sentence, with each being dealt with by separate judgments.
Held by the Court that the appeal would be dismissed. The Court considered each of the grounds of appeals individually and cumulatively, and was satisfied the appellant’s conviction was safe. The trial judge had given sufficient warnings to the jury, who had sufficient evidence before them to justify the guilty verdicts.
On the 22nd of November 2016, the appellant pleaded not guilty to all counts on a 36 count indictment that included counts of rape (both oral and anal), indecent assault and sexual assault perpetrated against his nephew, the complainant. (‘PD’).
On the 25th of November 2016, the appellant was convicted by a jury in the Central Criminal Court, following a four day trial of eight counts of indecent assault, contrary to the common law during the period between the 12th of May 1988 and the 17th of January 1991; one count of (anal) rape, contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990, during the period between the 18th of January 1991 and the 30th of April 1991, and; one count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990 during the period between the 18th of January 1991 and the 30th of April 1991. The appellant was acquitted by direction in respect of the remaining 26 counts on the indictment.
On the 20th of February 2017, the appellant was sentenced to ten years” imprisonment in respect of the anal rape; eight years” imprisonment in relation to the indecent assaults, and; four years imprisonment in relation to the sexual assault, with all sentences to run concurrently.
The appellant now appeals against his conviction and sentences. However, this judgment is concerned solely with the conviction issue.
The complainant was born on the 12th of May 1980. The appellant was born on the 12th of July 1971, leaving nine years of an age gap between the two. As a child, the complainant originally lived with his immediate family, and the appellant, in a three bedroom house in a Dublin suburb (‘the B house’). However, the offences forming the subject matter of the indictment took place when the family moved to another Dublin suburb (‘the C house’).
The complainant's family moved to the C house at some time during 1987 or 1988, when the complainant was around eight years old. The C house was a four bedroom house. The complainant's parents slept in the main bedroom, his sisters slept in the big bedroom at the back of the house, the complainant and his brothers slept in another bedroom, whilst the appellant, along with the complainant's other uncle (on his mother's side), who also stayed at the house from time to time, slept in a box bedroom. The complainant's parents separated when he was 14 years of age. It was also established in evidence that the appellant and the complainant's mother began a sexual relationship at some stage when the family were living in the C house and that the complainant had known of this relationship at the time.
The evidence at trial was that the appellant sexually abused the complainant in the C house ‘three or four times a week’ during the period in question, when the complainant and the appellant would be ‘the only one[s] in the house’. The abuse took place ‘anywhere [the appellant] could get me…rooms, pigeon loft, back garden, front garden, doesn't matter. He would try any way to get me’. Specifically, the complainant gave evidence of being abused in the sitting room after coming home sick from school one day. There was nobody else in the house and the appellant ‘would sit down and then he would start feeling me and touching me and doing what he shouldn't be doing to any kid’. The complainant described how the appellant would rub his hand along the complainant's leg, proceeding then to ‘pull his trousers down, asking me to feel him and he would perform oral sex on me and he hurted me very bad’. The complainant gave evidence that the appellant would ask him to have sex with him like an adult, to kiss him, and tell him he was ‘a good little boy’. The evidence was also that ‘ he would stick his penis in my anus and then he would ejaculate on my back, on my face sometimes’.
The complainant also gave evidence that the appellant abused him out in the pigeon loft and in the back garden of the C house. The complainant gave evidence that ‘it was my weekly weekend job for myself to keep my pigeons clean and he would come out and he would start doing what he done in the house, he would continue on out in the back garden in the pigeon loft’.
The evidence was also that ‘[the appellant] would assault me, he would tell me if I told anyone he will kill me and he would break everything I had. He's taken everything that I had and just demolished it.’
In September 2011, the complainant made a complaint to An Garda Síochána. On the 18th of July 2012, the appellant was arrested on suspicion of sexual assault and rape, and was detained at a Garda station under s. 4 of the Criminal Justice Act 1984 for the proper investigation of the offences for which he had been arrested. During this detention, the appellant was interviewed on two occasions in relation to the allegations made against him by the complainant. He denied sexually abusing the complainant and maintained that ‘It's all lies. He wasn't happy with me and his Ma being together so he comes up with this idea’. On the 30th of November 2013, the appellant was again arrested and on this occasion was charged with offences of sexual assault, indecent assault and rape.
At the appellant's trial the prosecution's case was principally based on the evidence of the complainant, and the evidence of the Garda investigation including the interviews with the appellant. The appellant did not go into evidence. As indicated in the introduction to this judgment, the appellant was acquitted of 26 of the 36 counts on the indictment by direction of the trial judge. The other 10 counts then went to the jury and he was convicted of those.
In the notice of appeal, dated the 30th of March 2017, the appellant has appealed his conviction on the following four grounds:
a) The trial judge erred in failing to accede to the appellant's application for a direction to acquit on the basis that the respondent, her servants or agents, failed to conduct any or any adequate investigation of the allegations made against the appellant such that it was impossible for the appellant to receive a fair trial.
b) The trial judge erred in failing to accede to the appellant's application for a direction to acquit on the basis that the delay in the case, coupled with the inadequacy of the investigation, rendered the appellant's trial unfair.
c) The trial judge erred in failing to direct the jury to acquit on all 36 counts on the indictment, having granted a direction in respect of 26 of the said counts.
d) The trial judge erred in failing to accede to the appellant's application for a direction to acquit on the basis that the cumulative effect of the above factors rendered the jury verdict unsafe on the remaining counts.
On day 1 of the trial, during examination-in-chief, the complainant, having already stated, inter alia, that the appellant had performed oral sex on him, was asked to elaborate ‘in terms of the type of activity that you say he performed on you’. This gave rise to the following exchanges between counsel for the respondent and the complainant:
‘[PROSECUTION COUNSEL] …do you recall [the appellant] doing anything else with his penis?’.
‘[WITNESS]. Yes, he'd be ejaculating himself all over me, rubbing it up and down me and tried to put it in my mouth and all.
[PROSECUTION COUNSEL]. Did he succeed?
[WITNESS] No, because I would bite him.
[PROSECUTION COUNSEL] So, you bit him?
[WITNESS] No, I told him if he did I would bite.’
At the conclusion of the evidence in the case, counsel for the appellant made an application to the trial judge to direct the jury to acquit the appellant on all counts of oral rape, of which there were four, namely counts 13, 19, 25 and 31. Counsel for the respondent indicated that she could not object to this application in circumstances where the complainant had given evidence that he had not actually been orally raped by the appellant and there had merely been attempted oral rape. The trial judge indicated that he would direct the jury to return a not guilty verdict in respect of counts 13, 19, 25 and 31 on the indictment.
Further, during the complainant's cross-examination, counsel for the appellant put it to the complainant that, during the time that the family wereliving in the C house, the appellant moved out of the house for a year or so. The complainant confirmed that this was the case and stated that the appellant moved out due to the fact that the appellant's brother moved in, with whom the appellant didn't get on. The complainant confirmed that he wasn't abused by the appellant during this period of time. However, during cross-examination, the complainant was unable to state precisely what age he was when the appellant moved out. In that regard the following...
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