DPP v M.J.

• Jurisdiction: Ireland
• Judge: McKechnie J..
• Judgment Date: 03 June 2014
• Neutral Citation: [2014] IECCA 21
• Court: Court of Criminal Appeal
• Date: 03 June 2014

[2014] IECCA 21

THE COURT OF CRIMINAL APPEAL

McKechnie J.

Herbert J.

White J.

[C.C.A. No. 111 of 2010]

DPP v J (M)

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

And

M.J.

Accused/Appellant

DPP v J (M) 2008 2 IR 410 2008/19/3995 2008 IECCA 39

COURTS & COURT OFFICERS ACT 1995 S32(1)

CRIMINAL LAW (RAPE) ACT 1981 S10

DPP v CRONIN 2003 3 IR 377 2003/15/3202

R v GALBRAITH 1981 2 AER 1060 1981 1 WLR 1039 1981 73 CR APP R 124

DPP v O'C (P) 2006 3 IR 238 2006/20/4223 2006 IESC 54

MAY & POWLES CRIMINAL EVIDENCE 5ED 2004 8

AG, PEOPLE v BYRNE 1974 IR 1

R v LEE KUN 1916 1 KB 337 1916 11 CR APP R 293 1914-15 AER REP 603

QUINN, STATE v RYAN 1965 IR 70

STATE (TRIMBOLE ORSE HANBURY) v GOVERNOR OF MOUNTJOY PRISON 1985 IR 550 1985 ILRM 465

DPP, PEOPLE v LYNCH 1982 IR 64 1981 ILRM 389 1981/3/308

O'T (I) v B; H (M) v DOYLE & ROTUNDA GIRLS AID SOCIETY 1998 2 IR 321 1998/29/11797

DPP v C 2001 3 IR 345 2001/7/1610

R v MEDCRAFT 1932 23 CR APP R 116

O'C (J) v DPP 2000 3 IR 478 2000/13/5164

HAUGHEY, IN RE 1971 IR 217

HEALY, STATE v DONOGHUE & ORS 1976 IR 325

F (J) v DPP 2005 2 IR 174 2005 IESC 24

WALSH & MACENTEE CRIMINAL PROCEDURE 2000 PARAS 17.32-17.37

O'MALLEY THE CRIMINAL PROCESS 2009 PARAS 20.43-20.44

DPP v MULDER 2007 4 IR 796 2007/20/4152 2007 IECCA 63

DPP v LONERGAN 2009 4 IR 175 2009 IECCA 52

CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S7

DPP v B (R) UNREP CCA 12.2.2003 2003/13/2871

DPP v G (L) 2003 2 IR 517 2003/16/3458

DPP v C (E) 2007 1 IR 749 2006/17/3511 2006 IECCA 69

CRIMINAL PROCEDURE ACT 1993 S10

DPP v LAVERY UNREP CCA 19.3.2002 2003/17/3857

DPP v K (M) 2005 3 IR 423 2005/20/4102 2005 IECCA 93

COONAN & FOLEY THE JUDGES CHARGE IN CRIMINAL TRIALS 2008 765

Criminal Law - Indecent Assault - Daughter - Leave to appeal conviction -Voir Dire - Admissibility of Evidence - Lapse of time - Relevance - Discrepancies - Cronin principle - Direction to Jury

Facts: The accused was convicted of four counts of indecent assault against his daughter. This conviction was quashed, retried and the accused was again convicted. The appellant applied to Court for leave to appeal against conviction on grounds such as the admissibility of evidence, refusal of the trial judge to grant a direction at the close of the prosecution's case, the judge's failure to discharge the jury at the conclusion of the charge, the inadequacy of the charge and the recharge, the right to silence and the judge's failure to give the jury a Cronin direction. The trial commenced with a voir dire in which the appellant challenged the prosecution's intention to adduce evidence in relation to an alleged sexual assault by the accused on his daughter in the early 1990's. The trial judge was satisfied there was sufficient evidence of the matters put to the accused which the jury could take into account and referred to inconsistencies in evidence and lapse of time. Mc Kechnie J discussed grounds of appeal, including case-law such as R v Galbraith [1981], Cronin and The People (D.P.P.) v. P.O'C [2006], The People (A. G.) v Byrne [1974], R v Lee Kun [1916], The State (Quinn) v Ryan & Ors [1965] and The State (Trimbole) v Governor of Mountjoy Prison [1985]. Mc Kechnie J referred to the admissibility of evidence in a criminal trial and to concepts such as relevance, the duty of a judge during trial and held the Court did not believe the question of admissibility arose nor was there uncertainty about the Cronin principle or duty of the trial judge to ensure due process. Mc Kechnie J discussed the Galbraith issue, discrepancies in evidence and held the Court considered it was necessary for the D.P.P to have produced by the close of the voir dire evidence to cover events leading up to and ending with the alleged admission; whether the accused was present at the time of and duration of the allegations; whether the confrontation related to an explicit and direct allegation against him of having sexually abused his daughter; whether the accused was confronted; whether the accused understood the subject matter of the confrontation and whether with such understanding he admitted to having committed acts and engaged in conduct of that nature with his daughter. Mc Kechnie J analysed the D.P.P's evidential framework in which the events were sought to be established and held the trial judge's ruling was probably the only one which by law he could arrive at. Mc Kechnie J stated there were inconsistencies in the evidence tendered by family members. Mc Kechnie J discussed whether the evidence could be related to the counts on the indictment and stated a general admission of sexual assault on a complainant was not admissible as evidence of bad character or of propensity and that the ruling made by the trial judge must be upheld. Mc Kechnie J discussed the ground of the refusal of a direction at the close of the prosecution's case and issues such as a fair trial and distinguished the case of J.F v. D.P.P [2005]. Mc Kechnie J also discussed the failure to discharge the jury at the conclusion of the charge ground and issues such as out of court statements, right to silence, issue of inferences and corroboration. Mc Kechnie J referred to section 10 of the Criminal Procedure Act 1993 and stated as the issue did not form a ground of appeal the Court did not consider it necessary to deal with whether the said provisions applied. Mc Kechnie J also discussed the right to silence, the burden of proof and the Chronin warning, advising the purpose of the warning was to explain how the benefit of the doubt should operate and advised the Court was satisfied the Cronin principle and direction was fully outlined to the jury.

Held by Mc Kechnie J the ruling made by the trial judge must be upheld.

Application for leave to appeal on all grounds dismissed

1 3rd day of June, 2014by McKechnie J..

Background:

2 1. On the 27 ^th July, 2006 at the Circuit Criminal Court, the accused person was convicted of four counts of indecent assault against one of his daughters, Ms. H.. This conviction was quashed on the 14 ^th March, 2008 by the Court of Criminal Appeal, arising out of concerns in relation to the length of time and the circumstances in which the jury had deliberated ( [2008] 2 I.R. 410). The retrial was transferred to the Dublin Circuit Court, on application being made pursuant to s. 32(1) of the Courts andCourt Officers Act 1995. On the 22 ^nd March, 2010, the accused was again convicted, by unanimous jury verdict, of the same four counts on the indictment.

3 2. The particulars grounding the indecent assault charges, which were stated to be contrary to common law as provided for by s. 10 of The Criminal Law (Rape) Act 1981, read as follows.

Count no. 1:	that "[the accused person] did. on or about the 31 st October, 1981 (Halloween) in his car at a gateway on the [(specified road in specified county)], indecently assault [Ms. H.] by making her masturbate him."
Count no. 2:	that "[the accused person], did on a date unknown between the 1 st November 1981 and the 31 st December 1981, did [ sic] force [Ms. H.] to masturbate him while he was in his car in County [(specified)]."
Count no. 3:	that "[the accused] did, on a date unknown between the 7 th June 1981 and the 7 th June 1933, indecently assault [Ms. H.] in his car on [(specified road in specified county)] by making her engage in masturbation of him."
Count no. 4:	that "[the accused], did on a date unknown between the 31 st December 1983 and the 31 st March 1984 in County [(specified)] indecently assault [Ms. H.] by forcing her to perform oral sex on him."

4 3. The road location differed as between Count no. 1 and Count no. 3 but the county location was the same in all charges, being that in which the family home was located at the time.

5 4. At a hearing subsequent to his conviction, he was sentenced by O'Donnell J. to six years imprisonment, with the final three being suspended on certain terms and conditions.

6 5. By notice in writing dated the 18 ^th June, 2010, the appellant applied to this Court for leave to appeal against his conviction, relying on ten grounds as specified in the said notice. These grounds can conveniently be considered in conjunction with the legal submissions advanced to support them, which when read therewith, can be referenced as follows:

7 (1) the admissibility of evidence issue;

8 (2) the refusal of the trial judge to grant a direction at the close of the prosecution's case;

9 (3) the failure of the said judge to discharge the jury at the conclusion of the charge;

10 (4) the inadequacy of that charge and also the recharge, on the "right to silence"; and finally

11 (5) to (8) the judge's failure to give to the jury a " Cronin" type direction ( The People (D.P.P.) v. Cronin [2003] 3 I.R. 377 (" Cronin"))

12 Grounds nos. 9 and 10 in the said notice have now been abandoned, with Grounds 5 to 8 inclusive, constituting what defence counsel described as his "slip stream points".

13 6. It should be noted that at the original trial the appellant also faced a number of other charges of indecent assault and of incestuous behaviour in relation to the complainant, but was acquitted of such charges. In addition, he was tried and acquitted in respect ofa number of indecent assault claims made by another daughter of his, who features prominently in this case; Mrs. M..

14 7. To help avoid confusion, which otherwise might occur because of the requirement to preserve anonymity, the following designations are applied to those individuals who are referred to in this judgment, in addition of course, to the accused/appellant himself, Mr. M.J.: Ms. H. is the complainant; her married sister is Mrs. M., whose husband is Mr. A.: and finally Mrs. B. is the wife of the appellant and the mother of both...