DPP v Martin McCurdy

• Jurisdiction: Ireland
• Judge: Hardiman J.
• Judgment Date: 27 July 2012
• Neutral Citation: [2012] IECCA 76
• Court: Court of Criminal Appeal
• Date: 27 July 2012

McCurdy v DPP

Between:

MARTIN McCURDY

Appellant

and

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

[2012] IECCA 76

Hardiman J

Hanna J,

White J.

245/10

THE COURT OF CRIMINAL APPEAL

Crime - Sexual Offences - Sexual assault - Hip replacement surgery carried out on elderly plaintiff - Plaintiff alleging negligence on part of defendant

Facts: The appellant had been convicted in 2010 on 3 counts of sexual assault on 3 girls. He was sentenced to 7 and half years in prison. He now sought to appeal his conviction and sentence, contending that the warning given by the trial judge as corroboration was inappropriate, and failed to take account of the risk of contamination of the victims' evidence.

Held by Hardiman J, that the appellant argued that the prosecution had failed to notify their intention of relying on "system evidence". However, the evidence to be relied upon was detailed in the book of evidence, and no challenge to the admissibility of the evidence or application to sever the indictment were made at first instance.

The Court reviewed the earlier case of B v DPP [1997] 3 IR 140, and found that the role of the trial judge was to identify such evidence and instruct the jury as whether it was capable of corroboration of other matters. The jury were then to decide the issue of whether the evidence was actually corroborative. In the instant case, the trial judge followed this course. B v DPP [1997] 3 IR 140 considered.

In regards to the suggestion the prosecution had confused the concepts of similar fact evidence with system evidence, the Court found the confusion had been in the absence of the jury and the trial judge's warning could not be impeached.

The appeal was therefore dismissed.

DPP v M (JE) (ORSE M (S)) 2001 4 IR 385 2000/8/3053

HARRIS v DPP 1952 AC 694 1952 1 AER 1044 1952 36 CR APP R 39

DPP v K (B) 2000 2 IR 199 2000/7/2696

MCGRATH EVIDENCE 2005 PARA 9.71

B v DPP 1997 3 IR 140

1 JUDGMENT of the Court delivered the 27th day of July, 2012 by Hardiman J.

2 This is the appeal of the appellant against conviction and sentence. After a trial lasting six days, the appellant was found guilty on the 17 ^th day of May, 2010 on three counts of sexual assault against three separate girls. On the 14 ^th October, 2010 he was sentenced to two years and three months imprisonment in respect of counts 1 and 2, and three years imprisonment in respect of count 3, all sentences to run consecutively. It appears that the learned trial judge had considered that a total sentence of ten years imprisonment was appropriate to the offences but reduced the sentence in each case to take account of the totality principle. The actual sentences total seven and a half years.

Issues.

3 The appellant complains of the type of corroboration warning given by the judge to the jury and in particular complains that the learned trial judge told the jury "that the evidence of one complainant necessarily corroborated the evidence of the other two in each case". He further complains "that no application had been made by the prosecution to have 'similar fact' or 'system evidence' as it is sometimes called admitted".

4 The appellant also complains that the judge understated, or failed to state, the risk that a process of contamination as between the complainant witnesses, all of whom were young girls and closeneighbours, might undermine the required independence of the evidence of each respectively, and thereby disqualify it from constituting corroboration.

Factual background.

5 The defendant resided at all material times in a housing estate in or near a town in rural Ireland. All of the assaults are said to have taken place there. In the case of one of the girls, she was in the house to baby sit a child; in the case of the other two they were simply attending a "sleep over", as friends of the appellant's daughter.

6 In each case it was alleged that the indecent assault consisted of getting each of the girls to touch him in an indecent way and with similar results. The offences are closely related in time, the first being alleged to have occurred in December 2006, the second on the night of the 6/7 ^th of January, 2007 and the third in February, 2007. The girls were all thirteen or fourteen years old. There was evidence of a complaint in April, 2007.

7 There was originally a fourth count in respect of a fourth girl which however was not proceeded with.

Opening of the case,

8 Prosecuting counsel in opening the case to the jury referred to the existence of multiple counts, three in all. In the circumstances of the case it is necessary to consider what was said at that time and we therefore set it out. We wish to say, however, that every transcript of an oral hearing will contain certain infelicities in language and oddities of grammar which reflect simply the difference between an oral and a written presentation. This will appear later in the statements of other speakers as well and generally does not affect the understanding of what is said.

9 Counsel said:

"Now, they're related in that each of these girls, they were friends of [the appellant's daughter] and that was the reason they were staying over... and the similarities, as I say, are there in that each case the type of sexual assault that occurred was of a specific type. It was of a man taking the girls hands to him - to his penis - rather than going and touching up the girls or anything like that. So there is a certain similarity in the way each of these girls was actually assaulted in that there was a particular way that [the appellant] did this. There is the other element there of the drink involved, but these were all matters that, as I say, you'll be hearing in evidence, I've just outlined the facts there, but you've got to remember, these are three individual cases. They have, as I say, connections. There are similarities, but in fact they are three separate cases. There's a separate count of sexual assault in relation to each of these girls and you approach each of these cases looking to see is there evidence on these cases - in this the particular case, that satisfied you beyond reasonable doubt as to what happened there and that does not mean, of course, that you have to ignore what the other cases are about, but you haveto satisfied that on the evidence that you hear on that particular case there is sufficient that you can be satisfied of [the appellant's] guilt beyond reasonable doubt on that case against him".

10 After the case had been opened on behalf of the prosecution defence counsel made certain complaints about the opening but these did not extend to the reference to similarities in the way each girl was assaulted.

11 On the fourth day of the trial, after the prosecution case had finished, defence counsel raised the issue of whether the judge proposed to give a corroboration warning and referred to the cse of D.P.P. v. JEM.

12 The judge indicated that "it's in my mind to give a form of warningbut... I have not decided [it] and I'm going to hear both sides before doing so". He then continued:

"I will also telling them obviously, which I don't think could be in controversy, that they're entitled to consider on each charge the evidence of the other complainants which, of course, would perhaps dilute the risk which might arise in as much as it would mean that there was more evidence than merely the bare word of a complainant, even if it didn't constitute corroboration, that's the form of charge I've given in one or two other cases of this type".

13 The Court then adjourned for lunch.

14 After lunch, the defence counsel, Mr. Finlay S.C., first sought a direction, which was refused. He then returned to the topic of a corroboration warning (Day 4, p.32) and the judge indicated that it could be dealt with at the end of the defence evidence. It was taken up again at p.46 of the same volume of transcript.

15 Defence counsel opened the leading authorities in his submissions. He referred to the statement the learned trial judge had made, quoted above, and submitted that if the judge was of the view:

"... that while there is an absence, if you like, [of] corroborative testimony or evidence that would support or tend to corroborate the allegations of each one of them independently, you nevertheless would be entitled to draw attention to the fact that each complaint is made in circumstances where another minor has made another complaint. I respectfully disagree with that because it seems to me that the whole logic of the corroboration warning is to warn a jury of a danger impending and if there is an impending danger that they would convict - and the warning is that they would convict wrongly, not that they would correctly convict, but that they would wrongly convict and if the court is asked by the defence, as is usually the case, to consider giving a warning, it's hardly the function of the prosecution to do so, it is that there isn't independent evidence tending to support the commission of a crime other than that spoken by the complainant witness...

... If it were to be done...