DPP v McG
| Jurisdiction | Ireland |
| Judge | O'Donnell J.,McKechnie J.,Dunne J. |
| Judgment Date | 03 November 2017 |
| Neutral Citation | [2017] IESCDET 113 |
| Court | Supreme Court |
| Date | 03 November 2017 |
[2017] IESCDET 113
THE SUPREME COURT
DETERMINATION
O'Donnell J.
McKechnie J.
Dunne J.
This determination relates to an application by D McG (the Applicant) who was the appellant in the underlying appeal to the Court of Appeal for leave to appeal under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal (Birmingham J., Mahon J., and Edwards J.) being a judgment delivered by Mahon J. on the 23rd March, 2017 (and perfected on the 10th April, 2017) following the dismissal of the Applicant's appeal against conviction.
As is clear from the terms of the Constitution and from the many determinations made by this Court since the enactment of the Thirty Third Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed against either involves a matter of general public importance, or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.
The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised and the facts underpinning them meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, the issue or issues in respect of which leave to appeal have been granted will in due course be disposed of in the substantive decision of the Court.
The decision of the Court of Appeal is published on the Courts Service website and the Applicant's application for leave and the Respondent's Notice is also published on the Courts Service website along with this determination.
In order to understand the issues raised by the application for leave it is necessary to set out a summary of the background to this matter leading to the decision of the Court of Appeal which it is sought to appeal:
(a) The Applicant was tried in the Central Criminal Court on an indictment containing thirty eight counts in respect of two complainants who were the stepchildren of the Applicant. Counts one to thirteen on the indictment related to M, a boy, and consisted of a single count of sexual assault contrary to s. 2 of the Criminal Law (Rape Amendment) Act 1990, six counts of oral rape and six counts of anal rape contrary to s. 4 of the Criminal Justice (Rape Amendment) Act 1990 respectively. Counts fourteen to thirty eight related to L, a girl, and consisted of sixteen counts of sexual assault and nine counts of oral rape contrary to s. 4 of the Criminal Justice (Rape Amendment) Act 1990.
(b) On the 21st April, 2016, the Applicant was convicted by unanimous verdicts in respect of all counts relating to L. He was convicted by majority verdicts in respect of all counts relating to M excluding counts two, four and seven. He was acquitted of those counts, one of which related to an allegation of oral rape and two of which related to allegations of anal rape contrary to s. 4.
(c) On the 20th June, 2016 he was sentenced to a term of imprisonment of twelve years in respect of each of the s. 4 offences, five years in respect of the sexual assaults committed against L and three years with respect to the single count of sexual assault committed against M, all of which sentences were to run concurrently. In addition, he was ordered to undergo twelve months of post-release supervision.
(d) At the outset of the trial, counsel on behalf of the applicant applied to sever the indictment in respect of the counts relating to each complainant. It was contended that if the Applicant were to be tried on all counts conjunctively, he would not be able to receive a fair trial. In particular it was submitted that the evidence relating to the counts in respect of one complainant was not and count not be cross-admissible as regards that of the other and vice versa. It was submitted that the probative value of such evidence would not outweigh the prejudicial effect of admitting it, inter alia, because there was insufficient similarity or ‘nexus’ between the accounts of both complainants. Counsel on behalf of the prosecution accepted that the evidence of one complainant could not corroborate that of the other. It was nevertheless submitted that the evidence of one complainant was cross-admissible in respect of those counts relating to the other complainant and vice versa.
(e) The learned trial judge relying, inter alia on the decision of the Court of Criminal Appeal in DPP v. BK [2002] 1 I.R. 199, refused the application to sever the indictment on the basis that there was sufficient similarity between the evidence of each complainant such as to render it cross-admissible. She found that the evidence was admissible due to the inherent improbability of several people making up exactly similar stories and showed a practice that would rebut accident, innocent explanation or denial. She further found that the probative force of the evidence outweighed its prejudicial effect for the appellant.
(f) The Court of Appeal upheld the decision of the learned trial judge finding, inter alia that sufficient similarities existed between the account of each complainant and that the learned trial judge had exercised her discretion in a permissible manner. The Court of Appeal expressly left over the question as to whether the decision in DPP v. BK had in fact propounded the correct test of admissibility in cases involving misconduct or system evidence in light of the decision in DPP v. McNeill [2011] 2 I.R. 669, a decision of this Court and the decision of the Court of Appeal in DPP v. Shannon [2016] IECA 242 which decision was delivered after the Applicant's trial and conviction. The Court of Appeal stated that even if the test outlined in DPP v. B.K. was not correct, there was no reason to believe that the principles stated in that decision did not apply in all other respects concerning the manner in which misconduct evidence may be used to establish system or to rebut accident, innocent explanation or denial in a case involving sexual offences.
(g) The Court further refused to overturn the decision of the learned trial judge to the effect that the issue of possible collusion between the complainants was a jury issue and not a matter which had to be ruled out as a condition precedent to admissibility. The Court stated that material differences which existed between the evidence of each complainant were unlikely to have arisen had the witnesses colluded with one and other.
In refusing the application by the defence to...
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