DPP v Michael Boyce

• Jurisdiction: Ireland
• Judge: Murray C.J.
• Judgment Date: 21 December 2005
• Neutral Citation: [2005] IECCA 143
• Court: Court of Criminal Appeal
• Date: 21 December 2005

D.P.P.-v- Michael Boyce

THE PEOPLE OF THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

-v-

MICHAEL BOYCE

Applicant

[2005] IECCA 143

Murray C.J.

Lavan J.

White J.

56/01

THE COURT OF CRIMINAL APPEAL

1 Judgment of the Court delivered the 21st day of December, 2005 by Murray C.J.

2 The applicant seeks leave to appeal against his conviction after trial before a judge and jury of the Central Criminal Court on six counts relating to sexual offences. The applicant had been put on trial in respect of nine offences of a sexual nature and having being found guilty in respect of counts 1, 6 and 7 the jury found him not guilty of rape on counts 2, 4 and 8 but brought in an alternative verdict on each count of guilty of attempted rape. Of the remaining counts, namely, counts 3, 5 and 8 the jury reached no verdict in each instance. The offences on which the applicant had been indicted ranged over a significant period of time that is to say from January, 1983 to December, 1994. All of the offences related to the same victim and were all alleged to have taken place at her home. The offences in respect of which he was tried were as follows: -

3 2 Count No. 1. Indecent Assault contrary to Common Law as provided for in s. 10 of the Criminal Law (Rape) Act, 1981 on 31st January, 1983.

4 3 Count No. 2. Rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law (Rape) Act, 1981 on 5th January, 1984.

5 4 Count No. 3. Indecent Assault contrary to Common Law as provided for in s. 10 of the Criminal Law (Rape) Act, 1981 on 5th January, 1984.

6 5 Count No. 4. Rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law (Rape) Act, 1981 on 6th October, 1985.

7 6 Count No. 5. Indecent Assault contrary to Common Law as provided for in s. 10 of the Criminal Law (Rape) Act, 1981 on 6th October, 1985.

8 7 Count No. 6. Rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law (Rape) Act, 1981 on 22nd December, 1989.

9 8 Count No. 7. Sexual Assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990 on 16th August, 1991.

10 9 Count No. 8. Rape contrary to s. 48 of the Offences Against the Person Act, 1861 and s. 2 of the Criminal Law (Rape) Act, 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act, 1990 on 10th December, 1994.

11 10 Count No. 9. Sexual Assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act, 1990 on 10th December, 1994.

12 The applicant having been convicted in relation to counts 1, 2, 5, 6, 7 and 8, was sentenced to terms of imprisonment ranging from 3 years to 8 years, the 8 years sentence being in respect of count 6.

13 As regards count no. 1, the applicant was found guilty on a majority verdict of ten to two. He was found guilty of the offence of attempted rape on count no. 2 by a majority verdict of ten to two. There was no verdict returned on count 3. On count 4 the jury returned a verdict of not guilty of rape by direction of the trial judge and the jury found him guilty of attempted rape by a majority of ten to two. No verdict was returned in relation to count 5 as this did not arise in the light of the verdict on count 4. He was convicted of count no. 6 on the indictment by a majority of eleven to one. He was convicted on count no. 7 by a majority of eleven to one. He was also convicted of the offence of the offence of attempted rape in relation to count 8 by a majority of ten to two. No verdict was returned on count no. 9 as this did not arise having regard to the verdict in relation to count no. 8.

Grounds of appeal

14 The applicant applies for leave to appeal on 20 specified grounds set out in the notice of appeal, which were as follows: -

15 1. The learned trial Judge erred in law and on the facts in ruling that the blood sample taken from the Accused for the purpose of DNA testing was lawfully taken and/or did not require to be taken pursuant to the Criminal Justice (Forensic Evidence) Act, 1990 and thereby failed to vindicate the accused's Constitutional Rights to his bodily integrity.

16 2. The learned trial Judge erred in law in holding that the said blood sample was not required to be taken pursuant to the Act of 1990 and accordingly the provisions regarding the use and destruction of the sample and any records thereof did not apply in this case.

17 3. The learned trial judge erred in law in firstly permitting and later preventing Counsel for the applicant from pursuing the issue whether the consent given by the applicant to the taking of a blood sample was given as a fully informed consent or not, and whether this was an issue of fact which could properly be considered by the jury: and that this was confusing to them, rendering the trial unfair and unsatisfactory.

18 4. The learned trial Judge failed to adequately charge the Jury regarding the dangers of arriving at a guilty verdict based on the DNA evidence in the absence of other corroborative evidence.

19 5. That the learned trial Judge erred in law in not permitting Counsel for the defendant to cite legal/scientific, or scientific texts in support of 4 and in refusing counsel for the defendant opportunity to make full submissions on the admissibility of DNA evidence.

20 6. The learned trial Judge erred in allowing evidence of databases to be used which were not properly validated.

21 7. That the learned trial judge erred in allowing evidence of databases to be used which did not include any reference to the sub-group for that part of the population.

22 8. The evidence failed to distinguish between the applicant's racial characteristics and those of the offender.

23 9. The expert evidence was permitted to include an unproven factor.

24 10. Failed to give a direction (in particular in relation to Counts other than those which relied on DNA evidence) to the defence on the points raised at the close of the prosecution case (and in particular the lack of evidence to corroborate the DNA evidence in the case).

25 11. Failed to correctly and adequately charge the Jury regarding corroboration required in cases of this nature.

26 12. Erred in law regarding the ruling on s. 5 of the Act of 1992 (regarding the Section 6 Certificate grounding McDonnell's Evidence about the English Database used for DNA samples in general).

27 13. Erred in law in refusing the delay argument raised.

28 14. Incorrectly charged the jury that they could infer the accused's guilt from the description given in the prosecutrix's statement and/or did so without warning them adequately or at all of the dangers of giving weight to that description in circumstances where she also gave a completely different description of an attacker in two other statements.

29 15. Erred in law in restricting defence Counsel's cross-examination regarding the 1996 arrest and caution (2nd November, 2000) thereby rendering the trial unfair and unsatisfactory.

30 16. The prosecution failed to prove the chain of evidence regarding the 1989 DNA samples from the knickers because those knickers were never produced in Court and identified by the complainant in the course of her evidence. In addition the complainant did not indicate that she gave those knickers to the guard who was first in the chain of evidence though that particular guard did say that she got the knickers from her.

31 17. The learned Judge erred in law in acceding to the application of the State to call evidence to contradict answers given by their own witnesses to questions put in cross-examination. In particular in allowing the evidence of Pat Allard and his wife to be interposed after the cross-examination of John Allard Junior. Further that these rulings prejudiced the fair trial of the defendant/applicant.

32 18. That the learned trial Judge's interruption during the trial and in particular during the making of submissions were overbearing and unreasonable and rendered the trial unfair and unsatisfactory.

33 19. The learned trial Judge in his charge to the jury failed to put evidence favourable to the applicant to the jury, inter alia, the evidence of William Boyce and William Ahern.

34 20. Conducted the trial in an unsatisfactory manner in all of the circumstances.

35 A further additional ground was relied on at the hearing of the appeal, the D.P.P. having consented to this ground being relied upon and is referred to later in this judgment.

36 The offences arise out of six occasions between January 1983 and December 1994 when the complainant was either indecently assaulted or the subject of a sexual assault involving an attempted rape and on one occasion, as found by the jury, raped. The complainant, an unmarried woman, at the time lived alone in a small house in a rural area. The house was relatively isolated although there were some neighbours living fairly nearby. She was born in 1928. She was 55 years of age when the first offence was committed in 1983 and 66 when the last of the offences was committed in 1994. She was 72 years at the time of the trial. The offences were committed in January 1983, January 1984, October 1985, December 1989, August 1991 and December 1994. At the trial the complainant did not give evidence identifying the accused as her assailant.

37 She did give evidence that it was the same man who sexually assaulted her on each occasion. On the first occasion in January, 1983 she was at home in her house when the lights went off. She heard a noise in the hall and went out to find a man there who said he was an E.S.B. man. She knew that the E.S.B. were working locally at the time. He then made advances on her and she used a stick to try and fend him off. It was very dark. He got her on the ground and attempted to rape her but "he couldn't do anything". She described him then as a person in...