DPP v N.R

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards.
• Judgment Date: 29 January 2018
• Neutral Citation: [2018] IECA 20
• Docket Number: Record No: 124/2016
• Court: Court of Appeal (Ireland)
• Date: 29 January 2018

[2018] IECA 20

THE COURT OF APPEAL

Edwards J.

Birmingham J.

Mahon J.

Edwards J.

Record No: 124/2016

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Respondent

V

N. R.

Appellant

Conviction – Indecent assault – Error in law – Appellant seeking to appeal against conviction – Whether the trial judge erred in principle and in law in failing to sever the indictment and direct separate trials in respect of the three complainants

Facts: The appellant, on the 15th of April 2016, was convicted by a jury following a four day trial of 63 counts of indecent assault contrary to common law, and depending on the date of the offending conduct either as provided for in s. 6 of the Criminal Law (Amendment) Act 1935, alternatively as provided for by s. 10 of the Criminal Law (Rape) Act 1981. He was sentenced to one year's imprisonment on each of the counts provided for in s. 6 of the 1935 Act, and to six years' imprisonment on each of the counts provided for by s. 10 of the 1981 Act. The appellant appealed to the Court of Appeal against his conviction on the grounds that the trial judge erred in principle and in law in failing to: a. sever the indictment and direct separate trials in respect of the three complainants; b. discharge the jury when evidence was given of an alleged offence committed by the appellant, which was not a charge on the indictment; c. discharge the jury when counsel on behalf of the respondent, the DPP, in closing speeches to the jury described the particulars of the alleged offences, committed by the appellant against the three complainants, as identical in nature.

Held by the Court that there was a clear basis for asserting a system on the part of the appellant in the course of his offending conduct; accordingly, the trial judge was correct to refuse the application to sever the indictment and correct to refuse to order separate trials. The Court held that it would have been a disproportionate measure to discharge the jury; moreover, the decision not to draw the jury's specific attention to the slip in the course of the judge's charge was manifestly correct and justifiable in the circumstances of the case. The Court held that, concerning ground c, there was nothing wrong in what prosecuting counsel said; it was an entirely fair comment in the light of the evidence the jury had heard. The Court noted that, even if there were some merit in the point, no complaint was made at the time, and no requisition was raised. The Court held that the appellant was precluded from raising the issue having regard to The People (DPP) v Cronin (No. 2) [2006] 4 IR 329.

The Court held that the appeal should be dismissed.

Appeal dismissed.

JUDGMENT of the Court (ex tempore) delivered 29nd of January 2018 by Mr. Justice Edwards.

Introduction

1 On the 15th of April 2016 the appellant was convicted by a jury following a four day trial of 63 counts of indecent assault contrary to common law, and depending on the date of the offending conduct either as provided for in s. 6 of the Criminal Law (Amendment) Act, 1935, alternatively as provided for by s. 10 of the Criminal Law (Rape) Act, 1981. He was sentenced to one year's imprisonment on each of the counts provided for in s. 6 of the Criminal Law (Amendment) Act, 1935, and to six years' imprisonment on each of the counts provided for by s. 10 of the Criminal Law (Rape) Act, 1981.

2 The appellant appeals against both his conviction and sentence. This judgment deals with his appeal against conviction only.

The evidence of the complainants

3 There were three complainants in the case Ms A, Ms B, and Ms C, respectively. Their evidence as given before the jury is succinctly summarised in the written legal submissions filed on behalf of the respondent, and as that summary appears to us to be accurate and correct, and as it has not been objected to by the appellant, it is proposed to adopt it for the purposes of this ex tempore judgment.

4 Ms A, Ms B, and Ms C gave evidence that at various dates in their childhood they were indecently assaulted by the appellant. Counts 1 to 5 related to allegations relating to Ms A. She was a niece of the appellant by marriage and alleged that she was subjected to indecent assaults at her aunt's house and the home of the appellant in Estate 1 in Town A. Counts 6 to 28 related to allegations relating to Ms B at the appellant's home at an Estate in Town B and later at Estate 2 in Town A. Ms B was similarly a niece (and neighbour) by marriage of the appellant. The remaining counts related to Ms C who was (similarly to Ms B) also a neighbour of the appellant in Town A.

5 In the course of the trial, the jury heard evidence from Ms A. She stated that at the time of the trial she was 49 years of age and gave her date of birth. She named her parents, JM and Ma.M. Her mother's sister was Mn.M. and she was married to the appellant. Ms A was one of three daughters and herself had two children. Ms A's mother died when she very young and she was raised by her father and her stepmother.

6 She recalled that when she was young she was asked to baby sit for her aunt D. at a flat at a location in Estate 1, Town A. She said that this was unusual and she had not been allowed to baby sit before as this meant staying up late and would have interfered with her athletics. She said that she was not sure what age she was at this time but thought she was about 11 or 12, which would have meant the incident occurred sometime in 1978 or 1979. She said that she was minding the appellant's two children, Q and R, and D's daughter S. She thought that S was 3 or 4 years of age at the time, Q was in or around 2 and a half years of age, and R was "literally a baby'. She recalled that when she put the children to bed, she also went to bed, sharing a double bed with S and Q. She said that the appellant then came home on his own and got into the bed with Ms A, lying on the other side of the children. He then "started trying to spread my legs apart with his hand, he was reaching over.' Ms A asked the appellant what he was doing and he replied: 'Stay quiet, I'm trying to keep yous warm'. Ms A pretended to have nightmares so that she could kick him but the appellant ran his hand up her legs, placed his hand into her underwear, started touching her vagina and digitally penetrated her. She recalled he kept saying that he was keeping her warm. That incident then came to an end when her cousin, K.L. came into the room and asked the appellant what he was doing. The appellant jumped out of bed and she could hear an argument ensuing.

7 Ms A then recalled the appellant moving to Estate 2 in Town A, some eight doors up from Ms A. She said that she called to the appellant's house, as her stepmother would ask her to call up to collect a loan of money or cigarettes. She also would have been there on her own accord as the appellant kept birds. She recalled that when the appellant moved in after January 1982, he would make advances towards her, making Ms A turn around facing out the window and touch her. This touching consisted of touching her chest "but mostly he would touch me down the vagina'. The appellant would touch her inside and outside her clothes would insert his fingers into her vagina. She recalled this occurring three or four times and believed it was during the summer.

8 Ms A was extensively cross examined by counsel for the appellant. Ms A was asked about the various ages of her cousins and in particular, the ages of Q, R and S. She stated she was not sure if in fact S was present the night she baby sat in Estate 1, Town A but was sure she baby-sat three children. Ms A confirmed that she was 11 or 12 at the time of this assault which would have meant it took place sometime in 1978 or 1979. It was put to Ms A that R was not born until 20 June 1979 and so R could not have been present on this night. Ms A said in reply she could not recall which children were present that night. It was further put to her that S was not born until 1980 and so if S was present, Ms A would have been 13 years of age. It was put to Ms A that she was never asked to baby sit and that this incident never occurred and she rebutted this.

9 The circumstances of Ms A providing her statement to Gardaí were canvassed. She provided a statement on 26 March 2010 and was asked whether she recalled attending with Ms B. It was further put to her that there was no mention in this statement of a third child being present in the flat at the time of the first incident. Ms A was further cross examined then about when the abuse started after the appellant moved to Estate 1, Town B. She was also asked about whether she spoke with Ms B or Ms C around the time of the making of their statements. She was asked about why she had never told anyone about the abuse and she replied that she was terrified of her stepmother. She was asked further about why she only told her treating GP in 2010 of the abuse. She accepted she had told Ms B when she was 18 years of age and Ms B told her that she was also abused by the appellant.

10 The jury then heard evidence from Ms B. She confirmed she had a date of birth of the 21/02/69 and similarly was a niece of the appellant by marriage. Her father's sister was married to the appellant. Ms B and Ms A were therefore cousins. She was one of six children and she had three children herself. She recalled the appellant living in a caravan in Town B prior to moving into an address in the estate at Town B. She said that when the appellant resided at the address in Town B, she would stay over in the back room facing the garden. She thought she was 8 or 9 when she started staying over so this would have meant it was around 1977 or 1978 onwards. She recalled that by that stage that Q (the appellant's daughter) was there though she was not sure if S was there. She recalled the first incident with the appellant. She said...