DPP v N.R

 
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[2016] IECCC 2

THE CENTRAL CRIMINAL COURT

Eagar J.

(Bill No. CCDP 71/2014 and 72/2014)

BETWEEN
THE DIRECTOR OF PUBLIC PROSECUTIONS
PROSECUTOR
V.
N.R.

AND

R.N.
ACCUSED

CCDP71/2014 & 72/2014 - Eagar - Central Criminal Court - 16/5/2016 - 2016 IECCC 2

Indictment – Sexual offences– Sexual exploitation – Prosecutor seeking to add a number of new charges to an indictment – Whether there was sufficient evidence

DECISION of Mr. Justice Eagar delivered on the 16th day of May, 2016
Application to amend the indictment
1

Counsel for the Director of Public Prosecutions applied to add a number of new charges to the indictment:

a. A charge of threat to kill. Counsel stated that there were actually three threats to kill and referred to DVD 1 and DVD 2. She stated there were at least two charges of threat to kill and also in respect of the threat to throw him out the window, a threat to cause serious injury.

b. She requested the court in respect of the child giving evidence of being filmed by his father, that s. 5 of the Child Trafficking and Pornography Act 1998 could be added to the indictment on the basis that the child had given evidence of being filmed by his father having been coerced to have sex with his mother in the family sitting room. She said that the child was engaged in explicit sexual activity.

c. She also requested counts to be added to the indictment in respect of the child's evidence that his father had inserted a camera into the keyhole which he said flashed like morse code.

d. She also requested the court to add to the indictment a count of wilful assault in respect of the second incident of being locked in the box.

e. She also sought further counts in respect of sexual assault in respect of the poker inserted into the child's anus.

f. She also sought further charges of assault in respect of his father kicking him and tripping him over which is contained on DVD 1.

2

In respect of R.N., she requested that the court add to the indictment counts of sexual assault and sexual exploitation.

3

She quoted s. 6 of the Criminal Justice (Administration) Act 1924:

?Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless the required amendments cannot in the opinion of the court be made without injustice.?

4

The two authorities cited by the prosecution related to R. v. Dossi [1919] 13 Cr.App.R. 158 where the amendment amounted to the substitution of relevant dates. In the case of Director of Public Prosecutions v. Raymond Walsh [2010] 4 I.R. 746 the trial judge had amended the indictment by the substitution of four counts where the Director of Public Prosecutions had prosecuted the defendants on fourteen counts. Again the amendments in this case related to the substitution of certain dates. In that case, Fennelly J. stated:

?The purpose of any amendment must be to ensure that the jury will address the true issues when it comes to deliberate on their verdict. The counts in the indictment should correspond as closely as reasonably possible with a real case for the prosecution. A court should not exercise the power in circumstances involving prejudice to the defendant in the defence of the charges against him.?

5

However this Court is of the view that the Director of Public Prosecutions having received three statements of the complainant and the two DVDs of evidence could have proffered these charges which are now sought by counsel for the prosecution. Clearly counsel for the prosecution was not consulted prior to the preparation of the indictment but it is not the court's function to act as a substitute for the Director of Public Prosecutions in relation to counts in the indictment nor is it the court's function to act as substitute for the Director of Public Prosecutions in...

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