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

Facts: The prosecutor, the DPP, applied to the Central Criminal Court to add a number of new charges to an indictment. ?The DPP sought to add a charge of threat to kill. The DPP requested that s. 5 of the Child Trafficking and Pornography Act 1998 be added 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. The DPP also requested counts to be added in respect of the child?s evidence that his father had inserted a camera into the keyhole which he said flashed like Morse code. The DPP also requested a count of wilful assault in respect of the second incident of being locked in a box. The DPP also sought further counts in respect of sexual assault in respect of the poker inserted into the child?s anus. The DPP also sought further charges of assault in respect of the child?s father kicking him and tripping him over. In respect of the second accused, R.N., the DPP requested that the court add to the indictment counts of sexual assault and sexual exploitation. The prosecutor sought to lay the following acts as sexual exploitation: (i) forcing the child to watch pornography; (ii) filming the child in the bathroom; (iii) inviting the child to take part in sexual activity with his mother.

Held by Eagar J that it is not the Court?s function to act as a substitute for the DPP in relation to counts in the indictment nor is it the Court?s function to act as substitute for the DPP in relation to adding counts to the indictment. Eagar J held that it was clear that there was no evidence of child pornography and that no camera which appeared to be available for use in the bathroom had been produced in evidence and was not found in the search of the premises on 22nd August, 2012.?

Eagar J held that the Court would decline to add any of the proposed charges to the indictment having regard to the accused?s right to a fair trial and not a trial by ambush. The Court held that in relation to the first accused, N.R., Counts 33 to 48 in the indictment must fall, and Eagar J directed the jury to find him not guilty by direction of the trial judge in respect of those counts. Having regard to the evidence, and there being no evidence that the child was subject to the sexual assault of being penetrated by a poker in his anus prior to the age of six, Eagar J held that the offences at Counts 17 to 23 must fall and he directed the jury to find N.R. not guilty of those offences. He also directed the jury to find N.R. not guilty of the offences from Counts 1 to 7 by direction of the trial judge in relation to the same period. The counts that remained against N.R. were Counts 8 to 16, Counts 24 to 32 and Count 49. In respect of the offences of sexual exploitation at Counts 66 to 81, the Court also directed verdicts of not guilty. The remaining counts in respect of R.N. were 16 counts of sexual assault and one count under s. 246 of the Children Act 2001. The Court directed that in respect of Count 58 the charge should read that ?you, on a date unknown between 1st April 2009 and 31st March 2010, (both dates inclusive) at [an address in Waterford], did sexually assault one J.?, and Count 65 was amended that ?you, on a date unknown between 1st April 2010 and 3rd April 2011, (both dates inclusive) at [an address in Waterford], did sexually assault one J.? In those circumstances, apart from Counts 58 and 65, the Court directed the jury to find R.N. not guilty of the other sexual offence charges. However, the Court was satisfied that there was sufficient evidence in Count 82. Eagar J would tell the jury of his direction and would tell the foreman that, when issued with the issue paper, he would find marked on the issue paper in respect of the offences for which Eagar J had given directions of ?not guilty by reason of direction of the trial judge? and Eagar J would tell the foreman that, as a result of a legal issue which arose in relation to the charges of sexual exploitation he had given a direction to the jury to bring in verdicts of ?not guilty? in relation to those charges and that in relation to the other charges, that the evidence that the child gave did not cover all of the charges against N.R. and R.N.

Judgment approved.

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...

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