DPP v P.D.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Sheehan |
| Judgment Date | 20 December 2016 |
| Neutral Citation | [2016] IECA 403 |
| Docket Number | 293/15 |
| Court | Court of Appeal (Ireland) |
| Date | 20 December 2016 |
[2016] IECA 403
THE COURT OF APPEAL
Sheehan J.
Birmingham J.
Sheehan J.
Mahon J.
293/15
Conviction – Sexual assault – Error in law – Appellant seeking to appeal against conviction – Whether trial judge erred in law and on the facts of the case in failing or refusing to discharge the jury
Facts: The appellant, on the 26th June, 2015, was convicted by a unanimous jury verdict on twelve counts of sexually assaulting his granddaughter over a three year period between the 12th February, 1991, and the 31st March, 1994, when the injured party was aged between five and eight years old. The appellant appealed to the Court of Appeal against conviction, advancing two grounds of appeal: 1) the trial judge erred in law and on the facts of the case in failing or refusing to discharge the jury in circumstances where the prosecution evidence was vague and tenuous and in circumstances where the allegations complained of were sheer improbabilities; 2) the trial judge erred in law in misdirecting the jury as to how they should go about their deliberations in circumstances where the jury complained of insufficient evidence to support all counts on the indictment.
Held by the Court that the decision as to whether or not allow the case to go to the jury was a matter for the trial judge. The Court noted that he heard the complainant and the other witnesses in the case. In the Court’s view he exercised his discretion in that matter carefully and correctly and accordingly the Court held that that ground of appeal failed. Whatever reason prompted the jury question, the Court held that they were satisfied that the trial judge was entirely correct in answering that question in the way that he did and accordingly the Court held that that ground of appeal also failed.
The Court held that the appeal should be dismissed.
Appeal dismissed.
This is an appeal against conviction.
On the 26th June, 2015, the appellant was convicted by a unanimous jury verdict on twelve counts of sexually assaulting his granddaughter SS over a three year period between the 12th February, 1991 and the 31st March, 1994, when the injured party was aged between five and eight years old.
Mr. Colgan on behalf of the appellant advances two grounds of appeal:-
1. The learned trial judge erred in law and on the facts of the case in failing or refusing to discharge the jury in circumstances where the prosecution evidence was vague and tenuous and in circumstances where the allegations complained of were sheer improbabilities.
2. The learned trial judge erred in law in misdirecting the jury as to how they should go about their deliberations in circumstances where the jury complained of insufficient evidence to support all counts on the indictment.
The allegations made by the complainant against her grandfather arose in circumstances where the complainant as a young child used to be brought by her mother every Sunday to visit and spend time with her grandparents at their home. Under cross examination the complainant agreed that there could have been up to six children and nine adults at any one time in her grandparents' home on a Sunday and she also agreed their home was a small one. In the course of her evidence she described being in bed naked beside her grandfather having been called upstairs by him, but was unable to say whether or not anything happened in the bed. She also described a particular sexual assault on her when she was about five years old which she said occurred in the kitchen when she was sitting on her grandfather's knee. On this particular occasion she said that her grandfather digitally penetrated her. She said that at the time she was wearing white tights and a green skirt.
The complainant also told the Court that her grandfather tongue kissed her when she was told to kiss him goodbye. She said that her grandfather called her to his bedroom on each Sunday that she visited.
The complainant also stated that she had told her former boyfriend about being abused by her grandfather during a visit to Mayo, but she was unable to remember the time or place when she told him. Her boyfriend gave evidence and confirmed that the complainant had told him that she had been abused and he also said that she told him some time between 2005 and 2010 when they were visiting his family in Mayo. The complainant agreed also that she had told him that her grandfather had abused others whom she named. One of these was her brother R. The appellant had been acquitted of indecently assaulting him at a previous jury trial. Two other cousins whom the complainant identified as being in bed naked when she was in bed with her grandfather did not support the complainant. One cousin stated she had never been abused by her grandfather and the other stated she could not remember ever having been abused by her grandfather.
In the course of his submissions that the trial judge ought to have withdrawn the case from the jury, counsel for the appellant relied primarily on the following matters:-
1. The complainant's evidence was that the assault in the kitchen had taken place when she was five years old and she was unable to relate this assault to either counts 1, 2, 3, and 4 on the indictment.
2. The complainant had said she was wearing a green skirt and white tights and that the digital penetration happened in the kitchen and there was an improbability about this when there were a lot of people around.
3. The vagueness of the circumstances of the complainant telling her boyfriend at a time she was aged between 17 and 24.
4. The vagueness of the complainant's evidence as to how she ended up naked in her grandfather's bed.
5. The fact that her brother R had made a complaint which was not upheld and further that her cousins JM and CM had respectively no recollection of being naked in their grandfather's bed or of any assault by the appellant.
In support of his application for a direction, counsel for the appellant relied on the judgment of the Court of Criminal Appeal inDPP v. Martin Leacy (Unreported, Court of Criminal Appeal, 3rd July 2002) delivered by Geoghegan J.:-
‘The legal principles applicable to the granting or refusing of a direction were accepted by Mr. Vaughan Buckley to be those laid down by the English Court of Appeal inGalbraith (1981) 73 Cr. App. R. 124 and reported also (inter alia) ...
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