DPP v P.P.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Isobel Kennedy |
| Judgment Date | 18 May 2021 |
| Neutral Citation | [2021] IECA 146 |
| Docket Number | Record Number: 304/18 |
| Court | Court of Appeal (Ireland) |
| Date | 18 May 2021 |
[2021] IECA 146
Edwards J.
McCarthy J.
Kennedy J.
Record Number: 304/18
THE COURT OF APPEAL
Conviction – Indecent assault – Standard of proof – Appellant seeking to appeal against conviction – Whether the jury failed to apply the correct standard of proof
Facts: The appellant was tried on two charges of indecent assault contrary to common law as provided for by s. 10 of the Criminal Law (Rape) Act 1981. On the 12th July 2018 he was found guilty of one count of indecent assault. He appealed to the Court of Appeal against conviction. The appeal concerned the directions of the trial judge regarding the standard of proof in a criminal trial. The appellant said that the second question posed by the jury indicated that the jury was applying an incorrect approach by considering the ultimate issue on a percentage basis. Given this, it was said that the judge’s response to the question served to further confuse the jury. While the appellant pointed to the impugned sentences emphasised, he argued that those words must be viewed in the context of the question asked by the jury. The appellant further argued that the final remarks of the trial judge to the jury seemed to suggest that the trial judge thought that a correction was unnecessary; consequently, there was a perception of confusion concerning the instruction to the jury on the standard of proof.
Held by the Court that it could not agree on the totality of the charge that the judge fell into error. The Court held that even should the view be taken that the use of the words ‘But if it’s a 50/50 situation’ were apt to create confusion, one must look at the very next phrase where the judge instructs the jury that the appellant must in those circumstances be given the benefit of the doubt; he then re-iterates yet again that the criminal standard of proof is much higher than the civil standard of proof. The Court held that there could be no issue on the totality of the charge that the jury were fully apprised of the fundamental principles, the presumption of innocence and the corollaries of that being the onus and standard of proof required. The Court noted that the judge repeatedly advised the jury that the standard in a criminal trial was much higher than that of a civil action and used the word convinced on several occasions. The Court was not at all persuaded that the jury were led to conflate the civil and criminal standards. The Court held that it was clear that the judge emphasised that the civil standard was not the applicable one. The Court noted that the jury returned a verdict of not guilty on one of the counts. The Court found it difficult to see how they failed to apply the relevant standard in those circumstances.
The Court held that the appeal would be dismissed.
Appeal dismissed.
JUDGMENT of the Court delivered on the 18th day of May 2021 by Ms. Justice Isobel Kennedy.
This is an appeal against conviction. The appellant was tried on two charges of indecent assault contrary to common law as provided for by section 10 of the Criminal Law (Rape) Act, 1981. On the 12th July 2018 he was found guilty of one count of indecent assault.
The two counts preferred on the indictment relate to charges of indecent assault of the appellant's niece. The first count, for which the appellant was ultimately found not guilty, concerned a timeframe between August 1982 and January 1985.
The second count, of which the appellant was found guilty, was specific and related to an incident in January 1985 when the complainant was nine years old. The appellant was babysitting the complainant and he rubbed her private parts with his fingers and asked her to do the same to him. The complainant told her father about the assault later that evening but a formal complaint was not made until 2012.
The appellant puts forward seven grounds of appeal as outlined in his notice of appeal, however, Mr Whymes BL for the appellant states that the appeal concerns the directions of the trial judge regarding the standard of proof in a criminal trial.
No requisitions were raised on the legal principles following the charge, however, the jury asked 3 questions in the course of deliberations, two of which are relevant to this appeal:-
“FOREMAN: It's nothing new. It's just a request to re-clarify for us some of the things that were said already.
JUDGE: By?
FOREMAN: One is to re-clarify for us the law on the principle of reasonable doubt … statement … clarity.
JUDGE: Right. Okay, so clarification on okay, reasonable doubt.
FOREMAN: We also request clarification if possible on the principle of the balance of probabilities and how much higher we need to go to reach reasonable doubt.
JUDGE: Well, it's not a question of degrees…”
The judge then instructed the jury inter alia as follows:-
“But we're talking about a criminal case in this instance and there's a considerable difference between proving something on the balance of probabilities and proving something beyond a reasonable doubt. And to put it another way, you cannot convict somebody in an Irish court unless you're convinced on the evidence that the evidence in the case establishes that they are guilty of the offence.”
He then went on to say:-
“So if you've a balancing exercise in that respect where it's equal, you would have to give the benefit of the doubt in circumstances — if you want to do it in figures and that is not — some people would say or some people would feel that's not maybe a correct way. There's so many ways you can explain it. But if it's a 50/50 situation, if you really want to go into figures, you have to give the benefit of the doubt to the accused person. So you have to be sure above that percentage certainly and you have to be convinced, as I said, in dealing with it, because nobody in an Irish court should be convicted of a criminal offence unless they're convinced that that man committed that offence. It's a high threshold. It's much higher than the civil threshold as such. Now, that's the best way I can explain it to you. You sift through the evidence, use your common sense. You're people of the world. You know — you can sift through the evidence and come to a verdict provided, as I say, you comply with the directions which I've given you as such.” (our emphasis).
When the jury retired both counsel addressed the judge on his remarks with regard to the judge's reference to a...
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