DPP v P. P
| Jurisdiction | Ireland |
| Judge | Ms. Justice NÍ Raifeartaigh |
| Judgment Date | 01 December 2022 |
| Neutral Citation | [2022] IECA 289 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Court of Appeal Record No. 99/20 |
[2022] IECA 289
Edwards J.
Donnelly J.
Ní Raifeartaigh J.
Court of Appeal Record No. 99/20
THE COURT OF APPEAL
UNAPPROVED
NO REDACTION NEEDED
Crime & sentencing – Sexual assaults – Appeal against conviction – Severance of indictment
Facts: The appellant had been charged with multiple counts of sexual assault against four complainants. A number of counts of the indictment were severed following an application by the appellant. The appellant was then re-arraigned and convicted on one count, then retried and convicted of a further three counts. He now sought to appeal against his conviction on the basis of issues regarding the severance and “system evidence.”
Held by the Court, that the case called for the application of the principles set out in People (DPP) v. Limen [2021] 2 IR 546. Having considered that case, the Court was not persuaded that any of the grounds of appeal had been made out.
JUDGMENT of Ms. Justice NÍ Raifeartaigh delivered on the 1st day of December, 2022
This is an appeal against conviction in which issues are raised as to severance of the indictment and “system evidence” in the context of a multi-complainant case of sexual assault. The case calls for the application of the principles recently clarified by the Supreme Court in People (DPP) v. Limen [2021] 2 IR 546.
The appellant was initially charged with 7 counts of sexual assault in respect of four different complainants. On the (first) trial date, application was made on his behalf to have the indictment severed so that the case of each complainant would be tried separately. The Circuit Court ruled that counts 3 and 6 of the indictment would be severed, thereby removing one complainant from that trial, but that the remaining counts should be tried together (in respect of three complainants).
The appellant was then re-arraigned on a fresh indictment (Bill No. WX 32/2017) containing the 5 remaining counts (which were re-numbered) and pleaded not guilty. The trial proceeded in respect of those 5 counts involving the three different complainants (J, V and Y), each of whom was the appellant's niece (in law). V and Y are sisters, and they are cousins of Y. In that trial, (a) the trial judge directed not guilty in respect of one of the counts; (b) the jury convicted the appellant in respect of one of the counts; and (c) the jury disagreed in respect of three counts.
The appellant was retried on a three-count indictment in respect of those counts where there had been a disagreement in the previous trial and was found guilty in this second trial of all three counts. Again, there were three complainants: Y, J and V. The Bill number of this indictment was WX 32A/2017.
The sexual assaults were described by each of the complainants as essentially involving the touching of their genitals under their underwear, on occasions when they were on sleepovers with cousins.
In his ruling on the severance issue, the trial judge said:—
“Now, in relation to this matter, all of the counts on the indictment, with the exception of count 3 and 6, I'm satisfied are counts dealing with a particular system of allegations of sexual assault on young children while they are at a sleepover, or while they are asleep, or while they are on their own in a room in which the accused is alleged to have taken advantage of them. Counts 3 and 6 then have another set of evidence in relation to that. Now, in relation to all of the counts, except for counts 3 and 6, I'm satisfied that there is sufficient evidence of system to permit me to exercise my discretion to allow those counts to be heard together. I'm satisfied that the evidence in relation to those counts is more probative than prejudicial. In relation to counts 3 and 6, however, I'm not satisfied that those counts set out a system in relation to sexually assaulting young children while they're at a sleepover, or while they're asleep. Now, if I allow those counts to go to the jury, I would have to charge the jury in relation to system, and I would have to tell them why the evidence is admissible, as to system, and I would have to charge them in accordance with the CC No. 2 decision. I'm satisfied that the law doesn't say that the allegations have to be identical, or that there has to be, as it's referred to in some articles, as hyper-similarities. However, for it to be system evidence which is admissible, there must be some sufficient evidence of similar system, or nexus of system. In relation to counts 3 and 6, I'm not satisfied that they are sufficiently similar allegations to go within the system of the remaining counts. So, what I'm going to do is I'm going to sever counts 3 and 6 from the indictment.”
The two grounds of appeal are: (1) in Bill 32/2017, that the trial judge erred by failing to sever the indictment to allow for separate trial for each of the complainants and the allegations made against the appellant; and (2) in Bill 32A/2017, the trial was unsatisfactory and the verdict unsafe, and that the trial judge erred in allowing the admission of system evidence in the course of the trial. It may be noted that neither ground of appeal takes issue with the manner in which the trial judge charged the jury.
In respect of ground number 1, the appellant submits that the trial of counts of sexual assault in respect of three different complainants created prejudice and embarrassment within the meaning of s.6 of the Criminal Justice (Administration) Act 1924. He relies on Attorney General v. Duffy [1931] IR 144, R v. Boardman [1975] AC 421, R v. Scarrott [1978] QB 1016, and ( People) DPP v. B.K. [2000] 2 IR 199 and submits that unless the circumstances of the offence are “sufficiently similar so as to bring them within the scope of similar fact rule”, then the different counts in respect of different victims should be tried separately. He submits that no such “ similarity” exists in the present case and that they were different in terms of the locus of the offences, the time of day of the offences, and the ages of the complainants. He submits that the sole similarity between them was the familial tie between the complainants and the appellant.
In respect of ground number 2, the appellant again refers to the decision in B.K., and submits that the mere fact of the appellant being the uncle of the complainants did not in and of itself bring the evidence into the category of system evidence such that the evidence of one complainant could be used as proof in the trial in respect of another complainant. He submits that neither the location of the offence nor the mere fact of physical touching can be seen as “ out of the ordinary in cases of this nature”. He also refers to B. v. DPP [1997] 3 IR 140.
Curiously, the written submissions on behalf of the appellant did not refer to the recent and important Supreme Court decision in People (DPP) v Limen [2021] 2 IR 546 (hereinafter “ Limen”) but counsel did address the Court on that decision after it was drawn to his attention.
The respondent submits that the question of joinder and severance is within the discretion of the trial judge. She refers to ( People) DPP v. S.T. [2017] IECA 73 and ( People) DPP v. D. McG [2017] IECA 98 where this Court upheld rulings by trial judges with regard to severance applications. She also refers to Limen. She submits that the trial judge was directed to and aware of the relevant authorities (having been the trial judge in ( People) DPP v. M.S. [2019] IECA 120) and applied them with care. She says that during the retrial there was no further application to sever the indictment. Further, the trial judge opted to give a corroboration warning. She submits that the appellant took no issue at trial or on appeal with how the trial judge charged the jury on system evidence.
Section 5 of the Criminal Justice (Administration) Act 1924 (“the 1924 Act”) provides that “[s]ubject to the provisions of the rules under this Act, charges for more than one felony or for more than one misdemeanour … may be joined in the same indictment”.
Section 4 requires an indictment to have a statement of the charge and to have a statement of what is alleged in such form as to furnish the accused with “ such particulars as may be necessary for giving reasonable information as to the nature of the charge”. In that context, the indictment rules appended tothe 1924 Act give examples of statements and particulars of various charges.
The indictment rules also provide at r. 3:
“Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character”. (Emphasis added)
S. 6(3) provides “Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.”
In the last thirty or so years, the Irish criminal justice system has witnessed a vast increase in the number of complaints, investigations and prosecutions of allegations of sexual assault and rape. In many cases, adults have come to the Garda Siochana alleging that they were sexually abused as children, which allegations were not reported at the time and are then...
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