DPP v P.R
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 12 March 2020 |
| Neutral Citation | [2020] IECA 68 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 168/15 |
| Date | 12 March 2020 |
[2020] IECA 68
The President
McCarthy J.
Kennedy J.
Record Number: 168/15
THE COURT OF APPEAL
Conviction – Sexual offences – Acquittal – Appellant seeking to appeal against conviction – Whether the trial judge erred in failing to grant a direction for an acquittal on a significant number of the counts on the indictment in circumstances where there was insufficient evidence to sustain such counts
Facts: The appellant was convicted of 74 counts, namely 37 counts of rape contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, 2 counts of rape contrary to s. 4 of the 1990 Act and 35 counts of sexual assault contrary to s. 2 of the 1990 Act, in relation to three complainants, who are daughters of the appellant. The appellant appealed to the Court of Appeal against conviction. The appellant put forward two grounds of appeal in his submissions: (1) the trial judge erred in failing to grant a direction for an acquittal on a significant number of the counts on the indictment, in circumstances where there was insufficient evidence to sustain such counts; (2) the trial judge erred in refusing the defence’s application to refer to the conduct of one of the complainants during the appellant’s previous trial, wherein the trial judge had threatened to hold the complainant in contempt arising from her attempts to influence the jury through her demeanour.
Held by the Court, having considered the submissions made and the evidence in some detail, rejected the contention that the offences alleged could not have been committed within the periods on the various counts on the indictment. The Court was satisfied that where each complainant gave evidence of their respective date of birth, coupled with the location of the offences, and the degree of regularity with which the offences were committed, that the trial judge was correct to refuse the appellant’s application to withdraw counts from the jury. The Court was satisfied that the evidence was for the jury to evaluate and that there was more than ample evidence for the jury, having done so, to come to the conclusion on each count as they did. The Court held that it was quite clear that the particulars of the offence on count 51 on the indictment disclosed a criminal offence and the imprecision concerning the date rendered the particulars of the indictment imperfect. In those circumstances and in light of the defence advanced by the appellant, the Court was satisfied to apply s. 3(1) of the Criminal Procedure Act 1993 (the proviso). The Court was entirely satisfied that the cross-examination on behalf of the appellant was not hampered or restricted in such a manner so as to give rise to any unfairness in the trial process or was such so as to render the verdict unsafe or unsatisfactory. The Court therefore could not find any error in the judge’s ruling in that regard.
The Court held that the appeal against conviction would be dismissed.
Appeal dismissed.
This is an appeal against conviction. The appellant was convicted of 74 counts, namely; 37 counts of rape contrary to section 2 of the Criminal Law (Rape) Act, as amended, 2 counts of rape contrary to section 4 of the Criminal Law (Rape) (Amendment) Act 1990 and 35 counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act, 1990 in relation to three complainants: CR, ST and MR, who are daughters of the appellant.
In relation to the first victim, CR, the appellant was convicted of 11 counts of sexual assault, one count of section 4 rape and 37 counts of rape. The assaults began in 1994 when the complainant was 9 years of age and they continued up until after her 17th birthday. The complainant was regularly sexually assaulted by the appellant from the age of 9 to 11 at which point the appellant progressed to regularly raping the complainant. The abuse occurred mainly in the family home, but several counts also relate to rapes occurring at various building sites and industrial estates where the appellant worked and during car trips to Tipperary. On one occasion, when the complainant was 16, she was anally raped by the appellant in the family home. The abuse stopped in May 2002 when the complainant ran away from home.
The second victim is ST, a younger sister of the first victim. The appellant was found guilty of 15 counts of sexual assault and one count of section 4 rape concerning ST. These offences were perpetrated against the victim when she was 10 years of age and continued until just before her 14th birthday. These offences occurred in the family home and became a regular occurrence. They began with the appellant forcing ST to masturbate him and the level of involvement increased with the appellant touching her body and performing oral sex on her. On one occasion the appellant forced ST to perform oral sex on him and on another occasion, he digitally penetrated her vagina.
The third victim, MR, is a younger sister of the previous two victims. The appellant was found guilty of 9 counts of sexual assault in relation to MR. The abuse began at a time when the complainant was aged between 11 and 13 years of age. Much like ST, the abuse began with the appellant forcing MR to masturbate him and progressed to him feeling her body, her being required to rub against him whilst naked and being digitally penetrated by the appellant. This abuse mainly took place in the family home apart from one incident which took place while the family were on holiday in Co. Waterford.
The appellant puts forward two grounds of appeal in his submissions:-
(1) The trial judge erred in failing to grant a direction for an acquittal on a significant number of the counts on the indictment, in circumstances where there was insufficient evidence to sustain such counts.
(2) The trial judge erred in refusing the defence's application to refer to the conduct of one of the complainants during the appellant's previous trial, wherein the trial judge had threatened to hold the complainant in contempt arising from her attempts to influence the jury through her demeanour.
At the close of the prosecution's case, counsel for the appellant sought a directed verdict of not guilty in relation to several of the counts on the indictment on the grounds that no evidence had been adduced to show that the offences took place within the time periods set out on the indictment. The respondent conceded that there was no evidence relating to counts 50, 74, 75 and 76 on the indictment.
In relation to ST, counts 51-66 on the indictment pertained to her, with counts 51-60 being incidents of sexual assault preferred on a quarterly basis and count 61 being an incident of oral rape contrary to section 4 of the 1990 Act. Count 51 was an allegation of a sexual assault occurring on an occasion between 1st May 1997 and 30th September 1997. The appellant argued that since ST described the first instance of assault occurring during the springtime, this did not fit with the timeframe on the indictment. Furthermore, the appellant submitted that ST described the assaults as “sporadic” which did not necessarily fit in with the timeframe of the counts on the indictment.
In relation to MR, there were 9 counts of sexual assault preferred in three-month tranches on the indictment and again counsel for the appellant argued that there was no evidence to support that the sexual assaults necessarily occurred during the time frames laid out in the indictment.
In relation to CR, counsel for the appellant submitted that counts 1 and 2 on the indictment related to the period 1st October 1994 to 24th December 1994 and yet the only evidence the complainant gave of a time frame for these offences was that they occurred during the wintertime, thus, in a similar vein as the arguments presented for the counts concerning ST, there was no evidence that they occurred between the times alleged. The appellant further argued that there were a number of counts for which CR gave no time frame and thus should not have gone before the jury.
The trial judge refused to accede to the appellant's application and in considering the submissions in respect of each complainants' evidence, she accepted that there was some evidence to go to the jury on each count and it was a matter for the jury to interpret and decide upon the evidence given. The trial judge concluded her ruling by remarking as follows:-
“I have to say that in cases like these, having considered the case law, that there has to be an approach of realism, but also that, as the trial judge, I must be careful not to usurp the function of the jury and I think that there's a nice phrase in I think it's the Kearns case. It says that the guiding principle is that it's for the jury to decide and resolve matters of inconsistency in the evidence and matters essentially which are within the province of the jury and I'm satisfied that that so be the case. I also don't accept that there's any injustice to PR in relation to these matters because there's no suggestion and no case made out that he was out of the country or that he was in prison while these events occurred, and that's on the evidence as given.”
The appellant submits that the first limb of the test in R v. Galbraith [1981] 1 WLR 1039 is not satisfied, as a constituent element of the counts in issue is not made out i.e. the time frame in which they occurred. The classic statement regarding the approach to such an application as stated by Lord Lane is as follows:-
“How then should the judge approach a submission of ‘no case’? (1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge...
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