DPP v Patrick Hegarty

• Jurisdiction: Ireland
• Judge: Murray J.
• Judgment Date: 31 July 2013
• Neutral Citation: [2013] IECCA 66
• Court: Court of Criminal Appeal
• Date: 31 July 2013

[2013] IECCA 66

THE COURT OF CRIMINAL APPEAL

Murray, J.

deValera, J.

McGovern, J.

[39/11]

DPP v Hegarty

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

AND

PATRICK HEGARTY

APPLICANT

OFFENCES AGAINST THE PERSON ACT 1861 S48

CRIMINAL LAW (RAPE) ACT 1981 S2

CRIMINAL LAW (RAPE) AMDT ACT 1990 S21

CRIMINAL LAW (RAPE) AMDT ACT 1990 S4

CRIMINAL LAW (RAPE) AMDT ACT 1990 S2

L (J) v DPP 2000 3 IR 122 2000/12/4389

DPP, PEOPLE v J (P) 2003 3 IR 550 2004 1 ILRM 220 2003/17/3710

DPP v D (G) UNREP CCA 14.2.2011 2011/16/3892 2011 IECCA 35

DPP v C (C) 2006 4 IR 287 2006/17/3496 2006 IECCA 1

H v DPP 2006 3 IR 575 2007 1 ILRM 401 2006/27/5802 2006 IESC 55

DPP v B (R) UNREP CCA 12.2.2003 2003/13/2871

MCGREEVY v DPP 1972 NI 125

1 JUDGMENT of the Court delivered on the 31st day of July, 2013by Murray J.

2 1. This is an application for leave to appeal by the above named applicant against his conviction on 9 counts of rape and 8 counts of sexual assault committed in 1991. There is another appeal in this case brought by the Director of Public Prosecutions in respect of the sentences imposed by the trial court on the grounds of undue leniency. That appeal is dealt with separately.

3 2. On the 10 ^th day of January, 2011 the applicant was convicted, after an 8 day trial, of 8 offences of rape contrary to s.48 of the Offences Against the Person Act, 1861, as amended by s.2 of the Criminal Law (Rape) Act, 1981 and s.21 of the Criminal Law (Rape) Amendment Act, 1990, one offence of rape contrary to s.4 of the Criminal Law (Rape) Amendment Act, 1990 and 8 offences of sexual assault contrary to s.2 of the Criminal Law (Rape) Amendment Act, 1990.

4 3. All of the offences were committed over a 5 week period in the summer of 1991 when the victim, who was then 15 years old and resident with her parents in England, was spending her summer holidays in the southwest in the home of the applicant and the applicant's wife who was an aunt of the victim. Her aunt ran a bed and breakfast business at the time. At the time of the offences the applicant was 47 years of age. Over the years there had been a close relationship between the complainant's and the applicant's family. There were regular visits between the two during the victim's childhood. The applicant was sentenced to a period of 7 years imprisonment, with 5 of those years suspended, in relation to the counts ofrape, a sentence of 5 years imprisonment with 3 years suspended on one count of sexual assault and a sentence of 6 months imprisonment on the remaining counts of sexual assault, all sentences to run concurrently.

Grounds of Appeal

5 4. At the hearing of his application for leave to appeal three grounds of appeal were advanced on behalf of the applicant, which were as follows:

6 (i) The learned trial judge erred in failing to discharge the jury consequent upon one of them being found to possess information obtained from the internet related to particular and exculpatory evidence adduced by the defence;

7 (ii) The learned trial judge erred in failing to adequately instruct the jury on the issue of the effect of delay in this prosecution having regard to the particular circumstances of this case;

8 (iii) The learned trial judge failed to ensure that the applicant had a fair trial having regard to the two issues referred to above.

Failure to Discharge the Jury

9 5. On the 6 ^th day of the trial it was discovered that a member of the jury had researched on the internet one aspect of evidence which had been previously given and tendered on behalf of the defence. It was the jury member herself who, conscientiously as the learned trial judge was to observe, brought the fact of her research to the attention of the jury minder who duly informed the judge.

10 6. The research related to evidence which had been given during the trial on behalf of the defence by the former managing director of a firm who had employed the applicant over a period which included the year 1991 when the offences were committed. In the course of his employment the applicant drove a company van. The witness's evidence was that all the vans were the same and they all had the same colour. He gave evidence describing the van including the configuration inside the van referring to the number of doors, the number of seats, the division between the back and front of the van, the manoeuvrability of the passenger seat and so forth. The evidence was relevant to the accuracy or credibility of the complainant's evidence concerning certain matters which had occurred when she was in a van with the applicant. It is not relevant for present purposes, and therefore not necessary, to recite in detail the evidence of the witness concerned. Suffice it to say that the internet search carried out by the member of the jury on the internet, as appears from the extract of the transcript below, related to the configuration of the particular kind of van referred to by the witness in the course of his evidence.

11 7. On the 6 ^th day of the trial the proceedings commenced, in the absence of the jury, with a statement addressed to counsel for both sides by the trial judge in the following terms:

12 'Before we start, a matter has been brought to my attention that one member of the jury apparently approached the jury minder and told the jury minder that they had been on the internet. The jury minder said to say nothing further, and nothing further was said, but I want to bring that to your attention and ask you if you have any view as to how I should deal with that...

13 8. There was then a discussion between the trial judge and counsel for the defence and counsel for the prosecution as to how this matter might be best approached. The outcome of that exchange was that the trial judge would recall the jury and ask the juror concerned to identify herself. The trial judge would then ask the other members of the jury to return to the room and in their absence question the juror concerned as to what had occurred in relation to her access to and use of the internet. It was also agreed that only the trial judge would pose questions to the juror for this purpose but that counsel for the defence or the prosecution would have an opportunity subsequently, in her absence, to make submissions to the trial judge as to any other enquiries or questions which should be made.

14 9. Having identified the juror in question the following exchanges took place between the trial judge and the juror in question in the absence of the jury (Day 6, page 15 of the trial transcript):

"JUDGE:	Just the first matter that I have to ask you is did you search the internet in relation to any aspect of this case?
JUROR:	The information -
JUDGE:	No. No, sorry, if you wouldn't mind just listening to my question -
JUROR:	Not an aspect of this case, no.
JUDGE:	You didn't search the internet in relation - just bear with me.

JUROR:	Yes.
JUDGE:	Did you search the internet in relation to any aspect of this particular case.
JUROR:	I checked something on the internet. So -
JUDGE:	In relation to this case?
JUROR:	In relation to a piece of evidence.
JUDGE:	In this case?
JUROR:	Yes.
JUDGE:	And I wonder would you mind telling me secondly then, having done that did you discuss your findings -
JUROR:	With nobody.
JUDGE:	- with any member - any other member of the jury?
JUROR:	No.
JUDGE:	Did you tell any other member of the jury what you done?
JUROR:	No.
JUDGE:	Thank you. Very well. I'm sorry I just want you to just stay there for a moment.
JUROR:	Yes.
JUDGE:	Have the jury gone back to their room?
GARDA OFFICER:	Yes, judge.
JUDGE:	Is there any way in which this member of the jury can be kept separated but just simply remain outside?
GARDA OFFICER:	Yes, Judge.
JUDGE:	Without going back to the other jurors?

GARDA OFFICER:	I can do that ....
JUDGE:	Very well. Would you mind just rising just for one moment. I'll call you back in here -
JUROR:	Sure, no problem.
JUDGE:	- in a moment. It seems to me that the next obvious question is what did you check.
MS FARRELLY:	Yes, my lord, I think you should ask that.
JUDGE:	That's what I - very well. And arising out of that then, does he feel in the light of what he has done that he can -
MS FARRELLY:	She.
JUDGE:	She. Sorry, does she believe that she can properly honour the oath that she's taken.
MS FARRELLY:	Yes, and your lordship - depending on what she tells you, your lordship may take a view in any event -
JUDGE:	Yes, very well.
MR MacENTEE:	Yes, that is the point, my lord, irrespective of the view of the juror, the last analysis, the decision has to be -
JUDGE:	No, I follow that.
MS FARRELLY:	Yes.
MR MacENTEE:	- the Court's.
JUDGE:	Thank you. Just listen, would you mind then indicating what was the aspect of the case that you looked at.

JUROR:	It was basically - it was a piece of information that was given by the gentleman that the defence put on the stand and it was purely just - can I actually tell you what I -
JUDGE:	Yes, you can of course.
JUROR:	Yes, basically when he talked about the red van and the set-up within it. I just wanted to call up a technical spec online in order to have a look at what he was saying just to confirm that the kind of distances and things like that, only to discover that basically that that make and model and van don't match up with the description he gave.
MR MacENTEE:	Sorry, I didn't hear...