DPP v PC
| Jurisdiction | Ireland |
| Judge | Finlay Geoghegan J.,Peart J. |
| Judgment Date | 20 July 2015 |
| Neutral Citation | [2015] IECA 154 |
| Court | Court of Appeal (Ireland) |
| Docket Number | [98/14] |
| Date | 20 July 2015 |
[2015] IECA 154
THE COURT OF APPEAL
The President
Finlay Geoghegan J.
Peart J.
[98/14]
Criminal Law – Sexual Exploitation - s. 3 of the Child Trafficking and Pornography Act 1998 (“the 1998 Act”), as amended by s. 6 of the Criminal Law (Sexual Offences)(Amendment) Act 2007, and as substituted by s. 3(2) of the Criminal Law (Human Trafficking) Act 2008 – Appeal against Conviction
Facts: The appellant was convicted of two counts of sexual exploitation of a child contrary to s. 3 of the Child Trafficking and Pornography Act 1998 (“the 1998 Act”), as amended by s. 6 of the Criminal Law (Sexual Offences)(Amendment) Act 2007, and as substituted by s. 3(2) of the Criminal Law (Human Trafficking) Act 2008. He was sentenced to five years imprisonment on each count with the final three years suspended on conditions in each case. He appealed against those convictions on eleven grounds.
The first was that the trial judge erred in law in holding that the particulars of the offences charged on the indictment constituted an offence contrary to s. 3 of the 1998 Act. The second was that the trial judge erred in law and in fact in holding that the arrest and detention of the appellant was lawful. The third ground was that the trial judge erred in law and in fact by allowing the prosecution to call evidence from the school principle. The fourth ground was that the trial judge erred in law and in fact by holding that the appellant understood the caution given to him prior to interview. The fifth ground was that the trial judge erred in law by allowing the prosecution to adduce evidence of the interview when the appellant had bot had access to a solicitor prior to the interview. The sixth ground was that the trial judge erred in law and in fact by allowing the prosecution to adduce evidence of the interview in circumstances where the solicitor was not present during the interview and the defendant was not informed of his right to have a legal representative during the interview.
The seventh ground was that the trial judge erred in law and in fact by allowing the prosecution to adduce evidence of edited and ambiguous portions of the appellant”s interview. The eighth ground was that the trial judge erred in law and in fact by allowing evidence to be led by the prosecution of the registration number belonging to the appellant. The ninth ground of appeal was that trial judge erred in law by refusing the application for a direction at the close of the prosecution case. The tenth ground of appeal was that the trial judge erred in law when charging the jury that while it was wrong to convict an innocent man it was equally bad to acquit a guilty man. The final ground of appeal was that the trial judge erred in law by failing to recharge the jury in respect of the interview and the presumption of evidence.
Held by the President: The court held the first ground to be wholly unstateable. The court determined that it would be eccentric to decide what the appellant said amounted to anything other than an invitation to participate or engage in a sexual act. In relation to ground two, it was clear that the arrest of the appellant by an investigating Garda in the company of the Sergeant nominated by the Superintendent was lawful. Furthermore, it does not always follow that every person suspected of a crime who is interviewed will then be charged. If evidence materialises from what the suspect says to be sufficient to charge him then he may be brought before the District Court. Otherwise, he has to be released and this is exactly what happened in this case.
The court determined that the evidence was admissible in relation to the third ground because the effect of the words used by appellant had had probative value. The court said there was no failure on the part of the Gardai nor any incapacity or impossibility of understanding on the part of the appellant in relation to the caution given. In relation to the fifth ground the court pointed out that the appellant had a phone consultation with his solicitor before any questioning took place and neither he nor his solicitor asked for the interview to be postponed. In relation to the sixth ground there was no ground for invalidating the custody and questioning of the appellant.
The court found no serious or substantial errors on the question of the admissibility of interview evidence in relation to the seventh ground of appeal. In relation to the eighth ground of appeal, the court determined there was sufficient evidence to legitimise proof of the registration number of the vehicle owned by the appellant. The court held that the ninth ground of appeal was totally unstateable and that any other decision other than the one made by the trial judge would have been wrong. In relation to the tenth ground of appeal, the court acknowledged that it was an unhelpful way of expressing the duty of the jury. Despite this the court determined that it did nothing to detract from the full and proper instruction that was given to the jury. In relation to the final ground of appeal the court found the charge as a whole to be satisfactory as it emphasised the burden of proof and the standard beyond reasonable doubt accordingly. The court dismissed the appeal.
On 25th September 2013, the appellant was convicted of two counts of sexual exploitation of a child contrary to s. 3 of the Child Trafficking and Pornography Act 1998, as amended by s. 6 of the Criminal Law (Sexual Offences)(Amendment) Act 2007, and as substituted by s. 3(2) of the Criminal law (Human Trafficking) Act 2008. On 24th March 2014, he was sentenced to five years imprisonment on each count, to date from 24th September 2014, with the final three years suspended on conditions in each case. He now appeals those convictions.
On 9th September 2011, two 12-year old schoolgirls were having lunch outside a café near their school. Their names have been redacted in this judgment to L.G. and C.R. They were approached by a man whose composite witness description was that he was old, chubby, having a harelip and driving an old green Jaguar car. He threw a €5 note on their table, returned to his car and stared at them. He then got out of his car and again approached the table when, according to one of the girls, he asked them to spend the night in bed with him. He said ‘youse would love that’. She said that he touched the other girl on the back. The other girl recalled him saying ‘is there any chance of me and you two lovely ladies tonight?’ They said no. A witness from the café noticed him putting his hand on one of the girls' hands before he left. He got back into his car and drove away.
The girls returned to school in a distressed state following the incident and reported what had happened to the Principal and Vice-principal, to whom they gave the money. The Gardai were contacted.
Gardaí viewed CCTV footage which showed a grey haired man leaving the scene in a green Jaguar. A witness told the Gardaí that she believed the man's name was C. A Garda enquiry revealed a green Jaguar registered to P.C. and accordingly he became a person of interest. At this time, the appellant was being detained in Castlerea prison in respect of other matters and the Gardaí needed a warrant from the District Court to authorise his removal to a Garda station for questioning.
On foot of the above and other information, Superintendent Curley applied for and was granted a warrant under s. 42 of the Criminal Justice Act 1999, as amended, on Wednesday 12th October 2011, which he endorsed to Sergeant Sheridan. On Saturday 15th October 2012, Sergeant Sheridan and Garda Costello travelled to Castlerea Prison, where the Garda arrested the appellant on foot of the s. 42 warrant and he was brought to Castlerea Garda Station where he was detained and questioned.
The suspect requested a solicitor, Mr. Conor MacGuill, and the gardaí made contact with Mr. MacGuill who spoke to the appellant for 14 minutes. The solicitor also spoke to Sergeant Sheridan. The consultation on the phone between solicitor and client took place before any questioning occurred.
It is relevant to note that the account given by the two schoolgirls was not challenged by the defence. Counsel did not cross-examine either of the complainants. The only issue in the case, accordingly, in relation to the facts was evidence that it was the accused who approached the girls. Relevant to that proof was that he had been connected with the incident by information about his unusual car.
The appellant appeals his conviction on the following grounds which will be considered in turn.
The learned trial judge erred in law in holding that the particulars of the offences charged on the indictment constitute an offence contrary to s. 3 of the Child Trafficking and Pornography Act 1998 (as amended by s. 6 of the Criminal law (Sexual Offences) (Amendment) Act 2007, and as substituted by s. 3(2) of the Criminal law (Hunan Trafficking) Act 2008 (“the 1998 Act’).
This ground, on the face of it, appears to be wholly unstateable. The statement of offence in each case is sexual exploitation of a child contrary to s. 3 of the Child Trafficking and Pornography Act 1998, as amended by s. 6 of the Criminal Law (Sexual Offences) (Amendment) Act 2007, and as substituted by s. 3(2) of the Criminal Law (Human Trafficking) Act 2008. The particulars to offence are ‘The appellant, on the 9th day of September 2011 at Church Street, Dundalk, in the County of Louth did sexually exploit a child to wit L.G. in that you did invite the...
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