DPP v PM

JurisdictionIreland
CourtCourt of Appeal (Ireland)
JudgeMr. Justice Edwards
Judgment Date03 Oct 2018
Neutral Citation[2018] IECA 311
Docket NumberRecord No: 41/17

[2018] IECA 311

THE COURT OF APPEAL

Edwards J.

Birmingham P.

Edwards J.

Hedigan J.

Record No: 41/17

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
Respondent
V
PM
Appellant

Conviction – Indecent assault – Admission of evidence – Appellant seeking to appeal against conviction – Whether the trial judge erred in law in admitting photographic evidence which was more prejudicial than probative

Facts: The appellant was arraigned and pleaded not guilty in Cork Circuit Criminal Court to two counts of indecent assault contrary to common law as provided for under s. 10 of the Criminal Law (Rape) Act 1981. On the 7th of November 2016, at the conclusion of a two day trial, the appellant was convicted on both counts by majority verdicts (10 to 2). On the 10th of February 2017, the appellant was sentenced to a term of imprisonment of three years in respect of each count with the final twelve months suspended, with both sentences to run concurrently and to run from the 7th of November 2016, the date at which the appellant first went into custody. The appellant appealed to the Court of Appeal against his conviction on the grounds that: a) the trial judge erred in law in admitting photographic evidence which was more prejudicial than probative; and b) the trial judge erred in law in admitting photographic evidence which had been gathered without the required consent of the appellant.

Held by the Court that, regarding the first ground of appeal, the trial judge was right to admit the evidence; he exercised his discretion correctly and gave an appropriate ruling. Turning to the second ground of appeal, the Court noted that it was clear that the appellant willingly and voluntarily consented to being photographed and medically examined; there was no legal requirement that he should receive some special or additional caution before undergoing those procedures.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered on 3rd October 2018 by Mr. Justice Edwards .
Introduction
1

The appellant in this case was arraigned and pleaded not guilty in Cork Circuit Criminal Court to two counts of indecent assault contrary to common law as provided for under s. 10 of the Criminal Law (Rape) Act, 1981. On the 7th of November 2016, at the conclusion of a two day trial, the appellant was convicted on both counts by majority verdicts (10 to 2).

2

On the 10th of February 2017, the appellant was sentenced to a term of imprisonment of three years in respect of each count with the final twelve months suspended, with both sentences to run concurrently and to run from the 7th of November 2016, the date at which the appellant first went into custody.

3

The appellant now appeals against his conviction.

Background facts
4

The offences forming the subject matter of the present case were alleged to have occurred in 1988 when the appellant was 19 or 20 and the complainant was six years old. The complainant was the appellant's neighbour and the offences were both alleged to have taken place in the appellant's family home in County Cork. The appellant lived at home with his mother, his brother and two sisters, whilst the complainant lived at home with her parents and eight siblings.

5

The primary evidence relied on by the prosecution was that of the complainant. Her evidence was that the offences took place when she was on her summer holidays from school, that is during the months of June – August (incl.) of 1988. The evidence at trial was that the complainant's mother would lend her hair dryer quite regularly to the appellant's mother and sisters. The complainant would, on occasion, be asked by her mother to drop a hair dryer over to the appellant's house. On the date of the first alleged indecent assault, the complainant was asked to drop over the hair dryer to the appellant specifically. When the complainant knocked on the appellant's door, he answered and asked her to put the hair dryer on the bottom of the stairs. Initially, the complainant refused to do so but eventually she placed the hair dryer at the bottom of the stairs, after which the appellant 'locked the door behind me'.

6

The complainant's evidence was that the appellant then asked her to go upstairs. She gave detailed evidence of the layout of the house. She stated that she remembered that 'the table was to my right with a telephone on it...he asked me to go up the stairs and I remember the toilet being directly in front of me...he then led me to a bedroom that was to my left...and when I went into the bedroom there looked like there was two single beds there...the walls [in the bedroom] were kind of a blue colour and the curtains were a brown, a dark brown, it could be even purple'.

7

The complainant was then asked to sit on the bed by the appellant. Her evidence was that she was wearing a pink dress at the time. Evidence from the complainant's mother confirmed that she had purchased this dress for the complainant in or around Easter of 1988. A photograph of the complainant wearing the dress in question was also introduced into evidence. The complainant testified that after asking her to sit down on the bed, the appellant then asked her to lie down on it, but that she was 'kind of hesitant to do so. I didn't want to and he kind of like pushed me down'. According to the complainant's evidence, the appellant then started to rub her vagina on the outside of her underwear with his finger. The appellant then took his penis out of his trousers and asked the complainant to stroke it. The appellant then pushed his penis into the appellant's mouth and her evidence was that 'as he was taking it out I had noticed a mole mark at the base of his penis and his pubic hair was a brown kind of a blonde colour'.

8

After some time, the appellant let the complainant go and she went running down the stairs. He allegedly said to her 'don't tell anybody because they won't believe you'. The complainant recalled that, as she was running down the stairs, she saw a picture on the wall in a brown frame of a 'little girl holding a Teddy bear wearing a blue dress'. However, when giving evidence in his own defence, the appellant disputed that there was any such picture there, stating that there 'were two print frames [on the wall by the stairs] and there was also two doves on the wall as well and I can tell you that the two frames were prints of a sea or kind of a lake and mountains in a brown frame.'

9

The complainant did not immediately tell her mother what had happened. Her evidence was that approximately two weeks later, her mother again asked her to bring the hair dryer over to the appellant's house. She initially refused to carry out this request for her mother, but eventually was persuaded to do so. She described feeling 'so sick in my stomach.... uneasy, nervous and scared.' The appellant once again answered the door on this occasion and the complainant's evidence was that he seemed a bit more aggressive this time. He asked the complainant to put the hair-dryer on the bed upstairs and her evidence was that, just as she was 'ready to leave, he just kind of grabbed me and threw me on the bed and then he pulled up my dress.... he pulled down my underwear and I remember him putting his fingers inside me and really roughly and it was very uncomfortable'. The complainant also stated that she recalls the appellant beginning to open his pants, but being unsure as to what happened after that. The next thing the complainant can remember is 'leaving the house and walking to my own house and feeling very uncomfortable and feeling that my underwear was on different'. She also gave evidence that she remembers her underwear being ripped on the left side and there being three spots of blood on them.

10

The appellant gave evidence in his own defence. He denied both of the allegations made against him by the complainant. He said that his brother was working during that period as a roadie and that he himself had had a job at a sandwich bar during the summer of 1988. He said that his two sisters would have been on their school holidays, and that his mother did not work and would stay at home and that his brother would work at nights and would sleep during the day until 16: 00 or 17:00 in the evening. When asked about the complainant's evidence that the appellant's family regularly borrowed a hair-dryer from the complainant's family, he stated 'That's lies, your honour, because basically, as all the family were living in the house, we basically had hair dryers. My sister had a hairdryer and my brother had his own hairdryer. I remember my brother's hairdryer at the time being a black one and my sisters had their own one as well so, basically, we didn't really need to borrow anything from anyone.' The appellant also denied that the complainant was ever in his house as his mother 'was very strict and you stood at the door, you couldn't go any further than the entrance of the door into the house because that's the way, when we were growing up, my mother was strict and [the complainant] was never, basically, in my house.'

11

In September 1988, the complainant told her mother of the abuse allegedly perpetrated against her by the appellant. However, her mother stated that she did not believe her because the complainant would not go into any detail as to what had happened. Several years later, when the complainant was around 25 or 26, she told her older sister about what had allegedly happened between her and the appellant. In 2014, she spoke to a counsellor at Cork Rape Crisis Centre.

12

On the 25th of May 2014, the complainant made a complaint in Blackrock Garda Station. On the 25th of July 2014, Garda June O" Shea and her colleague Detective Garda Stack arrested the appellant. He was brought to the Bridewell Garda Station where he was detained pursuant to s. 4 of the Criminal Justice Act 1984...

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