DPP v PP

• Jurisdiction: Ireland
• Judge: Mr. Justice Sheehan
• Judgment Date: 06 July 2015
• Neutral Citation: [2011] CSOH 74,[2015] IECA 152
• Court: Court of Appeal (Ireland)
• Published date: 05 May 2011
• Date: 05 May 2011
• Docket Number: 16/13

The People at the Suit of the Director of Public Prosecutions

Respondent

and

P.P.

Appellant

[2015] IECA 152

16/13

THE COURT OF APPEAL

Criminal Law – Appeal against Conviction – s. 27 of the Criminal Evidence Act 1992 – Safety of Conviction

Facts: The appellant was convicted of five offences against his daughter. These included one count of rape, three counts of sexual assault and one count of exploitation. The appellant appealed against conviction submitting that the verdict was unsatisfactory and unsafe because the trial judge did not hold an inquiry in accordance with s. 27 of the Criminal Evidence Act 1992 to satisfy himself that the complainant gave an intelligible account of events relevant to the proceedings. The appellant appealed against his conviction based on four grounds. Firstly, that the trial judge erred in allowing the s. 16 DVD interview with the complainant to be used as an exhibit to the jury. Secondly, the trial judge erred by allowing the prosecution to introduce evidence that the appellant had visited adult pornographic websites. Thirdly, the trial judge erred in refusing to discharge the jury after the interviewing Garda used the phrase ‘victim.’ Lastly, the trial judge erred in the way he directed the jury to approach the appellant”s replies to questions put to him by interviewing Garda.

Held by Sheehan J: In the court”s view it was preferable that an inquiry be held prior to placing evidence before the jury. However, the absence of formal inquiry in this instance did not result in any unfairness to the appellant. Therefore the failure to carry out a formal inquiry in advance did not render the trial unsatisfactory. The court dismissed this ground of appeal. The court also determined that no injustice resulted from the jury viewing the s. 16 DVD exhibit and accordingly dismissed this ground of appeal. The court held that the evidence of the accused having viewed pornographic material was relevant and any prejudicial effect to the appellant was dealt with adequately by the trial judge”s charge to the jury. The omission of the word ‘alleged’ by the interviewing Garda was dealt with by the trial judge”s direction to the jury. Finally, the trial judge did not err in his charge to the jury with regard to the evidential status of the interview. The court dismissed the appeal against conviction as all grounds of appeal failed.

Judgment of the Court delivered on the 6th day of July 2015 by Mr. Justice Sheehan

Introduction

1 This is an appeal against conviction and sentence.

2 The appellant was found guilty following a five day trial of five offences against his daughter which included one count of rape, three counts of sexual assault, and one count of exploitation.

3 This judgment is solely concerned with the appeal against conviction.

4 The appellant originally filed four grounds of appeal, but by later submissions to this Court, the appellant submitted that his primary submission that the verdict was unsatisfactory and unsafe arose from circumstances where no inquiry had been engaged in by the trial judge in accordance with s. 27 of the Criminal Evidence Act 1992, to satisfy himself that the complainant was giving an intelligible account of events which were relevant to the proceedings.

5 The other grounds of appeal against conviction are:

1. The trial judge erred in allowing the s. 16 DVD interview with the complainant to go to the jury as an exhibit.

2. The trial judge erred in permitting the prosecution to introduce evidence that the appellant had visited certain adult pornographic websites.

3. The trial judge erred in refusing to discharge the jury following use by the specialist interviewing garda of the phrase ‘victim’.

4. The trial judge erred in the manner in which he directed the jury in relation to how jurors should approach the appellant's replies to questions put to him in the garda interviews.

6 In order to consider these grounds of appeal it is necessary to set out the background to the offences.

Background

7 The appellant is the complainant's father and was separated and living apart from the complainant's mother at the time the offences took place.

8 Agreed access arrangements provided for regular weekend access for the appellant with the complainant in his apartment. The five offences of which the appellant was found guilty occurred in his apartment between the 1st October, 2009 and the 26th October, 2010.

9 At the trial, the complainant's evidence in chief was presented to the jury by way of a DVD recording of her interview with two specialist garda interviewers who conducted their interviews in a specialist interview suite on the 31st March, 2011, when the complainant was nine years old. The DVD was introduced in accordance with s. 16(1)(b) of the Criminal Evidence Act 1992, hereinafter referred to as (‘the s. 16 DVD’). The trial commenced on the 24th July, 2012 and on the first day of the trial the s. 16 DVD was played. The party assigned to be present with the complainant during the currency of the DVD being played was sworn. However, no inquiry was conducted by the court so that the court could be satisfied that the witness was capable of giving an intelligible account relevant to the proceedings.

The additional ground of appeal re. s. 27 of the Criminal Evidence Act 1992

10 Counsel for the appellant submitted that the inquiries made by the specialist garda at the commencement of the interviews with the complainant were not sufficient to discharge the statutory requirement particularly as the inquiry was conducted by a member of the investigation team in advance of the trial and over sixteen months prior to the presentation of the complainant before the trial court. Counsel for the appellant also submitted that no such inquiry had been undertaken by the trial judge prior to the commencement of the cross examination which may present as a more logical opportunity for the trial judge to engage with the complainant for the purposes of introducing the court procedure and the process of cross examination.

11 Counsel for the appellant submitted that such an inquiry is statutorily mandated as evidence tendered in this manner represents a fundamental departure from the established rules of evidence.

12 Section 16 of the Criminal Evidence Act 1992 permits video recordings of statements of children under the age of fourteen to be admitted in evidence subject to certain requirements and provides as follows:

‘(1) Subject to subsection (2) –

(a) a video recording of any evidence given by a person under 17 years of age through a live television link at the preliminary examination of an offence to which this part applies, and

(b) a video recording of any statement made by a person under 14 years of age (being a person in respect of whom such an offence is alleged to have been committed) during an interview with a member of the Garda Síochána or any other person who is competent for the purpose, shall be admissible at the trial of the offence as evidence of any fact stated therein of which direct oral evidence by him would be admissible:

Provided that, in the case of a video recording mentioned in paragraph (b), either –

(i) it has been considered in accordance with section 15 (2) by the judge of the District Court conducting the preliminary examination of the offence, or

(ii) the person whose statement was video recorded is available at the trial for cross-examination.

(2)(a) Any such video recording or any part thereof shall not be admitted in evidence as aforesaid if the court is of opinion that in the interests of justice the video recording concerned or that part ought not to be so admitted.

(b) In considering whether in the interests of justice such video recording or any part thereof ought not to be admitted in evidence, the court shall have regard to all the circumstances, including any risk that its admission will result in unfairness to the accused or, if there is more than one, to any of them.

(3) In estimating the weight, if any, to be attached to any statement contained in such a video recording regard shall be had to all the circumstances from which any inference can reasonably be drawn as to its accuracy or otherwise.

(4) In this section ‘statement’ includes any representation of fact, whether in words or otherwise.’

Section 27 provides:

‘(1) Notwithstanding any enactment, in any criminal proceedings the evidence of a person under 14 years of age may be received otherwise than on oath or affirmation if the court is satisfied that he is capable of giving an intelligible account of events which are relevant to those proceedings.

(2) If any person whose evidence is received as aforesaid makes a statement material in the proceedings concerned which he knows to be false or does not believe to be true, he shall be guilty of an offence and on conviction shall be liable to be dealt with as if he had been guilty of perjury.

(3) Subsection (1) shall apply to a person with mental handicap who has reached the age of 14 years as it applies to a person under that age.’

13 Counsel for the respondent submitted that this point could not be raised at the appeal as it had not been canvassed before the trial judge and counsel for the respondent relied upon the judgment of the Court of Criminal Appeal in The People at the Suit of the Director of Public Prosecutions v. Cronin [2003] 3 I.R. at 377.

14 In The People at the Suit of the Director of Public Prosecutions v. Cronin, the applicant had been convicted of murdering his wife whom he was alleged to have shot in a nightclub. Throughout the duration of the trial, the applicant had denied that he was armed or had fired the fatal shot. The jury returned a verdict of guilty of murder. A number of years...