DPP v Prior

JurisdictionIreland
JudgeMr. Justice Birmingham
Judgment Date24 November 2016
Neutral Citation[2016] IECA 376
CourtCourt of Appeal (Ireland)
Docket Number227/16
Date24 November 2016

[2016] IECA 376

THE COURT OF APPEAL

Birmingham J.

Birmingham J.

Sheehan J.

Mahon J.

227/16

The People at the Suit of the Director of Public Prosecutions
Respondent
V
John Prior
Appellant

Conviction – Indecent assault – Corroboration warning – Appellant seeking to appeal against conviction – Whether judge erred in deciding not to give a corroboration warning

Facts: The appellant, Mr Prior, on the 14th July, 2016, was convicted of two counts of indecent assault following a jury trial which lasted six days followed by two days of jury deliberation. The verdict was a majority one, a majority of 11-1 in the case of the two counts where convictions were recorded and the jury failed to agree on three other counts that were on the indictment. Subsequently on the 27th July, a sentence of eighteen months imprisonment was imposed. The appellant appealed to the Court of Appeal against conviction. The appellant formulated nine grounds of appeal. There was, firstly, a complaint that the case should have been withdrawn from the jury and that there should have been a direction on Galbraith grounds. Four grounds were formulated on this issue. Secondly, it was said that the judge erred in deciding not to give a corroboration warning. Two grounds were formulated on this issue. Finally there were grounds of appeal relating to how the judge dealt with the issue of the burden of proof that gave rise to three grounds being formulated.

Held by the Court that there was no basis for withdrawing the case from the jury; this was quintessentially a case for the jury to consider whether the truth of the allegations that were made was established to their satisfaction beyond reasonable doubt. The Court rejected the corroboration point, holding that the judge was acting within his discretion; it could not be said that his conclusion was manifestly a wrong exercise of the discretion, nor could it be said that it was based on an incorrect legal basis. The Court read the closing address of counsel for the prosecution and saw nothing improper in what counsel had to say; he was doing no more than putting the prosecutions perspective before the jury albeit forcibly, but in the Court’s view properly. The Court contrasted the situation with that of DPP v PJ [2003] 3 IR 550 where it appeared that counsel’s speech was inflammatory and indeed improper. Therefore, the Court held that the criticisms made of the trial judge and by implication of prosecution counsel in relation to what was said in relation to the burden of proof were not sustained.

The Court held that the appeal against conviction would be dismissed and the conviction affirmed.

Appeal dismissed.

JUDGMENT of the Court (ex tempore) delivered on the 24th day of November 2016 by Mr. Justice Birmingham
1

On the 14th July, 2016, the appellant was convicted of two counts of indecent assault following a jury trial which lasted six days followed by two days of jury deliberation. The verdict was a majority one, a majority of 11-1 in the case of the two counts where convictions were recorded and the jury failed to agree on three other counts that were on the indictment. Subsequently on the 27th July, a sentence of eighteen months imprisonment was imposed. The appellant has brought an appeal against conviction and sentence. This judgment deals with the conviction aspect.

Background
2

In summary the background to the case is that in summer 1985, the complainant EC who was then aged ten years going on eleven years and her older sister LC came to Ireland from America for the summer. They were residents of the United States. The complainant's mother was undergoing a surgical procedure in the United States at the time and the plan was for the two girls to spend the summer with various maternal relatives across Ireland. That included a two to three weeks stay approximately in the home of the appellant which was a bed and breakfast establishment in Dublin 4. The appellant and his wife P, who was the sister of the complainant's mother, had four children who at the time were aged 14 (L), 12 (S), 5 (A) and less than one year, baby (C).

3

The complaints that gave rise to the five count indictment all relate to this period and the incidents in question were alleged to have occurred either in the house, that was so in the case of three incidents, or in a car during the course of a shopping trip to collect groceries or in the changing room of a store during the course of a shopping trip to Dublin city centre.

4

The complainant made a statement to gardaí on the 3rd June, 2011. This was therefore a case of alleged historic sex abuse as the alleged incidents went back some 26 years prior to the statement being made and almost 30 years prior to the trial which took place in July, 2016. So far as the background and circumstances of the appellant are concerned he is now 68 years or age, he is a widower, his wife P died in 2011, and his children are all now adults. He has been involved in building or property development for much of his life.

5

The appellant has formulated nine grounds of appeal which are set out in the notice, but these can be netted down into three groups. There is, first of all a complaint that the case should have been withdrawn from the jury and that there should have been a direction on Galbraith grounds. Four grounds are formulated on this issue. Secondly, it is said that the judge erred in deciding not to give a corroboration warning, two grounds have been formulated here. It might be noted that there is a degree of overlap between the Galbraith grounds and the corroboration warning grounds in that it is said that there were inconsistencies and weaknesses in the prosecution case and that the prosecution evidence was unsatisfactory in respects to the extent that the case should have been withdrawn from the jury. Alternatively it is submitted that if the grounds were not such as to require that the case be withdrawn from the jury that they did require that there should be a corroboration warning. Finally then there are grounds of appeal relating to how the judge dealt with the issue of the burden of proof, that has given rise to three grounds being formulated.

6

It is accepted though that the primary ground of appeal relates to the question of the failure to give a corroboration warning and linked to that is what the judge actually had to say on the issue when he came to charge the jury.

Corroboration
7

In relation to the question of corroboration, this issue arose first on day 5 of the hearing after the evidence in the case closed. The defence had called a number of witnesses though the accused man, as he then was, had not given evidence in his own defence. The judge stated that he would be giving a delay warning, a so-called Haugh warning, but went on to say that he did not intend to give a corroboration warning observing that there was nothing in particular in the case that would require one. Counsel for the appellant responded by saying that such a warning was required in the circumstances of the case and said that was so because over and above the normal problems associated with delay, that here there were inconsistencies in the complainant's evidence and in certain respects the evidence of the complainant was unsatisfactory. It was argued that in certain respects the account given by the complainant was inherently improbable. Counsel for the prosecution responded by disputing that there was any inconsistency in the evidence of the complainant, i.e. inconsistency between her statements first made to An Garda Síochána and her evidence at trial.

8

Following the debate between counsel the judge ruled as follows:-

‘I have listened to what Mr. O'Kelly (senior counsel for the defence) has indicated and I see no reason to give the corroboration warning in this case. I did not find – I didn't find anything particularly difficult in the complainant's evidence. Obviously a jury can believe it or not believe it. It is for them. And I always find it a bit difficult to give a warning where you are saying it's unsafe to convict, but you can convict. I have always considered a corroboration warning – I hesitate ever to ask a jury to do anything that is unsafe. So, I am not going to give it in this case. There is, as far as I am concerned, and it is only a matter of opinion, Ms. C stood up well to cross examination. The jury may not believe that but in exercising my discretion, I see no reason...

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