DPP v R.S.
| Jurisdiction | Ireland |
| Judge | Mr. Justice Hedigan |
| Judgment Date | 17 October 2017 |
| Neutral Citation | [2017] IECA 275 |
| Docket Number | 223/15 |
| Court | Court of Appeal (Ireland) |
| Date | 17 October 2017 |
[2017] IECA 275
THE COURT OF APPEAL
Hedigan J.
Birmingham J.
Edwards J.
Hedigan J.
223/15
Conviction – Sexual offences – Unsafe jury verdict – Appellant seeking to appeal against conviction – Whether jury verdict was perverse, unsound and unsafe
Facts: The appellant, on the 2nd July, 2015, was convicted by majority verdict of the 25 counts on the indictment. There were 8 rape counts and 17 counts of sexual assault. There were two victims. One incident of sexual assault was perpetrated against the first victim when she was 12 years old (count 25). The remaining counts related to the assault and rape of the second victim over a period of time from when she was aged 10 to aged 14. The offences took place in the 1990s. The first victim made a complaint to the Gardaí in 2010. The second victim made a complaint in 2012. At the time of the offences the appellant was in a relationship with the mother of the victims. The appellant was sentenced to 9 years imprisonment on the 28th July, 2015. The appellant appealed to the Court of Appeal against conviction on the sole ground that the jury verdict was perverse, unsound and unsafe. The respondent, the DPP, submitted that the verdict was consistent with the majority of the jury having accepted the evidence of the complainants.
Held by the Court that the judgment of the jury on the credibility of the complainants was manifestly within their province and that nothing presented in either the appellant’s written or oral submissions provided any basis whatever upon which the Court could interfere.
The Court held that the appeal should be dismissed.
Appeal dismissed.
This is an appeal against conviction. On the 2nd July, 2015, the appellant was convicted by majority verdict of the 25 counts on the indictment. There were 8 rape counts and 17 counts of sexual assault. There were two victims. One incident of sexual assault was perpetrated against the first victim when she was 12 years old, this was count 25. The remaining counts relate to the assault and rape of the second victim over a period of time from when she was aged 10 to aged 14. The offences took place in the 1990s. The first victim made a complaint to the Gardaiì in 2010. The second victim made a complaint in 2012. At the time of the offences the appellant was in a relationship with the mother of the victims.
The appellant was sentenced to 9 years imprisonment on the 28th July, 2015..
The sole ground of appeal is that the jury verdict is perverse, unsound and unsafe. It is submitted that the verdict in relation to the first victim is unreliable. The date of the complaint is unclear but was between June, 1992 and 1993. Evidence was given that a complaint was made, about a year later, to the victim's mother, who was in a relationship with the appellant, and the victim was given an opportunity to confront the appellant but the complaint was withdrawn with the victim stating that she made it up because she wanted her dad back. It is also submitted that she gave evidence that she told nobody but later testified to telling a boyfriend. She gave evidence that she did not disclose the assault to her sister, the second victim, until 2010, however, the appellant's sister testified that she had heard about the first victim's allegation from the second victim much earlier. Evidence was given that the victims were bridesmaids at the wedding of their mother and the appellant in 2006. Further that the first victim was instrumental in reconciling them following a break up in 2004. Evidence was also given that the first victim let the appellant babysit her son and that the appellant had been the her sponsor for her confirmation in 1992.
In relation to the second victim it is submitted that the verdict is unreliable because the evidence as to dates was unclear. The second victim stated the abuse took place between June, 1993 until in or about 1997. Evidence was given that the appellant did not move into the house until February, 1994. The second victim gave evidence of her complaint to her sister but this was only grounded on information her sister had provided in relation to an allegation involving her son and the appellant. There was evidence that the appellant sent the second victim text messages and she accepted that she never met with him to discuss the content of the messages or any allegations. There was evidence that the second victim allowed the appellant to babysit her son. There was evidence given that the victims conducted a campaign to target and tarnish the appellant's name. It was put to the second victim that she had apologised to the appellant. The appellant's submissions refer to the second victim's evidence in relation to the appellant's assertion that she made inappropriate advances. There was evidence of a letter sent from the appellant to the victims' mother. There was evidence given that the second victim was overheard apologising to the appellant but that person did not hear the context of the comment.
It is submitted that the verdict in relation to count 25 is unreliable due to the evidence given by the victims' mother to the effect that the first victim made a complaint in or about 1993 and then withdrew that complaint. Their mother then married the appellant in 2006. Her evidence that the appellant swore he didn't do it. Their mother gave evidence was that the first victim apologised to the appellant for alleging he acted inappropriately towards her son.
It is submitted that the verdict on count 25 is unreliable due to the evidence of the appellant's sister that she heard of the complaint and the reason for its withdrawal from the second victim in 2003. The first victim said that she told no one with the exception of her mother.
It is submitted that the verdicts on counts 1 to 25 were unreliable as the appellant during Garda interview and during his evidence to the Court denied the allegations. The appellant's submissions refer to his evidence in relation to the withdrawn allegation that he did something untoward to the first victim's son.
The Court is referred to the remarks of Lord Justice Widgery in R v. Cooper (1969) 53 Cr. App. R. 82 and R v. Lake (1976) 64 Cr. App. R. 172 where it was held that once all procedures were followed the Court was still entitled to ask itself a subjective question in relation to the verdict to determine if it was happy to let the verdict stand or if there remained ‘some lurking doubt in our minds which makes us wonder whether an injustice had been done’.
The Court is referred to The People (DPP) v. Egan [1990] (Unreported, Supreme Court, 30th May, 1990) where McCarthy J. held that to allow a verdict to be overturned on the basis of subjective considerations such as ‘lurking doubt’ and ‘gut feeling’ would ‘be a denial of the validity of Trial by Jury’. In the same case however O'Flaherty J. held that where a jury decision was based on ‘tenuous evidence’ the Court of Criminal Appeal is entitled to intervene.
It is submitted that the evidence left to the jury in this case was tenuous and this Court is therefore entitled to intervene. The verdict being founded on such unsatisfactory evidence means the trial was unsatisfactory and the verdict is unsafe and unsatisfactory.
It is submitted that the sole ground set out on the notice of appeal is that the decision of the jury was perverse. There has been no basis put forward for this contention and none exists. The verdict is consistent with the majority of the jury having accepted the evidence of the complainants.
It is submitted that issues regarding the accuracy, credibility and truthfulness of witness are quintessentially matters to be considered and resolved by the jury. As was held in O'Callaghan v. Attorney General [1993] 2 I.R. 17 at 25 the...
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