DPP v S. O'C
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 29 January 2019 |
| Neutral Citation | [2019] IECA 15 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record No. 170/2015 |
| Date | 29 January 2019 |
[2019] IECA 15
THE COURT OF APPEAL
Kennedy J.
Birmingham P.
McCarthy J.
Kennedy J.
Record No. 170/2015
Conviction – Sexual offences – Unsatisfactory trial – Appellant seeking to appeal against conviction – Whether the appellant’s trial was satisfactory in all the circumstances
Facts: The appellant was convicted of fifteen counts of indecent assault contrary to Common Law and three counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 following a trial in the Circuit Criminal Court on the 12th May 2015. The appellant appealed to the Court of Appeal against conviction on the grounds that the trial judge: (i) erred in refusing to sever the indictment and order separate trials in relation to each of the complainants and each of the alleged incidents; (ii) erred in refusing to discharge the jury after the complainant NG had given evidence; (iii) erred in refusing to direct verdicts of not guilty; and (iv) misdirected the jury in the manner in which he answered a question raised by the jury.
Held by the Court that the appellant’s trial was satisfactory in all the circumstances.
The Court held that the appeal against conviction would be dismissed.
Appeal dismissed.
Introduction
The appellant was convicted of fifteen counts of indecent assault contrary to Common Law and three counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 following a trial in the Circuit Criminal Court on the 12th May 2015. The appellant in this case appeals against conviction and sentence. However, this judgment is concerned solely with the conviction issue.
On the 1st July 2015, the appellant was sentenced to a term of imprisonment of one year on counts of indecent assault and for a period of three years in respect of counts of sexual assault, the sentences to be served on the lawful expiration of a sentence of ten years” imprisonment imposed in the Central Criminal Court on the 19th December 2014.
The appellant initially faced trial on fifty-one counts of indecent and sexual assault in respect of five complainants. These comprised thirty counts of indecent assault concerning the complainant, RQ, and alleged to have occurred between 1976 and 1978 when the complainant was aged between seven and nine years old. A further seventeen counts of indecent assault concerned the complainant, FR, between 1981 and 1988 when the complainant was aged between eight and fourteen years. Two counts of sexual assault concerned the complainant, NG, alleged between 1992 and 1994 when he was aged between ten and twelve years and one count of sexual assault concerned the complainant, DC, and was alleged to have occurred between 1993 and 1994 when he was aged between eleven and twelve years. Finally, one count of sexual assault concerned the complainant, SD, which was alleged to have occurred in 1994 when the complainant was twelve years of age.
On the 29th April 2015, at the commencement of the trial, the trial judge heard an application on behalf of the appellant to sever the indictment to the effect that the counts concerning each complainant be tried separately. The trial judge ruled that eight of the counts be severed on the indictment and that the remaining forty-three counts of indecent and sexual assault between the years 1976 to 1994 proceed to trial.
At the conclusion of the prosecution case, the trial judge withdrew from the jury counts 1-15 inclusive, counts 31-39 inclusive and count 42. The jury returned verdicts of guilty on the 18 remaining counts.
The primary evidence relied upon by the prosecution was that of the complainants. The appellant was a teacher in a primary school which each of the five complainants had attended. The first complainant in time, RQ, described in evidence that he attended the school where the appellant was a teacher and that during the period 1976 to 1978, he said he was indecently assaulted by the appellant. He was aged between seven and nine years. He described in evidence incidents which occurred in the classroom of this school and concerned circumstances whereby the appellant, while seated at his desk, with RQ standing, placed pebbles down RQ's trousers, fondled his genitals and nibbled his ear. Six counts on the indictment concerned a different location but similar actions; namely, while in a car in the Dublin mountains, with RQ on the appellant's lap, the appellant fondled his genitals. The remaining counts in respect of RQ concerned incidents at various sports events whilst in a motor car where the appellant sexually abused him in a similar manner.
FR described occasions between the years 1981 to 1998 when he was aged between eight and fourteen years. Nine of the offences alleged concerned incidents of a sexual character in a classroom and involved the appellant fondling FR's genitals. Further incidents of a sexual nature were alleged by FR to have taken place at the appellant's home which concerned incidents of a sexual nature which FR described as including sexual misconduct involving a young girl. The trial judge severed these counts in relation to the appellant's home from the indictment and therefore the remaining counts in respect of FR proceeded to trial, being ten counts in total which were alleged to have taken place in the school when the complainant was aged between eight and twelve years.
Concerning the complainants, NG, DC and SD; the offences of sexual assault concerning these complainants were alleged to have occurred between the years 1992 and 1994. One incident concerned the complainants, NG and SD, and was described as having taken place during a weekend trip to Galway wherein the evidence was that the appellant sexually assaulted both boys in each other's presence. The remaining count in relation to NG was alleged to have occurred between 1992 and 1993 in the school during lunch break when the appellant brought him to the end of the classroom, told him to unzip his trousers and pull down his underwear and then fondled his genitals. The incident in respect of DC was alleged to have occurred between 1993 and 1994, when the complainant was eleven/twelve years of age, in the classroom during lunch break when the appellant put his hand down the front of the complainant's trousers and touched his genitals.
In the notice of appeal, dated the 2nd July 2015, the appellant has appealed his conviction on seven grounds. They can be summarised as follows : -
(i) That the trial judge erred in refusing to sever the indictment and order separate trials in relation to each of the complainants and each of the alleged incidents.
(ii) The trial judge erred in refusing to discharge the jury after the complainant NG had given evidence.
(iii) The trial judge erred in refusing to direct verdicts of not guilty and,
(iv) The trial judge misdirected the jury in the manner in which he answered a question raised by the jury.
At the commencement of the trial, the appellant sought to have the indictment severed in respect of the counts relating to each of the five complainants and in respect of each of the alleged incidents. It was argued that the trial judge erred in failing to sever the indictment in circumstances where it was contended on behalf of the appellant that the allegations made by the complainants were insufficiently similar to enable all matters to be tried together. It was submitted, inter alia, that there was insufficient nexus between the accounts of the complainants and that, consequently, the evidence relating to the counts in respect of each complainant could not be considered to be cross-admissible as regards the evidence of the other complainants. To paraphrase counsel's argument, it was contended that the incidents were alleged to have been committed at different locations, namely; in a school in Dublin, in a car in the Dublin mountains, in a car at sporting events and in a bedroom in County Galway. It was further submitted that the offences were alleged to have been committed during very different time periods extending from 1976 through to 1994.
The prosecution submits that there are features which are common to the offending conduct. Firstly, each of the complainants were pupils in the same school, the appellant was their teacher, albeit at different times, it was the appellant's place of work and where he held a position of responsibility for the pupils in his charge and the character of the offending was similar in each instance, involving the fondling/touching of the genitals. The incident in Galway involved two boys who were pupils in the school and the appellant was their teacher. They were on a trip to Galway with the appellant. The allegation concerned the sexual assault of the two complainants in the presence of the other.
In his ruling, the trial judge acceded to the application on behalf of the appellant in part, in that he severed eight counts on the indictment. These counts related to incidents in the appellant's home and which were of a somewhat different sexual character. However, he refused the application to sever the balance of the counts on the indictment and in so ruling the trial judge stated as follows: -
‘The judgment of Mr. Justice Barron which has been opened to me is clear and succinct. The passage that summarises all of the arguments and principles that need to be regarded to and because the very first one of them is this and it says:
“The rules of evidence should not be allowed to offend common sense. So where the probative value of the evidence outweighs its prejudicial effect, it may be admitted. The categories of cases in...
To continue reading
Request your trial