DPP v T.G.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Kennedy |
| Judgment Date | 04 February 2020 |
| Neutral Citation | [2020] IECA 26 |
| Docket Number | Record Number: 259/18 |
| Court | Court of Appeal (Ireland) |
| Date | 04 February 2020 |
[2020] IECA 26
Birmingham P.
McCarthy J.
Kennedy J.
Record Number: 259/18
THE COURT OF APPEAL
Crime & sentencing – Sexual offences – Rape – Appeal against conviction
Facts: The appellant had been convicted of a count of rape following a disclosure by his partner’s sister that she had been raped whilst babysitting the appellant’s children. The appellant now sought to appeal against his conviction arguing inter alia that there had been delay in the matter, and that the jury’s verdict was perverse.
Held by the Court that the appeal would be allowed in respect of the delay warning. The Court was satisfied that the comments of the trial judge were factually incorrect and had served to render the trial unfair.
Application dismissed.
This is an appeal against conviction. On 16th May 2018, the appellant was found guilty of a count of rape. Verdicts of not guilty were returned in respect of two counts of sexual assault. The trial involved DW who was 15 years old at the time of the offence alleged, which related to the period 1st October 1983 to 1st July 1984.
The circumstances of the alleged offence are as follows: DW was babysitting her nephews, the children of her older sister and the appellant. Having returned from work, the appellant summoned her to the marital bedroom on the pretext that he had something to show her. When she entered the room, he produced pornographic magazines from beneath the bed. The magazines contained very explicit images of sexual intimacy. He put her sitting on the bed and showed her the sexually explicit images. She recalls him asking her what she thought of the pictures. He then pushed her down on the bed and raped her.
The act was aggressive, painful and terrifying for her. She recalls his grunting and a contorted look on his face as he raped her. In the aftermath she felt wetness in her vagina area, but it was only later when she acquired more information about sexual matters that she realised that he must have ejaculated. The complainant was afraid to tell anyone what had happened because she thought that she had done something wrong.
A few years later, when the complainant was 18 or 19, she disclosed the rape to her mother, but her mother discouraged her from reporting due to her concern for the effect a complaint would have on her two young grandsons. Her complaint of rape was again discussed with her mother, her younger sister and her younger brother in the early 00's. But again the complainant was dissuaded from reporting the matter to the authorities.
In 2003, the appellant's younger son, TG, died by suicide and fifteen months later in October 2004, the complainant's brother died in the same way. In the years that followed, the complainant, DW suffered greatly with depression, anxiety and self-esteem issues. Her difficulties were such that she was hospitalised in 2013 and during the course of her treatment she disclosed to her treating psychiatrist that she had been sexually abused as a child by a family member but declined to name the perpetrator.
In early June 2014, DW attended a charity function in a hotel in the local area where she met a woman named SD and her husband. They were the maternal grandparents of the appellant's grandchildren, the children of his son DG. The complainant was concerned that following a period of estrangement, that DG and his family were back in contact with the appellant and his wife and, having regard to her own experience with the appellant, she had concerns for the safety of his granddaughter. She told them that she had been raped by the appellant when she was 15.
Following this disclosure, the appellant caused a solicitor's letter to be sent to DW threatening her with defamation proceedings and other legal consequences of repeating her allegation of rape. DW received that letter on the 24th of June 2014 and three days later on the 27th of June 2014 she made a statement of complaint to the Gardai. The appellant was arrested and retained for the investigation of the allegation of rape on the 25th of November 2014.
In written submissions the appellant pursues a number of grounds relating to:-
(1) Delay
(2) Evidence of the complainant
(3) Evidence of the “wedding incident”
(4) Corroboration warning
(5) Jury deliberations
(6) Perverseness of the jury's verdict
This judgment will focus on grounds (1), (3) and (4).
The issue of delay was significant in this case given the passage of time between the offence and the formal complaint. Two issues arise on this aspect of the trial.
Firstly, the appellant submits that he has been denied the benefit of potential evidence due to delay. This evidence relates to two potential witnesses, NK and BG, with whom the complainant shared babysitting duties and who are now deceased and the employment records of the appellant and his wife which are no longer available. The appellant submits that the evidence of the two potential witnesses could have been helpful to the accused regarding the babysitting arrangements and it is submitted that the employment records of the appellant and his wife would have been critical to rebutting the complainant's evidence about the time of day the incident occurred and why the appellant's wife was not present.
The appellant submits that the paucity of “islands of facts” relating to the period upon which the complainant could be cross-examined serve to increase the risk of an unfair trial in the absence of evidence which would have previously been available to the appellant. In summary, it is argued that the delay in the case is inordinate and the absence of the two witnesses who shared babysitting duties coupled with the absence of employment records renders the trial inherently unfair.
Secondly, as regards the delay warning given by the trial judge; the appellant accepts that the warning was given in the terms of Haugh J. as approved in The People (DPP) v. RB (Unreported, Court of Criminal Appeal, 12th February 2003) and takes no issue with the content of the direction given by the trial judge. However, the appellant submits that the trial judge's comments which bookended the warning severely undermined the warning, and possibly erased its effect entirely. The comments preceding the warning are as follows:-
“We understand why children can't speak about abuse. There can be family reasons. It could be that they were abused by somebody who was close to them and who they loved but who was abusing them, that they didn't want to bring shame on the family or themselves. The courts finally understood came to the view that we now understand that people don't disclose and why they don't disclose and the pressures that might be on them not to disclose and so we ended we had no more of the psychiatrists and the psychologists coming in to explain to us why the disclosure had taken so long because, as a society and as a legal system, we understood that people have, for various reasons, have difficulty coming forward and making allegations of sexual abuse. But the problem of delay still is there. As I say here is somebody giving evidence to you about something that happened now 35 years ago, at the time of complaint 30 years ago.”
The trial judge then proceeded to direct the jury as to the difficulties which may arise in cases where there is a delay in making a complaint of a sexual nature and following the warning, the trial judge said as follows:-
“Now, that was the warning given by Mr Justice Haugh. Now, while he gave the warning, part of his warning was due to the fact that in certain cases there's just a bare assertion that somebody sexually assaulted me or somebody raped me. In this case, whereas there isn't precision on date, there is a lot of detail. Mrs W has told you it happened on an occasion when she was babysitting, that Mr G was working in Odlums, that he came home and that he called her into the room and showed her – told her he had something to show her and he showed her pornographic magazines and following that he raped her. So, it isn't just a bare assertion that oh by the way he raped me 30 years ago. There is detail and there is context in this case but I think nonetheless one does have to take into account that there is a significant delay in the case.”
It is contended on behalf of the appellant that these comments significantly undermined the warning, moreover that the comments made by the trial judge resulted in an inherent unfairness towards the appellant in that the trial judge failed to balance the comments regarding the detail given by the complainant and the absence of details when cross-examined. To this extent, Mr Naidoo refers to the complainant's inability to recall the date, the time of year, or any other possible detail of relevance surrounding the allegations made.
The respondent submits that appellant's submissions ignore the repeated assertions of the courts that delays of long periods are not necessarily fatal to a fair trial but ought to be assessed on a case by case basis and says that the claimed prejudice suffered by the appellant is not borne out on an analysis of the evidence. There is no suggestion that the complainant did not babysit for the appellant and it has never been contended that there were other witnesses present while the complainant was babysitting. It is extremely speculative to suggest that these witnesses may have been in a position to give any evidence of assistance at trial.
The respondent submits that the claim as to loss of employment records is also untenable given that the appellant accepted that the complainant babysat his children...
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