DPP v T.P.

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 22 October 2021
• Neutral Citation: [2021] IECA 276
• Docket Number: [250/19]
• Court: Court of Appeal (Ireland)

Between

The People at the Suit of the Director of Public Prosecutions

Respondent

and

T.P.

Appellant

[2021] IECA 276

The President

Edwards J.

McCarthy J.

[250/19]

THE COURT OF APPEAL

JUDGMENT of the Court delivered (via electronic delivery) on the 22nd day of October 2021 by Birmingham P.

1 On 30th July 2019, the appellant was found guilty by a jury of 24 counts of indecent assault on a male cousin, X. The offending in question occurred between April 1984 and March 1990. The indictment on which he had stood trial contained 49 counts of indecent assault and named two complainants: X, and the sister of X,Y.

2 Subsequently, on 6th November 2019, he was sentenced to an aggregate term of ten years' imprisonment. He has now appealed against conviction and sentence.

3 So far as the conviction aspect is concerned, three grounds of appeal are advanced. These are:

• (i) That the trial judge erred in failing to sever the indictment so as to provide for separate trials of the allegations made by each complainant;

• (ii) That the trial judge erred in failing to discharge the jury arising from an issue that arose during the cross-examination of a defence witness, V (paternal aunt of the appellant); and

• (iii) That the trial judge erred in failing to give an appropriately strong warning to the jury on the dangers of convicting in the absence of corroboration.

4 This third ground was the subject of a motion which sought to substitute it for a ground originally advanced. The motion was not opposed by the prosecution and the ground of appeal was the subject of both written and oral submissions.

5 To provide some context for the appeal, it may be helpful to say something about the background to the allegations that were at the centre of the trial.

Background Events

6 The appellant is now 53 years of age, is married, and is the father of two adult children. He was raised in County Donegal by his paternal grandmother. His paternal cousin, X, lived in Dublin and is nine years younger than the appellant. X visited his grandmother's home in Donegal from time to time. The convictions which are now the subject of an appeal date back to the time when the appellant was aged between fifteen and 21 years, and his cousin was aged between six and twelve years.

7 In adulthood, the appellant moved to Dublin where he became involved in the construction sector. He was assisted by his paternal uncles in gaining a foothold in the industry, and until the last financial crisis, was running a successful construction company in Dublin. When X reached adulthood, the appellant assisted him in gaining a foothold in the industry, as the appellant's uncles had done for him, and so the appellant and complainant found themselves working together for a number of years. In or around 2008, the appellant's company fell victim to the recession. In the aftermath of this development, the appellant spent much of the following decade working abroad.

8 In June 2013, at a time when the appellant was working in the Middle East, X attended at a Garda station in Dublin, alleging that he had been abused as a child by the appellant and by two other named individuals. The allegations in relation to the appellant were centred on their grandmother's home in Donegal. Some five months later, in November 2013, Y, the sister of X, attended at a Garda station on Dublin's north side, and she also made a statement of complaint against the appellant, claiming that he had sexually abused her as a child in their grandmother's home in Donegal.

9 At some time around the turn of the year in 2013/2014, the appellant's brother told the appellant that it had been alleged that he and two others had plied X with alcohol in Donegal and had “interfered” with him. The appellant, through his solicitor, made contact with An Garda Síochána, and in July 2014, presented himself at a Garda station with his solicitor on a voluntary basis and submitted to an interview under caution. Shortly after the Garda interview concluded, the appellant learned for the first time that allegations were being made by Y. He made himself available for a further voluntary interview under caution at which he asserted that the allegations against him were untrue. When interviewed in relation to the X allegations, while conceding that there were occasions when he had shared a bed with X when they were young, he denied that there was ever any incident of a sexual nature between them.

The Application to Sever

10 At the commencement of the trial, senior counsel on behalf of the then accused indicated that he was seeking to sever the indictment. He explained that his application was grounded on the Court's jurisdiction to sever pursuant to the Criminal Justice (Administration) Act 1924, and that it was his position that there was a danger of embarrassment or prejudice in having to deal with both sets of allegations before the one jury. Counsel said that while it was his application to sever, it was really the role of counsel for the prosecution to outline why the counts should be tried together, to say whether the sets of allegations were cross-admissible and to indicate why that was so. Counsel said that while, customarily, there had been an approach of identifying points of similarity with respect to the allegations, a broader test had emerged as to whether or not the probative value of admitting the evidence outweighed the prejudicial effect. Counsel explained that the potential for prejudice was a serious one where more than one set of allegations was being tried by the one jury.

11 Counsel then pointed out that there were differences of a significant nature between the two sets of allegations. He instanced these as being that Y, the second-named complainant on the indictment, was some years older when the alleged offending began. He highlighted the fact that while the allegations made by X were set against the background where he had shared a room from time to time with the appellant, and that offending had occurred in circumstances where they had shared a bed on occasions, the position was different with respect to Y. Y had been sharing a room with other female relatives, and for abuse to have occurred, it would have necessitated visits from the accused. Counsel said that in his submission, the difference in gender, the difference with respect to opportunity (about which he meant the fact of sharing a bedroom with one and not the other), the difference with respect to the ages of the parties, and the inherent unfairness of allowing one set of allegations to infect the other, were reasons why the Court ought to exercise its discretion to refuse to allow the prosecution to try the sets of allegations together. Counsel observed that from his point of view, the law on the application was not wholly in his favour.

12 At that point, the trial judge intervened and began to say, “[w]ell, there seems to be a shift away from applying a —”. Her sentence was finished for her by counsel for the defence who supplied the words, “[a] similarity test”. Counsel then made reference to a paper that had been made available at the prosecutors' conference and to the decision of the Court of Criminal Appeal in DPP v. BK [2000] 2 IR 199, the decision of Budd J. in B v. DPP [1997] 3 IR 140, and the decision of the House of Lords in DPP v. P [1991] 2 A.C. 447, which he summarised as saying that it was “acceptable to try these matters together where it is to rebut the improbability for example of a lot of people making the same allegation and that sort of thing.” However, counsel said that he was saying that there were points of difference here that went to the fundamentals of the case, and that the justice of the case would be met by separate trials on this occasion.

13 In response to the application to sever, counsel for the prosecution highlighted the fact that X and Y were brother and sister, and that both were minors at the time when the alleged abuse commenced. In the case of X, the alleged abuse occurred at a time when he was aged between five and 13 years of age (between the years 1983 to 1990). He acknowledged that Y was a number of years older, as had been pointed out by counsel for the defence, and that, in her case, the alleged abused commenced in approximately 1983, and continued until 1987. The complainants came from Dublin, and both travelled up to a family residence in Donegal where their grandmother lived. Counsel, like his colleague, also referred to the cases of DPP v. BK and DPP v. B. He then made reference to the cases of DPP v. JC [2017] 1 IR 417, DPP v. FMcL and BW [2016] IECA 307, to the judgment of Hardiman J. in DPP v. Martin McCurdy [2012] IECCA 76, and finally to DPP v. DMcG [2017] IECA 98.

14 In reply, counsel on behalf of the then accused suggested that the prosecution position had not really gone further than to say that the alleged abuse had occurred at the same address with the same family members. There had been no attempt to suggest that the nature of the alleged offending was of a broadly similar nature. Counsel submitted that the judge should be satisfied by the prosecution as to why the allegations were described as cross-admissible, adding that, of course, there would be a knock-on effect later in the trial if the application was refused and that there would have to be further debates. It seems that this was a somewhat oblique reference to the possibility that there might be a debate at a later stage about whether the allegations made by one complainant provided corroboration for the allegations made by the other.

15 The trial judge took some time to consider the authorities to which he had been referred, and returned and ruled as follows:

“Now, I have had an opportunity to consider the authorities which have been opened to me by [counsel on behalf of the prosecution] and as applied to the facts which have been...