DPP v T.v

• Jurisdiction: Ireland
• Judge: Mr. Justice Mahon
• Judgment Date: 22 June 2017
• Neutral Citation: [2017] IECA 200
• Court: Court of Appeal (Ireland)
• Docket Number: Record No. 222/2015
• Date: 22 June 2017

[2017] IECA 200

THE COURT OF APPEAL

Mahon J.

Mahon J.

Edwards J.

Hedigan J.

Record No. 222/2015

BETWEEN/

THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

TV

APPELLANT

Conviction – Sexual offences – Error in law – Appellant seeking to appeal against conviction – Whether trial judge erred in law

Facts: The appellant was convicted by a jury at the Central Criminal Court of twenty five sexual offences. Eighteen were of rape contrary to common law and as provided for in s. 48 of the Offences Against the Person Act 1981 and s. 2 of the Criminal Law (Rape) Act 1981. Seven were of rape contrary to s. 4(1) of the Criminal Law (Rape) (Amendment) Act 1990. Concurrent sentences of fifteen years were imposed in respect of each of the counts, to date from the 18th June 2015. The appellant appealed to the Court of Appeal against his conviction on the grounds that the trial judge erred in law and in fact in: (i) admitting into evidence further to a prosecution application to do so the evidence of the complainant under s. 16(1)(b) of the Criminal Evidence Act 1992 pertaining to interviews conducted with the said party by specialist interviewers (Garda Kyne and Garda Powell) in Sligo upon (a) 11th May 2012, (b) 1st July 2012 and (c) 3rd May 2013; (ii) determining that it was appropriate for the specialist interviewers to introduce into the said interview environment for the purposes of commencing the said interviews disclosures which had been made outside of the said interviews and in advance of same during the currency of what was described as a clarification meeting undertaken with the complainant, and the said specialist interviewers (Garda Powell and Garda Reilly) upon the 3rd February 2012 wherein disclosures were made to the particularities which included (a) that the appellant’s privates touched the complainant’s privates, and (b) on a journey in the appellant’s motor vehicle and on another occasion in a bedroom; (iii) failing to accede to a defence application to, either, direct the accused man not guilty on all counts on the indictment or, in the alternative, to stay the indictment against the accused man in circumstances where a manifest unfairness had arisen, a real prejudice presented to the accused man in receiving a fair trial in accordance with his constitutional entitlements, the said unfairness presenting in circumstances where the prosecution had and were in a position to advance evidence of the complainant when recounting the allegations within what was suggested was a period of, with reference to the indictment, six days of the alleged incident being the 28th / 29th April 2012 as particularised as count 28 on the said indictment. However, when the defence sought to cross examine the complainant the quality of the evidence deteriorated and the capacity of the complainant to recollect the particularity of detail was such as to create an obvious and insurmountable impediment to cross examination in circumstances where on a multiplicity of occasions the complainant professed to have no particular recollection of the incidents themselves.

Held by the Court that the trial judge’s decision to admit the content of the three specialist interviews was a decision with which it could not find fault; the carefully reasoned decision was taken after the trial judge viewed the interviews. Furthermore, the Court noted that the complainant was robustly and comprehensively cross examined by the appellant’s experienced senior counsel. In the court’s view, great care was taken by the trial judge to advise and direct the jury to exercise caution in their assessment of the evidence, and in particular the complainant’s evidence, given that it related to matters which occurred during her younger childhood years and because of the fact that a considerable period of time had elapsed between the events complained of and the hearing of the case; the jury were well capable of understanding this advice and these directions and of the need to proceed with caution.

The Court held that it would dismiss the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 22nd day of June 2017 by Mr. Justice Mahon

1 The appellant was convicted by a jury at the Central Criminal Court of twenty five sexual offences. Eighteen were of rape contrary to common law and as provided for in s. 48 of the Offences Against the Person Act 1981 and s. 2 of the Criminal Law (Rape) Act 1981, as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990. Seven were of rape contrary to s. 4(1) of the Criminal Law (Rape) (Amendment) Act 1990. Concurrent sentences of fifteen years were imposed in respect of each of the counts, to date from the 18th June 2015.

2 The appellant has appealed both his conviction and his sentence. This judgment relates to solely to his conviction appeal.

3 The appellant is a Lithuanian national aged thirty six years. He and his family have lived in Ireland since mid 2004 including his wife, whom he married in 2001, and his children one of whom, his daughter, VV, is the complainant. She was born on the 31st August 2001, and is now aged approximately fifteen years.

4 In April 2012, when VV was approximately eleven years old, she disclosed to a friend that she was being sexually assaulted by her father. A teacher in the complainant's school was informed, and the HSE was notified within days. An investigation was then undertaken by the HSE and the gardaí. The complainant was immediately removed from the family home. She was medically examined at the sexual assault treatment unit in Galway. The gardaí searched the family home under a search warrant and certain items were seized, including two vibrators. The complainant was interviewed on a number of occasions by appropriately trained specialist interviewers. The appellant was arrested on the 15th May 2012 and was interviewed on three occasions while in custody on the same date. Further statements were taken from the complainant and from her foster mother.

5 The offences occurred between 2008 and 2012 when the complainant was between seven and eleven years old. She alleged that the appellant routinely raped her on a weekly basis with most offences taking place in the family car.

6 The appellant's grounds of appeal as lodged are as follows:-

(i) The learned trial judge erred in law and in fact or in a mixture of both law and fact in admitting into evidence further to a prosecution application to do so, the evidence of the complainant, VV, under s. 16(1)(b) of the Criminal Evidence Act 1992 pertaining to interviews conducted with the said party by specialist interviewers (Garda Debbie Kyne and Garda Karen Powell) in Sligo upon:-

(a) 11th May 2012

(b) 1st July 2012

(c) 3rd May 2013

(ii) The learned trial judge erred in law or in fact in determining that it was appropriate for the specialist interviewers to introduce into the said interview environment for the purposes of commencing the said interviews, disclosures which had been made outside of the said interviews and in advance of same during the currency of what was described as a clarification meeting undertaken with the complainant, and the said specialist interviewers (Garda Karen Powell and Garda Fiona Reilly) upon the 3rd February 2012 wherein disclosures were made to the particularities which included:-

(a) that the defendant's privates touched the complainant's privates,

and

(b) on a journey in the defendant's motor vehicle and on another occasion in a bedroom.

(iii) The learned trial judge erred in law or in fact in failing to accede to a defence application to, either, direct the accused man not guilty on all counts on the indictment or, in the alternative, to stay the indictment against the accused man in circumstances where a manifest unfairness had arisen, a real prejudice presented to the accused man in receiving a fair trial in accordance with his constitutional entitlements, the said unfairness presenting in circumstances where the prosecution had and were in a position to advance evidence of the complainant when recounting the allegations within what is suggested was a period of, with reference to the indictment, six days of the alleged incident being the 28th / 29th April 2012 as particularised as count 28 on the said indictment. However, when the defence sought to cross examine the complainant herein the quality of the evidence deteriorated and the capacity of the complainant to recollect the particularity of detail was such as to create an obvious and insurmountable impediment to cross examination in circumstances where on a multiplicity of occasions the complainant professed to have no particular recollection of the incidents themselves.

7 The appellant has challenged the decision of the learned trial judge to admit the three specialist interviews. The basis of the objection to the admissibility of these interviews is stated in the appellant's oral submissions to be as follows:-

(a) Interview 1 (conducted the 11th May 2012, approximately one week following a clarification meeting conducted on the 3rd May 2012).

The entirety of the complaint made by the complainant at a clarification meeting was introduced to the complainant one minute and nine seconds into the free narrative stage of the first interview thereby contaminating the content of the interview.

(b) Interview 2 (conducted 1st July 2012, approximately three days following a clarification meeting conducted on the 28th June 2012).

During the second interview the interviewer introduces the allegation of oral interference of the complainant for the first time referable to an off camera conversation between the complainant and the specialist interviewer.

(c) Interview 3, (conducted 3rd May 2013 following two clarification meetings conducted within two weeks beforehand, on the 16th April and the 26th April 2012).

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