DPP v Thornberry

 
FREE EXCERPT

1988 WJSC-CCA 2089

THE COURT OF CRIMINAL APPEAL

Walsh J.

Costello J.

Barron J.

Record Number 106/86
DPP v. THORNBERRY
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
- v -
THERNBERRY

Citations:

CRIMINAL LAW (RAPE) ACT 1981 S10(1)

OFFENCES AGAINST THE PERSON ACT 1861 S61

PUNISHMENT OF INCEST ACT 1908 S1

CRIMINAL JUSTICE ACT 1951 S20

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S1

MCGONAGLE V MCGONAGLE 1951 IR 123

CHILDRENS ACT 1908 S12

LEECH V R 1912 AC 305

CRIMINAL JUSTICE (EVIDENCE) ACT 1924 S5

CHILDRENS ACT 1908 S133(28)

CONSTITUTION ART 41

RSC O.60 r2

CONSTITUTION ART 50

WIGMORE ON EVIDENCE 3ED 1940

AUDLEY (LORD)'S CASE 3 ST TR 401

IVY (LADY)'S 10 ST TR

HAWKINS V UNITED STATES 358 US 74

R V WASSON 1 C & D 197

CONSTITUTION ART 40.3

DPP, PEOPLE V TIERNAN UNREP SUPREME 13.05.88

RYAN V AG 1965 IR 394

O'KELLY, IN RE 1974 108 ILTR 97

MURPHY V DUBLIN CORPORATION 1972 IR 215, 107 ILTR 65

BROWNE, STATE V FERAN 1967 IR 147

HOSKYN V COMMRS OF THE POLICE 1974 AC 474

NICOLAOU, STATE V BORD UCHTALA 1966 IR 567

MURPHY V AG 1982 IR 241

CONSTITUTION ART 34.1

COILE ON LITTLETON 1628

Synopsis:

EVIDENCE

Admissibility

Spouse - Indictable offence - Trial - Child abuse - Daughter of accused - Counts of buggery and incest - Evidence of retarded child - Use of anatomical dolls - Tape recordings - Constitution - Protection of family - Protection of personal rights - Rule of common law excluding evidence of spouse - The accused was tried on indictment in the Circuit Court and convicted on counts of buggery, incest and indecent assault in relation to his retarded daughter; he was sentenced to a total of five years imprisonment - The accused's wife gave evidence for the prosecution at the trial - Apart from certain exceptions, at common law a wife is not a competent witness against her husband - Section 1 of the Act of 1924 provides that every person charged with an offence, and the wife or husband, of the person so charged shall be a competent witness for the defence at every stage of the proceedings provided that "(c) the wife or husband of the person charged shall not, save as in this Act mentioned, be called as a witness in pursuance of this Act except upon the application of the person so charged" - However, s. 4, sub-s. 1, of the Act states that the wife or husband of a person charged with an offence under an enactment mentioned in the schedule to the Act may be called as a witness either for the prosection or for the defence without the consent of the person charged - The effect of s. 4 was to make the accused's wife a competent witness against him in respect of the charge of indecent assault but not in respect of the charges of buggery and incest - The issue of the competence of the accused's wife to give evidence against the accused was not discussed at the trial but was raised during his application for leave to appeal, when he was represented by counsel and solicitor - The victim of those offences was a daughter of the accused who suffered from Downes syndrome and who was from 11 to 19 years old during the period when the offences were being committed - The main witness for the prosecution was the victim but evidence was also given by the accused's wife, by two sisters of the victim and by a doctor - The judge allowed the victim to give evidence on oath despite her handicap and eventually, when the victim gave signs of great embarrassment at a critical stage of her evidence, the judge allowed her to use anatomical dolls to describe the acts of the accused - At the trial the accused conducted his own defence although the trial judge warned the accused of the dangers of so doing - The answers given by the witnesses for the prosecution during their cross- examinations by the accused were very damaging to the accused - The accused adduced in evidence tape recordings of various occasions when he had been with the victim and the tapes recorded very normal and happy family conversations - The accused applied to the Court of Criminal Appeal for leave to appeal against his convictions - Held, in dismissing the application, that the trial judge had acted correctly in allowing the victim to be sworn as a witness, that it was apparent that the victim could not be regarded as having been an unreliable witness because of her handicap, that the trial judge had been justified in allowing the victim to use the anatomical dolls when giving evidence, and that there had been sufficient corroboration of the victim's evidence to support the convictions - Held that the trial judge had discharged his duty, which arose in the circumstances, to warn the accused of the dangers of defending himself on such charges - Held that the evidence of the accused's wife had been properly admitted at the trial of the accused since, in the context of the trial of a husband for an offence which injures a family, the common-law rule which prevents his wife giving evidence against him at his trial for that offence is inconsistent with the constitutional duty of the Courts to protect the family and to protect and vindicate the personal rights of the citizen in the course of the due administration of justice - Held, therefore, that in that context the rule has not survived the coming into operation of the Constitution - Held that any provision of the Act of 1924 which purports, in that context, to prevent the accused's wife from giving evidence for the prosecution at the trial of the accused is inconsistent with the provisions of the Constitution and was not continued in force after the Constitution came into operation - Criminal Justice (Evidence) Act, 1924, ss. 1, 4 - Constitution of Ireland, 1937, Articles 34, 40, 41, 50 - (106/86 - C.C.A. - 27/7/88) - 3 Frewen 141

|The People v. T.|

CONSTITUTION

Family

Personal rights - Protection - Child abuse - Sexual offences - Trial of father - Wife's testimony admitted in evidence - Wife not a competent witness at common law - Rule of common law inconsistent with Constitution - ~See~ Evidence, admissibility - (106/86 - C.C.A. - 27/7/88) - 3 Frewen 141

|The People v. T.|

CRIMINAL LAW

Trial

Evidence - Spouse - Indictment - Sexual offences - Conviction of father - Daughter victim of offences - Wife of accused gave evidence for prosecution at trial - Rule of common law that wife not a competent witness - Rule inconsistent with provisions of Constitution - ~See~ Evidence, admissibility - (106/86 - C.C.A. - 27/7/88) - 3 Frewen 141

|The People v. T.|

Walsh J.
1

On the 11th November 1986 the applicant was tried and convicted by a jury at the Circuit Court in Dublin. He had been indicated on six counts of sexual offences against his daughter and had been found guilty on five of them. On one of the counts namely a charge of indecent assault as provided for by s. 10(1) (of the Criminal Law (Rape) Act,1981) he was acquitted by direction of the trial judge. The offences of which he was found guilty were:

2

(a) buggery contrary to s. 61 of the Offences Against the Persons Act, 1861;

3

(b) indecent assault as provided for by s. 10(1) of the Criminal Law (Rape) Act,1981;

4

(c) incest contrary to s. 1 of the Punishment of Incest Act, 1908;

(d) incest contrary to the same statutory provision and
5

(e) incest also contrary to the same statutory provision.

6

The first offence was alleged to have been committed on a date unknown between the 19th September 1977 and the 1st June 1985 in the county of the city of Dublin, of the other offences were laid as having been committed also on a date unknown between the same dates. The first count of incest was laid as having been committed within the county of the city of Dublin and the second and third counts of incest were laid as having been committed within the State.

7

In respect of the count of buggery he was sentenced to three years penal servitude and in respect of the count of indecent assault he was also sentenced to three years penal servitude, and in respect of the three counts of incest he was sentenced to five years penal servitude on each of them. It was directed that all five sentences should run concurrently.

8

Immediately after the sentencing the applicant applied to the trial Judge for liberty to appeal and this was refused. The Judge told him he might apply to this Court. On the 20th November 1986 the applicant served a notice of application for leave to appeal in which he indicated that he desired to appeal against the conviction and sentences. The notice of application for leave to appeal contained no grounds, but a statement the grounds was filed with this Court on the 19th January 1988. The grounds of appeal as stated in that document were as follows:-

9

1. That the evidence of his wife was unreliable and that insufficient warning as to its unreliability was given by the trial Judge to the jury.

10

2. That there was no adequate corroboration.

11

3. That the evidence of complaint was too remote and should not have been admitted.

12

4. That the learned trial Judge failed in his duty to protect the interest of the accused in the particular Circumstances of the case.

13

5. That the trial Judge should have intervened at the and of the case for the prosecution on the basis that the applicant would have been entitled to a direction for an acquittal and that there is no case to answer.

14

The applicant also asked for the costs of the application for leave to appeal and of the appeal. At this stage the applicant, who had defended...

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