DPP v William Canty
| Jurisdiction | Ireland |
| Judge | MURRAY J. |
| Judgment Date | 18 October 2011 |
| Neutral Citation | [2011] IECCA 111 |
| Judgment citation (vLex) | [2011] 10 JIC 1802 |
| Court | Court of Criminal Appeal |
| Date | 18 October 2011 |
[2011] IECCA 111
COURT OF CRIMINAL APPEAL
MURRAY J.
BUDD J.
MORIARTY J.
CRIMINAL LAW (RAPE) (AMDT) ACT 1990 S2
SEX OFFENDERS ACT 2001 S37
DPP v K (B) 2000 2 IR 199 2000/7/2696
CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S5
CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 SCHED 1
CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 SCHED 1 RULE 3
CRIMINAL JUSTICE (ADMINISTRATION) ACT 1924 S6(3)
DPP v G (L) 2003 2 IR 517 2003/16/3458
DPP v NEVIN 2003 3 IR 321 2003/19/4217
PHILLIPS v R 225 CLR 303 224 ALR 216 2006 HCA 4
DPP v P 1991 2 AC 447 1991 3 WLR 161 1991 3 AER 337
B (C) v DPP 1997 3 IR 140 1998/1/138
Application for leave to appeal against conviction and sentence - Sexual assault - Jury direction - Severance of counts - Prejudicial evidence - Probative value - Unsafe verdict
These proceedings concerned an application for leave to appeal by the applicant, William Canty, against his conviction and sentence on one count of sexual assault. In 2010, the applicant was charged with fifteen counts of sexual assault against two sisters, C.C. and D.C., his nieces, who had worked as babysitters for his children. One of the complainants, C.C. gave no evidence of sexual assault relating to ten of the fifteen charges (5-14) and the jury were directed by the trial judge to find the applicant not guilty on those charges. The applicant was acquitted on counts 1 and 2 and the jury disagreed on counts 3 and 4 resulting in a nolle prosequi. The applicant was convicted on count 15 which was the only outstanding charge on C.C. The applicant was sentenced to eighteen months imprisonment.
The applicant asserted that the trial judge, having directed verdicts of not guilty in respect of ten charges, erred in law by not discharging the jury and that he misdirected himself in law and on fact by refusing to direct separate trials of the counts. The applicant also raised issues relating to the judge”s charge to the jury.
The Court noted that there were two applications for separate trials concerning the sister C.C. and the sister D.C. The first was made at the outset of the trial and the second was made at the end of the prosecution case. On these, it was held that a common thread ran throughout all of the charges—the applicant being alleged to have exploited the ‘otherwise legitimate opportunity’ of being alone with his nieces. The trial judge noted that although the similarities had been diluted by the withdrawal of ten charges, ‘sufficient nexus’ remained. The Court was satisfied that the trial judge properly exercised his discretion for joint hearing.
The applicant also sought discharge of the jury. This was due to the fact that C.C. had given prejudicial and irrelevant evidence of ‘non-criminal but unwholesome’ conduct on the part of the applicant. The trial judge accepted that the evidence was of no probative value to count 15, yet noted that juries take their roles seriously and were capable of being correctly directed on law. As such, the application to discharge the jury was not upheld.
Held by Murray J., the absence of any ‘clear and explicit’ direction that the evidence in issue was irrelevant and not to be taken into account raised a doubt about the safety of the verdict arrived at by the jury. This was a case where the witness gave evidence that was prejudicial and of no probative value which ‘otherwise would have been inadmissible’.
The Court therefore allowed the application to appeal, allowed the appeal and set aside the verdict.
JUDGMENT OF THE COURT DELIVERED ON THE 18th DAY OF OCTOBER, 2011, BY MURRAY J.
1. This matter concerns an application for leave to appeal against the applicant's conviction on one count of sexual assault.
At his trial before the Circuit Court in October 2010 the applicant was charged with fifteen counts of sexual assault against two sisters who had acted as babysitters for his children in his home over a number of years. The offences were alleged to have occurred variously on dates between April 1992 and May 1997. Both sisters are nieces of the applicant.
Because one of the complainants, called as a witness at the trial, gave no evidence of the commission of any sexual assault on the occasion to which ten of the charges related, the jury, at the conclusion of the prosecution case, were directed by the trial judge His Honour Judge McCartan, to find him not guilty on those ten charges, namely counts 5 to 14 on the indictment. This direction was given following an application for such a direction by counsel for the defence without objection from the D.P.P.
This meant that it was left to the jury to decide on whether the applicant was guilty or not guilty on the remaining charges, namely counts 1 to 4 and count 15. Counts 1 to 4 related to alleged sexual assaults on D.C. and count 15 was the only outstanding charge in relation to the other sister, C.C.
As regards counts 1 to 4, the jury acquitted the applicant on two charges, namely, counts 1 and 2. They failed to agree on the two other charges concerning this sister namely counts 3 and 4. After the jury brought in their verdict the prosecution entered a nolle prosequi in respect of the two counts on which they had disagreed.
On the remaining charge of sexual assault, namely count no. 15 relating to the other sister, (and in respect of whom the jury had already been directed to find the applicant not guilty on ten counts) the jury found the applicant guilty by a majority verdict of 10-2.
It was against this conviction that the applicant applied for leave to appeal. He had been sentenced to eighteen months imprisonment on foot of this charge and he also appealed against that sentence. Accordingly, the application concerns one count only out of the fifteen counts originally contained in the indictment.
On 29 th July, 2011 the Court announced its decision to grant leave to the applicant to appeal against his conviction and decided that the appeal should be allowed and the conviction set aside. The Court stated that it would give its reasons in a judgment to be delivered at a later date. This judgment sets out the reasons for the Court's decision concerning count 15.
The particulars of offence have been amended insofar as the names and locations concerned have been made anonymous so as not to disclose the identity of the complainants involved. The Statement of Offence and Particulars of Offence have been set out seriatim to make clear what was read out at the arraignment and the contents of all 15 counts which were laid before the jury as the counts alleged against the accused applicant.
Count no. 1: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.
· - William Canty, on a date unknown between 8 th April, 1992, and 22 nd April, 1992, both dates inclusive, in a bedroom in Dublin, sexually assaulted D.C., a female.
Count no. 2: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.
· - William Canty, on a date unknown between 1 st January, 1994 and 31 st December, 1996, both dates inclusive, in a bedroom in Dublin, sexually assaulted D.C., a female.
Count no 3: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.
· - William Canty, on a date unknown between 1 st January, 1994, and 31 st December, 1996, both dates inclusive, on an occasion other than that referred to at Count 2 herein, in a bedroom in Dublin, sexually assaulted D.C., a female.
Count no. 4: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.
· - William Canty, on a date unknown between 1 st May, 1997, and 31 st August, 1997, both dates inclusive, in the sitting room of a house in Dublin, sexually assaulted D.C., a female.
Count no. 5: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.
· - William Canty, on a date unknown between 1 st May, 1990, and 31 st January, 1995, at an unknown address in Dublin, both dates inclusive, sexually assaulted C.C., a female.
Count no. 6:Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.
· - William Canty, on a date unknown between 17 th December, 1995, and 30 th May, 1997, both dates inclusive, on an occasion other than that referred to in counts 5 and counts 7 to 14 inclusive, in a bedroom in Dublin, sexually assaulted C.C, a female.
Count no. 7: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.
· - William Canty, on a date unknown between 17 th December, 1995 and 30 th May, 1997, both dates inclusive, other than dates referred to in counts 5, 6 and 8 to 14 inclusive, in a bedroom in Dublin, sexually assaulted C.C, a female.
Count no. 8: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.
· - William Canty, on a date unknown between 17 th December, 1995, and 30 th May, 1997, both dates inclusive, other than those referred to in counts 5 to 7 inclusive and counts 9 to 14 inclusive, in a bedroom in Dublin, sexually assaulted C.C, a female.
Count no. 9: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990,...
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