DPP v X.Y.

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 14 January 2021
• Neutral Citation: [2021] IECA 34
• Docket Number: Record No.: 114/20
• Court: Court of Appeal (Ireland)
• Date: 14 January 2021

Between/

The Director of Public Prosecutions

Respondent

and

XY

Applicant

[2021] IECA 34

Edwards J.

McCarthy J.

Donnelly J.

Record No.: 114/20

THE COURT OF APPEAL

Conviction – Rape – Enlargement of time to appeal – Applicant seeking an enlargement of time to appeal his conviction and sentence – Whether there were arguable grounds of appeal

Facts: The applicant applied to the Court of Appeal for an enlargement of time to appeal his conviction and sentence for the offence of rape. Having pleaded not guilty, the applicant was ultimately found guilty by a unanimous jury verdict on the 27th January, 2020. On the 21st February, 2020, the applicant was sentenced to four and a half years’ imprisonment, backdated to the 27th January, 2020. The applicant signed his notice of application for enlargement of time to appeal on the 9th June, 2020, amounting to almost three months after the time limit to appeal had elapsed. The applicant filed a notice of appeal on the 30th June, 2020. There was a dispute between the parties as to whether the delay was 2 months and 27 days or 2 months and 17 days. The explanation provided by the applicant for the delay was threefold. The applicant submitted that he had issues with his hearing and did not have a properly functioning hearing aid. The applicant submitted that this, coupled with the COVID-19 pandemic restricting visits to prisoners thereby requiring communication via telephone, affected the applicant’s inability to communicate in a comprehensive and proper manner with his legal advisors. The applicant submitted that this was particularly so where the applicant was over the age of 70 and essentially “cocooning” in the prison. The applicant submitted that he undertook to instruct different legal advisors for the purpose of lodging an appeal and this added to the delay in lodging a notice of appeal within the prescribed 28-day period. If the Court were to grant the applicant an enlargement of time within which to appeal, the applicant proposed to advance nine grounds of appeal in respect of his conviction. The applicant submitted that the grounds were unique and were not generic in their terms. The respondent, the Director of Public Prosecutions, submitted that the grounds were unmeritorious.

Held by the Court that it would proceed on the basis that the delay was one of almost 3 months. The Court referred to the grounds advanced involving the subsequent letter from the foreman complaining about the behaviour of the jury. The Court saw no authority to suggest that a juror’s view of what transpired in the jury room could never be taken into account in the circumstances. The Court was satisfied that the grounds related to this were arguable. The Court held that while it was conscious that the victim had an interest in finality, justice required it to have specific regard to the relatively short period of delay amid the unprecedented global pandemic. The Court held that this was an unusual issue raised in the court below and the interest of justice required that an appeal be allowed arising from this issue.

The Court held that, although details on the sentence appeal were scant, it was appropriate in the circumstances to allow the applicant to pursue his appeal against sentence. Therefore, the Court permitted an enlargement of time on which to appeal on grounds (i) (ii) (iii) (iv) and (v) as indicated under the conviction part of the appeal and grounds (i) and (ii) under the sentence appeal. The Court also granted the applicant legal aid in relation to this application and to his appeal.

Appeal allowed.

JUDGMENT of the Court delivered ( ex-tempore) on the 14th day of January, 2021 by Ms. Justice Donnelly

1 The applicant is applying for an enlargement of time to appeal his conviction and sentence for the offence of rape. Having pleaded not guilty, the applicant was ultimately found guilty by a unanimous jury verdict on the 27th January, 2020. On the 21st February, 2020, the applicant was sentenced to four and a half years' imprisonment, backdated to the 27th January, 2020.

2 The applicant however, only signed his notice of application for enlargement of time to appeal on the 9th June, 2020, amounting to almost three months after the time limit to appeal had elapsed. The applicant filed a notice of appeal on the 30th June, 2020.

3 There is a dispute between the parties as to whether the delay is 2 months and 27 days or 2 months and 17 days. In the Court's view in the circumstances of the case this is not a decisive factor and the Court will proceed on the basis that the delay was one of almost 3 months.

The Relevant Legal Principles

4 The parties are in agreement that the relevant test to be applied for the enlargement of time in criminal cases is contained in The People (DPP) v. Kelly [1982] I.R. 90 and agree that the guiding principle is whether the interests of justice require that the application be granted. Both parties refer to The People (DPP) v. Walsh [2017] IECA 111 which endorses the test set out in The People (DPP) v. Kelly. The respondent submits that in practical terms, in order to establish that it is in the interests of justice that time be extended, an applicant must address two things:-

• (i) an explanation for the delay; and

• (ii) an engagement with the facts of the case so as to establish reasonable grounds of appeal.

5 The respondent submits that it was a matter for the Court to consider whether an intention to appeal had been formed within 28 days of the final hearing at first instance. In other words, it was not 28 days from the conviction but from the date when sentence was finalised.

6 The applicant submits that while finality and certainty are important objectives in criminal litigation, as stated in The People (DPP) v. O'Donoghue [2019] IECA 339, the present case is distinguishable on the basis that (a) the applicant has always maintained his innocence and (b) the fact that the delay in The People (DPP) v. O'Donoghue was significant in contrast with the present case.

7 The respondent also refers The People (DPP) v. O'Donoghue, but also relies on The People (DPP) v. Faisal Ellahi [2019] IECA 152 which confirmed the principle in The People (DPP) v. Cashin [2017] IECA 298 wherein the Court held, as submitted by the respondent, that when a Court is determining an application for the enlargement of time in which to appeal sexual offence cases, the interests of the victim has to be considered.

8 In this case the victim is also a complainant in two other cases wherein it is alleged the applicant's brothers, AB and DE raped and sexually abused her. The respondent submits that the applicant was originally charged alongside his brother, AB but the indictment was severed. The trial of AB proceeded in 2019 but the jury were discharged following a medical emergency for AB. As a result of injuries inflicted in that incident, AB claimed he was unfit to stand trial, which was due to resume in December 2020. Due to COVID-19 restrictions, this had to be adjourned. A preliminary issue in relation to AB's fitness to plead is ongoing. The victim is also a complainant in a third trial involving another brother of the applicant, DE in the Circuit Criminal Court. This trial was adjourned due to COVID-19 and is currently listed for next month. The respondent submits that this shows the extent of the ongoing distress suffered by the complainant and that this application gives the victim a lack of finality to this case.

The Applicant's Explanation for the Delay

9 The explanation provided by the applicant for the delay is threefold. The applicant submits that he has issues with his hearing and does not have a properly functioning hearing aid. This, coupled with the COVID-19 pandemic restricting visits to prisoners thereby requiring communication via telephone, affected the applicant's inability to communicate in a comprehensive and proper manner with his legal advisors. This was particularly so where the applicant was over the age of 70 and essentially “cocooning” in the prison. The applicant also submits that he undertook to instruct different legal advisors for the purpose of lodging an appeal and this added to the delay in lodging a notice of appeal within the prescribed 28-day period.

10 The applicant submits that he was labouring under a physical disability and throughout the trial, he was using a hearing aid. The applicant submits that towards the conclusion of his trial, he expressed difficulty with his hearing aid and the fact he could not hear properly. It is submitted that this infirmity continued following his imprisonment and hindered his ability to communicate effectively.

11 In his affidavit, the solicitor for the applicant avers that the applicant was made aware of the time limits within which to lodge an appeal. However, in the weeks which followed his conviction and sentence, no contact was made by the applicant with his solicitor. The solicitor for...