D.P.P.-v- Sean Egan,  IECCA 28 (2010)
COURT OF CRIMINAL APPEALFennelly J.
Gilligan J.No. 195/09THE PEOPLE AT THE SUIT OF
THE DIRECTOR OF PUBLC PROSEUCTIONS
SEÁN EGAN Applicant
JUDGMENT of the Court delivered on the 26th day of March 2010 by
On the 18th June, 2009, the applicant was convicted in the Central Criminal Court by a jury presided over by Charleton J., of an offence of engaging in a sexual act with a child under the age of 17 years contrary to s. 3 (1) of the Criminal Law (Sexual Offences) Act 2006 (hereinafter "the Act of 2006"). He was sentenced to fifteen months imprisonment.
He applied to this Court for leave to appeal against the conviction.
The trial took six days. There were four counts on the indictment: two counts of rape and two of a sexual act with a child. There were two complainants. The jury acquitted the applicant of both counts of rape and of one count of engaging in a sexual act with a child but convicted on the other.
Counsel on behalf of the applicant, Mr. Erwan Mill-Arden, S.C., advanced four grounds of appeal:
The jury verdict was inconsistent insofar as the jury convicted the applicant on the charge of engaging in a sexual act with a child, whereas they acquitted him of the charge of rape on the same occasion;
The jury verdict was inconsistent insofar as they convicted the applicant in respect of the charge of engaging in a sexual act with a child in one case but acquitted him of a similar offence with another child in the other where the evidence was virtually identical;
The learned trial judge was wrong in law in admitting into evidence a piece of cloth found in the applicant's car, which had unidentified seminal stains on it;
The learned trial judge misdirected the jury with regard to the burden of proof of "honest belief" provided for in s. 3 (5) of the Criminal Law (Sexual Offences) Act 2006.
First Ground: Inconsistency with Acquittal on Rape Charge
The first ground is patently unarguable. To be fair, counsel made it clear that he was advancing this ground on instructions. It is axiomatic that there is a difference between the offence of rape and the offence of engaging in a sexual act with a girl under a specified age. The first requires proof of the absence of consent; in the second case consent is no defence. It is not in any way inconsistent for a jury to acquit of the first but convict of the second. This ground fails.
Second Ground: Inconsistency with Acquittal on Charges Relating to First Complainant
The second ground is also without merit. The first two counts on the indictment related to the complaint made by one complainant of sexual acts by the applicant on the 10th January, 2007. The second two counts concerned sexual acts alleged by a different complainant on a different date. Each complainant gave her own separate and distinct account. The jury was perfectly entitled to discriminate between the two complainants as witnesses, to believe one fully and to conclude that the other had not convinced them beyond reasonable doubt. It is enough for them to have a reasonable doubt as to the truthfulness of the account of one of the complainants. In any event, a perusal of the transcript discloses ample grounds entitling the jury to distinguish between the two cases. Counsel for the applicant, in his closing argument to the jury, referred extensively to alleged inconsistencies in the story of the first complainant, which were quite different from the case of the second. The fundamental principle is that these are matters for the jury. This ground also fails.
Third Ground: Admissibility of Cloth with Seminal Stain
The third ground relates to the admission into evidence of a piece of cloth found by the gardaí in the applicant's car. According to the complainant's evidence, the sexual act in which the applicant engaged with her took place in that car. She said that following intercourse the applicant took a cloth out of the glove compartment of the car and that he wiped his penis with it. The gardaí, in the course of their forensic examination of the applicant's car, found a piece of cloth in the glove compartment. They took photographs of it, which were presented to the complainant during her evidence. She identified the cloth. No objection was made to the admissibility of the evidence of the garda search of the car, their photographing of the cloth or the evidence of the complainant identifying the cloth. The objection now made is based on the forensic or scientific evidence, to which it is now necessary to refer.
The cloth was examined by Dr. David Casey of the Forensic Science Laboratory at garda headquarters. He gave evidence of finding semen on the cloth. He was unable to determine the age of the seminal stain.
Dr. Yvonne O'Dowd from the Forensic Science Laboratory at University College Dublin also gave evidence of examining the cloth. She found the semen stain of an unknown human male. No blood or other sample had been taken from the applicant. Thus there was no means of establishing any D.N.A. connection with him.
Counsel objected at the trial to the admissibility of the evidence of the two scientific witnesses. He pointed out that they could not assign any date to this piece of evidence or link it with any person. It was open to any one of a number of possible innocent explanations, including various hypotheses of sexual activity in the car other than with the complainant. In these circumstances, counsel submitted that the admission of the evidence was grossly dangerous and prejudicial. The learned trial judge ruled that the evidence was admissible. He pointed out that the prosecution merely alleged that it supported the account of the complainant. As to its prejudicial effect, he noted all the possibilities but said that the jury could apply their shrewdness and common sense. He did not believe that it was prejudicial.
The Court is satisfied that the evidence was relevant and admissible and that the ruling of the learned trial judge was correct. The evidence tended to establish two things: firstly, that some sexual act had been committed in the motor car and secondly, that it was consistent with and supportive of the complainant's account of the applicant's behaviour following the sexual act. It did not establish conclusively, taken on its own, any connection with the applicant. Evidence is not, however, rendered inadmissible for that reason. The test is whether it is relevant, which it clearly was for the two reasons already mentioned. It was, of course, entirely a matter for the jury to consider and to accept or reject its probative value. Many examples can be cited of evidence which tends to prove something without being conclusive. Evidence of the presence of a motor car of a well known make and of a particular colour at a crime scene is not inadmissible...
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