People (Attorney General) v Dermody

• Jurisdiction: Ireland
• Judgment Date: 23 March 1956
• Date: 23 March 1956
• Court: Court of Criminal Appeal

Court of Criminal Appeal.

The People (Attorney General) v. Dermody

THE PEOPLE (at the Suit of the ATTORNEY GENERAL)

and

THOMAS DERMODY (1)

Criminal law - Rape - Carnal knowledge of girl under fourteen years - Either charge sufficiently proved by evidence of penetration without evidence of emission - Accused not identified by prosecutrix - Whether properly convicted on circumstantial evidence - Joinder of charge of rape with one of unlawful carnal knowledge contrary to Criminal Law Amendment Act, 1935 - Both charges arising out of same incident - Whether accused properly indicted on both charges - Interpretation Act, 1937 (No. 38 of 1937), s. 14 - Joinder of charge of substantive criminal act with charge of attempt to commit such act - Both charges arising out of same incident - Whether accused properly convicted on both charges - Instruction given by trial Judge to jury - To acquit "if they believed the whole of the evidence given by the accused" - Charge as a whole making it clear jury should acquit if not satisfied beyond reasonable doubt of guilt of accused - Whether such instruction a misdirection in light of charge as a whole.

Criminal Appeal.

The appellant, Thomas Dermody, was indicted on six counts—two of the rape of Annie Teresa Gaffney, a girl under

fourteen years of age, two of having carnal knowledge of the said Annie Teresa Gaffney, contrary to s. 1, sub-s. 1, of the Criminal Law Amendment Act, 1935, and two of attempting to have carnal knowledge of the said Annie Teresa Gaffney, contrary to s. 1, sub-s. 2, of that Act. Each of these sets of counts—of rape, of carnal knowledge and of attempted carnal knowledge—related to one incident only.

The appellant was, on the 25th January, 1956, convicted at Cavan Circuit Court, before Judge Deale and a jury, on all six counts. He was sentenced to three years' penal servitude in respect of each count, the sentences to run concurrently. The trial Judge granted the appellant a certificate that the case was a fit case for an appeal to the Court of Criminal Appeal, on the grounds 1, that the evidence of identity of the accused was unsatisfactory; and 2, that the unsworn evidence of the child, Ivan Jennings, was uncorroborated.

The notice of appeal set out a number of other grounds, those substantially relied upon on the hearing of the appeal being as follows:—

3, that the trial was unsatisfactory; 4, that there was no, or no sufficient, evidence of rape, or of carnal knowledge; 5, that there was no, or no satisfactory, identification of the accused; 6, that there was no corroboration of the complaining girl's evidence; 7, that the charge of the learned trial Judge to the jury was unsatisfactory; in particular, that the learned trial Judge failed to caution the jury adequately or at all of the necessity for corroboration of the girl's evidence or of the evidence of the child, Ivan Jennings, or to give adequate direction of the matters raised in certain specified grounds of appeal or of the discrepancies between the girl's evidence and the evidence of witnesses and the medical evidence.

A further ground of appeal which was not pressed at the hearing of the appeal, was, 5a, that the evidence of the complaining girl was unsatisfactory and unreliable.

By leave of the Court, the appellant was allowed to add a further ground of appeal, viz., that the sentence was too severe.

The further facts of the case are, for the purposes of this report, sufficiently set out in the judgment of the Court.

The appellant was never physically identified as A. T. G., a girl under fourteen years of age, two of unlawful carnal knowledge of A. T. G. and two of attempted carnal knowledge. He was convicted on all counts. Each set of three counts (of rape, of carnal knowledge and of attempted carnal knowledge) related to one incident only. A. T. G. failed to identify the appellant as her assailant, but alleged that a man assaulted her sexually, drove her some distance in a motor van and assaulted her sexually again. She said that the man had put his private part "a wee bit"...