The Director of Public Prosecutions v C

• Jurisdiction: Ireland
• Judge: Ms. Justice Isobel Kennedy
• Judgment Date: 19 December 2024
• Neutral Citation: [2024] IECA 316
• Docket Number: Record Number: CCAOT0014/2022
• Court: Court of Appeal (Ireland)

Between/

The People at the Suit of the Director of Public Prosecutions

Respondent/

and

L.C.

Appellant

[2024] IECA 316

McCarthy J.

Kennedy J.

MacGrath J.

Record Number: CCAOT0014/2022

THE COURT OF APPEAL

JUDGMENT of the Court delivered on the 19 ^th day of December 2024 by Ms. Justice Isobel Kennedy.

1 . This is an appeal against conviction. On the 1st of October 2021, the appellant was convicted of 31 counts, comprising 15 counts of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990, 8 counts of anal rape, and 8 counts of oral rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act 1990.

Factual Background

2 . The incidents were alleged to have occurred when the complainant was between the ages of 13 and 18. The appellant was a neighbour of the complainant and was approximately 20 years older. The appellant operated a small business adjacent to his residence, where the complainant was employed by the appellant on a part time basis. According to the complainant, the alleged assaults took place over several years, both at the appellant's property and at another nearby location owned by the appellant's family.

3 . Approximately 20 years after the alleged offending began, the complainant reported the allegations to An Garda Síochána, and the appellant was later charged.

4 . A jury was impanelled on five occasions. The first trial resulted in the jury being discharged following the prosecution opening. The second trial commenced the following day, but again the jury was discharged on the application of defence counsel concerning an aspect of the complainant's testimony. The third trial also resulted in the jury being discharged following a contention that a Garda witness had given evidence of belief concerning the complainant's testimony. The jury disagreed in the fourth trial and appellant was convicted on the fifth occasion on counts 1 to 31.

Grounds of Appeal

5 . Seven grounds of appeal were initially contained in the notice of appeal, however, the appellant sought to add an additional ground by notice of motion. This concerned the procedural history to the conviction; specifically, the fact that the appellant had been placed on trial on four occasions prior to the trial, the subject of the within appeal. It is contended that proceeding to a fifth trial breached the appellant's right to a fair trial in due course of law and amounted to an abuse of process.

6 . Grounds 2 – 7 were abandoned at the oral hearing. This Court is asked to consider ground 1 in amended form and ground 8, the subject of the motion.

7 . The appellant also sought to amend ground 1 by the addition of a further sub-ground by Notice of Motion at the oral hearing. The Director has no procedural objection to the formal addition of either ground, but objects to the substance of each new ground.

8 . Consequently, while several grounds of appeal were originally filed, there are now in essence two grounds before this Court, comprising the amended ground 1, which now has two parts, and ground 8. In short, this appeal is confined to:-

• (1) A contention that the trial judge invited the jury to infer that the alleged abuser referred to in a complaint was the appellant;

• (2) The trial judge did not give a clear corroboration warning and;

• (3) Proceeding to a fifth trial amounted to an abuse of process.

9 . Ground 1, as originally filed, contended that the trial judge had erred in admitting the evidence of a witness (Ms. M) to whom the complainant had made a complaint of previous sexual abuse. The evidence was admitted to rebut an imputation of recent fabrication made by the appellant during Garda interviews. The complaint was made sometime between 2000 and 2006 and the complainant had not proffered any details regarding the alleged perpetrator or the alleged offences. The evidence arose to rebut a defence that the allegations were fabricated because of, inter alia, a business depute between the complainant and the appellant in 2011.

10 . At hearing, counsel for the appellant indicated that the evidence was properly admitted, and no issue arose in this respect. Therefore, this aspect of the ground as originally filed fell away. Thus, the issues for this Court's consideration are confined to the manner in which the judge directed the jury on this evidence.

11 . It is specifically contended that the trial judge invited the jury to infer that, the person about whom the complainant made a complaint to Ms. M was in fact the appellant. It is submitted that the judge failed to give a further warning to the jury in respect of the prosecution's invitation to infer that the unnamed abuser referred to in Ms. M's testimony was the appellant.

12 . The second complaint is that the judge ought to have expanded the corroboration warning and directed the jury that Ms. M's evidence was not capable in law of corroborating the complainant's testimony. It is said that no clear warning against assumption or corroboration was given by the jury in respect of Ms. M's evidence. No further issue is raised regarding the charge and recent fabrication.

13 . Ground 1 now reads:-

[A]nd where the trial judge invited the jury to infer from the said evidence that the alleged abuser was the appellant thereby prejudicing the accused in the conduct of his Defence and in the minds of the jury and to the extent that the accused did not receive a fair trial;

(b) in addition and for the sake of clarity, whereas the learned judge exercised his discretion to warn the jury by way of a corroboration warning he failed to so direct in a clear manner.

14 . The remaining ground relates to the contention that multiple trials on the same charges breached the appellant's right to a fair trial and is as follows:-

In permitting a fifth trial of the Appellant to proceed on the same charges, the trial Judge failed to prohibit an abuse of process in violation of Articles 38(1) and/or 40 of Bunreacht na hEireann and/or Article 6 of the European Convention on Human Rights (“ECHR”), having regard to the obligations of the Director of Public Prosecutions (“DPP”) under s.3 of the European Convention on Human Rights Act 2003 and/or Article 47 of the European Charter on Fundamental Rights. In compelling the Appellant to be subject to a fifth criminal trial, the trial Judge failed to give due regard to the Appellant's right to a fair hearing within a reasonable period of time including but not limited to (i) the passage of time since the date of the allegations and commencement of the fifth retrial (ii) the fact of the discharge of previous juries (iii) the delays caused by the DPP and/or prosecution witnesses (iv) the medically diagnosed stress and anxiety caused to the Appellant as a direct result of the retrial process (v) the general oppression, unfairness and/or unreasonableness in subjecting a defendant to more than three criminal trials.

1. Recent Fabrication

Submissions of the Appellant

15 . The appellant takes no issue with the admission of the evidence of the appellant's former girlfriend to rebut an allegation of recent fabrication. His principal argument concerns how the trial judge directed the jury on this issue, specifically regarding the fact that the complaint made by the complainant to his then girlfriend was silent as to the name of the alleged abuser.

16 . In objecting to the admission of the evidence at trial, counsel then representing the appellant argued, inter alia, that the complainant did not identify a perpetrator. The complaint was admitted. Following the charge, the judge was requisitioned on this aspect of the evidence and the fact that the appellant was not named, (nor indeed anybody at all) and asked the judge to instruct the jury that the respondent bore the onus of proving that the person to whom the complainant was referring was the appellant before proceeding to act on the rebuttal evidence.

Background

17 . The background to his evidence is to be found in a business relationship between the appellant and the complainant where the business failed and, where, in and around 2011, the complainant received a letter ending his employment. The appellant gave evidence that the complainant was very angry and had said to the appellant, “I will ruin you”. Moreover, he stated that complainant bore him a grudge because of the loss of the business.

18 . In response to the appellant's assertion in interview that the complainant's complaint to the gardai in 2015 was as a result of the failure of the business in 2011, the respondent called Ms. M who had been the complainant's partner circa 2000 – 2006. During that period the complainant informed her that he had been abused but gave no further detail.

19 . The appellant's contention on this aspect of the trial from the ground filed is that; first, the judge invited an inference which was not open on the evidence, second, he ought to have advised the jury that before they could rely on the evidence, they must be satisfied that it was the appellant to whom the complainant was referring when he disclosed abuse to his former girlfriend, and third, (the subject of the new ground 1[b]), the judge ought to have expanded on the corroboration warning and added that Ms. M's testimony did not amount to corroboration.

Submissions of the Respondent

20 . The respondent argues that the complainant's statements to his previous girlfriend were admissible under the recognised “recent fabrication” exception to the rule against narrative, in circumstances where an unequivocal allegation of recent fabrication had been made by the respondent in Garda interviews. The respondent submits that the trial judge considered the issue and provided a reasoned decision as to why the evidence was admissible, and gave the jury an adequate and correct charge in respect of this evidence.

Discussion

21 . In charging the jury, the...