The Director of Public Prosecutions v I. I

• Jurisdiction: Ireland
• Court: Court of Appeal (Ireland)
• Judge: Mr. Justice Edwards
• Judgment Date: 10 October 2024
• Neutral Citation: [2024] IECA 324
• Docket Number: Appeal No: 126/2023

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

I.I.

Appellant

[2024] IECA 324

Edwards J.

Kennedy J.

Burns J.

Appeal No: 126/2023

THE COURT OF APPEAL

Conviction – Sexual offences – Cross-examination – Appellant appealing against conviction – Whether the trial judge erred in refusing to allow cross-examination regarding the results of a physical examination of the complainant

Facts: The appellant, on 1 December 2022, was convicted by the unanimous decision of a jury in Central Criminal Court of twelve offences: four counts of rape contrary to s. 48 of the Offences Against the Person Act 1861 and s. 2 of the Criminal Law (Rape) Act 1981 as amended by s. 21 of the Criminal Law (Rape) (Amendment) Act 1990, being counts no’s 4, 9, 11 and 15 respectively on the indictment; four counts of sexual assault contrary to s. 2 of the 1990 Act, as amended by s. 37 of the Sex Offenders Act 2001, being counts no’s 5, 10, 12 and 14 respectively on the indictment; one count of making a threat to kill or cause serious harm, contrary to s. 5 of the Non-Fatal Offences Against the Person Act 1997, being count no 6 on the indictment; one count of attempting to commit the statutory offence of s. 4 rape, contrary to common law, being count no 7 on the indictment; one count of false imprisonment, contrary to s. 15 of the 1997 Act, being count no 8 on the indictment; and one count of causing a child to watch sexual activity contrary to s. 6 (1)(b) of the Criminal Law (Sexual Offences) Act 2017, being count no 13 on the indictment. The complainant involved in each of those charges was a daughter of the appellant. By a notice of appeal dated 4 May 2023, the appellant identified four grounds upon which he proposed to appeal against conviction: (1) the trial judge erred in refusing to stop the trial at the conclusion of the prosecution case; (2) the trial judge failed to direct immediate disclosure of WhatsApp communications between members of the family (excluding the accused) when the existence of same emerged in the course of the prosecution evidence; (3) the trial judge erred in refusing to allow cross-examination regarding the results of a physical examination of the complainant; and (4) the trial judge erred in refusing to give a corroboration warning, having regard to the circumstances of the case and the evidence relating to the disclosure of the allegation being made against the appellant.

Held by the Court that it was not persuaded that the trial judge erred in refusing to withdraw the case from the jury on P.O’C grounds, or indeed that she had grounds to withdraw the case from them on any basis. The Court was satisfied that she correctly applied the law, which is as set out in The People (DPP) v. C.Ce [2019] IESC 94. The Court dismissed grounds of appeal no’s 1 and 2. The Court held that a defendant is entitled to cross-examine a witness, but it must be cross-examination within the rules of evidence. In the Court’s view, the trial judge’s ruling was unassailable and ground of appeal no 3 was entirely misconceived. The Court therefore rejected it. The Court held that whether or not a corroboration warning should have been given was a matter within the trial judge’s discretion. The Court held that there was no basis in this case for believing that the discretion was impermissibly or improperly exercised. In the circumstances, the Court rejected ground of appeal no 4.

The Court dismissed the appellant’s appeal against his conviction.

Appeal dismissed.

JUDGMENT of the Court delivered by Mr. Justice Edwards on the 10th of October 2024

1 On the 1st of December 2022, the appellant was convicted by the unanimous decision of a jury in Central Criminal Court of twelve offences, as follows:

• • four counts of rape contrary to s. 48 of the Offences Against the Person Act 1861 and s.2 of the Criminal Law (Rape) Act, 1981 as amended by s.21 of the Criminal Law (Rape) (Amendment) Act 1990 (“The Act of 1990”), being counts no's 4, 9, 11 and 15 respectively on the indictment;

• • four counts of sexual assault contrary to s. 2 of the Act of 1990, as amended by s.37 of the Sex Offenders Act, 2001, being counts no's 5, 10, 12 and 14 respectively on the indictment;

• • one count of making a threat to kill or cause serious harm, contrary to s. 5 of the Non-Fatal Offences Against the Person Act, 1997 (“the Act of 1997”), being count no 6 on the indictment;

• • one count of attempting to commit the statutory offence of section 4 rape, contrary to common law, being count no 7 on the indictment;

• • one count of false imprisonment, contrary to section 15 of the Act of 1997, being count no 8 on the indictment;

• • one count of causing a child to watch sexual activity contrary to s. 6 (1)(b) of the Criminal Law (Sexual Offences) Act, 2017, being count no 13 on the indictment.

2 The complainant involved in each of these charges was a daughter of the appellant, whom for the purposes of this judgment we will refer to as “A”. The indictment had also contained three further counts, being counts no's 1 to 3 inclusive, in which the complainant involved was a different daughter of the appellant, whom for the purposes of this judgment we will refer to as “B”. The jury disagreed on counts no's 1 to 3 inclusive, and a nolle prosequi was subsequently entered in respect of those counts.

3 The appellant was sentenced to 15 years' imprisonment on each of the rape counts, with the final year thereof suspended on conditions, and 10 years imprisonment on each of the sexual assault counts, with the offences the subject matter of counts 6, 8 and 13 being taken into consideration. All sentences were to run concurrently and to date from the date of conviction, i.e., the 1st of December 2022.

4 The appellant has appealed against both his convictions and the said sentences. This judgment deals with his appeal against his convictions.

Grounds of Appeal

5 By a Notice of Appeal dated the 4th of May 2023 the appellant identified four grounds upon which he proposed to appeal. These are:

1. The learned trial judge erred in refusing to stop the trial at the conclusion of the prosecution case;

2. The learned trial judge failed to direct immediate disclosure of WhatsApp communications between members of the [name redacted] family (excluding the Accused) when the existence of same emerged in the course of the prosecution evidence;

3. The learned trial judge erred in refusing to allow cross-examination regarding the results of a physical examination of the Complainant;

4. The learned trial judge erred in refusing to give a corroboration warning, having regard to the circumstances of the case and the evidence relating to the disclosure of the allegation being made against the Appellant;

Background to the matter

6 On the 8th of May 2020, A presented at a Garda Station accompanied by her mother, whom we shall call “C”, and an older sister whom we shall call “D”. A complaint was made initially to Garda Ken Allen that A had been sexually abused by her father on a number of occasions during the period between the end of December 2019 until sometime in May of 2020 at her home in a village in rural Ireland. Arrangements were put in place to have A interviewed by specialist interviewers and on the 15th of June 2020, Garda Sheila Cunningham and Garda Aisling Colclough met with A at an interview suite in Santry. This interview was recorded on DVD and played to the jury in the normal course pursuant to the provisions of s.16 Criminal Evidence Act, 1992 as amended. The transcript of that interview was provided to the members of this Court, and we have read it.

7 A was born on a specified date in 2011 making her 8 or 9 years of age at the time of offending. She is the youngest of 6 siblings. At the time of her interview, she was 9 years of age and was 11 at the time of trial. In the course of the specialist interview, A disclosed four separate incidents of sexually abusive behaviour of her, which she attributed to the appellant.

8 The first in time related to counts 4 to 8 inclusive on the indictment, involving alleged offences of rape, sexual assault, attempted s.4 rape, a threat to kill or cause serious harm and false imprisonment. A placed this incident as occurring at a time when her mother was in hospital, having broken her ankle falling down the stairs. Her mother, C, told the jury that this had occurred on New Year's Eve of 2019 into 2020, and that she remained in hospital for two or three days following the accident. A told interviewers that on the occasion in question, she was downstairs at home watching television when the appellant, who was upstairs, summoned her to come upstairs to him. When A did so, the appellant then pulled her into his bedroom, sexually assaulted and raped her and attempted to orally rape her. A gave a detailed account in her interview of the manner in which she was so molested, but it is not necessary for the purposes of this judgment to elaborate further.

9 On A's account the appellant, throughout this incident, prevented A from being able to leave his bedroom and she described a situation of only being able to escape once she hit the appellant on his hand with a book causing him to let go of the door handle and allow her run out the room. She also described a situation where throughout, the appellant threatened to kill both her and her family if she told anyone what had happened. This informed the counts of false imprisonment and threats to kill.

10 A recalled that the next of the four incidents with the appellant occurred sometime around the 20th of March 2020, again at the family home. This informed count 9 which was an offence of rape. A recalled that her mother, who was recuperating at home following her accident and could not go upstairs, asked her to bring some clothes upstairs, including some for her father. When A knocked on his bedroom door,...