The People (at the Suit of the Director of Public Prosecutions) v M.B

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 23 July 2024
• Neutral Citation: [2024] IESC 33
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2023:000121 [2023] IECA 199 Central Criminal Court bill number: DUDP0089/2020

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

MB

Accused/Appellant

[2024] IESC 33

Charleton J

O'Malley J

Hogan J

Collins J

Donnelly J

Supreme Court appeal number: S:AP:IE:2023:000121

Court of Appeal record number: 2022/54

[2023] IECA 199

Central Criminal Court bill number: DUDP0089/2020

An Chúirt Uachtarach

The Supreme Court

Judgment ofMr Justice Peter Charletondelivered on Tuesday 23 July 2024

1 On this appeal, the issue is whether the absence of the accused, MB, from the scene of the serious attack upon his daughter by his wife undermines his conviction for the crime of assault causing serious harm? Essentially, can the accused be found responsible for that crime by reason of his participation in a series of assaults immediately before that event on the basis of a plan common to them both? Shortly put, the answer is affirmative.

Foundation of liability

2 Liability for the commission of a criminal offence extends beyond the person who physically perpetrates the action. While incitement and conspiracy are separate offences to the offence commissioned (incitement) or agreed upon (conspiracy), being inchoate in nature such crimes do not depend on the offence ever having been committed, analysis of participation in criminal law where an offence is in fact perpetrated, extends to those who consciously lend practical aid to its commission and to those who encourage its occurrence with the purpose, in each case, of assisting or promoting the criminal actions of the physical offender. Hence, where a person in Paris commissions another to murder a victim in Clonmel, that action is as much murder by them as by the person who does the killing. Similarly, lending a car to a person to knowingly enable a robbery, constitutes the lender as much an offender as the physical perpetrators. Degrees of involvement are relevant to sentencing but liability extends to knowing aid or encouragement to commit crime.

3 Serious indictable offences, in contrast to regulatory offences, depend upon not only the commission of the defined elements of the externals of the offence but also on that action being the product of a knowing or an intentional or a reckless state or a criminally negligent state of mind. It follows that the extent to which liability for the commission of an offence is imposed will include those who aid or encourage the offence, but only with the appropriate mental element for the crime. Where the crime is one of specific intent, such as murder where under s 4 of the Criminal Justice Act 1964 the accused must have the purpose of killing or causing serious injury, to be liable each accused must not only engage in the enterprise that leads to the death of the victim but must also do so with that intent. Where the crime may be committed by recklessness, engagement in the criminal enterprise is on the same basis, but conscious disregard of a serious and unjustifiable risk suffices for liability. It is the latter that applies in this case.

Circumstances

4 The traumatic background to this case is of the abuse of a small girl in June and July 2019, here called V, by her parents, the accused, here called A, and his wife, here called W. There was a claim later made by them in interview that V believed herself possessed of a malignant spirit and had self-harmed. The accused and W, whether they were responding to perceived conduct or whether they shared this alleged belief, engaged in beating, burning, strangling and rubbing with astringent oils of V. In part, the conviction of the parents was based on evidence from some of the other children of the family, here called X and Y. W was convicted before the Dublin Circuit Criminal Court on 29 October, 2021 on two counts of causing serious harm to another contrary to s 4 of the Non-Fatal Offences Against the Person Act, 1997, and three counts of child cruelty contrary to s 246 of the Children Act, 2001. The particular assault that inflicted irreparable brain injury on V was on 2 July 2019, and was physically perpetrated by W. The form of this assault involved blunt force trauma to V's head when the accused was absent at work. This attack by W on V left her in a severely disabled state. She is permanently unable to attend to any of her bodily needs. W was also convicted of other serious assaults on dates leading up to this particular attack, including battering V, strangling her, burning her and other forms of physical abuse.

5 There were 10 counts on the indictment against the accused and against W. It is counts 6 and 7 of the indictment that are in issue on this appeal. The conviction was founded on the application of the doctrine of common design by the trial judge and the correctness of the direction by the trial judge to the jury is, in that regard, in issue. The accused was tried jointly with W and on 29 October 2021 was convicted on two counts of causing serious harm to another contrary to s 4 of the Non-Fatal Offences Against the Person Act 1997 and three counts of child cruelty contrary to s 246 of the Children Act 2001. The two counts in issue on this appeal are the serious blunt force trauma on 2 July consisting of the attack by W in the accused's absence, which is count 6, and the burning by W of the child on a hot electric hob, which is count 7. Some of the other counts on which the accused and W were convicted are of child neglect whereby they failed to seek medical attention for what had been done to V, including considerable delay in not calling an ambulance on 2 July when V had been rendered senseless by the attack of W and the accused, having been informed of the attack by her, had later returned to their home from work. These counts are not in issue.

6 When an ambulance was eventually called and the paramedics started attending to V, the accused and W gave excuses for the horrendous injuries involving ordinary domestic accidents and an allegation by the accused that she had been self-harming and that her injuries were self-inflicted. These included accounts of V falling off a bicycle, of slipping in a shower: stories that could never be founded in truth.

7 The central point in the case is whether A is responsible for the actions of W in inflicting the brain injury, count 6, and whether there was sufficient evidence before the jury to enable them to come to the conclusion of guilt on that count and on the burning count, count 7. Liability requires analysis of the extent to which a common design as between various individuals renders those who do not do the actual criminal action responsible at law.

The indictment

8 For precision, it is appropriate to set out the counts against both the accused, here for redaction purposes called A, and W with the victim called V. Counts 1 and 2 against W were the brain injury assault incident of 2 July 2019 and the burning on the stove incident. Correspondingly, the counts against the accused that are in issue are counts 6 and 7. The counts laid against both accused in the indictment were:

Count 1: W, on or about 2 July 2019, at [address] in County Dublin, intentionally or recklessly cause serious harm to V contrary to s 4 of the Non-Fatal Offence Against the Person Act 1997.

Count 2: W, on a date unknown between the 28 June and 2 July 2019, both dates inclusive, at [address] in County Dublin, intentionally or recklessly cause serious disfigurement to V, thereby causing her serious harm otherwise than set out at count 1 contrary to s 4 of the Non-Fatal Offence Against the Person Act 1997.

Count 3: W, on a date unknown between 28 June 2019 and 2 July 2019, both dates inclusive, at [address] in County Dublin, being a person having charge or care of a child, namely V, wilfully assault V, in a manner likely to cause her unnecessary suffering or injury to her health or seriously to affect her wellbeing contrary to s 246 of the Children Act 2001

Count 4: W, on a date unknown between 28 June 2019 and 2 July 2019, both dates inclusive, at [address] in County Dublin, being a person having charge or care of a child, namely V, wilfully caused or procured or allowed the said V to be assaulted, in a manner likely to cause her unnecessary suffering or injury to her health or seriously to affect her wellbeing contrary to s 246 of the Children Act 2001

Count 5: W, on or about the 2 July 2019 at [address] in County Dublin, being a person having charge or care of a child, namely V, wilfully neglected the said V in a manner likely to cause her unnecessary suffering or injury to her health or seriously to affect her wellbeing by failing to provide medical aid for the said V contrary to s 246 of the Children Act 2001.

Count 6: A, on or about the 2 July 2019 at [address] in County Dublin, intentionally or recklessly caused serious harm to V contrary to s 4 of the Non-Fatal Offences Against the Person Act 1997.

Count 7: A, on a date unknown between 28 June 2019 and 2 July 2019, both dates inclusive, at [address] in County Dublin, intentionally or recklessly caused serious disfigurement to V, thereby causing her serious harm otherwise than set out at count 6 contrary to s 4 of the Non-Fatal Offences Against the Person Act 1997.

Count 8: A, on a date unknown between 28 June 2019 and 2 July 2019, both dates inclusive, at [address] in County Dublin, being a person having charge or care of a child, namely V, wilfully assaulted the said V, in a manner likely to cause her unnecessary suffering or injury to her health or seriously to affect her wellbeing contrary to s 246 of the Children Act 2001.

Count 9: A, on a date unknown between 28 June 2019 and 2 July 2019, both dates inclusive, at [address] in County Dublin, being a person having charge or care of a child, namely V, wilfully caused or procured or allowed the said V to be assaulted, in a manner likely to cause her unnecessary suffering or injury to her health or seriously...