The People (at the suit of the DPP) v DC

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton
• Judgment Date: 18 March 2021
• Neutral Citation: [2021] IESC 17
• Date: 18 March 2021
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2020:000078 Court of Appeal Record Number: 2018/ 133 [2019] IECA 367 Central Criminal Court bill number: CCDP0110/2016

Between

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

Prosecutor and Respondent

and

DC

Accused and Appellant

[2021] IESC 17

McKechnie J

MacMenamin J

Dunne J

Charleton J

O'Malley J

Supreme Court appeal number: S:AP:IE:2020:000078

[2020] IESC 000

Court of Appeal Record Number: 2018/ 133

[2019] IECA 367

Central Criminal Court bill number: CCDP0110/2016

An Chúirt Uachtarach

The Supreme Court

Conviction – Sexual offences – Admission of new evidence – Appellant seeking to appeal against conviction – Whether the fresh evidence presented with a view to undermining the complainant’s testimony at trial was credible

Facts: The appellant, on 22 February 2018, was convicted by a jury of multiple counts of rape and other forms of sexual violence against his daughter, the complainant, at locations in Ireland and in New Zealand, on dates between March 2006 and March 2010. On 23 April 2018, the trial judge sentenced him to 15 years imprisonment for each count of rape with, concurrently, 6 years for the sexual assault offences, with the last year being suspended on conditions. On appeal to the Court of Appeal, many issues were raised as to the trial, including the relevance of background circumstances and the input of the trial judge. Those grounds of appeal were all disposed of in the judgment of 20 December 2019. The Court of Appeal tested, but rejected after hearing live evidence, all post-conviction evidence that the complainant had admitted that she had lied against her father and ruled that, as it was not worthy of belief, it should not be admitted in evidence. On an application to appeal to the Supreme Court, the determination granted leave on three related issues only: (1) the methodology deployed by the Court of Appeal in respect of an application to admit new evidence post-conviction; (2) the threshold test for the admission of such new evidence; and (3) the role of an appellate court acting act as a primary finder of fact.

Held by the Court that the relevant background circumstances to the evidence of the complainant were fully and competently analysed in the judgment of the Court of Appeal. The Court found that the context and continuity of blandishments, threats and undermining of confidence that was concentrated on the complainant once she complained of sexual violence by her father was particularly important; this became a veritable bombardment of deceit and duress once the conviction had occurred. The Court held that in light of this sustained conduct of manipulation, the evidence from the appellant and others that the complainant confessed to having lied at trial could not be deemed credible; their evidence was self-serving and simply a continuation of their abuse of the complainant. The Court noted that the complainant had remained adamant both throughout her examination at trial and in the Court of Appeal that her father raped her and that she never accepted that she admitted to having lied at trial. The Court held that as the fresh evidence presented with a view to undermining the complainant’s testimony at trial was not credible there was no basis for overruling the verdict or upsetting the analysis of the Court of Appeal.

The Court held that the appeal would be dismissed.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Thursday 18 March 2021

1 Where something is alleged to have happened, or has in fact occurred, after the conviction of an accused and which may have been relevant to the proof of that person's guilt, on what basis is an appellate court to evaluate this potential evidence and consider the safety of the conviction? Possibly relevant evidence which emerges after the conviction of an accused may be such that, with reasonable diligence, it could have been discovered and adduced at trial. In such a case, since the public interest requires that a defendant brings forward the entire case at trial, the evidence should generally not be admitted. There is however a different category of case where no test of diligence in discovering evidence can apply. This is where, after a trial, there is some new event which potentially casts doubt on the conviction. After conviction a material witness may claim, or be asserted to have said to others, that their testimony at trial was untrue. Such a change of heart may be in consequence of conscience or it could be engineered through duress. This judgment concerns the approach of an appellate court to any application to adduce such evidence and to considering the conviction in consequence of hearing it.

The basic events

2 DC, on 22 February 2018, was convicted by a jury of multiple counts of rape and other forms of sexual violence against his daughter, T, at locations in Ireland and in New Zealand, on dates between March 2006 and March 2010. On 23 April 2018, Murphy J sentenced him to 15 years imprisonment for each count of rape with, concurrently, 6 years for the sexual assault offences, with the last year being suspended on conditions. At the time of the offences, T was aged between 6 and 10 years old. These offences began shortly after T's mother, and DC's former partner, J, died of a brain haemorrhage, and continued until just before T and her older sister, M, were taken into care. T first disclosed the sexual abuse in 2013.

3 After the discharge of the jury, they having rendered their verdict, and while DC was remanded in custody before sentence, T visited her father in jail where an emotional encounter took place. In the background to this visit, however, are communications between T and RC, DC's wife, and a person of T's own age whom she knew from New Zealand, AD, and that person's mother, KD. After the visit, DC's solicitor Mr Collier telephoned T on the instructions of RC and spoke to her, suggesting that she arrange to consult with a different solicitor whose details he provided. As Mr Collier saw this exercise, it was with a view to T swearing an affidavit retracting and declaring as lies all of her testimony that had led to her father's conviction. While there was contact between T and this second solicitor and an appointment was made, T did not turn up. Before the Court of Appeal, on a motion to adduce fresh evidence, Mr Collier gave evidence as to his impression of the state of mind of T and asserted that he thought that she had in effect told him that she had lied at trial.

4 DC gave evidence on appeal to the effect that T had come to visit him after the trial because she was full of remorse and guilt, that she told him she was sorry, and that she inquired how she could get him out of there. KD testified that T had told her, at the time of the post-conviction prison visit, but not in any retrievable form such as texts or recordings, that her father did not belong in prison, that he was not a rapist, and that he did not do those things to her RC did not give evidence on appeal. In the context of this contested retraction, we have incontrovertible documentary evidence, preserved from social media exchanges, of suggestions from DC and RC that T ought to sue the State for having drugged and manipulated her into making false allegations and thereby recover substantial damages.

Determination

5 The trial took 17 days. While it may be said that the principal evidence was of T, in reality hers was the only evidence against DC; other testimony concerned factual or background circumstances and not the central issue of whether there was sexual violence perpetrated against the victim. On appeal to the Court of Appeal, many issues were raised as to the trial, including the relevance of background circumstances and the input of the trial judge, Murphy J, who exerted exemplary control in what was a lengthy and sometimes emotionally fraught trial. These grounds of appeal were all disposed of in the judgment of Edwards J of 20 December 2019. The Court of Appeal tested, but rejected after hearing live evidence, all post-conviction evidence that T had admitted that she had lied against her father and ruled that, as it was not worthy of belief, it should not be admitted in evidence. On an application to appeal to this Court, the determination granted leave on three related issues only:

• 1. The methodology deployed by the Court of Appeal in respect of an application to admit new evidence post-conviction;

• 2. The threshold test for the admission of such new evidence; and

• 3. The role of an appellate court acting act as a primary finder of fact.

Circumstances in detail

6 As to relevant family, DC has two daughters, M born in 1997 and T born in 1999. Both, at various stages accused him of sexual abuse and both were scheduled to give evidence at his trial on various counts of rape and sexual assault before the Central Criminal Court. As regards the charges arising from the allegations of M, however, a nolle prosequi was entered on behalf of the State just prior to the start of the trial in January 2018. The abuse of T is said to have commenced on the day after the death of her mother, and continued whilst the family lived in New Zealand. As an Irish citizen, it is not disputed that DC is liable for rape overseas as this is an offence carrying extra-territorial liability.

7 While the degree of drinking and the effects of his alcoholism on DC may be disputed, it is clear that the home life of M and T with their father and their mother J was dispiriting. In her evidence at trial, T described disharmony, despotism, violence and assaults, detailing a particularly serious attack on her mother and attributing her eventual death to that incident. This is without proof and could simply reflect the rationalisation of a young girl in the face of a tragic event. Before the death of T's mother, a new partner to DC had come into the picture, R, a woman from New Zealand. A number of months after J's passing, DC and his two daughters, M and T, and his new partner,...