The People at the Suit of the Director of Prosecutions v TF

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 19 April 2021
• Neutral Citation: [2021] IECA 120
• Date: 19 April 2021
• Docket Number: [23/2019]
• Court: Court of Appeal (Ireland)

Between

The People at the Suit of the Director of Prosecutions

Respondent

and

TF

Appellant

[2021] IECA 120

The President

Woulfe J.

Edwards J.

[23/2019]

THE COURT OF APPEAL

Conviction – Sexual offences – Sentencing – Appellant seeking to appeal against conviction and sentence – Whether sentence was unduly severe

Facts: The appellant, on 26th October 2018, was convicted of all counts on an indictment which had contained five counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 and one count of indecent assault contrary to common law. The appellant appealed to the Court of Appeal against conviction and against the severity of a sentence of six years and six months imprisonment imposed on one count, with concurrent lesser terms in respect of the other offences. The first ground of appeal against conviction was that the trial judge erred in law and in fact in ruling that the statement made by the first complainant to his wife in 2010 was the first reasonable opportunity for him to make a complaint, and erred in law in allowing her to give evidence of the complaint. The second ground of appeal against conviction was that the trial judge erred in law and in fact in ruling that the prosecution was allowed to lead evidence from the first complainant to the effect that the reason for his delay in making the complaint was because he had spent years suffering from mental health issues. Regarding the sentence appeal, the appellant contended that insufficient attention was paid by the trial judge to such factors as were present by way of mitigation, including his previous good character, his work record and lack of previous convictions. It was also pointed out that the sentence for a man of the appellant’s years is a very significant one to impose on somebody who has never previously experienced incarceration.

Held by the Court that it was satisfied that the trial judge gave careful consideration to the circumstances in which the complaint came to be made and to the background against which the complaint was made. The Court was satisfied that the trial judge was entitled to conclude, in light of the information put before him, that even though the complaint to the first complainant’s wife was made many years after the events were alleged to have taken place, that it was in fact made at the first reasonable opportunity. Therefore, the Court dismissed the first ground of appeal against conviction. The Court did not believe there was any reason why someone cannot speak about their own health. To the extent that the second ground of appeal against conviction remained live, the Court dismissed it.

The Court held that, regarding the sentence appeal, it had not been persuaded that there was any error of principle. The Court held that this was serious offending which was always required to be met with a significant sentence. The Court found that the mitigating factors were, as the judge commented, few, and to the extent that there were mitigating factors present, they were recognised by the trial judge and credited. The Court had not been persuaded that the sentence imposed fell outside the available range. The Court held that the appeal would be dismissed.

Appeal dismissed.

NO REDACTION NEEDED

JUDGMENT of the Court delivered (via electronic delivery) on the 19th day of April 2021 by Birmingham P.

1 On 26th October 2018, the appellant was convicted of all counts on an indictment which had contained five counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 and one count of indecent assault contrary to common law. The appellant has now appealed against conviction and against the severity of a sentence of six years and six months imprisonment imposed on one count, with concurrent lesser terms in respect of the other offences.

Background

2 There were two complainants in this case, X and Y. Of the six counts on the indictment, four were alleged to have been perpetrated against one complainant, X, and one count of sexual assault and one count of indecent assault perpetrated against the second complainant, Y. The offences were laid as having been committed between 1989 and 1996. Both complainants were born in the same year, in 1982. They are cousins and grew up in Belfast. The accused was a neighbour of Y's family, in the sense that he lived on the same street and he was a friend of Y's father. Y was the godson of the appellant. X was a frequent visitor to Y's family home and from that, came to know the appellant and had visited him in his home.

3 A sister of the appellant owned a caravan that was located at a caravan park in Donegal. The appellant visited the caravan with his friend, Y's father, and the two boys. The offences involving X were allegedly committed when he was between the ages of 9 and 14, and the two offences against Y occurred, in one instance, when he was aged six, and in the other, when he was aged between 9 and 11. Significantly, and slightly unusually, in the case of counts two and six on the indictment, the allegation is that both boys were together and at trial, each gave evidence of having their penis fondled in the presence of the other boy. There was also evidence at trial of activity in the nature of grooming. Both boys were provided with alcohol by the appellant after the father of Y had gone to bed. X was interested in cars and on one occasion, it is alleged that the appellant sat him on his lap in the driver's seat of the car, let him take the steering wheel and then proceeded to sexually assault him.

Grounds of Appeal

• (i) The trial judge erred in law and in fact in ruling that the statement made by X to his wife, Z, in 2010 was the first reasonable opportunity for X to make a complaint, and erred in law in allowing Z to give evidence of the complaint.

• (ii) The trial judge erred in law and in fact in ruling that the prosecution was allowed to lead evidence from X to the effect that the reason for his delay in making the complaint was because he had spent years suffering from mental health issues.

First Ground of Appeal Against Conviction

4 Before dealing with the first ground of appeal which is, in essence, the substantial ground, it may be of assistance to note that the trial, which resulted in a conviction on 26th October 2018, was the second occasion on which the appellant had stood trial. The relevance of the earlier trial, which took place in March 2018, is that during it, counsel on behalf of the prosecution raised the question of whether the complaint evidence would be admissible. She did so when referring to the fact that the courts have been more forgiving towards delay on the part of child complainants, and complainants with allegations to make about what happened to them during their childhood, when it comes to allowing trials to proceed, even when there is a significant gap between the alleged offending activity and the trial. Counsel queried whether this would allow complaint evidence to be given even if the complaint was made some distance in time from the offending alleged, and whether the forgiveness which was afforded to allow a trial to proceed would extend to allowing complaint evidence. The issue having been raised, there then followed some discussion involving the trial judge and counsel on both sides but the discussion was essentially inconclusive in circumstances where the jury was discharged and the matter came back for retrial.

5 Counsel on behalf of the prosecution returned to the issue in the course of the retrial. On the opening day, having adverted to the fact that she had previously canvassed the issue in March 2018, counsel confirmed that she was seeking leave to call Z, wife of X, to give evidence to the effect that in 2010, X told her that he had been sexually abused by the appellant. Counsel said that she intended to rely on a judgment of this Court in the case of DPP v G.C. [2017] IECA 43 in support of her application. Counsel asserted that the judgment was authority for the proposition that in order to be considered admissible, the timing of the complaint does not necessarily need to be in the immediate aftermath of the incident. Counsel for the then accused (not the same counsel who appeared before the Court of Appeal) pointed out that the circumstances in G.C. were entirely distinguishable from the facts of the present case because in that case, there had been expert evidence from the complainant's general practitioner and counsellor to the effect that the complainant's medical and psychological state provided an explanation for the complainant's delay in reporting the matter. In contrast, he said, in the present case, there was no expert opinion about the medical or mental state of X and/or to what extent that might have contributed to the delay in making the complaint.

6 It should be noted that in the trial court, there was no real dispute between the parties about the legal principles that would determine the admissibility of the proposed complaint evidence. Rather, there was a fundamental disagreement about how those agreed principles were to be applied. In truth, the same situation has prevailed before this Court where counsel for the prosecution, in written and oral submissions, has accepted that it is settled law that there are four conditions of admissibility that have to satisfied before complaint evidence can be admitted viz:

Counsel points out that the appellant's complaint before this Court was that the second condition was not met. The defence position is that the complaint to Z in 2010 was not a complaint made at the first reasonable opportunity. Lest there be any uncertainty about this, the written submissions state in terms:

“It is not disputed that this [the requirement that the complaint be made at the first reasonable opportunity] remains a necessary prerequisite to admissibility”.

• (i) the...