The People (At the Suit of the DPP) v M.C.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Ní Raifeartaigh |
| Judgment Date | 07 April 2022 |
| Neutral Citation | [2022] IECA 96 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Record Number: 158/2019 |
[2022] IECA 96
Edwards J.
Kennedy J.
Ní Raifeartaigh J.
Record Number: 158/2019
Bill No.: WXDP0035/2018
THE COURT OF APPEAL
CRIMINAL
Conviction – Sexual assault – Corroboration warning – Appellant seeking to appeal against conviction – Whether the trial judge was within his discretion in deciding not to give a corroboration warning
Facts: The appellant was convicted by a jury of three counts of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by s. 37 of the Sex Offenders Act 2001. He appealed to the Court of Appeal against conviction on a variety of grounds including the absence of a corroboration warning and a failure to grant a direction in circumstances where the Gardaí failed to take a statement from a particular individual as part of their investigation.
Held by the Court that there was no real risk of an unfair trial by reason of the fact that no statement had been taken, nor was the trial judge in error in failing to withdraw the case on that ground, whether as a standalone ground or in conjunction with the other limb of the application. The Court held that the trial judge was well within his discretion in deciding not to give a warning; there was nothing particularly vague or unusual in any respect about the complainant’s evidence in the case, based on the Court’s collective experience of the evidence of child complainants.
The Court refused the appeal against conviction.
Appeal dismissed.
JUDGMENT of the Court delivered by Ms. Justice Ní Raifeartaigh on the 7th day of April 2022
The appellant was convicted by a jury of three counts of sexual assault contrary to section 2 of the Criminal Law (Rape) (Amendment) Act 1990 as amended by section 37 of the Sex Offenders Act, 2001. He appeals against conviction on a variety of grounds including the absence of a corroboration warning and a failure to grant a direction in circumstances where the Gardaí failed to take a statement from a particular individual as part of their investigation.
The appellant was born in 1951 and the complainant in 2006. The appellant is the complainant's paternal grandfather. On occasion, the complainant and one of her brothers used to stay overnight with the appellant and his wife (i.e. the complainant's paternal grandparents) from time to time when her parents went to various social events. The complainant alleged that the offending took place on some of those occasions.
The indictment contained three counts of sexual assault: the first on a date unknown between the 1 July 2015 and the 30 September 2015; the second between the 1 October and the 31 December 2015; and the third between the 1 January 2016 and the 31 May 2016. Her 10th birthday fell in July 2016.
A particular focus in the trial and appeal was the date 29 December 2015. This was the date of the wedding of one A, a friend of the complainant's mother. The complainant described an incident of offending as having taken place on that date while her parents were at the wedding. The complainant's mother was not certain whether the complainant stayed overnight at the appellant's house on that date. The appellant's wife gave evidence that the complainant did not. This formed an important part of the the appellant's application for a direction (which was refused) and for a corroboration warning (which was also refused). We will return to it below.
The complainant was aged 12 at the time of the trial. Her evidence-in-chief consisted of a DVD recording of her interview by the Gardaí, which had been conducted by a specialist Garda interviewer. She was sworn at the trial and cross-examined after the DVD was played. The following is a summary of the answers she gave during the specialist interview which was video-recorded.
The complainant said that the appellant tickled her whenever she went to his house and that at night she would go to bed and in the morning he would say “do you want a back rub” and then he would give her a back rub, and then “he goes too far and he touches me in my places”. She said “he always he does it when granny is not there”. When asked to explain about the tickling, she says “he tickles me but then he goes too far and touches my places”. She said that she sits on a chair and then “he starts tickling me and then sometimes he rubs my places and then when my granny comes into the room, then he goes back to tickling”. When asked to explain what she meant by “my places”, she indicated “my private parts”. When asked whether this was over or under her clothes, she said “sometimes over or sometimes under”. She said that it happened more than one time.
She described how it happened the first time. She said he was going to give her a back rub and then he went into her places and she said stop and then he kept going and then he went in to wake up granny. She said it was in the morning when she was in bed: “he always does it in the mornings”. She said it first happened when she was nine years old. She said he did it and then she went back to sleep and then she woke up and he came in and he was watching her and then he came in and did it to her and then he went back out. She said she was wearing her pyjamas and that it was happening in a spare room in the double bed. Her brother was in the sitting room at the time.
She described another time when she was on “his” chair in the sitting room, and he started tickling her and then he “tried to go over” but granny came in and he just let go. She said that he tickled her under her arms and on her belly and on her legs.
She also described that her mum and dad went off to various places for a night or to a wedding or a christening. She said that was when it would happen.
She was asked to describe what happened when she was in the spare room. She said she was in the bed because there were two spare rooms but one of them was a playroom and the other was where she and her brother slept. She said that the appellant would tickle her and then he would start rubbing her “there”. She said she felt uncomfortable. She said the first person she told was her mother. She said it happened sometimes in the mornings and she also said that he did it “whenever I go over there”.
She said that the last time it happened was before her 10th birthday. She said she would be lying in the bed, and her grandfather would be standing right beside her and he'd be doing it and she said “stop or I'll wake granny”. She was asked if she noticed anything about his body when he did that and she said no. She repeated that it felt really uncomfortable when he did that to her.
She also said that she remembered “last year a really really really long time ago”, he grabbed her hand and he said “touch here” and she let go and then she turned back to the wall. She said that it was “his place” that he was asking her to touch and she didn't want to touch there. She did not have another name for his place but he used it to go to the toilet. She said that this was over his clothes rather than under and she did not know anything about his body when he did this. She said that happened just one time and it was before he started rubbing her. She thought it was “the morning or the evening time”. She was asked was there a particular reason she was in the house at the time and she said she thought it was because her mother was at a friend's wedding with her daddy. She gave the name of the woman getting married. We shall refer to this person as A.
The complainant's mother said that matters came to light on the 23 May 2016. She had collected the children from school and brought them home. At the time, her daughter was learning the Stay Safe program at school and on this day, she told her mother that something “bad” had happened with grandfather. The complainant then told her that the appellant had been touching her in her private area. The appellant's mother made a statement to the Gardaí on the same date.
The mother said that the complainant occasionally stayed overnight with the appellant and his wife. She explained that because they had four children, it was hard to find anybody who would babysit them all, so if they wanted to go out for a social occasion, she and her husband used to split the children up, with two of them going to one set of grandparents, and the other two to the other set. She thought that the complainant had stayed with her paternal grandparents approximately four times during the relevant period.
She recalled on one occasion in August 2015, the complainant was very clingy and said she not want to stay at the appellant's house, and that in general from then on, she was expressing that she did not want to stay there. Prior to that, she had loved going there.
In cross-examination, the complainant's mother said that she had not discussed the matters since the interview was recorded with the complainant.
She was also cross-examined about some relationship difficulties she and her husband had in earlier years, and the extent to which the complainant would have been aware of this and worried about the possible break-up of her parents.
The complainant's father was also mostly cross-examined about his previous relationship difficulties with his wife and how this impacted upon the complainant.
There was evidence that the complainant sometimes stayed the night with her friend T, who lived near the appellant. T's mother was P. The complainant's mother was not entirely sure where the complainant had stayed the night of the wedding on the 29 December 2015; she thought that the complainant might have been collected from her grandparents' house...
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