Judgment Title: D.P.P.-v- E. C.
Composition of Court: Kearns J., O'Donovan J., deValera J.
Judgment by: Kearns J.
Status of Judgment: Approved
Outcome: Allowed and direct retrial
THE COURT OF CRIMINAL APPEALKearns J.
De Valera J.
(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
Judgment delivered by Mr. Justice Kearns on the 29th day of May, 2006
At the Central Criminal Court in Dublin on the 18th of December, 2002, the applicant was convicted by a jury on the following counts:-
The trial took place over a period of four weeks. On the 12th of March, 2003, the trial judge sentenced the applicant to the following:-
The sentences were backdated to the 7th of November, 2002. The applicant’s name was also registered on the register of sexual offenders.
Despite the multiple grounds of appeal lodged, Mr. Patrick Gageby, who is now Senior Counsel on behalf of the applicant, indicated at the outset of the hearing that the appeal would effectively be confined to a single ground of appeal. That was a ground which, by order made by a differently constituted membership of this Court on the 17th of January, 2005, allowed the applicant (apparently by consent) to add to the original grounds of appeal the following ground as follows:-
Mr. Gageby suggested that the possible and most likely reason for the failure to requisition lay in the fact that, prior to the commencement of the trial, there had been a seven day hearing in which the applicant had sought to restrain the trial from proceeding by reason of complainant delay. This was not part of the trial proper, but was an issue raised by way of motion preliminary thereto and was one heard and resolved on oral evidence by the trial judge. In refusing that application, the learned trial judge ruled, inter alia, that he was satisfied that the applicant’s capacity to defend himself had not been impaired to such an extent that it would require the trial of the offences to be halted. Mr. Gageby suggested that the failure to revisit the issue of delay when charging the jury was possibly due to the fact that so much time had been spent in arguing the effects of delay in the absence of the jury before the trial began that counsel on both sides simply put the issue to one side in their minds thereafter.
The Court can only assume that this is why the respondent consented to the late addition of the ground of appeal in relation to delay which is set out above. Without conceding that a warning was in the circumstances of this particular case required to be given by the trial judge, counsel for the respondent in the course of this hearing did not seek to prevent the applicant from arguing or relying upon this ground, nor did he seek to rely upon the recent decision of in The Matter of Section 29 of the Courts of Justice Act, 1924 : the People (Director of Public Prosecutions) v. Mark Cronin (unreported, Supreme Court, 3rd March, 2006) which, broadly speaking, holds that a point not taken at trial should not, in the absence of an apprehension that a real injustice may occur, be permitted to be argued on appeal.
Relevant legal principles
In The People (Director of Public Prosecutions) v. P.J.  3 I.R. 550, this Court, (per McGuinness J.) commenting on the issue of delay, stated at p.568:-
In the case of D.P.P. v. L.G.  2 I.R. 517, Keane C.J., in giving the judgment of this Court, stated the following in relation to the issues of corroboration and delay:-
In R. v. Percival (The Times, July 20, 1998) where there had been a delay of at least 28 years between the alleged offences and the making of the complaints, the Court of Appeal said that it was not the case that a judge was bound to stay the proceedings, but such delay must threaten the fairness of any trial especially where the prosecution depends on late complaint and oral testimony. Before a conviction could appear safe, the court would have to be satisfied that the judge had confronted the jury with the fact of delay, and its potential impact on the formulation and conduct of the defence and on the prosecution’s discharge of the burden of proof.
The Facts and Submissions
Having regard to the conclusion the Court has come to in relation to this appeal, the reference to the facts will be confined to a bare outline only. In the instant case, two of the complainants, S.K. and A.K., alleged they had been sexually assaulted between the years 1974 and 1978. The two latter complainants, F.G. and C.G., contended they had been abused between 1987-1988. In the case of S.K., 22 years had elapsed between the date of the last offence and the date of complaint to the Gardai. In the case of A.K. the delay was also 22 or 23 years. While it appears in the case of A.K. that some complaint was made to the Garda Siochana in 1984, no prosecution followed at that time. In the case of F.G. there was a delay of 12 or 13 years from the time of the last offence to the date of complaint. In the case of C.G. in the region of 12 or 13 years elapsed between the date of the last offence and the date of complaint.
In those circumstances, Mr. Gageby argued that a warning as to the effects of delay was mandatory, and the only discretion of the trial judge was as to the nature and extent of the warning to be given. He pointed that in the case of one of the complainants, it had emerged that she had gone to the Garda Síochána in 1984 but no prosecution had followed. This fact alone should have triggered the requirement to give a specific warning in relation to that complainant. The applicant had never received or been shown any material in relation to that complaint at that particular time and, in the absence of having such material, it became more difficult for the applicant to defend the complaints brought by this particular complainant. Mr. Gageby further submitted that the trial judge in ruling on the pre-trial motion, clearly took the view that a degree of prejudice was present, because he ruled that any element of prejudice present was not of such a degree as to altogether prohibit the trial. At no stage had he found a complete absence of prejudice, such as might absolve him from the requirement to give an appropriate warning. While the State appeared to contend that the applicant in giving evidence denying the offences exhibited a good recall for the times when the offences were alleged to have occurred, this in no way addressed concerns which had to exist in relation to the recollection of the complainants.
On behalf of the respondent, Mr. McCarthy argued that a warning was not necessary having regard to the particular facts of this case. This was a case in which there had been extensive corroboration, in that there were four complainants, each of whom corroborated the other. This was not to say that the mere allegations by the first two complainants supported those of the latter two complainants, but rather that the first two complainants were both present on occasions when some of the offences were alleged to have occurred. However, common to all four complainants was evidence of a system of abuse, whereby the applicant sought to win the girls’ confidence by giving them gifts and treats, then by inviting them to his home and thereafter in subtle stages initiating inappropriate sexual contact. Other corroboration was to be found in the accused’s own testimony at the trial, when he accepted he had been present on one occasion with one of the latter complainants in the Savoy cinema when a sexual impropriety was alleged to have occurred. There were also some objective elements of corroboration, including valentine cards which had been sent to some of the complainants by the applicant. He further submitted that, given that the transcript indicated that the applicant had ‘an excellent recollection’ of the relevant times and individual complainants, there was no real prejudice arising by virtue of delay. Alternatively, the obligation to warn arose only in respect of the early offences between 1974-1978, and not in respect of the more recent offences.
On being pressed by a member of the Court as to whether the trial judge could have reasonably refused a requisition to recall the jury to give a warning about the effects of delay, Mr. McCarthy simply stated that he could not really state whether the trial judge might reasonably have refused such a request. Mr. McCarthy urged the court to apply the proviso under Section 3 of the Criminal Procedure Act, 1993. He submitted that the court could do this if it took the view that the trial judge was not under any absolute duty to give a warning in respect of delay and if the court was satisfied that no miscarriage of justice had actually occurred.
The authorities referred to above clearly establish that, in sexual abuse cases where there has been lengthy delay, a warning to the jury of the dangers thereby arising should be given by the trial judge in the course of his summing up. Naturally, the extent and nature of the warning will vary from case to case and turn on the particular facts of the case in question.
This Court in The People (Director of Public Prosecutions) v. C.C. (unreported, 2nd February, 2006) once more approved as a good example of an appropriate warning that given by Haugh J. in The People (Director of Public Prosecutions) v. R.B. which was in the following terms:-
Given that the applicant was unaware that one of the complainants, being one of the first two complainants, had gone to the gardaí in 1984, and given that any documentation from that time was never available to him, the Court is driven to conclude that there may as a result have been an element of specific prejudice in this case, particularly where that complainant is concerned. That being so, it was a prejudice which could only be overcome by a means of appropriate directions from the trial judge in the course of his charge. Even without that particular and specific prejudice, the delay in all of these cases was of such a degree that this Court is satisfied that some warning by way of guidance about the dangers of delay in general should have been given to the jury. In this context the Court does not believe that any meaningful distinction can be drawn between the first group of complainants and the second group, particularly having regard to very tender years of the later complainants at the times of the alleged offences involving them.
Unfortunately, through no fault of the trial judge, counsel for both sides simply failed to direct the trial judge’s attention to the requirement to give an appropriate warning, either before his summing up commenced or by means of a requisition when it had ended. It was a most unfortunate omission by counsel, having regard to the impeccable handling of this case at all stages by the learned trial judge over a period of several weeks.
However, without laying down in any detail the nature or extent of the warning which should have been given in this case, this Court is satisfied that some sort of warning was essential and that without some such warning the conviction herein cannot be regarded as safe. Nor is it a case to which the Court can apply the proviso set out at s.3 of the Criminal Procedure Act, 1993, because the omission of the warning has to be seen as going to a central and critical aspect of this whole case. Indeed the fact that the time of the trial court was taken up for seven days in resolving the preliminary issue as to whether the delay was such as to warrant prohibiting the trial altogether provides the strongest support for this view.
In so holding, the Court does not differentiate between the older and more recent sets of cases. Even in the more recent cases, there was nonetheless a significant delay in excess of 10 years prior to the trial, and the fact that those particular complainants were of very young age at the time of the alleged offences is a factor which of itself would suggest the requirement for a warning.
The Court will therefore quash the convictions and direct a retrial.