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Irish Court of Appeal
You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecution -v- T.Q. [2015] IECA 163 (10 July 2015)
URL: http://www.bailii.org/ie/cases/IECA/2015/CA163.html
Cite as: [2015] IECA 163
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Judgment
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THE COURT OF APPEAL Appeal No: 159/11 Birmingham J. Sheehan J. Mahon J. The Director of Public Prosecutions Respondent - and -
T.Q. Appellant Judgment (ex tempore) of the Court delivered by Mr. Justice Mahon on the 10th day of July 2015 1. This is an appeal against both conviction and sentence. This judgment relates to the conviction appeal only. 2. The appellant was convicted by a jury at the Central Criminal Court of eleven counts of rape and thirty six counts of sexual assault following an eleven day trial. The sentences imposed on 1st March 2010 were concurrent fourteen year prison terms (with the final eighteen months suspended) in respect of the rape offences, and concurrent sentences of ten and three years for the sexual assault offences. 3. The victim and complainant of these offences is the son and eldest child of the appellant now aged twenty five. This young man gave graphic evidence of having been subjected to appalling acts of sexual violence and abuse at the hands of his father over a period of two or three years, from the age of twelve. These incidents took place in the family home. They included acts of oral and anal rape. The victim himself at the age of about eighteen in turn engaged in the serious sexual abuse of a younger sister, and in respect of which he was granted immunity from prosecution by the respondent shortly prior to the commencement of this trial. The complainant gave evidence of having watched, from the age of twelve, his mother who was then a prostitute engaging in sexual activity. 4. Clearly the overall family situation in the appellant’s household was seriously disturbing, dysfunctional and abusive. Knowledge of the sex abuse only came to light when one of the complainant’s younger sisters whom he accepts he sexually abused, made an allegation of sexual abuse against him. It was only after this complaint had been made, that the complainant made the complaints concerning his father. 5. A number of grounds of appeal were put forward by the appellant, including:-
2. Failing to adequately warn the jury in respect of the credibility of the complainant and his mother. 3. Failing to adequately charge the jury in relation to the evidence of the complainant’s mother and the extent to which such evidence may have provided corroboration of the complainant’s evidence. 4. Failing to warn the jury in relation to the evidence of what was described as protected witnesses.
(ii) In the complainant’s case the subject of the grant of immunity concerned allegations by his sister that he had sexually abused her while he was barely into his teens, so that the prospect of a prosecution arising in those circumstances must be regarded as unlikely. (iii) In the appellant’s wife case, she had already been prosecuted, convicted and imprisoned in respect of serious charges, including neglect of her children. A further prosecution was therefore unlikely. 8. Nevertheless it remains a fact that these two crucial witnesses received grants of immunity and this required to be appropriately addressed by the learned trial judge in his charge to the jury. The prospect that the evidence of one or both of these witnesses might have been influenced by their respective grants of immunity was a possibility that had to be brought to the jury’s attention. It was necessary that the jury would assess the credibility of their evidence in these particular circumstances. 9. The immunity issue was not addressed by the learned trial judge in his charge to the jury, nor indeed was it specifically referred to in the closing speeches by both counsel. The issue however was, and quite rightly so, raised by way of requisition by the appellant’s counsel following the completion of the charge. He addressed the learned trial judge, thus:-
12. The learned trial judge’s charge to the jury in relation to immunity was clear and unambiguous. The jury were left in no doubt but that they had to satisfy themselves that the immunities granted to the two witnesses did not serve to encourage them to give untruthful evidence. It is difficult to suggest as to how much more clear the learned trial judge’s charge could have been in relation to this issue. 13. In relation to the issue of the credibility of the same two witnesses and the criticism of the learned trial judge’s charge in relation thereto, no requisition relating to any such concern was raised by counsel for the defence at any point in the trial. 14. In DPP v. Cronin [2006] IESC 9, it was held by the Supreme Court that (as per the head note):-
16. Having so stated the foregoing, however, it is nonetheless the court’s view that firstly, the credibility of the witnesses was such a central theme of the case having regard to the nature of the evidence that such would have been foremost in the jury’s deliberations and, secondly, the subject was referred to generally by the learned trial judge in his charge, and specifically so in relation to his warning to the jury in respect of their consideration of evidence given by the witnesses following their receipt of immunity from prosecution. 17. For the reasons stated therefore, the appeal against conviction is dismissed. |