Judgment Title: D.P.P.-v- Christopher Kearns Composition of Court: Fennelly J., Budd J., deValera J. Judgment by: Fennelly J. Status of Judgment: Approved
Outcome: Refuse section 29 application | ||||||||||
Court of Criminal Appeal Fennelly J. Budd J. 236/07 de Valera J. People at the suit of the Director of Public Prosecutions V Christopher Kearns Decision of the Court of Criminal Appeal delivered the 22nd day of October 2009 by Mr Justice Fennelly On 16 December 2008, this court gave judgment refusing the application of the above named Christopher Kearns for leave to appeal against his conviction at the Circuit Criminal Court in Wicklow on one count in an indictment containing 49 counts of indecent assault alleged to have been committed against one complainant. He applies pursuant to that provision for a certificate in respect of the following question:
Section 29(2) of the Act of 1924, as amended, provides, in relevant part, as follows:
The count, number 49, in the indictment in respect of which a certificate is sought was as follows:
The count in question was added at trial. It was the only count which specified any location for the alleged commission of the offence. Those were the procedural circumstances in which the applicant came to be charged with and ultimately convicted of the offence in question. The gravamen of the challenge in this court on the application for leave to appeal was the alleged “inconsistency” of the jury in convicting of the charge in count number 49 but not on any other count and the focus of criticism was not on issues as to unfairness or legal invalidity of the wording of that count. This was dealt with in the judgment of 16th December 2008 as follows:
The jury it must be recalled, making an obvious point, were of course acquitting on the other 48 counts on the basis of the principle of which they had been very carefully advised by the learned trial judge that they had to be satisfied beyond reasonable doubt and they were entitled to reach the conclusion that they could not be satisfied beyond reasonable doubt of the guilt of the applicant in respect of those charges, on the basis largely advanced indeed by Mr. Finlay that those counts were vague and uncertain. They did not specify particular dates or places or times and [it is clear] that the distinctive feature of the 49th count was that it identified a particular place which was developed in the evidence by further reference to the date of tug of war and the family outing to the tug of war and the lift home afterwards and so on. The judge made it clear to the jury that that was a distinct count. The jury were entitled to treat it as such and they were entitled to find the applicant guilty on that one count”. There can be no general complaint in principle where a count is laid in respect of an alleged offence said to have been committed at some time during a span of years, in this case four years. The particular circumstance of this case was that the jury acquitted the applicant in respect of all the other counts on the indictment. The principal argument advanced at the hearing of the application for leave to appeal in December 2008 was that the jury verdict was inconsistent. This court rejected that argument for reasons which appear in its judgment as quoted above. The court is satisfied that count 49 cannot be viewed in isolation from the other counts in the indictment. Its significance derives exclusively from its circumstances. It does not raise any general point of law of exceptional public importance. This is not a case where it is “desirable in the public interest that an appeal should be taken to the Supreme Court.” The court refuses to grant the certificate which is sought.
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