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Cite as: [2009] IECCA 63

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Judgment Title: DPP -v- T.C.

Neutral Citation: [2009] IECCA 63

Court of Criminal Appeal Record Number: 141/08

Date of Delivery: 23 June 2009

Court: Court of Criminal Appeal

Composition of Court: Denham J., McKechnie J., O'Keeffe J.

Judgment by: Denham J.

Status of Judgment: Approved


Judgments by	Result
Denham J.	Other (see notes)

Notes on Memo: Appeal allowed, convictions quased - retrial

THE COURT OF CRIMINAL APPEAL

[Appeal No: 141/08]

Denham J.
McKechnie J.
O'Keeffe J.

Between/

The People at the suit of the Director of Public Prosecutions

Prosecutor

and

T.C.

Applicant

Judgment of the Court delivered the 23rd day of June, 2009 by Denham J.

1. T.C., the applicant, was charged with fifteen counts, five of sexual assault and ten of rape, from three separate complainants. He was tried in the Central Criminal Court in February, 2008. He was sentenced to fourteen years imprisonment with one year suspended, being a total of thirteen years imprisonment.

2. Before the indictment was severed there were three complainants, C.H., born on the 14th February, 1989, S.H. (a sister of C.H.), born on the 16th April, 1987, and J.B., born on the 16th November, 1990. J.B. was involved in a sexual relationship with S.H. at the time of the commission of the offences.

3. There was one allegation of sexual assault against J.B. which was severed from the indictment. The applicant is currently awaiting trial in relation to the count of sexual assault on J.B.

4. The offences are alleged to have occurred between the 16th April, 2002 and the 1st December, 2004.

5. An application to sever the indictment so that the three complaints be tried separately was refused, but the complaint of J.B. was severed.

6. The applicant was convicted in February 2008 of some of the counts of rape and sexual assault on the indictment, acquitted on one count and the jury disagreed on other counts.

7. The applicant was sentenced as follows:-

(a) In respect of the rapes of S.H. at a specific place (Count 3), 6 years imprisonment. In respect of the second rape (Count 4), 7 years imprisonment to be served concurrently.

(b) In respect of the rapes of C.H. the first rape in time, (Count 7), 6 years imprisonment. In respect of the rape on the 22nd November 2004 (Count 12), 7 years imprisonment. The Count 12 sentence was made consecutive to that of Count 4, i.e. the 7 years sentence for rape of C.H. was made consecutive to the 7 year sentence for rape of S.H., giving a total of 14 years imprisonment.

(c) A sentence of 4 years imprisonment was imposed in respect of the sexual assaults concurrent to the six year sentence in respect of each first rape.

(d) To give some light at the end of the tunnel, the final year of the 14 year sentence was suspended unconditionally.

8. It is relevant to note the exact results on each count. They were as follows:-
· Count No. 1: The jury disagreed
· Count No. 2: The jury disagreed
· Count No. 3: Guilty by a majority of 10 to 2
· Count No. 4: Guilty by a majority of 10 to 2
· Count No. 5: Applicant found not guilty
· Count No. 6: Applicant found guilty, by unanimous verdict
· Count No. 7: Applicant found guilty by a majority of 10 to 2
· Count No. 8: Applicant found guilty by a majority of 10 to 2
· Count No. 9: The jury disagreed
· Count No. 10: The jury found the applicant not guilty of rape but guilty of sexual assault by a majority verdict of 11 to 1
· Count No. 11: The applicant was found not guilty by direction of the

the trial judge

· Count No. 12: The applicant was found guilty by a majority of 11 to 1
· Count No. 13: The applicant was found not guilty by direction of the

trial judge

· Count No. 14: The applicant was found guilty by a majority of 10 to 2

9. The applicant filed grounds of appeal and made six submissions. The primary ground of appeal advanced related to what was referred to as "non-disclosure". It was submitted that non-disclosure of a previous abuse of the complainant S.H. prejudiced the applicant's ability to cross-examine both complainants with regard to credit and breached the applicant's right to a fair trial.

It was also a ground of appeal that the learned trial judge erred in law in the course of the trial so as to render the conviction unsafe and unsatisfactory in that he failed to sever the indictment in accordance with the application made on behalf of the applicant which failure resulted in the applicant being unduly prejudiced in his defence.

10. It is accepted that the Director of Public Prosecutions only learned after the conviction of the new evidence.

11. However, it appears that the Gardaí were told prior to the sentencing. It appears that on the 3rd April, 2008 the prosecuting gardaí were told by Dr. Moore-Groarke, who prepared the victim impact statement on the 18th day of March, 2008. Apparently the only other person told of this was a care worker who was told in a general way about a year beforehand.

12. None of the above information was before the Court subsequently, when it was sentencing the applicant. The following information was given in a letter dated the 6th October, 2008 from the Chief Prosecution Solicitor at the Office of the Director of Public Prosecutions:-

"I refer the above referenced matter which came on for trial on the 13th February. As you are aware the jury returned a verdict on a number of counts involving two complainants namely; S.H. and C.H.

The accused was remanded in custody and the court ordered Victim Impact Reports to be prepared for the sentence hearing. A date was set for the 31st March 2008. Mr. Justice McCarthy was unavailable on the 31st March 2008 and the matter was put in for mention on the 14th April 2008. On that date it was given a sentence date of 17th April 2008. Sentence was subsequently imposed on the 18th April, 2008.

Prior to sentence, Dr Gillian Moore-Groarke had a consultation with S.H. on the 13th March 2008 with a view to preparing a Victim Impact Report. During this consultation S.H. disclosed to Dr Moore-Groarke that she had also been abused when she was 9 years old by a M.M. who was living close by her family home … She told Dr Moore-Groarke that the male was 17 - 18 years old at the time.

This allegation is not mentioned in the Victim Impact Statement. However, Dr Moore-Groarke subsequently reported it to the prosecuting Guard, D/Garda Mary Skehan on 3rd April, 2008. The prosecuting Guard informed the solicitor for the Chief Prosecution Solicitor's Office about this new allegation prior to sentence hearing. Both Counsel were unaware of the allegation.

A care worker by the name of J.T. who works at W. and who knows S.H. was told by the injured party that she had been previously abused. The care worker was made aware of an allegation about a year ago when S. mentioned it to him during a conversation.

However, he does not know any details of the alleged abuse or culprit nor did he note details of the conversation he had at the time with S.

Gardaí at Gurranabraher Garda Station have investigated this allegation in the last few weeks. S.H. refused to make a statement against the alleged abuser. The Guards have been unable to locate a M.M. in the area. I enclose a copy of the injured party's statement made on the 1st October 2008 for your information. The gardaí cannot progress the investigation any further.

The D.P.P. was not aware of this disclosure until 11th September, 2008.

Yours faithfully,"

13. S.H. made a statement on this on the 1st October, 2008. It states as follows:-

"I am living at … In March 2008 I met with a Doctor, Doctor Moore- Groarke in relation to the preparation of a victim impact statement for a case I was an injured party in. When I was talking to the doctor I disclosed to her that I was abused when I was 9 years old when I was living in … which was where I grew up. I don't want to make any statement to the guards about this and I don't want the guards to investigate my complaint. I am aware of how my complaint would be investigated and I don't want to make any complaint. I have made this decision not to make any complaint by myself. This statement has been read over to me and is correct."

14. There was no knowledge of this information pre-trial by the prosecution. It is not an issue, therefore, of non-disclosure by the prosecution. It is an issue of new evidence and its disclosure.

15. Counsel for the applicant made the following submission. The failure of the prosecution to disclose until after the trial and sentence of the applicant, that one of the complainants, S.H., was previously sexually abused has breached the right to trial in due course of law of the applicant in respect of the convictions herein from several different aspects, including, but not limited to, prejudicing (a) the cross examination of both S.H. and C.H., due to the interlinked nature of the complaints, and (b) the credibility of the complaints.

16. For example, it was submitted by counsel for the applicant that the applicant was improperly prejudiced in his right to cross-examine the complainant S.H.. S.H. said in her statement that "Before he started raping me I was a virgin. During all this time I didn't have sex with anybody else." Counsel submitted that it is not clear at this stage whether or not that statement is true, given the new information on earlier sexual abuse.

17. An application could have been made regarding the previous sexual history of S.H..

By s.3 of the Criminal Law (Rape) Act, 1981, as amended by s.13 of the Criminal Law (Rape)(Amendment) Act, 1990:-

"If at a trial any person is for the time being charged with a sexual assault offence to which he pleads not guilty, then, except with the leave of the judge, no evidence shall be adduced and no question shall be asked in cross-examination at the trial, by or on behalf of any accused person at the trial, about any sexual experience (other than that to which the charge relates) of a complainant with any person …"

18. By s.1 of the Act of 1981, as amended, "sexual assault offence" is defined to include a rape offence and sexual assault, and thus is relevant to the counts in this case.

It is for a trial judge to exercise his discretion under s.3. As this Court stated in The People (D.P.P.) v. G.K. [2007] 2 IR 92, the test is one of fairness. It is for a trial judge to exercise his or her discretion as to whether leave should be granted to adduce evidence. If such evidence were admitted it could have an important effect on the course of the trial, on the way counsel ran the case, on the cross examination, and on the jury.

19. The absence of the disclosed information and the lack of even a limited form of cross examination of the complainant, and the effect on the trial as a whole could have materially affected the jury's consideration of guilt. It is a factor in this analysis that many of the convictions were by a majority verdict. The effect of such information may have been that the jury would not have been satisfied beyond reasonable doubt.

20. The Court is satisfied that as a consequence of the non-disclosure, there was a real risk that it had an effect on the fairness of the trial, and thus breached the right to trial in due course of law of the applicant.

21. The Court would allow the appeal on this primary ground, and quash the convictions.

22. It is open to the Director of Public Prosecutions to prosecute a re-trial.

23. In the circumstances it is not necessary for the Court to proceed to determine the other grounds of appeal.

24. However, the Court does draw attention to the fact that at the trial an application was made by the defence, the applicant, to sever the indictment so that there would be three separate trials in relation to the three complainants. The trial Court ruled that only the single count relating to J.B. be severed. The issue raised for this Court on appeal was whether the decision by the trial judge to refuse to sever the remaining counts was a lawful exercise of his discretion in the circumstances: The People (D.P.P.) v. Nevin [2003] 3 I.R. 321 at p.338.

25. The Court is satisfied that in the circumstances it was open to the trial judge to make the decision which he did on the issue of severance. However, the Court notes that on any re-trial the new information will be part of the information before counsel and that there may be an application for the pervious sexual history of S.H. to be before the Court. The matrix of the evidence will be different, and severance will be a fresh issue for any trial judge. The issue of fairness arises with the new information now disclosed, which colours the situation.

26. Consequently, the Court will treat the application for leave to appeal as the hearing of the appeal and will allow the appeal for the reasons given, and will quash the convictions. It is open to the Director of Public Prosecutions to proceed with a re-trial, bearing in mind the terms of this judgment.