Irish Court of Criminal Appeal
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Judgment Title: Director of Public Prosecutions -v- Hegarty Neutral Citation: [2013] IECCA 66 Court of Criminal Appeal Record Number: CCA Ref: 39/11 Date of Delivery: 31/07/2013 Court: Court of Criminal Appeal Composition of Court: Murray J., de Valera J., McGovern J. Judgment by: Murray J. Status of Judgment: Approved
Outcome: Dismiss appeal against conviction | ||||||||||||
THE COURT OF CRIMINAL APPEAL
Murray, J. [39/11]
THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS) RESPONDENT AND PATRICK HEGARTY APPLICANT
JUDGMENT of the Court delivered on the 31st day of July, 2013 by Murray J.
1. This is an application for leave to appeal by the above named applicant against his conviction on 9 counts of rape and 8 counts of sexual assault committed in 1991. There is another appeal in this case brought by the Director of Public Prosecutions in respect of the sentences imposed by the trial court on the grounds of undue leniency. That appeal is dealt with separately. 2. On the 10th day of January, 2011 the applicant was convicted, after an 8 day trial, of 8 offences of rape contrary to s.48 of the Offences Against the Person Act, 1861, as amended by s.2 of the Criminal Law (Rape) Act, 1981 and s.21 of the Criminal Law (Rape) Amendment Act, 1990, one offence of rape contrary to s.4 of the Criminal Law (Rape) Amendment Act, 1990 and 8 offences of sexual assault contrary to s.2 of the Criminal Law (Rape) Amendment Act, 1990. 3. All of the offences were committed over a 5 week period in the summer of 1991 when the victim, who was then 15 years old and resident with her parents in England, was spending her summer holidays in the southwest in the home of the applicant and the applicant’s wife who was an aunt of the victim. Her aunt ran a bed and breakfast business at the time. At the time of the offences the applicant was 47 years of age. Over the years there had been a close relationship between the complainant’s and the applicant’s family. There were regular visits between the two during the victim’s childhood. The applicant was sentenced to a period of 7 years imprisonment, with 5 of those years suspended, in relation to the counts of rape, a sentence of 5 years imprisonment with 3 years suspended on one count of sexual assault and a sentence of 6 months imprisonment on the remaining counts of sexual assault, all sentences to run concurrently. Grounds of Appeal
(ii) The learned trial judge erred in failing to adequately instruct the jury on the issue of the effect of delay in this prosecution having regard to the particular circumstances of this case; (iii) The learned trial judge failed to ensure that the applicant had a fair trial having regard to the two issues referred to above. 5. On the 6th day of the trial it was discovered that a member of the jury had researched on the internet one aspect of evidence which had been previously given and tendered on behalf of the defence. It was the jury member herself who, conscientiously as the learned trial judge was to observe, brought the fact of her research to the attention of the jury minder who duly informed the judge. 6. The research related to evidence which had been given during the trial on behalf of the defence by the former managing director of a firm who had employed the applicant over a period which included the year 1991 when the offences were committed. In the course of his employment the applicant drove a company van. The witness’s evidence was that all the vans were the same and they all had the same colour. He gave evidence describing the van including the configuration inside the van referring to the number of doors, the number of seats, the division between the back and front of the van, the manoeuvrability of the passenger seat and so forth. The evidence was relevant to the accuracy or credibility of the complainant’s evidence concerning certain matters which had occurred when she was in a van with the applicant. It is not relevant for present purposes, and therefore not necessary, to recite in detail the evidence of the witness concerned. Suffice it to say that the internet search carried out by the member of the jury on the internet, as appears from the extract of the transcript below, related to the configuration of the particular kind of van referred to by the witness in the course of his evidence. 7. On the 6th day of the trial the proceedings commenced, in the absence of the jury, with a statement addressed to counsel for both sides by the trial judge in the following terms:
9. Having identified the juror in question the following exchanges took place between the trial judge and the juror in question in the absence of the jury (Day 6, page 15 of the trial transcript):
JUROR: The information -- JUDGE: No. No, sorry, if you wouldn't mind just listening to my question -- JUROR: Not an aspect of this case, no. JUDGE: You didn't search the internet in relation -- just bear with me. JUROR: Yes. JUDGE: Did you search the internet in relation to any aspect of this particular case. JUROR: I checked something on the internet. So -- JUDGE: In relation to this case? JUROR: In relation to a piece of evidence. JUDGE: In this case? JUROR: Yes. JUDGE: And I wonder would you mind telling me secondly then, having done that did you discuss your findings -- JUROR: With nobody. JUDGE: -- with any member -- any other member of the jury? JUROR: No. JUDGE: Did you tell any other member of the jury what you done? JUROR: No. JUDGE: Thank you. Very well. I'm sorry I just want you to just stay there for a moment. JUROR: Yes. JUDGE: Have the jury gone back to their room? GARDA OFFICER: Yes, judge. JUDGE: Is there any way in which this member of the jury can be kept separated but just simply remain outside? GARDA OFFICER: Yes, Judge. JUDGE: Without going back to the other jurors? GARDA OFFICER: I can do that …. JUDGE: Very well. Would you mind just rising just for one moment. I'll call you back in here -- JUROR: Sure, no problem. JUDGE: -- in a moment. It seems to me that the next obvious question is what did you check. MS FARRELLY: Yes, my lord, I think you should ask that. JUDGE: That's what I -- very well. And arising out of that then, does he feel in the light of what he has done that he can -- MS FARRELLY: She. JUDGE: She. Sorry, does she believe that she can properly honour the oath that she's taken. MS FARRELLY: Yes, and your lordship -- depending on what she tells you, your lordship may take a view in any event -- JUDGE: Yes, very well. MR MacENTEE: Yes, that is the point, my lord, irrespective of the view of the juror, the last analysis, the decision has to be -- JUDGE: No, I follow that. MS FARRELLY: Yes. MR MacENTEE: -- the Court's. JUDGE: Thank you. Just listen, would you mind then indicating what was the aspect of the case that you looked at. JUROR: It was basically -- it was a piece of information that was given by the gentleman that the defence put on the stand and it was purely just -- can I actually tell you what I -- JUDGE: Yes, you can of course. JUROR: Yes, basically when he talked about the red van and the set-up within it. I just wanted to call up a technical spec online in order to have a look at what he was saying just to confirm that the kind of distances and things like that, only to discover that basically that that make and model and van don't match up with the description he gave. MR MacENTEE: Sorry, I didn't hear the end of. JUDGE: That make and model of the van doesn't match up with the description that he gave. In other words, that make and model of the van doesn't match up with the description that the witness called by the defence gave. JUROR: Yes. That a van of that description wasn't available at the time, that year. JUDGE: Very well. JUROR: By the company he says. So there's a discrepancy. JUDGE: I follow. I'm going to ask you this question anyway though it would seem to me that it may well be a matter for the Court. You realise that you can only try the case on the evidence that you hear in court. JUROR: Yes. But -- JUDGE: Do you have any view about your own ability to continue? JUROR: No, I don't. I mean, the reason I asked the question was because if I was in a different profession or if I had a different interest this is common public knowledge -- JUDGE: Very well. JUROR: I would be -- just as jurors, we all bring something advised to the jury room. JUDGE: Yes. JUROR: We have people working in the medical profession, we have a mixed bag of people in there who are all contributing -- JUDGE: Very well. JUROR: -- from their own personality. My profession means that I research everything, so it was purely -- it was purely just to draw -- get a picture in my own mind of the interior layout of the vehicle that we were told was -- and it just didn't match. And my question was can I bring that up as -- JUDGE: Very well. JUROR: -- amongst -- JUDGE: As part of your contribution? JUROR: Yes. JUDGE: Very well. Thank you very much indeed. JUROR: Thank you.” 11. At this point the trial had reached a stage that all that remained was for the trial judge to give his summing up and directions to the jury. 12. Before the remaining eleven members of the jury were recalled for that purpose certain issues concerning the trial judge’s directions to the jury in the course of the proposed summing up were discussed with counsel for the prosecution and for the defence. None of them concerned any issue relating to the discharged juror’s access to the internet. 13. Neither at this stage, nor any other stage, was an application made by counsel for the defence to have the jury discharged by reason of the conduct of the discharged member of the jury, nor that any direction be given to the jury concerning that matter. 14. On being recalled the remaining members of the jury were informed that they now constituted a jury of eleven members only and that the law permitted the trial to continue with eleven jurors. The trial judge then proceeded with the summing up and directions to the jury. 15. In the course of submissions to this Court on behalf of the applicant it was pointed out that counsel for the defence had drawn the attention of the trial judge to the risk of prejudice (Day 6, page 2, line 31) and to the possibility of transmitting prejudice to the balance of the jury (Day 6, page 3, lines 15 – 19). 16. In his submissions on behalf of the applicant counsel complained that no enquiry was made by the trial judge as to when precisely the juror had obtained the information from the internet, whether it had altered her view of the case, or whether her altered view could have been conveyed to the balance of the jury, consciously or unconsciously. It was submitted that the steps taken by the learned trial judge to ascertain the implication of the juror’s researches on the internet were inadequate and he ought to have ascertained whether or not the juror might by her attitude or demeanour in the jury room have conveyed to the other members of the jury her view that the evidence of the witness concerned was incorrect, namely, “that the make and model and van don’t match up with the description” which she had given. Accordingly, the trial judge failed to take adequate steps “to ensure the integrity” of the jury remained intact. This gave rise to a real risk of an unfair trial. 17. On behalf of the DPP it was submitted that the learned trial judge had conducted an appropriate enquiry concerning the conduct of the juror and having been satisfied that there were proper grounds for discharging the juror did so in the proper exercise of his discretion. Counsel for the DPP also pointed out that no objection was raised by counsel for the defence concerning the manner in which the trial judge dealt with the matter. Decision on the First Ground of Appeal 19. As previously stated, and as appears from the extract of the transcript above, the judge made enquiries of the juror who disclosed that she had obtained information from the internet which was in contradiction of some aspects of the evidence given by the witness called by the defence and referred to above. 20. Having made these enquiries of the juror she was then asked to leave the courtroom and a further exchange took place between the judge and counsel for both parties. In the absence of the jury the trial judge expressed the view that the trial could not, in the circumstances, continue with that juror. This is a view agreed with by both counsel for the defence and for the prosecution. Counsel for the defence stated “needless to say … I don’t want this juror on – in those circumstances.” (Transcript Day 6, lines 24 – 26). 21. Counsel for defence did say that he would have liked to have had a full jury but agreed with the trial continuing as a jury of eleven. Where for good and sufficient reason the member of a jury cannot continue, or be permitted to continue, to try the case the law permits the trial to continue with eleven jurors and no point has been raised concerning this. 22. There is a myriad of reasons or situations in which it may be necessary to continue a trial with less than the optimum number of twelve jurors. One obvious incident is where a juror is taken ill or a situation may arise, such as in this case, where something has occurred or prejudicial material has been brought to a juror’s attention, which undermines his or her capacity to act fairly and properly as a juror or which raises a real risk that this may be the case. Obviously this can occur in relation to more than one juror, or indeed the jury as a whole, such as where prejudicial material has been given widespread publicity in some part of the media during the course of a trial. Depending on the circumstances of the case it may be possible for a trial to continue where an appropriate direction or instruction from the trial judge was considered sufficient to meet the situation. In other situations the prejudice may be such that it could not properly or safety be dealt with in this manner and that the only alternative is to discharge the jury as a whole or just one juror as the case may be. 23. It is undoubtedly trite law to state that before discharging a jury or a particular juror for whatever reason the trial judge must be satisfied that the circumstances exist to justify such a step. 24. It is manifestly clear that in the circumstances of this case the trial judge had no option but to discharge the juror in question. In the circumstances of this case the enquiries which he made of the juror herself were entirely appropriate and proper. The real issue raised by the applicant is whether the trial judge should have gone further and discharged the jury as a whole or at least gone further and made additional enquiries as to whether the juror may in some way have conveyed, even subconsciously, something untoward to other members of the jury. 25. The Court is satisfied that there is no basis whatsoever for this submission on the facts of this case. As appears from the extract to the transcript above, the juror made it quite clear that she had not discussed her findings on the internet with anybody and not with any other member of the jury. Although the juror erred in what she did it is also clear that she was quite conscious of the fact that nothing should be done which would prejudice the trial as evidenced by the fact that she brought the fact of her internet research to the attention of the jury minder and did not discuss it with anybody else. 26. Moreover, if counsel for the defence at the trial considered that some other matter ought, in the interests of justice, to have been explored with the juror, or indeed the jury itself, he could have requested the trial judge to do so. No such request was made or even any suggestion made in that regard. Similarly, counsel for the defence had a full opportunity to apply to have the jury discharged if he considered that there were some grounds for doing so. He did not do so – which is quite understandable since it is not possible to discern any good grounds for doing so. In short there is no factual or evidential basis for considering that the remainder of the jury could have been prejudiced in any way. In fact, the evidence is to the contrary. Accordingly, the Court dismisses this ground of appeal. Second Ground of Appeal 28. It was submitted that it is well established that a trial judge is obliged to issue appropriate directions and rulings to avoid the possible prejudicial effect of delay in sexual abuse cases. (J.L. v. DPP [2000] 3 I.R. 122). Counsel referred to the statement of McGuinness J. in The People (DPP) v. P.J. [2003] 3 I.R. 550 at 568 where McGuinness J. stated “The dangers inherent in a trial which takes place many years after the offences alleged and the difficulties which such a trial creates for the defence, has repeatedly been stressed both by this court, by the High Court and by the Supreme Court …”.
29. Counsel also relied on The People (DPP) v. G.D. [2011] 1 ECCA 35.1, where, on the question of a trial judge addressing the issue of delay, it was stated: “It is important that the warning in each case should be given in the context of the case. We will refer to the C.C. case where the Court of Criminal Appeal referred to the exponential difficulties caused by an accused facing a number of complainants. That of course is true but it … only illustrates the importance of tailoring the charge to the particular facts of the case to identify what is in issue and to assist the jury in coming to the conclusion in the light of all the facts of the case and the experience which the courts have built up in dealing with allegations of sexual abuse made by persons who give evidence about incidents which occurred in their childhood.” It was submitted that in the circumstances of this case the learned trial judge failed to put forward a balanced or adequate account of the issues arising from delay and accordingly the conviction should be treated as unsafe.
30. Counsel on behalf of the DPP pointed out that the case of The People (DPP) v. C.C. [2006] 4 IR 287 at 294 was one which concerned a conviction on 180 counts of indecent assaults involving six complainants alleged to have occurred over a 9 year period. It was a case in which the trial judge had confined himself to stating to the jury that the offences were alleged to have taken place “over a nine year period, which is from 37 to 28 years ago". While the judgment in that case must be read in the context of its particular facts the court did discuss the nature and detail of a warning that could be given to a jury in a trial where there has been a lengthy lapse of time since the offences were committed, and that the nature of the warning would depend very much on the circumstances and facts of the particular case. Counsel pointed out that the Court in that case went on to note:
Decision on Second Ground of Appeal
32. In addition, there was put in evidence a letter written by the applicant to the complainant dated July, 1995. That letter was in the following terms:
34. In any event, it is clear, and not in issue, that given the lapse of time between 1991, when the offences were alleged to have been committed and the trial in 2011 that the jury should be given a special direction concerning this delay which has occurred since the alleged commission of the offences. 35. The direction given by the learned trial judge on the question of delay was as follows:
In this case, of course, as you've heard, the events in this particular case are alleged to have happened over a five to six week period within a five month timeframe on a specific year. As you know, the accused in this case, Patrick Hegarty, faces 23 charges. You have to consider each of these offences separately and you must carefully consider all the evidence in respect of each of the offences separately. That means that the evidence in respect of each of the charges must be reviewed by you and considered by you independently. And you must be independently satisfied in respect of each individual charge that the prosecution has adduced evidence in respect of that charge which is sufficient to satisfy you beyond a reasonable doubt. It's only then that you can convict the accused. Otherwise you must acquit. Obviously -- and it goes without saying -- that if having considered the evidence you are left with a reasonable doubt in respect of any charge, that's the end of the matter, and you must acquit the accused.” 37. In DPP v. CC [2006] 4 IR 287 this Court cited with approval the dictum of Denham, J. in DPP v. RB (Unreported, Court of Criminal Appeal, 12th February, 2003) in which it was stated at page 20 of the judgment of the Court:
38. The difficulties encountered in the CC case arising from delay were, as the Court put it, “exponentially magnified” because of multiple charges, one hundred and eighty in all, arising from offences against multiple complainants. The offences were alleged to have occurred over a period of nine years. In this case the factual context was significantly different involving as it did a single complainant and a series of offences over a five week time span when the complainant was staying in the accused’s house. In this case the trial judge did not have the task of guiding the jury through the myriad of circumstances relating to 180 offences over nearly a decade. 39. Again in CC the Court specifically referred to the warning given by Haugh J. in DPP v. RB (Unreported, Court of Criminal Appeal, 12th February, 2003), and then went on to quote verbatim from Haugh J.’s statement to the jury. 40. That is the statement which the trial judge in this case cited and referred to extensively in his charge to the jury. 41. The primary task of a trial judge in a case such as this is to give an appropriate warning to the jury “as to how such cases should be approached” by it “in the course of its deliberation”. (Denham, J. above) The Court is satisfied that in this case the learned trial judge gave a complete guidance to the jury as to how they should approach the evidence having regard to the kind of difficulties which arise in cases of long delay. 42. Counsel for the applicant has complained that the trial judge did not sufficiently identify particular aspects of the evidence to which this guidance should be applied. Counsel for the defence did, properly, acknowledge that it is not necessary that every aspect of the defence should be put to the jury, but nonetheless should, in the words of Lowry, LCH in McGreevy v. Director of Public Prosecutions [1972] N.I. 125 at 133 be a charge with “correct directions in point of law, an accurate review of the main facts and alleged facts, and a general impression of fairness.” 43. The fact is that the learned trial judge reviewed the evidence given by the various witnesses including the case made by the defence in cross-examination. He expressly drew attention to the fact that the investigating gardai could not identify or locate a flat in which the complainant said one of the offences was committed (even though she had given considerable detail concerning the interior of the flat) and had declined to return to the area to assist in a search for the flat because she felt she just could not return to the area where she had been assaulted. 44. The learned trial judge also brought fully to the attention of the jury the conflict between the testimony of complainant concerning what happened in the back of the applicant’s vehicle as she described it and the impossibility of that description being accurate if they accepted the evidence of the witness, who had been the applicant’s employer at the time and who gave evidence of the actual internal configuration of the company vehicle being used by the applicant during the relevant period. There was a submission that the learned trial judge failed to tell the jury that the State had failed to put forward evidence rebutting that witness’s evidence concerning the vehicle. The State had applied to call such rebuttal evidence but the trial judge ruled it inadmissible and it was not permitted to do so. This is more a complaint about failure to put a matter to the jury than to give a direction concerning the consequences of delay. In any event the trial judge properly directed the jury on the evidence as it was given before the jury. In the circumstances the Court does not consider there was any prejudice to the fairness of the trial by virtue of the fact that no reference was made to evidence which was not called because it had been excluded by a ruling of the Court. It was, as the trial judge pointed out, for the jury to decide the issues of fact on the evidence before them. 45. Apart from the fact that all the matters concerning lack of background detail in the complainant’s evidence (as well as matters of significant detail which she did address) were fully explored in cross-examination, they were highlighted and emphasised in the address of both counsel to the jury. In his concluding remarks the trial judge reminded the jury of those speeches to be taken into account in determining the facts of the case which were entirely a matter for them, and that there was no need for him to repeat them. 46. The primary and fundamental conclusion of the Court on this issue is that having regards to the facts and context of the case, the extensive warning which the trial judge gave to the jury concerning the difficulties faced by the accused in this case arising from delay was sufficient and appropriate as to how the case should be approached by the jury in the course of its deliberation. In the light of the directions of the trial judge there is no reason to consider that the jury would have any difficulty in exercising the appropriate cautionary approach in the circumstances of this case to the evidence which it had to evaluate. Accordingly this ground of appeal cannot be sustained. Third Ground of Appeal 48. The basis for this ground of appeal is stated to be the failure of the trial judge to charge the jury adequately, or at all, on the applicant’s defence where the applicant’s defence was precluded from effectively cross-examining the complainant, the circumstances whereby the learned trial judge excluded a juror and the fact that the trial took place with eleven jurors. It was submitted that cumulatively and separately these factors rendered it unfair to allow the jury to proceed to a verdict. 49. In all these circumstances it was submitted that there was an unfair trial, and that it was the duty of the trial judge at all times to ensure that such was avoided. 50. Insofar as this ground of appeal suggests that the trial judge failed to consider whether the applicant was afforded a fair trial it must be said that it is quite evident from the conduct of the trial judge throughout the trial and his various rulings on the issues which arose that he was at all times acutely conscious of the need to ensure that the accused received a fair trial. 51. In particular it should be noted that on the day before the jury trial actually commenced extensive submissions were made by the then counsel for the defence as to why the trial should not proceed by reason of a risk that he could not receive a fair trial as mandated by the Constitution. Various grounds were advanced in support of that submission by counsel including the nature of the charges, the nature and extent of the delay in the prosecution and the difficulties that arise for the defence as a result. The learned trial judge ruled against the application for the defence at that stage and no issue was subsequently taken with that particular ruling. Very little could be said to have emerged during the trial that added to the basis on which it could have been claimed that the applicant was at risk of not getting a fair trial other than the incident with the juror which led to that juror being discharged and the trial proceeding with eleven jurors. The Court has already ruled that the trial judge dealt properly with that occurrence and does not consider that any element of unfairness, in the context of this case or otherwise, could be said to have arisen as a result of the trial lawfully proceeding with eleven jurors. 52. Moreover, towards the conclusion of the trial and after the trial judge had ruled and refused applications from counsel for the defence as regards certain requisitions to be made of the jury there was, what could only be described as rather laconic a question, posed by counsel to the trial judge. He asked if the trial judge would consider whether the effects of the two factors which he had mentioned (in relation to his requisitions) still permitted a fair trial or not. Counsel did not elaborate further. The two factors referred to was the time delay and the reasons for it, taken together with “the refusal to answer questions” which was a reference to the failure of the complainant to answer questions when she couldn’t remember any details. At that stage the jury had been deliberating for a period of three hours and the learned trial judge decided that he would allow the trial to proceed and would release the jury until the following day (and give them the appropriate warning requested by counsel for the defence as regards speaking to any other person about the case). 53. In substance these submissions of the applicant are based on the criticisms of the trial judge as regards the manner in which he gave directions to the jury regarding delay, and the fact that he discharged one of the jurors for the reasons outlined earlier in this judgment. For the reasons already explained the Court is satisfied that the trial judge properly addressed these matters and does not consider that the applicant has in any sense established any grounds for concluding that the trial was in any sense unfair in this case or that it should for that reason have been halted by the trial judge. 54. Accordingly, the application of the applicant for leave to appeal against his conviction is refused.
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