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	Irish Court of Criminal Appeal
You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P. v. O'Brien [1989] IECCA 2 (21 July 1989) URL: http://www.bailii.org/ie/cases/IECCA/1989/2.html Cite as: [1989] IECCA 2

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No. 40/88

COURT OF CRIMINAL APPEAL

McCarthy J.

Barrington J.

Lardner J.

DIRECTOR OF PUBLIC PROSECUTIONS

V.

PATRICK O'BRIEN

Judgment of the Court delivered the 21st day of July 1989 by McCarthy J.

The Applicant applies for leave to appeal against conviction on indictment on six counts, three of them attempting to have unlawful carnal knowledge of a girl under the age of 15 years and three of indecent assault. The charges arise upon incidents alleged to have taken place on a date in October 1985 when three girls, two sisters and their cousin, were alleged to have been accosted by the Applicant on a street in Kilrush, Co. Clare, invited by him to look for a straying donkey in sheds adjoining a field in the area. Whilst in the second shed the allegation was that the offences were committed. The critical evidence in the case was that of the three girls whose account differed both descriptively and in the alleged sequence of the molesting of each of them. The girls, who made no complaint of what had occurred until about a month after the event, were medically examined and found to be virgins, although each girl specifically alleged that the Applicant had had sexual intercourse with her.

The trial took place in February 1988, some 2I 1/2 years after the alleged commission of the offences. The case depended upon the evidence of the three girls, there being no corroboration of their evidence and, in a sense, there was medical evidence to contradict their account. The application is based upon the contention that the verdict of the jury was perverse. Mr. Sorohan developed an elaborate argument based upon a comparison of the relevant English Statutes of 1907 and 1968 concerning appeals in criminal cases by contrast with section 12 of the Courts (Supplemental Provisions) Act 1961 with particular reference to the decision in Reg.-v-Cooper^[1] the leading casein England on "lurking doubt" as a ground of appeal, it being a case of visual identification.

The English Statute gives jurisdiction to the Court of Appeal to quash a conviction if the Court considers it is unsafe or unsatisfactory. There is no such specific power in the Act of 1961 but it is contended that there are wider powers.

That statute has been considered in the People -v- Kelly (2)^[2] and in the People -v- Mulligan & Others.^[3]

In the People -v- Madden,^[4] this Court stated its function in the clearest terms at page 339. In the People -v- Mulligan this Court again iterated the reviewing role of this Court.

In the instant case, the learned Trial Judge gave a clear invitation to the jury to acquit. It is no criticism of his charge to the jury to say that. he laid great. emphasis on the weakness of the prosecution, in that it depended upon the evidence of three girls, given 22 years after the alleged event, who themselves had not immediately complained about the alleged incidents. He stressed more than once the danger of convicting upon the uncorroborated evidence of the three girls and he pointed a number of times to the interior conflicts in their evidence and the conflict produced by the medical evidence. It is to be inferred from his observations that, if trying the case himself, he would have found it difficult to bring in a verdict of guilty. That, however, as the learned Trial Judge very properly pointed out., was not. his function. That, pre-eminently, was the function of the jury. It would, in the opinion of this Court, be an unwarranted interference with and usurpation of the function of the jury if he had done otherwise or if this Court were to do otherwise. This Court does not have the advantage that the jury had of seeing these girls giving evidence, of hearing them being cross-examined, of observing their demeanour throughout.

There may be cases in which the wide powers given to this Court by section 12 of the Act of 1961 may be called in aid to interfere with the verdict of a jury even in a case where technically there was evidence to support. the verdict. This is not such a case. The trial was conducted with exemplary fairness; the jury was warned in the most express terms about the danger of acting on the evidence of these young girls; they were, however, entitled to do so, they did and the verdict must stand. The application f^-or leave to appeal is dismissed.

Note 1   53 C.A.R. 82    [Back]

Note 2   1918 3 I.R 1    [Back]

Note 3   2 Frewen 72    [Back]

Note 4   1977 I.R 336    [Back]