Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- E. C.

Neutral Citation: [2006] IECCA 69


Court of Criminal Appeal Record Number: 9/03

Date of Delivery: 29 May 2006

Court: Court of Criminal Appeal

15

At the Central Criminal Court in Dublin on the 18th of December, 2002, the applicant was convicted by a jury on the following counts:-
(a) One count of unlawful carnal knowledge and five sample counts of indecent assault of A.K. , a female under the age of 15 years, at 3 Woodfield Terrace, on certain dates between the 31st of January, 1976, and the 30th of June, 1977.
(b) Nine sample counts of indecent assault of S.K., a female under the age of 15 years, at 3 Woodfield Terrace, on certain dates between the 14th of May, 1974, and the 13th of May, 1978.
(c) One count of attempted rape and eight sample counts of indecent assault of F.G., a female under the age of 15 years, at 1 Heatherveiw Avenue, on certain dates between the 31st of January, 1987 and the 8th of November, 1988.
(d) Nine sample counts of indecent assault of C.G., a female under the age of 15 years, on eight occasions at 1 Heatherview Avenue, and on one occasion at the Savoy Cinema in Dublin, on certain dates between the 31st of January, 1987 and the 8th of November, 1988.

The trial took place over a period of four weeks. On the 12th of March, 2003, the trial judge sentenced the applicant to the following:-
(a) On the count of attempted unlawful carnal knowledge of A.K., he sentenced the appellant to four years imprisonment. He also sentenced the appellant to two years imprisonment on one count of indecent assault and a total of five years for the remaining three counts of indecent assault. The two year and five year sentences were to run concurrently with one another and the four year sentence was to commence thereafter. Therefore on these charges the applicant was sentenced to a total of nine years imprisonment.
(b) On the nine counts of indecent assault of S.K., the trial judge sentenced the appellant to two years imprisonment in respect of one of these counts and five years for the remaining eight counts to run concurrently. Therefore he sentenced the applicant of these charges to a total of five years imprisonment.
(c) On the count of attempted rape of F.G., he imposed a sentence of ten years and sentences of five years on each of the eight counts of indecent assault of F.G., each to run concurrently.
(d) On the nine counts of indecent assault of C.G., he sentenced the applicant to five years imprisonment on all counts, all of them to run concurrently.

The sentences were backdated to the 7th of November, 2002. The applicant’s name was also registered on the register of sexual offenders.

Despite the multiple grounds of appeal lodged, Mr. Patrick Gageby, who is now Senior Counsel on behalf of the applicant, indicated at the outset of the hearing that the appeal would effectively be confined to a single ground of appeal. That was a ground which, by order made by a differently constituted membership of this Court on the 17th of January, 2005, allowed the applicant (apparently by consent) to add to the original grounds of appeal the following ground as follows:-

“That the learned trial judge erred in failing to warn the jury in his charge of 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.”

Mr. Gageby suggested that the possible and most likely reason for the failure to requisition lay in the fact that, prior to the commencement of the trial, there had been a seven day hearing in which the applicant had sought to restrain the trial from proceeding by reason of complainant delay. This was not part of the trial proper, but was an issue raised by way of motion preliminary thereto and was one heard and resolved on oral evidence by the trial judge. In refusing that application, the learned trial judge ruled, inter alia, that he was satisfied that the applicant’s capacity to defend himself had not been impaired to such an extent that it would require the trial of the offences to be halted. Mr. Gageby suggested that the failure to revisit the issue of delay when charging the jury was possibly due to the fact that so much time had been spent in arguing the effects of delay in the absence of the jury before the trial began that counsel on both sides simply put the issue to one side in their minds thereafter.

The Court can only assume that this is why the respondent consented to the late addition of the ground of appeal in relation to delay which is set out above. Without conceding that a warning was in the circumstances of this particular case required to be given by the trial judge, counsel for the respondent in the course of this hearing did not seek to prevent the applicant from arguing or relying upon this ground, nor did he seek to rely upon the recent decision of in The Matter of Section 29 of the Courts of Justice Act, 1924 : the People (Director of Public Prosecutions) v. Mark Cronin (unreported, Supreme Court, 3rd March, 2006) which, broadly speaking, holds that a point not taken at trial should not, in the absence of an apprehension that a real injustice may occur, be permitted to be argued on appeal.

Relevant legal principles

In The People (Director of Public Prosecutions) v. P.J. [2003] 3 I.R. 550, this Court, (per McGuinness J.) commenting on the issue of delay, stated at p.568:-

“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 been repeatedly stressed both by this Court, by the High Court and by the Supreme Court… the problems caused for the defence by delay on the part of a complainant were dealt with in great detail by Hardiman J. in his judgment in J.L. v. D.P.P. [2000] 3 I.R. 122. It has again and again been pointed out that trial judges are obliged to issue appropriate directions and rulings to avoid the possible prejudicial effect of delay in sexual abuse cases.”

“We fully concur with the conclusions reached by this Court in The People (Director of Public Prosecutions) v. R.B. (unreported, Court of Criminal appeal, 12th February, 2003). It may not always be necessary for a trial judge, in charging the jury in this type of case, to go into such elaborate detail as to the effects of delay. In our view, however, he or she should deal reasonably fully with the various aspects of the problems caused by delay in the making of a complaint of this nature.”

“The court is satisfied that in a case such as this where a long interval exists between the date of the offences alleged and the trial itself, the charge of the trial judge to the jury in this particular case was adequate and appropriate insofar as it dealt with the problems which flow from such delay, and insofar as a warning should be given as to how such cases should be approached by a jury in the course of its deliberation.”

In the case of D.P.P. v. L.G. [2003] 2 I.R. 517, Keane C.J., in giving the judgment of this Court, stated the following in relation to the issues of corroboration and delay:-

“ The court is satisfied that, given the very significant delay of 27 years that had elapsed in this case, these could not on any view be regarded as adequate warnings to the jury of the dangers of a conviction in respect of any of the counts after so great a lapse of time. There was no indication to the jury of the problems that this inevitably would create for the defence in preparing for the trial, including the death of one of the members of the family and the difficulty for the accused in assembling evidence as to whether he was in fact living in the house at the time the episodes were alleged to have occurred. Those were incidents of possible prejudice which were specific to these proceedings and of which the jury should have been reminded by the trial judge. The jury should also have been told by the trial judge that, in assessing the credibility of both complainants, they would have to bear in mind that they had not complained to the gardaí until more than 20 years had elapsed…. While it was urged on this court that counsel for the accused laid stress on the importance of these aspects of the delay in his closing address to the jury, the court is satisfied that, given the weight that they would attach to specific directions on these matters by the trial judge, the fact that they were the subject of comment by counsel for the accused is not sufficient to justify the absence of such directions by the trial judge.” (pp.528-529)

“This was quite obviously a case in which one would not be in the least surprised to find that a trial judge would consider it necessary to give a warning for three reasons: first of all, there was no corroboration of the victim’s story; secondly, this happened some 22 years ago and time can do strange things to people’s memories of events so long in the past; thirdly, there was no complaint made at the time and while there may well have been reasons, assuming the complainant’s version of events were true, as to why there was no complaint it is nevertheless a factor to be considered. These were all points to which the jury’s attention had to be drawn once the trial judge had quite properly come to the conclusion that this was a case in which, clearly, a warning should be given.”

In R. v. Percival (The Times, July 20, 1998) where there had been a delay of at least 28 years between the alleged offences and the making of the complaints, the Court of Appeal said that it was not the case that a judge was bound to stay the proceedings, but such delay must threaten the fairness of any trial especially where the prosecution depends on late complaint and oral testimony. Before a conviction could appear safe, the court would have to be satisfied that the judge had confronted the jury with the fact of delay, and its potential impact on the formulation and conduct of the defence and on the prosecution’s discharge of the burden of proof.

The Facts and Submissions

Having regard to the conclusion the Court has come to in relation to this appeal, the reference to the facts will be confined to a bare outline only. In the instant case, two of the complainants, S.K. and A.K., alleged they had been sexually assaulted between the years 1974 and 1978. The two latter complainants, F.G. and C.G., contended they had been abused between 1987-1988. In the case of S.K., 22 years had elapsed between the date of the last offence and the date of complaint to the Gardai. In the case of A.K. the delay was also 22 or 23 years. While it appears in the case of A.K. that some complaint was made to the Garda Siochana in 1984, no prosecution followed at that time. In the case of F.G. there was a delay of 12 or 13 years from the time of the last offence to the date of complaint. In the case of C.G. in the region of 12 or 13 years elapsed between the date of the last offence and the date of complaint.

In those circumstances, Mr. Gageby argued that a warning as to the effects of delay was mandatory, and the only discretion of the trial judge was as to the nature and extent of the warning to be given. He pointed that in the case of one of the complainants, it had emerged that she had gone to the Garda Síochána in 1984 but no prosecution had followed. This fact alone should have triggered the requirement to give a specific warning in relation to that complainant. The applicant had never received or been shown any material in relation to that complaint at that particular time and, in the absence of having such material, it became more difficult for the applicant to defend the complaints brought by this particular complainant. Mr. Gageby further submitted that the trial judge in ruling on the pre-trial motion, clearly took the view that a degree of prejudice was present, because he ruled that any element of prejudice present was not of such a degree as to altogether prohibit the trial. At no stage had he found a complete absence of prejudice, such as might absolve him from the requirement to give an appropriate warning. While the State appeared to contend that the applicant in giving evidence denying the offences exhibited a good recall for the times when the offences were alleged to have occurred, this in no way addressed concerns which had to exist in relation to the recollection of the complainants.

On behalf of the respondent, Mr. McCarthy argued that a warning was not necessary having regard to the particular facts of this case. This was a case in which there had been extensive corroboration, in that there were four complainants, each of whom corroborated the other. This was not to say that the mere allegations by the first two complainants supported those of the latter two complainants, but rather that the first two complainants were both present on occasions when some of the offences were alleged to have occurred. However, common to all four complainants was evidence of a system of abuse, whereby the applicant sought to win the girls’ confidence by giving them gifts and treats, then by inviting them to his home and thereafter in subtle stages initiating inappropriate sexual contact. Other corroboration was to be found in the accused’s own testimony at the trial, when he accepted he had been present on one occasion with one of the latter complainants in the Savoy cinema when a sexual impropriety was alleged to have occurred. There were also some objective elements of corroboration, including valentine cards which had been sent to some of the complainants by the applicant. He further submitted that, given that the transcript indicated that the applicant had ‘an excellent recollection’ of the relevant times and individual complainants, there was no real prejudice arising by virtue of delay. Alternatively, the obligation to warn arose only in respect of the early offences between 1974-1978, and not in respect of the more recent offences.

On being pressed by a member of the Court as to whether the trial judge could have reasonably refused a requisition to recall the jury to give a warning about the effects of delay, Mr. McCarthy simply stated that he could not really state whether the trial judge might reasonably have refused such a request. Mr. McCarthy urged the court to apply the proviso under Section 3 of the Criminal Procedure Act, 1993. He submitted that the court could do this if it took the view that the trial judge was not under any absolute duty to give a warning in respect of delay and if the court was satisfied that no miscarriage of justice had actually occurred.

Decision

The authorities referred to above clearly establish that, in sexual abuse cases where there has been lengthy delay, a warning to the jury of the dangers thereby arising should be given by the trial judge in the course of his summing up. Naturally, the extent and nature of the warning will vary from case to case and turn on the particular facts of the case in question.

This Court in The People (Director of Public Prosecutions) v. C.C. (unreported, 2nd February, 2006) once more approved as a good example of an appropriate warning that given by Haugh J. in The People (Director of Public Prosecutions) v. R.B. which was in the following terms:-

“I now want to move from the general, not totally to the particular, but to this kind of case. You have heard in this case, and it is undoubtedly a further difficulty, for the case, that this is a case of an old complaint. The events that you have to decide here are alleged to have occurred more than fifteen years ago. It obviously makes the task for a jury and the task for a court in trying these cases a lot more difficult. As Mr. McKeon says, they normally degenerate into one man’s word against another, a ‘you did, I didn’t, you did, I didn’t’ kind of a contest and that is because when you are dealing with old complaints, you are dealing with events from a long time ago and for the very reason that they are so old they generally lack precision, they generally lack detail. And it is in precision and in detail that cross-examinations generally take place. Witnesses seldom change their stories and admit that what they had said was a fabrication or a lie. You probe looking for the truth by questioning people in relation to detail. If there are contests, as there are in this case or any case where there is a plea of not guilty, again it is much easier to defend an allegation when there is detail alleged against you. If somebody alleged that any one of you had assaulted me in the middle eighties and left it no more than that, it is very, very hard for you to defend it. I think that would be accepted by all of you and it is, no doubt, so. But if I had complained that one of you had assaulted me last July, if I had complained that one of you had assaulted me on the 17th of July, the chances are that you will be able to work out your whereabouts at that time and who can vouch for you at that time and be able to grapple with issues on the basis of detail. You will be able to look up your diaries maybe, if you keep them, or check with your employers if you have them and you may have been on holidays. But how can a person be expected to attack the allegation, to contest the allegation with any subtlety, with any detail, with any forensic form of attack if all you are told about it is that you did it about 15 years ago on some date unknown over a period of 18 months? That, I suggest to you, makes it far harder to defend it than it is to prosecute it. In fact, to prosecute it is easier if you do not nail your colours to the mast because there is less you can be cross-examined on. But the law does not say that stale cases, old cases, cannot be tried. But what I must tell you is that an accused person cannot in your minds or in your consideration be disadvantaged because the case is old, because the complaint is related to events from a long time ago. You have to be all the more careful and it should be much harder to satisfy you in relation to an event that is phrased in a vague and general way, rather than an event which carries details or particulars. You cannot let the fact that Mr. B. is handicapped by reason of the lack of precision in the charge cause you to come easier to a decision adverse to him. The State should not take benefit from old cases. Their life should not be made easier by bringing old cases. Juries must, with their hand on their heart, recognise the huge difficulty that accused persons have of dealing with old cases and be all the more careful and take that into account when arriving at a decision.”

“can only be seen as exponentially magnified where there are multiple complainants and a single accused. His difficulties of recollection, his difficulties in finding witnesses, or of even remembering the identity of individual complainants are all magnified in direct relation to the number of complainants who come forward. So, while the difficulties of delay may in such circumstances recede to some degree from the prosecution’s point of view, they are multiplied and exaggerated from a defendant’ s point of view.”

Given that the applicant was unaware that one of the complainants, being one of the first two complainants, had gone to the gardaí in 1984, and given that any documentation from that time was never available to him, the Court is driven to conclude that there may as a result have been an element of specific prejudice in this case, particularly where that complainant is concerned. That being so, it was a prejudice which could only be overcome by a means of appropriate directions from the trial judge in the course of his charge. Even without that particular and specific prejudice, the delay in all of these cases was of such a degree that this Court is satisfied that some warning by way of guidance about the dangers of delay in general should have been given to the jury. In this context the Court does not believe that any meaningful distinction can be drawn between the first group of complainants and the second group, particularly having regard to very tender years of the later complainants at the times of the alleged offences involving them.

Unfortunately, through no fault of the trial judge, counsel for both sides simply failed to direct the trial judge’s attention to the requirement to give an appropriate warning, either before his summing up commenced or by means of a requisition when it had ended. It was a most unfortunate omission by counsel, having regard to the impeccable handling of this case at all stages by the learned trial judge over a period of several weeks.

However, without laying down in any detail the nature or extent of the warning which should have been given in this case, this Court is satisfied that some sort of warning was essential and that without some such warning the conviction herein cannot be regarded as safe. Nor is it a case to which the Court can apply the proviso set out at s.3 of the Criminal Procedure Act, 1993, because the omission of the warning has to be seen as going to a central and critical aspect of this whole case. Indeed the fact that the time of the trial court was taken up for seven days in resolving the preliminary issue as to whether the delay was such as to warrant prohibiting the trial altogether provides the strongest support for this view.

In so holding, the Court does not differentiate between the older and more recent sets of cases. Even in the more recent cases, there was nonetheless a significant delay in excess of 10 years prior to the trial, and the fact that those particular complainants were of very young age at the time of the alleged offences is a factor which of itself would suggest the requirement for a warning.

The Court will therefore quash the convictions and direct a retrial.