Director of Public Prosecutions -v- Canty [2011] IECCA 111 (18 October 2011)

Judgment Title: Director of Public Prosecutions -v- Canty

Neutral Citation: [2011] IECCA 111

Court of Criminal Appeal Record Number: 316/10

Date of Delivery: 18/10/2011

Court: Court of Criminal Appeal

Composition of Court: Murray J., Budd J., Moriarty J.

Judgment by: Murray J.

Status of Judgment: Approved


Judgments by	Link to Judgment	Result
Murray J.	Link

Outcome: Allow Appeal v Conviction

COURT OF CRIMINAL APPEAL

RECORD NO.: 316/10

MURRAY J.
BUDD J.
MORIARTY J.

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

WILLIAM CANTY

APPLICANT

JUDGMENT OF THE COURT DELIVERED ON THE 18th DAY OF OCTOBER, 2011, BY MURRAY J.

This matter concerns an application for leave to appeal against the applicant's conviction on one count of sexual assault.

At his trial before the Circuit Court in October 2010 the applicant was charged with fifteen counts of sexual assault against two sisters who had acted as babysitters for his children in his home over a number of years. The offences were alleged to have occurred variously on dates between April 1992 and May 1997. Both sisters are nieces of the applicant.

Because one of the complainants, called as a witness at the trial, gave no evidence of the commission of any sexual assault on the occasion to which ten of the charges related, the jury, at the conclusion of the prosecution case, were directed by the trial judge His Honour Judge McCartan, to find him not guilty on those ten charges, namely counts 5 to 14 on the indictment. This direction was given following an application for such a direction by counsel for the defence without objection from the D.P.P.

This meant that it was left to the jury to decide on whether the applicant was guilty or not guilty on the remaining charges, namely counts 1 to 4 and count 15. Counts 1 to 4 related to alleged sexual assaults on D.C. and count 15 was the only outstanding charge in relation to the other sister, C.C.

As regards counts 1 to 4, the jury acquitted the applicant on two charges, namely, counts 1 and 2. They failed to agree on the two other charges concerning this sister namely counts 3 and 4. After the jury brought in their verdict the prosecution entered a nolle prosequi in respect of the two counts on which they had disagreed.

On the remaining charge of sexual assault, namely count no. 15 relating to the other sister, (and in respect of whom the jury had already been directed to find the applicant not guilty on ten counts) the jury found the applicant guilty by a majority verdict of 10 – 2.

It was against this conviction that the applicant applied for leave to appeal. He had been sentenced to eighteen months imprisonment on foot of this charge and he also appealed against that sentence. Accordingly, the application concerns one count only out of the fifteen counts originally contained in the indictment.

On 29th July, 2011 the Court announced its decision to grant leave to the applicant to appeal against his conviction and decided that the appeal should be allowed and the conviction set aside. The Court stated that it would give its reasons in a judgment to be delivered at a later date. This judgment sets out the reasons for the Court's decision concerning count 15.

Statement and Particulars of Offence
The particulars of offence have been amended insofar as the names and locations concerned have been made anonymous so as not to disclose the identity of the complainants involved. The Statement of Offence and Particulars of Offence have been set out seriatim to make clear what was read out at the arraignment and the contents of all 15 counts which were laid before the jury as the counts alleged against the accused applicant.

Count no. 1: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 8th April, 1992, and 22nd April, 1992, both dates inclusive, in a bedroom in Dublin, sexually assaulted D.C., a female.

Count no. 2: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 1st January, 1994 and 31st December, 1996, both dates inclusive, in a bedroom in Dublin, sexually assaulted D.C., a female.

Count no 3: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 1st January, 1994, and 31st December, 1996, both dates inclusive, on an occasion other than that referred to at Count 2 herein, in a bedroom in Dublin, sexually assaulted D.C., a female.

Count no. 4: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 1st May, 1997, and 31st August, 1997, both dates inclusive, in the sitting room of a house in Dublin, sexually assaulted D.C., a female.

Count no. 5: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 1st May, 1990, and 31st January, 1995, at an unknown address in Dublin, both dates inclusive, sexually assaulted C.C., a female.

Count no. 6: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 17th December, 1995, and 30th May, 1997, both dates inclusive, on an occasion other than that referred to in counts 5 and counts 7 to 14 inclusive, in a bedroom in Dublin, sexually assaulted C.C, a female.

Count no. 7: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 17th December, 1995 and 30th May, 1997, both dates inclusive, other than dates referred to in counts 5, 6 and 8 to 14 inclusive, in a bedroom in Dublin, sexually assaulted C.C., a female.

Count no. 8: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 17th December, 1995, and 30th May, 1997, both dates inclusive, other than those referred to in counts 5 to 7 inclusive and counts 9 to 14 inclusive, in a bedroom in Dublin, sexually assaulted C.C., a female.

Count no. 9: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 17th December, 1995, and 30th May, 1997, both dates inclusive, other than those referred to in counts 5 to 8 inclusive and counts 10 to 14 inclusive, in a bedroom in Dublin, sexually assaulted C.C., a female.

Count no. 10: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 17th December, 1995, and 30th May, 1997, both dates inclusive, other than those referred to in counts 5 to 9 inclusive and counts 11 to 14 inclusive, in a bedroom in Dublin, sexually assaulted C.C., a female.

Count no. 11: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 17th December, 1995, and 30th May, 1997, both dates inclusive, other than those referred to in counts 5 to 10 inclusive and counts 12 to 14 inclusive, in a bedroom in Dublin, sexually assaulted C.C., a female.

Count no. 12: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 17th December, 1995, and 30th May, 1997, both dates inclusive, other than those referred to in counts 5 to 11 inclusive and counts 13 to 14 herein, in a bedroom in Dublin, sexually assaulted C.C., a female.

Count no. 13: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 17th December, 1995, and 30th May, 1997, both dates inclusive, other than those referred to in counts 5 to 12 inclusive and count 14 herein, in a bedroom in Dublin, sexually assaulted one C.C., a female.

Count no. 14: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 17th December, 1995, and 30th May, 1997, both dates inclusive, other than those referred to in counts 5 to 13 inclusive, in a bedroom in Dublin, sexually assaulted C.C., a female.

Count no. 15: Sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001.

- William Canty, on a date unknown between 17th December, 1995, and 30th May, 1997, both dates inclusive, in a sitting room in Dublin, sexually assaulted one C.C., a female.

Facts
Counsel for the D.P.P. contended that, on occasions when each of the complainants had attended at the accused's family home in order to babysit his children, the accused had entered the bedroom in which that sister was sleeping and had sexually assaulted her while she was in bed. The alleged assaults consisted of the accused getting into the bed of the sister concerned and assaulting her by touching her private parts. This was alleged to have occurred in respect of counts 1, 2 and 3 in respect of D.C. and counts 5 to 14 in respect of C.C. Count 4 concerned an alleged sexual assault on D.C. by the accused by her touching her breasts in the sitting room of D.C.'s home. Count no. 15 relates to a similar sexual assault against C.C. which was alleged to have occurred in the sitting room of the applicant's home when she was babysitting on the night of what was described as a "hen party" when the applicant had arrived home unexpected early, apparently from a "stag party" being held at the same time.

Grounds of Application
The applicant appealed to the Court of Criminal Appeal for leave to appeal against the conviction and sentence on count 15. The grounds of application may be grouped under broad headings and are as follows:-

I. Application for Separate Trials and Discharge of the Jury

1. That the learned trial judge having directed the jury to enter verdicts of not guilty in relation to counts 5 to 14, erred in law by not discharging the jury.

2. That the learned trial judge misdirected himself in law and on fact in refusing to direct separate trials of the counts as sought by the defence at the outset of the trial.

The Judge’s Charge to the Jury

3. The learned trial judge erred in law in his charge to the jury on the issue of the significance and weight to attach to the testimony of C. C. on matters pertaining to the counts upon which he had directed the jury to find the accused not guilty.

4. That the learned trial judge misdirected himself in law in relation to the appropriate charge to the jury on the issue of the distress of C. C. being capable of being regarded as being corroborative of her allegation of sexual assault.

5. That the learned trial judge misdirected himself in law by not recharging the jury in the manner requested by defence counsel in relation to the said issue of distress being capable of being corroboration, in particular in relation to the evidence being capable of constituting weak, but actual, corroboration.

6. That the learned trial judge misdirected himself in law by not recharging the jury in the manner requested by defence counsel, namely in pointing out the unsatisfactory nature of the evidence provided by C.C.

7. That the verdict of the jury was perverse and against the weight of the evidence.

II. Sentence

8. That the learned trial judge imposed a sentence which was disproportionate and excessive, having regard to the circumstances of the offence and the circumstances of the applicant.

I. Application for Separate Trials and Discharge of the Jury

At the trial, counsel for the accused made an application at the outset to sever the indictment as between both complainants but this was refused by the learned trial judge on the basis that, applying the principles explained in D.P.P. v. B.K. [2000] I.R. 209 and other related authorities, a pattern of sufficient similarities of system emerged in the totality of the counts to warrant all complaints being tried together. Counsel for the D.P.P. then opened the case to the jury and her references to the facts included the instances of sexual misconduct allegedly committed against C.C. which formed the subject-matter of counts 5-15, in accordance with what had been narrated by C.C. in her statement in the Book of Evidence. The evidence of both sisters and other witnesses then duly proceeded, but what was most noteworthy in the evidence of C.C. was that, although she gave relatively detailed evidence of the most recent and indeed most serious instance of alleged sexual assault, as comprised in count 15, her references to the occasions covered by counts 5 to 14 made no complaints of sexual misconduct of a criminal nature of any kind, although she did describe instances of intimidatory and voyeuristic behaviour towards her by the appellant, on occasions when she had stayed at his house for babysitting "duties".

This conduct was described, in summary, by the learned trial as consisting of the accused coming into her bedroom at night, at a time when she was, to his mind, asleep but in fact was not; that he stood there for some time, and then the next day he would return at a time when she was known to him to be dressing and would force himself into the room in her presence and behave inappropriately; such as "sneering" as described by C.C. Thus the complainant C.C. did more than simply fail to give evidence of any sexual assault on the ten occasions referred to in counts 5 to 14 inclusive but gave evidence of non-criminal conduct amounting, as counsel for the D.P.P. put it at one point, "to somewhat unwholesome behaviour on the part of the accused".

At the conclusion of the prosecution evidence, counsel for the accused sought directions of not guilty on counts 5 to 14, and this application was promptly acceded to by the trial judge on a basis that no evidence of sexual assault on those occasions had been given. Thereupon, counsel for the defence renewed his earlier application to sever the indictment as between both remaining complainants, contending that the required elements of similarities of system or patterns of behaviour of the accused no longer pertained as regards the remaining counts, and also sought the discharge of the jury on the remaining count 15 in respect of C.C., given the prejudicial and inadmissible nature of her evidence in relation to the conduct of the accused in her bedroom.

The learned trial judge declined both applications, stating that he believed that a sufficient nexus remained between the complaints relating to both complainants to permit of the jury proceeding to consider all outstanding counts, and stating that he would charge the jury “in no uncertain terms” to the effect that non-sexual intimidatory contact between the applicant and C.C. on the earlier occasions had no relevance to their consideration of the outstanding count 15.

Counsel for the applicant submit that after the jury was directed to acquit the applicant in relation to 10 of the 11 counts relating to C. C., the trial judge should have acceded to the application by counsel for the defence to discharge the jury. Counsel contends that at this stage of the trial, the basis of the trial judge’s ruling for the refusal of separate trials, namely his finding that on the anticipated evidence there was likelihood of the presence of a system with features of like type of patterns of behaviour perpetrated by the accused, but these circumstances no longer prevailed and this change meant that the justification for such a joint trial had dissipated and this left an issue of unfairness.

It was also the concern of counsel for the applicant that the jury had heard evidence relating to the counts, already the subject of the learned trial judge’s direction to the jury to acquit, which in reality did not amount to evidence of sexual assault but, instead, was evidence concerning the applicant’s demeanour and behaviour on numerous occasions. This, according to counsel for the applicant, was prejudicial and would not otherwise have been admissible in evidence. To illustrate this point, counsel for the applicant cites the descriptions of the actions of the applicant in standing at the complainant’s bedroom door in an intimidatory manner. The evidence at the trial, according to counsel for the applicant, gave rise to severe prejudice to the applicant in the conduct of his defence, thereby compromising the fairness of the trial.

The Law
Section 5 of the Criminal Justice (Administration) Act 1924 provides for the joinder of counts on an indictment:-

“Subject to the provisions of the rules under this Act, charges for more than one felony or for more than one misdemeanour, and charges for both felonies and misdemeanours, may be joined in the same indictment, but where a felony is tried together with any misdemeanour, the jury shall be sworn and the person accused shall have the same right of challenging jurors as if all the offences charged in the indictment were felonies”.

The applicable Rules are set out in the First Schedule of the Act of 1924. Rule 3 provides as follows:-

“Charges for any offences, whether felonies or misdemeanours, may be joined in the same indictment if those charges are founded on the same facts, or form or are a part of a series of offences of the same or a similar character”.

The Act of 1924 provides for severance of counts, even where they are correctly joined on an indictment. Section 6(3) provides:-

“Where, before trial, or at any stage of a trial, the court is of opinion that a person accused may be prejudiced or embarrassed in his defence by reason of being charged with more than one offence in the same indictment, or that for any other reason it is desirable to direct that the person should be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of such indictment.”

In the case of The People (D.P.P.) v. B.K. [2000] 2 IR 199, the Court of Criminal Appeal described the rationale for separate indictments or trials as being that an accused person should not be unfairly prejudiced. The Court stated as follows:-

“While there may be cases where the trial judge may be able to charge a jury so that an accused is not unfairly prejudiced where evidence admissible on one count is inadmissible on another, in most cases the real test whether several counts should be heard together is whether the evidence in respect of each of several counts to be heard together, would be admissible on each of the other counts.

For such evidence to be so admissible, it would be necessary for the probative value of such evidence to outweigh its prejudicial effect. In practice, this test is applied where there is a similarity between the facts relating to the several counts. On the one hand, there is system evidence which is so admissible; and, on the other hand, there is similar fact evidence, which is inadmissible. In the latter case, the reason is that, just because a person may have acted in a particular way on one occasion does not mean that such person acted in the same way on some other occasion. System evidence on the other hand is admissible because the manner in which a particular act has been done on one occasion suggests that it was also done on another occasion by the same person and with the same intent.

There is a clear line of division between these two types of evidence even though it may be difficult in an individual case to say which side of the line the particular case falls. While the court uses the expressions "system evidence" and "similar fact evidence" to distinguish the two types of evidence, in some of the authorities to which we refer the words "similar facts" are used to describe what we refer to as "system". This in itself does not affect the reality of the distinction.

The basic test is applied to ensure that the effect of the natural prejudice which will arise from similarity of allegation is overborne by the probative effect of the evidence.”

In The People (D.P.P.) v. B.K. [2000] 2 IR 199, the Court of Criminal Appeal discussed a number of relevant cases and following this, identified fundamental and often cited principles:-

“(1) The rules of evidence should not be allowed to offend common-sense.

(2) So, where the probative value of the evidence outweighs its prejudicial effect, it may be admitted.

(3) The categories of cases in which the evidence which can be so admitted, is not closed.

(4) Such evidence is admitted in two main types of cases:-

(a) to establish that the same person committed each offence because of the particular feature common to each; or

(b) where the charges are against one person only, to establish that offences were committed.

In the latter case the evidence is admissible because:-

(i) there is the inherent improbability of several persons making up exactly similar stories;

(ii) it shows a practice which would rebut accident, innocent explanation or denial.

References to the jury seeing the full picture may be misleading. It means no more than that, in those cases where the evidence is admissible, to fail to admit it would mean that the jury would not get the full picture. It does not in any sense mean that inadmissible evidence should be admitted in particular circumstances”.

These principles have been cited with approval by the Court of Criminal Appeal in subsequent decisions, such as The People (D.P.P.) v L.G. [2003] 2 IR 517 and The People (D.P.P.) v Nevin [2003] 3 IR 32.

The case of The People (D.P.P.) v. B.K. [2000] 2 IR 199 was relied upon by both counsel for the prosecution and the defence in arguing for and against the need for separate trials. Counsel for the applicant claimed that it was prejudicial to him to have the counts relating to both D. and C. C. tried together. It was argued in the trial court, and repeated in this application, that there was no sufficient nexus by way of a system between the offences to permit them to be tried together. It was and is argued that the references to babysitting did not establish a nexus and neither did the girls’ relationship to each other.

Meanwhile, counsel for the prosecution argued that a strong nexus exists and that there was a strong similarity in relation to the preponderance of the accounts and the relationship between the parties to Mr. Canty. Further, the context in which the offences were alleged to have taken place, the furtive nature of it, the silence which accompanied it and the precise act involved all pointed to a nexus in the events. Counsel for the prosecution noted, however, that there was an exception as regards count no. 15.

The trial judge’s decision to permit a joint trial in this case was based upon principle 4(b) as outlined in the case of The People (D.P.P.) v. B.K. [2000] 2 IR 199 i.e. where the charges were against one person only, to establish that offences were committed. The judge held that there was a system in the method in which the offences were alleged to have been committed; and in particular:-

a) That all the events by and large, occurred in the applicant’s home except the single event in D.’s living room;

b) The range of ages were somewhat similar;

c) The nature of the offending was similar and the attempts by both complainants to resist it was disclosed;

d) The learned judge’s own previous decision and that of Judge Hunt. In this regard, it should be noted that the initial Bill of Indictment against the applicant had included a third female minor as a third complainant and, following argument, Judge Hunt had ruled that the counts referable to her should proceed separately, but had declined to sever the indictment as between the two sisters.

Counsel for the applicant submitted that the above matters were insufficient to reach the level of system. More specifically, counsel observed that the place of offending, such as one’s home, is insufficient to reach the level of system. Further, according to counsel, age ranges cannot point to a system although dissimilarity of age may negative a system. It was also observed by counsel that the reaction of an alleged victim cannot be part of a system as that is dependent on each individual complainant and cannot form part of a system put in place by a perpetrator. Finally, counsel argued that the judge’s own previous decision or that of another judge cannot affect the correctness or otherwise of the decision.

Counsel for the applicant referred the Court to a decision of the High Court of Australia in the case of Phillips v R [2006] HCA 4. In that case, the accused had been tried in respect of various counts of rape and indecent assault on six teenage girls. All of the girls were within the accused’s circle of friends and he was therefore identifiable or recognisable to each of them as the perpetrator. Further, there was an allegation of penile/vaginal penetration in relation to each girl, the offences were alleged to have occurred within a 16 month period and in each case there was a consensual beginning but the accused resorted to force when he met resistance. Despite these apparent similarities or systematic features having taken place, the High Court held that they were not sufficiently probative to permit joint trials. The High Court commented as follows:-

“Criminal trials in this country are ordinarily focused with high particularity upon specified offences. They are not, as such, a trial of the accused's character or propensity towards criminal conduct. That is why, in order to permit the admission of evidence relevant to several different offences, the common law requires a high threshold to be passed. The evidence must possess particular probative qualities; a strong degree of probative force; a really material bearing on the issues to be decided. That threshold was not met in this case. It was therefore necessary that the allegations, formulated in the charges brought against the appellant, be separately considered by different juries, uncontaminated by knowledge of other complaints … No other outcome would be compatible with the fair trial of the appellant.”

Counsel for the applicant argue that as the evidence contained in the Book of Evidence upon which the prosecution relied to argue system did not come to fruition at the trial, and that counsel for the prosecution had clearly accepted that count no.15 lay outside the system, the trial judge nevertheless permitted the trial to continue saying that “whilst a feature of a plank of the case in respect of the argument originally made for the severing of the indictment has gone, it does not defeat the position of the prosecution or the ruling of this Court in respect of a joint trial”. (Transcript Day 3 page 20 lines 10-13). Counsel for the applicant submitted that this is a statement which, as a matter of law, was incorrect.

Decision Concerning Separate Trials and Discharge of Jury for that purpose
There were two applications by counsel for the defence for separate trials in respect of the charges concerning the sister D.C. on the one hand and the charges concerning the sister C.C. on the other. The first of these was made at the outset of the trial and the trial judge refused that application.

The second application was made at the conclusion of the prosecution case when counsel for the defence applied for the jury to be discharged, inter alia, so that separate trials could be held in respect of, on the one hand, the four counts remaining which related to the sister D.C., and on the other hand, the one remaining, no. 15, relating to the sister C.C. The reasons for this second application are set out above and were principally founded on the fact that the direction to acquit given to the jury in respect of ten of the counts concerning C.C. meant that the same nexus did not exist and indeed that no sufficient nexus existed any longer between count no. 15 and counts 1 to 4.

As regards the first application for a separate trial which was made at the outset of the trial the Court considers that it can address this point fairly succinctly. As already indicated the trial judge made his ruling to refuse the application having regard to the principles explained in D.P.P. v. B.K (cited and quoted above). At that point the facts before the trial judge were such that three of the four counts relating to D.C. and ten of the eleven counts relating to C.C. concerned allegations of sexual assault by the applicant on each of the sisters when they were in bed in his house for the purposes of babysitting. The remaining count in each case concerned a sexual assault, of a groping nature, on each of the sisters, one in the sitting room of the home of D.C. when the applicant was there and the other, in the nature of a similar assault in the sitting room of the applicant's own home on C.C. when she had been there for the purposes of babysitting. A common thread through all alleged offences was that the applicant was alleged to have exploited the otherwise legitimate opportunity which he had of being alone with either of the sisters in his own home or, on one occasion in the complainant's home, by virtue of the relationship of uncle and niece and the familiarity which that entailed plus the inherent trust which members of both families would have had in him.

The Court is satisfied that there are no grounds for impugning the discretion exercised by the trial judge in deciding to refuse the application for separate trials. There was clearly sufficient nexus between the charges made in respect of both sisters and in making his decision the learned trial judge had due regard and properly applied the principles referred to above in the The People (D.P.P.) v. B.K.

Counsel's second application for a separate trial made at the conclusion of the prosecution case was, as indicated, made on the basis that the nexus or similarities which previously were found to exist between the two groups of charges had been removed by reason of the direction of the trial judge to the jury to find the accused not guilty on ten of those counts.

Although the learned trial judge acknowledged that one of the features of the pre-existing connection or similarity between the counts was gone by reason of the direction of not guilty in respect of ten counts of sexual assault, he went on to add

"However that doesn't end the matter in terms of connection or nexus or similarity. They again were both babysitting nieces of the accused, in the home of the accused and two of the complaints related to sexual wrongdoing against the accused in the living room. Had the application to sever the indictment been made at the commencement of this trial on the basis that they were the only five counts, against the accused and on that factual basis, I believe that a court would have, and I certainly would have come to the conclusion that it would have been fair and proper to allow the prosecution to proceed in respect of both complainants and, for that reason, whilst a feature or a plank of the case in respect of the argument originally made for severing of the indictment has gone, it does not defeat the position of the prosecution or the ruling of the Court in respect of a joint trial."

As was pointed out in the The People (D.P.P.) v. B.K., a court, may in its discretion, permit different charges and different charges in respect of different victims to be tried together on the same indictment inter alia to establish that the same person committed each offence because of particular features common to each or where the charges against one person only there is an inherent improbability of several persons making up exactly similar stories or it shows a practise which would rebut accident, innocent explanation or denial.

In the English case of D.P.P. v. P. [1991] 2 AC 447, Lord Mackay L.C. held as follows, at pp. 460-461:-

“The essential feature of evidence which is to be admitted is that its probative force in support of the allegation that an accused person committed a crime is sufficiently great to make it just to admit the evidence, notwithstanding that it is prejudicial to the accused in tending to show that he was guilty of another crime … Whether the evidence has sufficient probative force to outweigh its prejudicial effect must in each case be a question of fact”.

Lord Mackay L.C. also held, at p.462, that:-

“…the evidence referred to is admissible if the similarity is sufficiently strong, or there is other sufficient relationship between the events described in the evidence of the other young children of the family, and the abuse charged, that the evidence if accepted, would so strongly support the truth of that charge that it is fair to admit it notwithstanding its prejudicial effect”.

It is for the trial judge to assess whether the relationship is strong enough for the probative value of the evidence to outweigh its prejudicial effect. In the Irish case of C.B. v. D.P.P. (Unreported, High Court, 9th October, 1995), Budd J. observed that “the mere existence of multiple accusations of similar offences does not mean that the evidence will be admissible as it is still essential that there should be a sufficient degree of probative force to overcome the prejudicial effect of such evidence”.

Accordingly it was a matter for the learned trial judge in the first instance to weigh up and determine, in accordance with the foregoing principles and in particular those set out in D.P.P. v. B.K., whether the probative value of evidence being given in relation to all charges remaining on the indictment outweighed any potential prejudicial effects for the accused.

Undoubtedly the evidence of similarity or system in the complaints of both sisters had been diluted in the light of the overall evidence of C.C. and the directions granted in relation to counts 5 to 14 but, as stated by the learned trial judge in his latter ruling, a number of significant common elements continue to subsist which included the elements read referred to above of the accused exploiting the kind of access to the two nieces in the home environment which he otherwise legitimately had by virtue of the family relationship. In all the circumstances of this particular case the Court is satisfied that the learned trial judge had properly exercised his discretion, in accordance with established principles, to refuse the application for separate trials at that stage.

Application to Discharge the Jury and Judge's Charge to the Jury
At the close of the prosecution case counsel for the defence submitted that the jury should in any event be discharged on grounds separate to that related to his application for separate trials.

In summary the ground upon which counsel for the defence sought the discharge of the jury in this context was the fact that C.C. had given prejudicial and irrelevant evidence of non-criminal but unwholesome conduct on the part of the accused on the various occasions to which the ten counts withdrawn from the jury related. While the complainant had not given evidence of any criminal conduct, let alone sexual assault relating to these occasions, she had given evidence of conduct amounting to intimidation and actions which caused distress to the young girl. All this evidence had no probative value in relation to the one remaining charge of sexual assault concerning C.C. It did not, it was submitted, and could not have formed part of the case against the accused and the prejudicial effect of such evidence was so overwhelming that the jury should be discharged at that juncture.

Counsel for the prosecution submitted that it was for the Court to determine whether such evidence could be treated as part of the background evidence to the case but that in any event any prejudice that has resulted from the giving of such evidence could be cured by the trial judge's directions to the jury at the conclusion of the trial. On that basis counsel submitted that the application should be refused.

In his ruling on this aspect of the application to discharge the jury the learned trial judge acknowledged that the evidence in question suggested that the accused "was someone who put her in fear, who acted inappropriately and who did things that were not proper but fell short of any complaint or suggestion of sexual assault".

He concluded that the evidence in question had no probative value. The Court is satisfied that the trial judge was correct in that conclusion since evidence of a disposition to engage in "unwholesome" behaviour is not, without more, admissible as evidence to prove that an accused had, on some other occasion in some other place, actually committed the offence of sexual assault.

As regards that evidence the trial judge also concluded that "I would not be prepared to admit it as being relevant or to ask the jury to base any weight upon it in assessing the facts of what occurred in the living room on the day"; this was a reference to the one remaining count in respect of C.C. of sexual assault in the living room of the accused's home.

He referred to the fact that juries are robust, take their roles seriously and are capable of being directed correctly on the law.

In the course of his ruling he emphasised that "the jury will be told, in no uncertain terms, that the evidence in respect of other events surrounding the bedroom is of no relevance to the event alleged to be involved in count 15." In concluding his ruling and refusal to discharge the jury he stated "I am satisfied that they are capable of being properly directed on this matter. I don't propose, therefore, to accede to the application to discharge the jury …"

With regard to the judge's charge to the jury, counsel for the applicant contended that the trial judge’s reference to the evidence of C. C. regarding what allegedly occurred in the bedroom was wholly prejudicial and unfair to the applicant. Counsel argued that the trial judge should have informed the jury that the evidence of C. C. was of no relevance and should be disregarded. Instead, according to counsel, the trial judge’s comment actually reinforced in the jury’s mind that there had been ten other complaints by her.

Counsel for the applicant submitted that the trial judge ought to have acceded to the request to recharge the jury by reference to the weakness of the evidence in the case. This ground is supported by counsel with reference to the trial judge’s charge when dealing with a civil claim brought by C. C.:-

“one wonders – in my mind, I ask myself if her motivation is the pursuit of money, the more you can complain of, the more you can tell, the greater one would expect the rewards. Here, whilst the trial started out on C. complaining of –for want of a better description – 11 separate complaints, she has now, if you like, reduced all of that to the hen party night. She can’t say anything else. So, if the motivation is money as evidenced by the issuing of civil proceedings, she’s gone completely in the opposite direction in terms of her own selfish interests. ..”

(Transcript, Day 4, page 16, line 31).

Counsel for the applicant submit that by making such a comment, the trial judge had brought into play the allegations of misconduct in the bedroom in an unfair manner. According to counsel, the trial judge had effectively made the evidence as to misconduct relevant to the jury decision on count 15.

The trial judge addressed the evidence of C. C. in the following terms:-

“It has been suggested that the failure of C.C. to, if you like, measure up in her testimony about the allegations of what was alleged initially to have occurred in the bedrooms as contained in the charges from counts 5 to 14 also has a reflection upon her capacity or her reliability as a witness generally. So, if you are caused to stop and wonder about that, if it gives you doubt, if it raises a doubt in your mind, ladies and gentlemen, in short, if she wasn't able to rely or relay the evidence to you in respect of the allegations contained in counts 4 -- sorry 5 to 14, then does that raise questions in your mind in respect of what she says occurred on the night of the hen party and relates to count 15? That is a matter quintessentially for you, ladies and gentlemen, and it has been raised and it is proper that it should be raised. It's for you to consider. Are you left wondering? If you are, you have a doubt and you must acquit the accused.”

(Transcript, Day 4, Page 16, Line 2)

Conclusion
The issues raised concerning the prejudicial nature of this evidence are linked to both the application to discharge the jury at the conclusion of the prosecution case, and the submission that there was a failure to give any or sufficient direction concerning such evidence to the jury. In the circumstances, the evidence having been admitted at the trial, the Court has considered it appropriate and sufficient to rule on these matters, by reference to the applicant's case that the trial judge failed to give any or sufficient direction to the jury in his charge.

It is not an issue, as the trial judge himself concluded in the course of the trial, that a significant amount of evidence had been given by C.C., namely that concerning the allegedly "unwholesome" but non-criminal conduct of the accused, had no probative value in relation to the one remaining charge in respect of C.C. and was prejudicial in its nature.

It is clear that the jury, having been permitted to reach a verdict on the applicant in relation to their charge required, at the very least, a clear and specific direction from the trial judge concerning the status of that evidence and in particular its irrelevance to the issue which they had to try and their duty to put it out of their minds. It will be recalled that the trial judge himself had stated that the jury would be directed "in no uncertain terms" that the evidence in respect of these matters was of no relevance to the events alleged to be involved in count 15.

While the directions of the trial judge given to the jury generally were impeccable, the absence of any direction to this effect let alone a clear and explicit direction to the jury that the evidence in issue was irrelevant and should not be taken into account, can only, in the circumstances, raise a real doubt as to the safety of the verdict arrived at by the jury. This was not simply a case of a witness failing to give evidence sufficient to establish the occurrence of an offence on the ten occasions related to the ten charges in question, but one where the witness also gave evidence which was prejudicial and of no probative value and which otherwise would have been inadmissible. Neither can it be ignored that the jury on the five counts on which it was required to bring in a verdict acquitted or failed to convict the applicant on four of those five charges and did so in relation to the fifth charge on the basis of a majority verdict.

Having regard to the absence of a clear and specific direction to the jury on the matters referred to, the Court is satisfied that the verdict of the jury in relation to count no. 15 could not be considered to be a safe verdict.

It is for the foregoing reasons that the Court has allowed the application of the applicant to appeal, allowed the appeal and set aside the verdict.

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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> Director of Public Prosecutions -v- Canty [2011] IECCA 111 (18 October 2011) URL: http://www.bailii.org/ie/cases/IECCA/2011/C111.html Cite as: [2011] IECCA 111

Irish Court of Criminal Appeal