Director of Public Prosecutions v S.A. [2020] IECA 60 (11 March 2020)

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The President

Whelan J.

Kennedy J.

BETWEEN

THE COURT OF APPEAL

[214/18]

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

AND

S. A.

APPELLANT

JUDGMENT of the Court delivered on the 11th day of March 2020 by Ms. Justice Isobel

Kennedy

1. On 2nd April 2018, following a 42-day trial, the appellant was convicted in the Central

Criminal Court on three counts of rape and 20 counts of sexual assault. The trial involved

two complainants, who were sisters, CE and JE, who were 10 and 12 years, respectively,

at the time of the alleged offences, which related to the period 3rd December 2010 to

11th March 2011.

The Factual Background

2. CE and JE and their two younger siblings, are the children of RE. They lived with their

mother at various addresses in England from birth. The evidence at trial was that the

children had different fathers, that RE lived in somewhat chaotic and reduced

circumstances. She was known to social services in the UK in the context of parenting

issues.

3. In 2010, the family were living in the Surrey area. CE, in her evidence, described their flat

as “a mouse hole”. At some stage in 2010, RE renewed acquaintance with the appellant

who had been a long-time friend of her brother. The appellant would later intimate to

Gardaí that he was a professional gambler and he gave the appearance of being a person

of some financial substance, owning a valuable, substantial detached house in West

Sussex. He was separated from his wife and the mother of his two children.

4. In 2010, when RE was experiencing difficulties with social services, the appellant invited

her and her four children to come and live with him at his home. He provided a luxurious

and lavish lifestyle, fee-paying schools, horse riding, stabling horses for them and

furnishing a large number of expensive presents. In late 2010, social services in Surrey

had been in contact with the West Sussex Social Services. Concerns in relation to

accommodation were no more, but there were concerns in relation to SA’s involvement

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with the children, particularly concerns about personal grooming of the older girls such as

bathing, etc.

5. In November 2010, social services had requested that RE and SA agree to a contract of

arrangements which would involve the giving of undertakings relating to non-involvement

of SA in the personal physical grooming of CE and JE

6. According to CE, SA picked her up from school one day, told her that he and her mother

did not intend to agree to the conditions and that they were going to Ireland on holidays.

At very short notice, the appellant, RE and her four children travelled to Ireland on 19th

November 2010. They stayed at a number of hotels in the greater Dublin area and all

expenses were paid by the appellant. On around 3rd December 2010, SA, after viewing

properties in the County Louth area, rented a substantial detached house on its own

grounds with gated security and stabling for horses.

7. Separately, SA had brought another single mother with children to Ireland and had

installed them in a separate house very near to the first property. This was HP and she

and her two children, BP and RP, had also made acquaintance with SA shortly before the

move to Ireland.

8. The weather in December 2010 was unusually severe. This partly explained why RE was

absent from the rented house for periods. On one occasion, SA, despite the very poor

road conditions, travelled to Dublin in a taxi with CE for the purpose of retrieving a car

left by RE at Dublin Airport. The evidence at trial was that the weather was so poor that

SA and CE ultimately stayed at the Hilton Hotel in Dublin Airport that night, sharing a

bedroom. CE told the jury at trial that during the night, SA raped and sexually assaulted

her on two occasions.

9. On the first occasion, she described falling asleep watching a pay-per-view movie on

television when she became aware that he was sexually molesting her and that he had

raped her. She subsequently fell back asleep. She told the jury that the accused later told

her that her mother had communicated her whereabouts to her English grandmother and

relatives, and that as a result of their concerns, a request was made by the UK police to

Coolock Gardaí to check on the appellant. The evidence was that Gardaí were not aware

of any concerns about sexual impropriety, but simply went to the hotel to check on their

presence. This the Gardaí did, and CE’s evidence was that after the Gardaí had left, SA

once more sexually molested her.

10. CE’s evidence was that following the incidents in the Hilton Hotel, that SA had thereafter

raped and sexually assaulted her on a number of occasions at the rented accommodation

until the time when they were taken into care by Gardaí/Tusla on 13th March 2011. CE’s

evidence was that she, her sister, JE, and her other siblings all slept on the first floor of

this substantial residence and that SA had his bedroom on the first floor also, beside the

girls’ bedrooms, while their mother occupied the entire second upper floor of the house.

CE told the jury that on occasions, SA would come into her bedroom, would lie beside her

on her bed and would scratch/rub her back and then would rape and sexually assault her.

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She said that she did not tell her mother, or indeed anyone else about the abuse.

However, after she went into care, she told another fostered girl, whom she felt she could

trust, on 31st March 2011. This disclosure came about 18 days after CE went into foster

care and led to Gardaí and Tusla being notified.

11. It may be of assistance to refer to contact between the social services in England and the

HSE/ Tusla. It appears that after RE and SA had failed to present for an appointment with

West Sussex Social Services, that the social worker, Mr. M, and colleagues became

aware that there was a possibility that SA and the E family had moved to Ireland. A

notification issued. There seems to have been some delay in referring the matter to a

social worker, but in any event, a social worker, Ms. P, visited the rented house on or

about 5th January 2011. She was unimpressed by what she saw despite the lavish

accommodation. She was concerned that although the children had been in the

jurisdiction since 19th November, none of the older children had been enrolled in school.

She spoke with SA and indicated that if the older children were not placed in school, the

authorities would have to become involved. SA said he would arrange for the children to

be placed in school, but when the social worker, Ms. P, returned to the house on 21st

January 2011, she was advised by the young, male housekeeper, , that the appellant, RE

and RE’s children had travelled to the United States to Disneyworld and were not due

back until the end of January 2011. Apparently, because of Ms. P’s intervention, the

children were subsequently enrolled in local schools and started to attend school from

early February 2011. It appears that SA arranged for the two younger children, J and M,

to be placed in a private crèche facility in the Louth area.

12. The children were enrolled in school in February 2011. Some of the teachers and local

parents started to notice what they felt was unusual behaviour in relation to the

interaction between the appellant and JE. At trial, there was evidence from a number of

teachers of having noticed SA kissing JE and/or handling her in an inappropriate manner.

It appears that such was the unease on the part of some of the teachers, that they raised

their concern with the principal of the school.

13. During the trial, the jury heard evidence by way of s. 16 DVD interviews conducted with

both complainants. These interviews were conducted by specialist Garda interviewers.

The Events of March 2011

14. In March 2011, RE travelled to England to visit friends and left the children in the sole

care of SA. On her return, on 6th March 2011, she was admitted to hospital in Drogheda

for a relatively minor complaint. During the course of her hospital stay, she was visited by

social workers, Ms. P and Ms. L, who expressed concern about the children being in the

sole care of the appellant. By this stage, social workers were aware of concerns that had

been expressed by teachers in the school and had also been in receipt of the notification

from the British authorities. Social workers requested that RE agree to the children being

put into temporary care during the period that she was an in-patient in the hospital, but

this she refused to do.

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15. The evidence at trial was that the appellant, in the company of HP and her two children,

collected the children from their schools and crèches and then drove with the children

across the border into Northern Ireland. They took up occupation in a rented house in

County Down. Subsequently, RE made a complaint to Gardaí that her children had been

taken out of the jurisdiction by the appellant without her consent and this gave rise to a

nationwide appeal with a view to locating the four E children. The E and P children were

located by the PSNI and SA and HP were arrested but released without charge. The P

children were taken into care by social services in Northern Ireland. The E children were

also taken into care of the PSNI and were then handed over to the custody in care of the

Gardaí/Tusla and they were later placed in temporary foster care following Emergency

Court Orders obtained by Tusla on 13th March 2011.

16. After SA and HP were released without charge by the PSNI, SA did not return to the

rented house or to his substantial residence in the UK, nor did he stay in Northern

Ireland. Instead, he travelled, in the company of HP, to South America and took up

residence in Chile. Chile does not have an Extradition Treaty with Ireland. He left

Northern Ireland sometime in the spring of 2011 and was not apprehended until he

entered the United States of America in the summer of 2014 for the purpose of attending

a gambling convention in Florida. His extradition was sought from the United States. He

did not contest it, and on 24th July 2014, he was arrested following his extradition.

17. It will be noted that there was a significant period of delay in this case from the time the

children were taken into care in March 2011, until the date of extradition on 22nd July

2014, and further delay until the trial date in January 2018. It may be noted that there

were two earlier trial dates in 2016 and 2017, but both listings were aborted.

18. A number of grounds of appeal have been advanced, two of which were abandoned at the

hearing of this appeal. The remaining grounds are:

(i) That the judge erred in law by admitting the four DVDs of the specialist

interview with JE.

(ii) That the judge erred by refusing to excise portions of the DVD of the

specialist interviews with JE.

(iii) That the judge erred by refusing to excise a portion of the DVD of the

specialist interview with CE.

(iv) That the judge erred in permitting background evidence to go before the

jury.

(v) That the judge erred in refusing to withdraw the case from the jury in its

entirety.

(vi) That the judge erred in failing to properly warn the jury in respect of delay

and corroboration.

(vii) That the judge erred in allowing the replaying of certain portions of the DVD

to the jury.

(viii) That the judge erred in failing to adequately recharge the jury following

requisitions.

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(ix) That the judge erred in law by failing to give a stronger warning in relation to

relevant press coverage.

Ground 1-The Admission of the DVDs of Interview with JE

19. The prosecution sought to introduce into evidence five DVDs of interviews with JE. All but

the fifth and final DVD were admitted. Those interviews took place on the 29th August

2011, the 7th September 2011, the 26th September 2011 and the 9th October 2012. The

first three interviews were conducted by Garda Yvonne Peoples and the fourth interview

was conducted by Garda Peter O’Sullivan.

20. The challenge to the introduction of the DVDs, to a large extent focussed upon alleged

breaches of established rules of evidence, and more particularly, the Good Practice

Guidelines of 2003 (for persons involved in video recording interviews with complainants

under 14 years of age (or with intellectual disability) for evidential purposes in accordance

with section 16(1)(B) of the Criminal Evidence Act 1992, in cases involving sexual and/or

violent offences.)

21. The issue of the admissibility of the DVDs gave rise to a lengthy voir dire. During that, the

Court watched and considered the contents of the DVDs and there was evidence from the

special interviewers, including evidence from Superintendent Eugene Brennan who was in

charge of the investigation.

22. The appellant makes a number of complaints in respect of this ground:

(i) It is said that the effect of the admission of the DVDs was to give rise to an

unfairness and was not in the interests of justice.

(ii) It is said that the recorded interviews were carried out without any

appropriate enquiry as to the complainant’s cognitive, educational,

behavioural and/or psychological difficulties prior to interview.

(iii) That there was extensive, but undocumented contact and/or communication

in non-controlled circumstances between the specialist interviewers and the

complainant and between her co-complainant and foster family and this

complainant, and/or between social workers and the complainant.

(iv) It is said that the recorded interviews were premised almost entirely upon

pre-prepared statements of the complainant;

(v) That there was a real risk of improper influences, that the interviews could

not be said to represent a free-flowing narrative and

(vi) That the interview process was unduly protracted and repetitive and the

process was in breach of the guidelines.

23. So far as the point about the absence of an assessment is concerned, it is said that

despite the fact that significant difficulties experienced by this 10-year old girl were

outlined in a psychological report, focusing on educational difficulties, dyslexia, working

memory difficulties and susceptibility/suggestibility, this does not seem to have been

known to the specialist interviewers.

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24. It is said that a further concern was the protracted nature of the process, both in terms of

the timespan for the interview, but also the timespan for contact with specialist

interviewer Garda Yvonne Peoples, which lasted over three years or more, to the point

where this specialist interviewer was effectively acting in a dual role of Family Liaison

Officer. It was submitted that what was involved here was presenting pre-prepared

statements and converting them into direct evidence. It is said that in the present case,

the complainant was attending for interview with statements that were pre-prepared in

circumstances that were not entirely known, but which were certainly unsupervised and

uncontrolled. It is argued that the interview process, which involved going through these

letters, could not be said to be a free-flowing narrative.

25. It is further said that the delay that occurred was a reason for excluding the DVDs. It is

said that the delay undermined the ability to cross-examine as the complainant would

obviously not have the same ability to recall at the time the matter came for trial, some

seven years after these issues emerged.

26. On behalf of the respondent, it is pointed out that what was in issue was that in advance

of interviews, JE had prepared some short notes and drawings. The respondent says that

the judge was entitled to take the view that this was not a breach of the rules of evidence

or a breach of the Good Practice Guidelines. It is said that the judge was correct to take

the view that the defence would have ample opportunity to cross-examine both

complainants on all of the issues that had been ventilated during the voir dire before the

jury. The respondent says that what has been described as pre-prepared statements

were, in fact, very short childish notes in childlike handwriting and language which had

been created by JE and given to Garda Peoples, the specialist interviewer. It is pointed

out that on the first DVD, JE was visibly reluctant to speak about the appellant on camera

and did not make any allegations against him on camera, even though ten days earlier,

she had given Garda Peoples a note which contained the words “he had sex with me”.

27. So far as the second interview is concerned, it is said that the appellant, in the course of

written submissions, says that the first verbal disclosure of any sexual wrongdoing on the

DVD interview came about only after specific utterances of particular words by Garda

Peoples herself.

28. On behalf of the respondent, it is said that this is incomplete and misleading. What

occurred is that Garda Peoples introduced the issue by asking the complainant why she is

there, and it is in the context of what the child had already said in the note that the

exchange identified took place. It is not the situation of Garda Peoples suggesting words

to the child, but rather, Garda Peoples drawing the attention of the child to the contents

of the note for the purpose of asking the child to elaborate.

29. On behalf of the DPP, it is said that for a Garda specialist interviewer not to encourage a

10-year old child to share the contents of her written notes and drawings, describing child

sexual abuse that she had suffered, in circumstances where it was evident that the child

was finding it very difficult to speak on camera and had provided the material as her way

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of communicating with Garda Peoples would be to disregard and turn one’s back on the

very intention of the specialist interview process.

30. The trial judge, having heard extensive evidence on the issue in the course of the voir

dire, concluded that the methodology employed by Garda Peoples was skilful and bona

fides. The DPP rejects any suggestion of collusion or contamination in relation to the

notes/drawings. This suggestion was advanced in circumstances where JE had said, both

in her evidence on DVD and at trial, that she spoke to her sister about what happened

and that her sister encouraged to write down and share what had happened to her and

not to be afraid to do so.

31. In order to properly assess the complaints made concerning the interview process, this

Court has taken the opportunity to view the audio video recordings of interview conducted

with JE.

The Absence of an Appropriate Enquiry as to the Complainant’s Cognitive, Educational,

Behavioural and/or Psychological Difficulties Prior to Interview.

32. The overarching argument advanced by the appellant is that the admission of the DVDs of

interview with JE was unfair and unjust. In support of that general proposition a number

of arguments are made, and this Court is invited to examine those arguments separately

and collectively.

33. The appellant contends that the specialist interviewers ought to have been aware of the

content of the psychological report concerning JE prior to the interview process. This

report set out various difficulties for her; specifically, educational difficulties, working

memory difficulties and suggestibility and susceptibility.

34. The guidelines confirm the importance of planning for an interview and suggest that in

explaining the purpose of the interview to a complainant, information from previous

contact with the Gardaí or the health board may provide an indication of how a

complainant may present at interview.

35. The stated main purpose of the guidelines is to assist those involved in the interview

process. Garda Peoples had met with JE on a number of occasions and, it is clear from the

interviews, had built a rapport with this young girl. It is readily apparent from viewing

the audio video recordings of the interviews that JE presents as a shy and nervous child,

but it is also clear that she has a clear understanding of the process. Even more

fundamentally, it is crystal clear that Garda Peoples explains the process to her in an

admirably suitable and age appropriate manner.

36. Moreover, the trial judge viewed the DVDs of interview, heard oral evidence and

submissions before coming to his decision to admit the evidence. It is clear that he made

a careful and considered decision on the evidence. This Court is in a different position

than might be the norm, in that we also have had the opportunity to observe JE in her

direct testimony and it is clear to us that the trial judge did not err in concluding that the

witness was able to provide a coherent account notwithstanding her difficulties. The trial

judge ruled on this issue as follows:-

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“Now, again, and I want to make quite clear that it's for the purpose of this

ruling only, and the Court has to form a view beyond a reasonable doubt as to the

psychological state of JE and how she presented and the Court agrees totally with the

assessment of her by Garda Peoples. I know she didn't have the psychological report at

her disposal, but it's clear the Court has looked carefully at all the videos and looked at

all the transcripts of evidence and there's no doubt that this child was exceedingly

nervous. I've some difficulty in regarding her as of low intelligence. She struck me that

she obviously had learning difficulties, but she struck me as someone who didn't strike

me as being of low/average intelligence. She seemed to me to be a bright child. The

Court concurs with I think it's evident on the video she was extremely nervous. I took

the view, beyond a reasonable doubt again, that rather than rehearse some pre-coached

allegation that she was extremely reluctant to speak about any allegation of impropriety

on the part of SA. It was causing her particular concern to do so and there is no doubt

that the assessment by Garda Peoples, that she was a very reticent interviewee is one

which is borne out by the evidence adduced before the Court, both in relation to the

viewing of the videos and in relation to the consideration of the transcripts.”

Conclusion

37. We are not satisfied that there was any necessity in the circumstances for the specialist

interviewers to conduct any of the suggested enquiries.

Pre-Interview Contact

38. A further argument is raised by reference to the fact that there was undocumented pre-

interview contact between Garda Peoples and JE. This arises from the fact that Garda

Peoples met with JE in her foster home on the 14th April 2011, no disclosures were made

by JE on that date and Garda Peoples called to see JE on a number of occasions over the

following months in order to get to know her. No notes were taken by Garda Peoples and

no other person was present.

39. The DPP responds by saying that the judge was correct in finding that the guidelines were

not breached in respect of two “rapport” meetings. The Director says that the judge was

correct in assessing the interaction between the specialist interviewers and JE as “proper

liaison” and points out that the judge did not accept the suggestion that the interviewers,

and Garda Peoples in particular, has assumed a role analogous to that of a Family Liaison

Officer. There was a sustained challenge to the admissibility of the DVDs of interviews

conducted with JE.

Conclusion on Pre-Interview Contact

40. In our view it is clear that the judge approached the task of adjudicating on that issue

with conspicuous care. He found that the procedure followed was not inappropriate. It

must be appreciated that the guidelines are just that – guidelines, but those conducting

interviews should be very slow to depart from the advices contained in the guidelines. The

best practice, in our view, would be to make a brief note of what transpired after

meetings of the kind which took place with JE and Garda Peoples. However, it must be

appreciated that the circumstances in which there will be interaction with children or

vulnerable witnesses may vary significantly, and there may be judgment calls as to how

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to proceed. In this case, the judge categorised the role of Garda Peoples as skilful and

bona fides. This Court would be slow indeed to demur from that observation.

Pre-Prepared Statements and the Risk of Improper Influence

41. Prior to the interviews with JE, on the 22nd August 2011, JE handed Garda Peoples notes

and drawings; comprising two notes and five drawings. These notes and drawings

substantially formed the basis for many of the complaints regarding the admission of the

interviews with JE. The complaint made is that these items were prepared in advance of

the interviews and were front and centre in the first and second interviews.

42. Further material was generated by JE during the course of the second interview;

comprising of drawings and notes and prior to the third interview JE provided a further

three letters, a drawing and what might be termed a mind graph.

43. Finally, prior to the fourth interview, JE furnished Garda O’Sullivan with a letter which was

used in the course of that interview.

44. The gravamen of the complaint made concerning the interviews stems from these

documents and their use during interview. It is said that the interviews were premised

almost entirely on these documents, that there was a real risk of improper influence as

the documents were prepared in advance. Moreover, that the interviews could not be said

to consist of a free-flowing narrative in the circumstances and that the conduct of the

interviews against that backdrop was in breach of the Garda Síochána Procedural

Guidelines.

45. It is also said that the notes, letters and drawings were used in such a way so as to

offend the rules of evidence. Specifically, that by using the content of the documents,

Garda Peoples and Garda O’Sullivan asked leading questions and in effect sought

confirmation of the content of the letters and notes, thus the narrative was in breach of

the rules of evidence, was not free flowing and was tainted by improper influence.

The voir dire

46. The application to admit the interviews with JE into evidence took place over a period of

some 10 days before the trial judge. The judge reviewed the DVDs of interview, heard

oral evidence and legal argument, following which 4 of the 5 interviews were deemed

admissible.

47. The relevant portions of section 16 of the Criminal Evidence Act 1992 provide as follows:-

“16.-(1) Subject to subsection (2)-

(a) [ ]

(b) a video recording of any statement made by a person under 14 years of age

(being a person in respect of whom such an offence is alleged to have been

committed) during an interview with a member of the Garda Síochána or any

other person was competent for the purpose,

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shall be admissible at the trial of the offence as evidence of any fact stated

therein of which direct oral evidence by him would be admissible:

Provided that, in the case of a video recording mentioned in paragraph (b),

either –

(i) [ ]

(ii) the person who statement was video recorded is available at the trial for

cross-examination.

(2)

(a) Any such video recording or any part thereof shall not be admitted in

evidence as aforesaid if the court is of opinion that in the interests of justice the video

recording concerned or that part ought not to be so admitted.

(b) In considering whether the interests of justice such video recording or any part

thereof ought not be admitted in evidence, the court shall have regard to all

the circumstances, including any risk that its admission will result in

unfairness to the accused, if there is more than one, to any one of them.

(3)

In estimating the weight, if any, to be attached to any statements contained in

such a video recording regard shall be had to all the circumstances from which any

inference can reasonably be drawn as to its accuracy or otherwise.”

48. It is important to observe that this section permits vulnerable witnesses in our society

alleging sexual or violent offences to give evidence in chief by way of interview recorded

pre-trial. Furthermore, the section is directory in terms, that is to say, such evidence

shall be admissible, unless a court is of the opinion that in the interests of justice the

video recording or part thereof ought not be admitted. Finally, it is a prerequisite for the

admission of this category of evidence that the witness must be available for cross-

examination.

Interview of 29th August

49. The first specialist interview took place on 29th August 2011. This interview was

conducted by Garda Peoples with Garda O’Sullivan as an observer. During the interview,

Garda Peoples talked JE through the letters and drawings which she had handed over on

22nd August 2011.

50. One of the letters, Exhibit YP3, ended with the sentence “he had sex with me it wasn’t my

fault.” When it came to discussing this letter JE was reluctant to discuss the statement: -

“A. I don’t like the end part. I don’t like people reading out the end part. I hate

the end part, it’s embarrassing.”

Later on in the interview:-

“Q.

Are you ready to talk about the last sentence?

A.

No I’ll write it down.”

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There were no disclosures made during this interview.

51. In the early stages of this interview, it is readily apparent that JE is a little girl who is

nervous and scared. While this is evident from reading the transcript of the interview, it

comes into sharp focus on viewing the video recording of the interview. A flavour of the

demeanour of the child can be seen from the following exchange:-

“A.

My heart’s pounding still.

Q.

Your heart’s pounding?

A.

But I’m getting used to it.

Q.

You’re getting used to it. And what’s making your heart pound?

A.

Just I get nervous.

Q.

Okay?

A.

Really nervous. But I’m getting good now.

Q.

Okay, tell me about being nervous?

A.

I just get really nervous, I’m nervous at school.

Q.

Hm-hmm?

A.

Nervous at parties, I’m nervous of a lot of stuff.

Q.

You’re nervous of a lot of stuff. But what is making you nervous today?

A.

But now I’m getting better.”

52. The complainant brought pen and paper with her to the interview and it is very clear both

from the transcript and the video recording itself, that she is more comfortable with the

written word rather than the spoken word. She clearly expresses that she does not like

reading aloud to people and when the subject of the notes and drawings is raised in the

interview, the child is clearly reticent about engaging in a verbal discussion.

53. The reference to drawing pictures and writing letters for Garda Peoples is raised after

considerable time has been taken by general discussion designed to make the child more

comfortable. JE confirms that she drew pictures and wrote letters which she gave to

Garda Peoples.

Interview of 7th September 2011

54. The second specialist interview took place on 7th September 2011 and was conducted by

Garda Peoples with Garda O’Sullivan as an observer. During this interview JE produced

three A4 sheets of drawings and writing. On the first sheet was a depiction of JE, her

siblings and her mother. The second sheet contained words written and some shapes and

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pictures on it. And on the top of it, on the right-hand side it says JE’s name, and then

underneath that it says, "He (The appellant) means". The third sheet has JE’s name

written in the centre and then under that it said, "He had sex with me, the end."

55. They discussed the letters written on the 22nd August 2011. Again, the letter YP3 was

brought up and again JE did not want to read the final line aloud. Instead, Garda Peoples

agreed to say it:-

“Q.

I’ll not say it unless you’re sure. If you don’t want to talk—

A.

Just say it really fast.

Q.

Just say it really fast. “he had sex with me. The end”

A.

I’m scared”

There were no further disclosures made during this interview.

Interview of 26th September 2011

56. The third specialist interview took place on 26th September 2011 and again was

conducted by Garda Peoples with Garda O’Sullivan as an observer. Prior to the

commencement of the interview, JE handed Garda Peoples five envelopes with letters and

drawings which they discussed in the interview.

57. In relation to the letters, JE referred to CE as follows:-

“A.

CE helped me write them and then I wrote them and CE helped me write them.

I spent ages playing with CE and talking to her”

She goes on to say:-

“A.

CE helped me write the letter

Q.

Okay

A.

I told her and then I wrote it down. I said it to her first and then I wrote it down

and she said are you going to write it down? And I said yeah, I am going to write it

down.”

58. In relation to the content of the drawings, the first drawing discussed depicted three

figures labelled “SA” “me” and “BP” and “him having sex with me” was written at the

bottom. When asked about the drawing she discussed: -

“A.

That’s SA and me.

Q.

SA and you.

A.

SA and me and BP”

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Later on, she said:-

“Q.

So you said him having sex with me and you’ve wrote on this SA, me and BP

A.

Yeah.

Q.

So tell me about that

A.

I don’t really remember but I just wrote it down because I remember some of it

Later on,

“Q.

Tell me what’s in the picture

A.

SA, me and BP.

…

A.

Getting on top of me.

Q.

Okay and what do you mean by getting on top of you?

A.

I don’t really know, he’s just getting on top of me.

Q.

Is he standing on top of you, sitting on top of you?

A.

Lying on top of me”.

59. JE went on to detail that this occurred in the appellant’s room in the house in Co. Louth

while BP was asleep in the bed beside them.

60. The second envelope contained a letter exhibit KJ45B- In this letter the final paragraph

said as follow:-

“I said can you get SA for me? And she said yes. I think he is asleep and then

SA came out and picked me up. I said I need the toilet, I just wanted my friend. I went

with him and he put me in his bed and started cuddling me. He said did you like it? I said

yes. I didn’t want to get a slap round the face. I had sex with him.”

61. When questioned about it, JE stated as follows:-

“Q.

But what is it? Did you like it. What did he mean? What was it?

A. Cuddling me and having sex with me. I didn’t really like it but I didn’t want to say

no because he could have given me a slap round the face because he does that to

Jon

Q. … tell me what happens when SA was lying on top of you?

A.

Just going up and down

Page 14 ⇓

Q.

Going up and down, okay. What was going up and down or who was going up

and down?

A.

SA

Q.

SA was going up and down

A.

And just hugging me and that’s really all I remember

62. The next letter to be discussed stated as follows:

“To Yvonne, Let’s begin again, I am very sorry. SA gave me wine and Malibu

and coke. I should go to prison. And SA said to me if I tell anyone we will get told off. So

I believed him and went along. He said the police and when he slept with me he would

hug me. He will only have his boxers on. He will touch me. I felt really angry with him but

I was scared to tell anybody. I would have nobody to talk to. I felt alone. When one of my

cousins were around he was cuddling us and he made A go out of the room and said I

need to talk to JE and getting on top of me and put his willy on my fanny and started

going up and down and up and down and sometimes he sticks his willy in my fanny and

then my fanny would hurt. It is called sex.”

63. When talking about this letter, JE described the incident as occurring in the house in Co.

Louth.

64. The third letter stated as follows:-

“To Yvonne, my mum asked me at the hotel did I sleep with SA. I went yes and

said I did sleep with him and then I went to the bathroom. She said I will have a word

with him and she said to him why did you sleep with her and he said I don’t know why

but she was sick and scared and then mummy said how many times did you sleep with

her and he said two time but he was lying but he sleep with me five times—and put his

tongue in and snogged me.”

Interview of 6th October 2012

65. The fourth specialist interview took place on 6th October 2012 with Garda O'Sullivan and

Garda Hough. Garda O’Sullivan gave evidence that this interview came about as a result

of disclosures made by another child in an interview concerning the appellant. On the day

of the interview, JE gave Garda O’Sullivan a letter consisting of two pages which detailed

allegations of the appellant raping and sexually assaulting her.

Discussion and Conclusion

66. JE’s reluctance to discuss the allegations are very evident in the course of the interviews.

However, it is not the position that she did not partake in the process and simply agreed

with the content of the notes and/drawings. There is no doubt whatsoever, that she

found it extremely difficult to voice these sensitive issues. This is evidenced by the fact

that at crucial points, she indicated she needed a break, that she was really scared or

would change the topic of conversation. It is therefore clear that the material was used

for a legitimate purpose, in our view, and that was to guide a vulnerable witness to a

Page 15 ⇓

position whereby she felt able to voice matters which she has previously committed to

writing. While there were some leading questions asked by the specialist interviewers, for

the greater part of the interviews, the evidence came from the child herself.

67. We are not satisfied that the material was in some way a pre-prepared statement of her

evidence or that the complainant merely repeated a script which had been previously

prepared by her or with the assistance of others. The material was used in order to assist

her in discussing very difficult issues, similar to an aide memoire.

68. By virtue of the use of s.16 of the 1992 Act, the interview process is entirely transparent.

The use to which the notes and drawings were put is apparent to all. The demeanour of

JE and the approach adopted by the specialist interviewer was visible to everyone

involved in the trial process.

69. The overall approach taken by Garda Peoples is neatly illustrated by how she deals with a

situation which arises in the first interview. She asks if JE is ready to talk about the last

sentence in one of the letters, that is to say that the appellant had sex with her, JE replies

that she would write it down. She then immediately tries to divert the focus by talking

about Garda Peoples’ eye colour. The manner in which Garda Peoples deals with this

demonstrates her professional and sensitive approach to this interview, and to the

interviews in general, in that she takes her lead from the child and refrains from pursuing

the issue.

70. It is apparent to us from reading the transcript and from viewing the videotape of the

interviews that neither Garda Peoples nor Garda O’Sullivan sought to use the drawings or

the letters in any manner whatsoever so as to put pressure on the complainant to speak

of the allegations contained therein. Rather, the material was used to assist the child in

verbalising her complaints.

71. Garda Peoples and Garda O’Sullivan’s approach in the interviews is one of reassurance

and stability. The specialist interviewers conducted the interviews with considerable skill

and understanding. From our perusal of the transcript and a consideration of the

videotapes of interview, we are not satisfied that the complaints made on behalf of the

appellant are made out.

72. It is certainly so, that the use of the drawings, notes and letters was unusual and not one

which is expressly contemplated by the Good Practice Guidelines, but one must not lose

sight of the fact that the specialist interviewers were dealing with a nervous and scared

child. The use of this material was at all times measured and circumspect with due

regard for the anxieties and vulnerabilities of the witness and was within the letter and

the spirit of s.16.

73. The Gardaí were confronted with a scared and nervous child which presents particular

challenges for a specialist interviewer. It is clear that the child was reluctant to speak

about certain issues, specifically the allegations concerning the appellant. A degree of

Page 16 ⇓

flexibility must be afforded to specialist interviewers in circumstances such as those that

presented themselves.

74. Insofar as the contention of improper influence is made, this is partly predicated on the

fact that JE refers to her sister CE in the interviews. She says, inter alia, that CE is very

brave and that she talked and that she, JE, wanted to be brave also. Moreover, it is said

on behalf of the appellant that the pre – prepared documents were compiled in unknown

circumstances but one where a co-complainant was present and assisting.

75. We have carefully examined the comments concerning CE made by JE in interview and we

do not draw from those remarks the inference asserted by the appellant. To imply

collusion or improper influence from the comments is in effect inviting speculation. We are

satisfied that the judge did not err in this respect.

Protraction of the process - Delay

76. The appellant submits that the delay between the examination in chief of the complainant

in 2011 and 2012 and the cross-examination in 2018 has hindered his ability to

effectively cross-examine the complainant as she does not possess the same level of

memory recall. The appellant refers to R v. Malicki [2009] EWCA Crim 365 and R v.

Powell [2006] 1 CR APPR 31 which support the proposition that where there is significant

delay in the evidence of children, greater scrutiny of the evidence is required.

77. The respondent rejects the appellant’s assertion as to delay as it is submitted that the

defence of the appellant was not time or event specific: it was a blanket denial of the

evidence.

78. Furthermore, as the Court in The People (DPP) v. Rattigan [2013] 2 IR 221 made clear,

the concept of meaningful cross-examination does not mean the elicitation of answers

which are pleasing to the defence, but rather that the witness is available to be asked

questions which they may or may not be in a position to answer in the usual way.

79. The respondent further avers to the fact that part of the delay was of the appellant’s own

making as he had fled the country and any delay in the interviews with JE can have no

bearing on the right of the accused to a trial of reasonable expedition in circumstances

where in 2011-2, at the time of her specialist interviews, the appellant was outside the

reach of this jurisdiction.

Discussion

80. It is important to look at the sequence of events from 2011. In March of that year, the

complainants’ mother RE travelled to the UK leaving the children with the appellant.

When she returned, she was hospitalised and visited there by two social workers who had

concerns regarding the children being left in the sole care of the appellant. It seems that

RE contacted the appellant and requested that he take the children to Dublin. It seems

then that the children, the appellant, a Ms. HP and her children travelled to Northern

Ireland. Thereafter the PSNI arrested the appellant and Ms. HP, who were interviewed

and released without charge.

Page 17 ⇓

81. The interviews with CE were conducted on the 20th April 2011 and the 25th August 2011.

The interviews with JE took place on the 29th August 2011, the 7th September 2011, the

26th September 2011 and the 9th October 2012. The fifth interview in 2014 with JE was

deemed inadmissible by the trial judge.

82. On being released without charge, the appellant took up residence in Chile and was

apprehended in the summer of 2014 when he travelled to the United States, an

extradition warrant was executed and the appellant was arrested on the 23rd July 2014.

Two trial dates were vacated due to outstanding disclosure.

83. While a period of some three years passed between the dates of the interviews with the

complainants and the date of the appellant’s arrest in 2014, this delay was due to the

appellant’s absence from this jurisdiction. The trial dates in 2016 and 2017 were

adjourned due to outstanding disclosure. It is a feature of cases of this nature, where

there is an involvement with various agencies, that disclosure may be voluminous.

84. A further period of some three and a half years passed before the matter proceeded to

trial in January 2018.

85. It is unfortunate that time passed between the interviews with the children and the trial,

leading to a period in excess of some six and a half years between the interviews and the

cross-examination. For three of those years the appellant was not in this jurisdiction,

while that was entirely within his rights, as he was not facing any charges, nonetheless,

he cannot now complain of prejudice in cross-examination in that respect.

86. Moreover, this was a case where the appellant denied the allegations in broad terms. It

was not one, as put by the respondent, which was date or event specific.

87. Furthermore, it was common case that he resided with the children and their mother at

the relevant locations.

88. It is clear from the transcript of the proceedings before the Central Criminal Court that

the cross-examination of each complainant was skilful and fulsome. We are not satisfied

that the passage of time rendered the process unfair or impacted negatively on the ability

of the appellant to cross-examine the witnesses.

Conclusion on Ground 1

89. The provisions of the Act provide safeguards for an accused person and a trial court must

be diligent to ensure that the evidence not be admitted if the court is of the opinion that

in the interests of justice the video recording or part thereof ought not to be admitted and

in this regard, the court must also have regard to all the circumstances to include any risk

of unfairness to the accused person if it be admitted.

90. We are satisfied for the reasons stated above that the criticisms made on behalf of the

appellant regarding the admission of the DVDs are without foundation and that the trial

judge did not err in admitting the DVDs of interview in evidence. The trial judge took

scrupulous care in the manner in which he addressed the issues which arose.

Page 18 ⇓

Grounds 2 and 3 - Refusal of the Trial Judge to Excise Portions of the DVDs of CE and

JE

The Appellant

91. On behalf of the appellant, it is said that having wrongly admitted the DVDs, the judge

further erred in failing to edit and to excise therefrom certain portions. It is said that

these elements should not have been admitted as the probative value was outweighed by

the prejudicial effect.

92. So far as CE is concerned, it is said that the judge was in error in failing to excise the

following references:-

Interview 1: 20th April 2011

•

A reference to the involvement/scrutiny and/or alleged intention of the

appellant to avoid social services.

•

A reference to the presence of co-complainant, JE, and another child, BP in

bed with the appellant in Northern Ireland.

•

Reference to an alleged plan of the appellant to abduct or escape with the E

and P children.

Interview 2: 25th August 2011.

•

A reference to an alleged plan of the appellant to abduct or escape with the E

and P children.

•

Reference to certain feelings of CE.

•

Reference to the involvement/scrutiny and/or alleged intention of the

appellant to avoid social services.

•

Reference to motive on the part of the appellant in respect of the E family.

93. So far as the interviews with JE are concerned, it is said that the errors were as follows:

Interview 3: 26th September 2011.

•

Reference to another child, BP, being present in the appellant’s bed

•

Reference to lots of cash in the appellant’s safe.

•

Reference to another child, A, being in the same bed as the appellant and JE.

Interview 4: 9th October 2011.

•

A Reference to BP in the appellant’s bed.

•

Further reference to another child, A, in the same bed as the appellant and

JE.

The Respondent

94. In response, on behalf of the DPP, it was pointed out that there was in fact agreement

between the two sides leading to significant editing. The written submissions refer to the

removal of significant swathes of material. It is said that in relation to the material that

remained in dispute, the judge approached his task in a very considered and detailed

analysis of the material. After a full consideration, he ruled that any extraneous

prejudicial material which was not relevant to the charges should be excised.

Matters in Dispute

Page 19 ⇓

95. It is said, however, in relation to the matters that remained in dispute, that the judge’s

approach was fully justified. It is submitted that background evidence in relation to how

the appellant involved himself with the E family in Britain and later in Ireland, how RE

distanced herself from the lives and care of her children, how the appellant was unwilling

to remain in his property in Britain because he was requested not to bathe or physically

groom the older girls, how the family came to the scrutiny of social services in this

jurisdiction and the removal to Northern Ireland were all clearly relevant to the jury’s

understanding of the complexed, nuanced, and indeed, unusual factual matrix.

96. In relation to the reference to BP asleep on the bed, it is said that the judge’s ruling was

clearly correct. It is said that to have done otherwise, would have been to ask the

witness, on cross-examination, to contort and effectively manufacture evidence. The

judge ruled on this by saying “the Court is of the view that it would represent an unreal

situation if it was not left in and the jury would be left with an incomplete and

incomprehensible account in relation to the particular issue of that allegation”.

97. In relation to the evidence regarding CE ’s feelings, she had described her relationship

with the appellant as “princess by day: abused by night”. It is said that to exclude what

she had to say about the context and nature of the relationship would involve a distortion

of the evidence. The DPP says that the material which the appellant contends should have

been excluded satisfied the tests of relevancy and necessity, as identified in the McNeill

case.

The Respondent

98. The DPP says that the background evidence called was very limited, and to the extent

that it was, was both relevant and necessary in order to explain the factual matrix and to

paint a picture of the relationship between the complainants, SA, RE and the wider family.

99. It is submitted on behalf of the respondent that in order for the jury to appreciate the

unusual and complex relationship which existed within the E family, and their involvement

with the appellant, it was necessary to refer to the complex background from England. In

that regard, SM, social worker, gave evidence in relation to concerns by social services in

the UK in relation to RE’s parenting skills and about SA’s involvement in the physical

grooming of the older girls. Mr. M’s evidence was relevant to explain the sudden trip to

Ireland. That evidence tied in, in a very significant way, with the evidence of the two

complainants who said that they had been told by SA that he had no intention of agreeing

to the plans formulated by the social workers in England in November 2010, and that he

and their mother, RE, intended to leave the UK rather than comply with what was being

proposed. It is said that the evidence of S.M, therefore, performed a dual function. It

provided essential background evidence, which was both necessary and relevant, if the

relationship between SA, the children and their mother was to be understood, but

secondly, it also provided a supportive framework through which the jury could assess the

evidence of the two complainants in relation to what they told the Gardaí about what had

been said to them about the involvement of S.M. by the appellant.

Discussion

Page 20 ⇓

Interviews with CE

• These include references to social services involvement and the alleged intention of the

appellant to avoid social services.

• References to an alleged plan of the appellant to abduct the children

• The emotive evidence

• Reference to JE and another child being in bed with the appellant.

The Interviews with JE

100. A significant amount of time was dedicated to the consideration of material to be excised

from the interviews of JE. On this point the appellant takes issue with several instances

where the trial judge refused to excise the relevant material. The relevant impugned

portions relate to references to the presence of other children:-

• Firstly, there were several references to another child; BP, and JE’s description that she

was in the appellant’s bed asleep while he abused JE.

• There was also reference to another child A, being present in the same bed as the

appellant and JE and she was told to leave by the appellant

• There was a reference to a lot of money in the appellant’s safe.

101. The People (DPP) v. McNeill [2011] IESC 12 is the leading authority in this jurisdiction

concerning background evidence wherein Denham J. stated at para 49:-

“Background evidence may be admitted to give a jury a relevant picture of the

parties in the time prior to the offences charged. Background evidence may be admitted

because if it were not admitted it would create an unreal situation. It arises in situations

where if no background evidence was admitted, the evidence before the jury would be

incomplete or incomprehensible. Background evidence is evidence which is so closely and

inextricably linked to the alleged offences and/or the relations between the relevant

persons so as to form part of the body of evidence to render it coherent and

comprehensible”

102. The trial judge conducted a very careful analysis of the impugned material and excluded

extraneous prejudicial material. The issue concerning the admissibility of the material

was the subject of a very lengthy voir dire and without doubt the ruling by the trial judge

was of the most careful and considered kind.

103. The test to be applied in considering whether background evidence should be permitted is

whether the material is relevant and necessary. The purpose for the admission of the

evidence is crucial. Therefore, it may be that even where evidence tends to show the

commission of offences, apart from those charged, nonetheless such evidence may be

admissible in the particular circumstances of any given case, if such evidence is relevant

and necessary. It may be that evidence is necessary in order to render the factual matrix

Page 21 ⇓

in a case complete and comprehensible. A case cannot be decided in a theoretical

vacuum.

The Appellant’s Involvement with the Family

104. This material concerned the appellant’s involvement with the family, the decision to

move to Ireland, moving at short notice, the attitude of the complainants’ mother and the

involvement of the social services both in the UK and in this jurisdiction.

105. The argument advanced by the respondent was that this evidence was relevant and

necessary to enable the jury to understand the complex factual matrix leading to and

surrounding the allegations in question, without which the jury would have been deprived

of the complete picture.

106. Firstly, we observe that the trial judge adopted a very careful forensic approach to the

material. He analysed each aspect of the impugned evidence and permitted certain

material to be adduced in evidence, whilst ordering that other material be excised. As

regards each block of material, he explained his reasons for admitting or rejecting the

evidence.

Conclusion on the Material in the Interviews

107. We can find no error in the approach of the trial judge. The appellant’s motive in involving

himself with the complainants’ family was highly relevant background evidence and

necessary to enable the jury to consider the entire factual matrix which included the

background to the arrival of the family in this jurisdiction. The fact that that included

references to a desire on the part of the appellant to avoid scrutiny by the social services,

while somewhat prejudicial, was highly relevant, probative evidence.

108. The evidence regarding the dynamic within the family, including the conduct of the

mother was properly, in our view, considered by the judge to be admissible evidence.

109. When the trial judge addressed the concerns regarding CE’s emotions, he specifically

identified the impugned material. We do not intend to rehearse that material save to give

one example of the care taken by the trial judge. This concerned CE’s evidence that the

appellant treated her as a ‘princess’ during the day and abused her at night. She stated

that the appellant, in effect, did everything she wanted during the day in return for

abusing her at night. The judge properly considered this material as directly relevant to

the allegations and with this we entirely agree. The balance of the material relating to

CE’s emotions was, as found by the trial judge, without doubt relevant and therefore

admissible evidence.

110. As regards the references to the child BP, we again are wholly satisfied that the trial

judge did not err in his ruling in permitting this evidence. The excision of this material

would have distorted the evidence. The evidence involved the use of a drawing by JE

wherein she depicted another child; BP in circumstances where JE alleged that she was

sexually assaulted while BP was asleep in the bed. The evidence concerning the presence

of BP was inextricably bound up with the allegation. Moreover, the trial judge indicated he

would make it quite clear to the jury that there were no allegations regarding BP.

Page 22 ⇓

111. Whilst the submissions refer to the child A and a sum of cash, it seems from Day 15 of

the transcript that many of the impugned references to the child A were excised by

agreement. Moreover, it appears that the appellant canvassed one issue with the trial

judge which primarily concerned the material relating to the child BP. The issue turned

on the presence of another child in the bed. Insofar as this related to child A, the

material in the interviews involved a request from the appellant to the child to leave the

room following which, he assaulted JE. We can find no error in the trial judge’s ruling

regarding the impugned material.

Ground 4 -The Background Evidence.

Agreed Formula

112. It is contended that the judge erred in permitting background evidence, the observations

and/or opinions of social workers and school and crèche personnel to go before the jury.

A formula was agreed between the parties designed to neutralise prejudicial material, in

particular, that the complainants were essentially to be kept under surveillance. British

social workers, and in particular, social worker, S.M, had made contact with L.P., a social

worker with the HSE, succeeded by A.H. They communicated concerns to the school and

crèche where the E children attended. The formula agreed was that the jury would merely

hear that a communication had arrived from England which led L.P. to communicate to

the schools in question to keep an eye on the girls.

113. The appellant advances the argument that the background evidence of social workers,

teachers and creche personnel ought not to have been admitted as such evidence was

highly prejudicial to the appellant and that the cumulative effect of the evidence rendered

the appellant’s trial unfair.

114. The evidence concerned the interactions of the above witnesses with the appellant and,

on occasion the observation of his conduct towards JE, most notably, when the school

principal, observed him kissing JE on the lips and the evidence of JO’H, a teacher,

concerning that incident; where he was permitted to say how inappropriate this seemed

to him. It is said there was evidence of the fact that RE had been charged in relation to

neglect. It is reiterated that the evidence might not have been sufficient, of itself, to

render the appellant’s trial unfair, but it is said that the cumulative effect of the evidence

was significant and should have impacted on the application to withdraw the case from

the jury.

115. Other evidence related to the complainants’ sister’s condition in the crèche she attended.

Further evidence included that of criminal proceedings for neglect in respect of the

mother of the complainants.

116. Objection was also made to the evidence of social worker, SM (UK). It should be said that

this evidence focused on the interaction between the appellant, the mother and the social

services in the UK together with remarks attributed to the appellant on those occasions.

Discussion

Page 23 ⇓

117. Addressing the latter issue first, it seems to this Court that the evidence from Mr M fell

within the principles enunciated in The People (DPP) v. McNeill [2011] IESC 12 in that it

was both relevant and necessary to enable the jury to comprehend the relationship

between the complainants, the mother and the appellant. The trial judge again

forensically considered the statements to which the appellant raised objection and

addressed the material to which objection was raised line by line. We do not intend to do

likewise at this juncture, but we are of the view, having considered the transcripts of

evidence and in particular the ruling on Day 30, that the trial judge permitted only

admissible material to be adduced which directly bore on relevant issues in the trial.

118. Insofar as the evidence of JO’H is concerned, there can be no doubt but that this evidence

was admissible, indeed, it was accepted on behalf of the appellant that it was admissible

evidence. To this Court, where an appellant faced charges of sexual abuse, evidence, as

given by AM, school principal, that the alleged assailant kissed the 10-year-old

complainant on the lips in plain sight is clearly probative evidence. The evidence

concerning the assessment of that conduct was also admissible in the circumstances of

the case.

Conclusion

119. We have assessed the impugned evidence and the ruling by the trial judge. Yet again,

the judge delivered a carefully considered ruling. The evidence adduced was clearly

relevant and necessary in terms of the test in The People (DPP) v. McNeill [2011] IESC 12.

It was, in the circumstances of the case, necessary for the jury to understand the

manner in which the appellant became involved with the family, the standard of care

received by the children from their mother, the involvement of the social services and

more particularly the appellant’s conduct in respect thereof and his attitude to the social

services. The behaviour of the appellant towards the complainants and his interactions

with various persons, all this was relevant and probative material and properly admitted

in evidence. The trial judge scrutinised the evidence to which there was objection and

was satisfied that the evidence met the twin tests of relevance and necessity in the

circumstances of the case, justifying its admission in evidence. Moreover, care was taken

in the manner the evidence of the social workers was adduced through the measure of an

agreed formula, thus ensuring a fair trial.

Ground 5 -The Decision of the Trial Judge not to Withdraw the Case from the Jury

120. Following the close of the prosecution case, there was an application to withdraw the case

from the jury in terms of R v. Galbraith [1981] 1 WLR 1039 and to stop the trial, relying

on PO’C v. The DPP [2000] 3 IR 87, and JO’C v. The DPP [2000] 3 IR 487. It is said that

the lack of recall on the part of the complainants meant that there was a real inability to

cross-examine in a meaningful fashion. It is said that this level of inability to recall, along

with the inconsistencies that emerged, and the real risk of third-party influence, were

such as to satisfy the tests in Galbraith and P.O’C.

121. Moreover, it is contended that the trial judge erred in failing to stop the trial in exercise

of the court’s inherent jurisdiction where there is a real risk of an unfair trial on the basis

Page 24 ⇓

of delay and specific prejudice arising from delay and the inability to cross-examine the

witnesses in a meaningful manner.

122. So far as the evidence of CE is concerned, it is pointed out that she could not remember

when the abuse started or when it ended. She accepted that she had given three different

accounts of the incident in the Hilton Hotel and then gave a further one. She explained

omissions on the recording by saying that she was, at the time of the recording, trying to

forget everything that had happened.

123. The appellant points to a series of matters raised in the transcript and says that in respect

of a number of these, CE had no clear recollection as to the details of the events and that

her memories were inconsistent. Again, a list of matters not remembered by JE are

identified.

124. In addition, insofar as CE is concerned, the appellant contends, inter alia, that she had no

recollection of meeting various people, including social workers, and no recollection of

certain discussions or conversations. The appellant relies on many occasions in cross-

examination when CE was unable to recall the general details surrounding, and directly

relating to the incidents in the Hilton Hotel.

125. Concerning JE, it is contended that meaningful cross examination was impossible as JE

was unable to recall inter alia general details of the relevant period, conversations and

discussions with various people, including Garda Peoples or details of the layout of the

rented house in Co. Louth. Reliance is placed on her twice responding that she could not

recall aspects of the interviews recorded on DVD due to the lapse of seven years.

126. The Director responds, as one would expect, by saying that the inconsistencies alleged by

the appellant to arise are matters that were solely within the province of the jury. She

contends that the jury were well-positioned to engage in an assessment of the credibility

and reliability of the two complainants. They were in a position to do so, not only by

reference to their own testimony, the DVDs and cross-examination, but also by reference

to the testimony of others which provided support, instancing in this regard the evidence

as to the Hilton Hotel.

127. The Director refers to the comments of McCarthy J. in The People (DPP) v. Egan

(Unreported, Supreme Court, 30th May, 1990) where he said:-

“Save where a verdict may be identified as perverse, if credible evidence

supports the verdict, the Court of Criminal Appeal has no power to interfere with it. The

concepts of lurking doubt, feel of the case, gut feeling, or back of my mind, are foreign to

the judicial role as I understand it. ”

128. She also relies on The People (DPP) v. PC [2002] 2 IR 285 wherein the Court refused to

set aside the verdict of the jury despite accepting that there were criticisms of the

complainant’s evidence. In so doing, the Court stated that there was evidence to support

a guilty verdict and emphasised the role of the jury:-

Page 25 ⇓

“For the purpose of assessing the credibility of that evidence, the court has no

more than the transcript and associated exhibits. Evidently, it has not had the opportunity

of observing the complainant or other witnesses give their evidence. The assessment of

the credibility of the witness and the weight to be attached to such evidence is manifestly

within the province of a jury in a criminal jury trial.”

129. Finally, the Director relies on the recent decision of this Court in The People (DPP) v. JM

[2015] IECA 65, where Edwards J. reiterated the primacy of the jury in a criminal trial

and the concept of fairness.

Discussion

130. It must be said that the arguments were advanced extensively before the trial judge over

a period of three days and are set out in considerable detail in submissions which we do

not intend to rehearse in any more detail.

131. The trial judge refused to accede to the application and stated his reasons for so doing in

some detail given the complexity of the case and the arguments advanced. He

considered the evidence in the context of the submissions made and the legal principles.

He properly assessed the entirety of the evidence in the trial in his consideration of the

application to withdraw the case from the jury and concluded:-

“…in my view, the defence have not in any way discharged the and I'll put it

not--not a huge onus on them, but an onus on them to highlight any issues of specific

prejudice which would allow this case to be withdrawn from the jury on that particular

way.

Now, and I'll combine that with the other issues which have arisen. I disagree

that there was a lack of meaningful cross examination. In any event, I don't know how

the Court could deal with that issue by withdrawing it from the jury. Ms Biggs on behalf

of her client conducted lengthy cross examinations of CE and JE. And both of them

answered the questions, there were certainly gaps in that they couldn't remember, and

that there were difficulties in relation to that.

In relation to the incidents around the Hilton Hotel, I fundamentally disagree

that there were no islands of fact in relation to that issue. There was substantial evidence

tendered in respect of it and quite specific evidence and those are matters ultimately for

the jury. I accept that there is a difficulty there, there's no doubt that there's a genuine

difficulty there, and the question that I framed to Ms Walley, where there's a combination

of seven years, a DVD when they're children, and they're giving evidence when they're

close to adult hood. But the Court can't guarantee a perfect trial, the Court must

guarantee a fair trial. And those are the realities of this particular trial and they certainly

don't merit withdrawing it from the jury. But there are matters which the jury are quite

entitled to take into consideration, and if they feel that it doesn't measure up to proof

beyond a reasonable doubt, they're entitled to bring in not guilty verdicts in relation to

the issues.

Page 26 ⇓

That's a matter, it's a legitimate matter and it's a matter for the jury. But in

terms of that there's a guarantee of islands of fact in an allegation of child sexual abuse

which the fundamental act itself is more than likely to take place in secret, in my view is

not part of Irish law. Now, I then go on to the specific counts. Now, I am satisfied in

general that the evidence adduced by the prosecution in relation to CE, the allegations in

the indictment generally speaking are not vague, are not tenuous, they don't come in

either under the first or second leg of Galbraith. They are quite able to be dealt with by

the jury.”

132. Moreover, he found himself satisfied that there was no collusion or influence or between

the complainants. In so finding he said:-

“But if I thought for one minute there was any collusion between these children

in relation to the preferment of evidence, this case would have to be withdrawn from the

jury. But if you look at the demeanour of the children on the DVD, you know they struck

me as guileless, innocent children in many ways. And I, in those circumstances, I’m ---

and it wasn’t put frankly to CE that that was the type of behaviour that she was engaged

in.”

133. Moreover, he was satisfied that while there was the possibility of innocent

contaminations, this was foursquare a jury issue.

134. It is well established that matters relating to the credibility and reliability of witnesses are

within the province of the jury. The well-known decision of R v. Galbraith [1981] 1 WLR

1039 is not support for the contention that a case must be withdrawn from the jury if the

prosecution’s case contains inherent weaknesses, is vague or has significant

inconsistencies. Edwards J. in The People (DPP) v. JM [2015] IECA 65 emphasised the

correct legal position in that respect and stated:

“On the contrary, the emphasis in Galbraith is on the primacy of the jury in the

criminal trial process as the sole arbiter of issues of fact. What Lord Lane was in fact

saying in Galbraith wasn’t even if the prosecution’s evidence contains inherent

weaknesses, or is vague, or contain significant inconsistencies, it is for the jury to assess

that evidence and make of it what they will, unless the state of the evidence is so infirm

that no jury, properly directed, could convict upon it. Accordingly, what Galbraith is in fact

concerned with is fairness.

Moreover, implicit in the Galbraith principles enunciated by Lord Lane, is that withdrawal

of the case from a jury should be an exceptional measure, to which resort should only be

had for the purpose of avoiding a manifest risk of wrongful conviction.”

Conclusion

135. The mere fact that there are inconsistencies in a case is not an indication that the case

ought to be withdrawn from the jury. It is of course the position that if there is such a

level or degree of internal inconsistencies which raise serious questions as to the

credibility of the prosecution evidence, that no jury properly directed could convict, a trial

Page 27 ⇓

judge may withdraw the case from the jury. However, that is not the case here. It is

undoubtedly the position that there were inconsistencies in the evidence of the

complainants, but we are satisfied that the trial judge was absolutely correct in his

determination that those areas of inconsistency were matters relevant to issues of

reliability and credibility and thus were within the sole province of the jury. The trial judge

properly considered the evidence as a whole and in his ruling identified evidence aside

from the evidence of the two central witnesses. He was not of the view that the defence

had been denied meaningful cross-examination of either of the central witnesses. In this

we also find no fault on the part of the trial judge, on our consideration of the transcript it

is quite clear that counsel for the appellant cross-examined both witnesses extensively

and with some considerable skill.

136. Moreover, the trial judge was in the best possible position to assess the demeanour of the

witnesses and very carefully considered the issue of cross-contamination or collusion. And

while accepting that the lapse of seven years from recording the interviews with the

children and the trial, presented challenges, he concluded that a court must guarantee a

fair trial but cannot guarantee a perfect trial and he was satisfied that these were matters

which the jury were entitled to take into consideration but did not render the trial unfair

so as to cause him to exercise the inherent jurisdiction to stop the trial. With this we are

in entire agreement.

137. Consequently, for the reasons stated, we are satisfied that the refusal to withdraw the

case in terms of the principles in R v. Galbraith [1981] 1 WLR 1039 and POC v. The DPP

[2000] 3 IR 87 was a legitimate exercise of the trial judge’s discretion and we reject this

ground of appeal.

Ground 6- Deficiencies in the Trial Judge’s Charge Relating to Delay and Corroboration

Delay

138. The appellant contends that the judge failed to give any, or any adequate warning on

delay, and in particular, failed to address in a meaningful and effective manner the delay

that had occurred between the interviewing of the complainants and their cross-

examination at trial. It is said that what the judge had to say was very cursory. He had

commented:

“The other matters, then, that I just should have raised when I was dealing with

legal principles, and I suppose it’s just slightly the unusual nature of this trial, not very

unusual . . . but somewhat unusual. . . and that is that you had a complaint in 2011,

going into 2012, in relation to the children, that the trial hasn’t taken place now until

early 2018, but that you actually saw the DVDs of the children where they were 12 and

10, and then a year later, in relation to JE, when she was a year older. And just there

may be issues as to actual memories of the complainants of the incidents and memories

that they have from DVD recordings. Now, that’s perfectly legitimate, members of the

jury. You can have . . . refresh your memory from looking at matters like the DVDs and

both are legitimate forms of evidence, but obviously, the situation is that you know that

can cause difficulties for the defence as well as dealing with it on that basis, I just wanted

to make that clear.”

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139. Responding, the Director says that there was no real delay whatsoever in this case in the

making of complaints by CE, and later, JE. They were under the effective control and

dominion of the appellant until placed in foster care on 13th March 2011, and by the end

of that month, CE had made a disclosure to Aoife Woods which was reiterated by her to a

doctor when medically examined on 7th April 2011, to Gardaí at the clarification meeting

on 14th April 2011, and in the later s. 16 interviews. So far as JE is concerned, she told

Garda Peoples in April 2011 that she had things to tell but was not ready. She, too, was

interviewed by a doctor on 7th April 2011, but denied that anything had happened to her.

She was interviewed by specialist interviewers on 29th August 2011, but did not make

disclosures on tape, though she had already provided a note to Gardaí saying that she

had been abused. It is said that insofar as there was a time-lag between complaints and

interviews and the matters coming for trial, part of that is down to the actions of the

appellant in leaving Ireland and travelling to Chile.

Discussion – Delay Warning

140. In giving his ruling, the trial judge acknowledged that the issue of delay had, to a great

extent, already been considered within the application at the conclusion of the

prosecution’s case, to withdraw the case from the jury. Nonetheless, he proceeded to

reiterate the issues which he had considered, which included his finding that there was no

delay in the complaint made by CE to the authorities. He was satisfied there had been a

delay by way of a matter of months in respect of the complaint made by JE. He

concluded, in the circumstances of the case that any delay in making the complaints, such

as it was, was not an unreasonable one. With this conclusion, this Court agrees. The only

outstanding issue therefore was the lapse of time of some seven years between recording

the DVDs of interview and the cross-examination of the two central witnesses.

141. This is not a case of historical sexual abuse; this is a case where the complaints were

made proximate to the allegations. It is clear from the evidence that no later than

October 2014, the appellant was aware of the detail of the allegations being made against

him. It is fair to say that emphasis was placed by counsel for the appellant on the period

of time between the complaints and the interviews, and the evidence in court.

142. The trial judge was satisfied that no issue of specific prejudice had been pointed out to

the Court and in the circumstances considered it appropriate in order to ensure a fair trial

to highlight that the evidence was given at a remove of some seven years from the

making of the complaints and the video recordings of the evidence.

Conclusion

143. As we have observed, this was not a case of historic sexual abuse. It was not a case

where the complaints were made at a remove from the allegations forming the subject

matter of the trial. On the contrary the complaints of both complainants were made

proximate in time to the allegations themselves. Therefore, the requirement for a delay

warning in terms of the jurisprudence was not a feature of this trial.

144. Nonetheless, the issue of concern was the fact that the evidence was given at some

remove from the video recordings of the evidence. A period of some seven years had

Page 29 ⇓

elapsed which was undoubtedly a matter of some concern. Therefore, it was necessary for

the trial judge to bring that factor to the attention of the jury. How the trial judge decided

to do that was a matter entirely within his discretion on an assessment of the evidence at

trial. In this respect whilst his comments were succinct, there was, in the view of this

Court no necessity for the trial judge to elaborate on the difficulties that this presented to

the defence. He was satisfied that the defence had not been deprived of the ability to

cross-examine each of the complainants in a meaningful way. Nonetheless in order to

ensure a fair trial for the appellant, the trial judge pointed out to the jury that a period of

time had elapsed between the recording of the DVDs and the cross-examination, which

had the capacity to cause difficulties for the defence. Prior to alerting the jury to this

difficulty, the trial judge set out the relevant timeframes. Therefore, the jury were alert to

the precise passage of time and were also alert to the fact that this could create

difficulties for the defence. In our view, the trial judge addressed the issue in an

appropriate manner in the context of the circumstances of the case.

Corroboration Warning

145. It is said that the judge erred in not giving a corroboration warning. While it is accepted

that the giving of a warning is discretionary, it is said that the circumstances that were

present lent very heavily in favour of the warning. It is said that was so because of the

inconsistencies, lack of detail and the vagueness. Moreover, there was the risk of cross-

influence and contamination, and in particular, the possibility of influence and

contamination of the evidence of the younger sister. Moreover, it is said that this was a

case that called for a specific cautionary instruction in respect of the evidence of children.

Discussion – Corroboration Warning

146. We now consider the issue of the trial judge’s refusal to give a corroboration warning. It is

well settled in our law that a decision as to whether or not to give a corroboration warning

is a matter entirely within the discretion of the trial judge in accordance with s.7 of the

Criminal Law (Rape) (Amendment) Act 1990, as amended. It is also well settled that

where a trial judge exercises a discretion in a particular manner, this Court will not

intervene unless it is apparent that such discretion was exercised in a manner which was

manifestly unjust; The People (DPP) v. KC [2016] IECA 155.

147. In the present case, the trial judge determined that there was, as a matter of law, no

evidence capable of corroborating the complainants’ testimony. Therefore, the evidence of

the complainants was uncorroborated. The argument advanced on behalf of the appellant

was that the warning was desirable in circumstances where it was contended that aspects

of the complainants’ evidence was unreliable, lacking in detail, vague and contained

inconsistencies. Moreover, the risk of influence and cross-contamination was raised on

behalf of the appellant.

148. The appellant relies upon the decision of The People (DPP) v. Hanley [2018] IECA 173 as

authority for the proposition that a corroboration warning is desirable where there are

inconsistencies in testimony. However, the facts of Hanley are entirely different to the

evidence in the present case. Lack of recall, vagueness or inconsistencies in testimony are

not in and of themselves indicators of the desirability for a corroboration warning. They

Page 30 ⇓

may be factors which a court may take into account in deciding whether or not to give

such a warning.

149. It is quite clear from a perusal of the transcript that the trial judge considered the issue

as to whether or not to give a corroboration warning very carefully indeed. He found, as

stated, that there was a matter of law no evidence capable of corroborating the testimony

of either complainant. He considered the terms of s.7 of the 1990 Act and the evidence in

the case. He concluded that CE was a coherent and clear witness. He accepted that there

were inconsistencies in her testimony and that there was a lack of recall. As regards JE,

the trial judge was of the view that she gave substantial detail in her evidence and that

she was a clear and coherent witness. Moreover, in cross-examination he was satisfied

that they emphatically only emphasised that they were sexually abused by the appellant.

The trial judge went on to say: –

“This case is also different from the type of case where this court would consider

giving a corroboration warning, both in relation to children and in relation to corroboration

in general. There is a wealth of independent supporting evidence in this case, some of

which corroborate parts of the children’s testimony, it’s not corroboration in the classic

sense. And I don’t consider it at all appropriate for the reasons that I have set out to give

a general corroboration warning. The judgement that Ms. Walley opened... But I strongly

endorse the views against by Lady Justice Hallet, that children cannot be treated as

adults. And that they may give coherent evidence and sometimes conflicting evidence,

but one has to take into consideration that they are children. And for that reason, I do not

intend to give a corroboration warning, either in general corroboration warning, or a

warning in relation to the children’s evidence. That’s not to say that the difficulties that

the defence appointed house would not be absent from the judges charge to the jury in

fairness to Mr A.”

Conclusion

150. In the present case, while there was no direct evidence capable in law of corroborating

either complainant’s testimony concerning the allegations themselves, there was evidence

from a number of witnesses concerning aspects of the evidence given by each

complainant.

151. The trial judge was in an unparalleled position in that he was able to observe not only the

evidence given by each complainant but also the manner in which they gave their

evidence. He was satisfied that the evidence of each complainant was coherent and clear.

He recognised that there were inconsistencies in their testimony, however, that, in and of

itself does not indicate that a corroboration warning is desirable. In the final analysis, it is

quite clear that the trial judge exercised his discretion in a most careful manner having

heard all the evidence. We are not satisfied that there is any basis to assert that the trial

judge’s ruling was incorrect in fact or in law. This Court is not of the view that he erred in

the manner in which he exercised his discretion.

Discussion – Warning Regarding the Evidence of Children

Page 31 ⇓

152. Much of the foregoing paragraphs is apposite to a discussion regarding the evidence of

children. Again, the trial judge is vested with the discretion as to whether or not to give

such a warning in the context of any given case in accordance with s.28 of the Criminal

Evidence Act 1992.

153. It is for the trial judge to assess the evidence and the demeanour of the child who is

giving evidence at trial and it follows that as such the judge is best placed to decide as to

the manner of the exercise of the discretion. The same principle applies as in the instance

of a decision as to whether or not to give a corroboration warning, in that this Court is

very slow to intervene with the exercise of the discretion on the part of a trial judge

unless it is quite clear that such exercise was manifestly incorrect or unjust. Simply

because a witness is a child does not mean that the testimony is untruthful. A witness

must be assessed in the same manner as any witness is assessed and in the present case

the trial judge was satisfied that the two witnesses were coherent and clear in their

testimony. Again, he accepted that there were inconsistencies in their testimony but that

this was a matter for resolution by the jury.

Conclusion

154. The trial judge’s ruling in this regard was admirably thoughtful and clear and this Court

can find no error in his determination.

155. Accordingly, we reject this ground of appeal.

Ground 7 – Replaying portions of the DVDs to the jury

156. During deliberations, the jury requested to view the DVDs of interviews of the

complainants again. Counsel for the appellant sought to have the cross-examination of

the complainants’ recapped to the jury in light of such. In refusing to do so, the trial

judge stated as follows:-

“The jury have requested that they wish to look at some of the DVDs. The

DVDs of the interviews, all six of CE and JE, pursuant to section 16 of the Criminal

Evidence Act 1992 were made exhibits in the trial. There was no objection to that. There

was no condition placed on it. The Court for the reasons outlined, because of the issues

in this trial was at pains to do a very lengthy charge to the jury, two and a half days,

where it went through the transcripts of all the interviews, went through every aspect of

cross-examination of the main complaints, CE and JE. The only matters that were left out

was really for some time purposes and questions that had been repeated, so everything

of relevance was read to the jury. I agree with the submission by the prosecution that it

would be an inappropriate trespass for the Court, once the jury have asked to view the

DVDs, that I would insist then that I review and read again the copious evidence that the

Court has read already in the course of its charge to the jury. It's a matter for the jury to

decide how they deal with the exbibits and what part of it they wish to view and, in the

circumstances, I'll await their request as to the specifics. They have to be told that it will

be done in the courtroom.”

157. The appellant submits that the trial judge erred in this regard as a manifest unfairness

arose because the jury were essentially viewing the evidence in chief without the cross-

Page 32 ⇓

examination also being recapped. The appellant submits that it was still incumbent on the

trial judge to remind the jury of the complainants’ cross-examination, re-examination

and, where appropriate, any part of the accused’s own evidence.

158. The respondent submits that the trial judge was obliged to replay the requested portions

of video for the jury and that it was not unusual in such a lengthy trial for evidence to be

replayed.

159. The respondent accepts that a balance must be struck but it was not the duty of the trial

judge to re-focus or re-direct the jury’s deliberations away from the material that they

had specifically requested. Rather, to read out the entirety of the cross-examinations of

the complainants without a request would have been to trespass on the jury’s function.

160. The respondent refers to The People (DPP) v. PP [2015] IECA 152 where the Court

dismissed an appeal on the grounds, inter alia, that the trial judge erred in allowing the

Section 16 DVD interview to go to the jury in the jury room as an exhibit in the trial in

circumstances where the Court held no injustice or unfairness arose.

Discussion and Conclusion

161. In the ordinary course of trial, should the foreperson of the jury request the trial judge to

remind the jury of evidence, the trial judge may read from the transcript of the evidence

concerning the relevant witness or may read from the judge’s notes of the evidence. In

circumstances where the material of which a reminder is sought by the jury, is recorded

material, it is contended on behalf of the appellant that it is necessary to remind the jury

of the cross examination of witnesses where the DVD of the recording of the direct

evidence is played for the jury.

162. It is important to observe in the present case that the jury specifically requested to view

particular portions of the DVDs of interview. No request was issued to re-hear extracts

from the transcript of the evidence concerning the cross-examination of the relevant

witnesses.

163. In our view the issue is whether in re-playing only the nominated portions of the DVDs of

interview any unfairness or injustice arose.

164. The integrity of the trial process must be preserved at all times. Once the jury requested

that portions of the DVDs of interview be re-played, it was a matter at the discretion of

the trial judge to decide whether to permit a re-play or not. In certain circumstances, it

may be appropriate to simply re-cap the evidence from notes. However, in other

circumstances, such as exist in the present case, where the trial was a most lengthy one,

it can readily be seen why the trial judge had no hesitation in permitting a re-play of the

designated material and indeed the concern expressed on the part of the appellant was

that the cross-examination also be recapped by the judge.

165. Where the DVDs are re-played, certain safeguards are in our opinion required to be

followed which include the re-playing of the DVD in the courtroom in the presence of the

judge and the parties, which should take place without any intervention or interruption.

Page 33 ⇓

166. We do not agree with the contention on behalf of the appellant that it was then necessary

for the trial judge to summarise again all or part of the cross-examination of the

complainants. It is a matter to be determined on the facts and circumstances of each

individual case. In the present case the trial judge had carefully summarised the

evidence in a fair and balanced manner at the end of a very lengthy trial. Where certain

portions of evidence are requested to be repeated by the jury, it is only necessary to give

those portions to the jury. Should the jury request further material, it is a matter within

the province of the jury to so request.

167. We are satisfied in the circumstances that re-playing portions of the DVDs without

summarising again the cross-examination did not give rise to an injustice or unfairness to

the appellant.

168. Accordingly, we reject this ground.

Ground 8 – Failure to re-charge adequately following requisitions

169. This ground is concerned with the trial judge’s recharge. Following a lengthy charge to the

jury, the trial judge heard requisitions and recharged the jury. The appellant argues that

the trial judge did not deal adequately with certain requisitions made. The appellant

identifies the following requisitions:-

In not explaining to the jury that the first disclosure of CE in foster care was not offered

by the prosecution as a recent complaint but rather was introduced into the case by the

defence.

-

In not making clear to the jury in the context of Dr. Maeve McCormack’s evidence that

there was never any allegation against the Applicant in respect of other children and in

particular the other children mentioned in her evidence as being due for examination by

her on the same date.

-

In refusing to revisit the David Tyler memo in relation to inconsistencies in relation to the

testimony of CE.

-

In refusing to revisit the direct evidence of Garda Yvonne Peoples in respect of the

manner of introduction in interview of the allegation of JE that “he had sex with me”.

-

In responding to a prosecution requisition by reading to the jury a portion of the evidence

of a Garda Miller wherein he recalled the Applicant telling him that CE was the daughter of

his “partner” notwithstanding defence objection as there were no notes taken at the time.

170. The appellant submits that the cumulative effects of the failure of the trial judge to deal

with the above requisitions is sufficient to undermine the appellant’s conviction. The

appellant refers to The People (DPP) v. CC [2012] IECCA 86 wherein O’Donnell J. stated

at para 45:-

“In J.T. v. DPP [2008] IESC 20 Denham J. (as she then was) applied what

she described as the "omnibus principle" being that while none of the matters individually

Page 34 ⇓

would justify prohibiting a trial, the court must view the matter with regard to the

cumulative effect of the concerns. While this principle was identified in the context of a

claim for prohibition, there is no reason why it cannot also be applied in the context of an

appeal from a conviction. It applies with particular force where the counts are interlinked

and the prosecution relies on system evidence so that evidence in respect of one

complainant is admissible in the counts relating to other complainants.”

171. The respondent submits that the criticisms of the appellant are untenable as they are

predicated on the idea that the trial judge ought to have acceded to every requisition

made. In relation to the evidence of Dr McCormack, the respondent submits that the trial

judge dealt with her evidence extensively and he refused to revisit such after a careful

examination.

172. It is submitted on behalf of the respondent that each of the other complaints levelled

against the trial judge’s refusal of certain requisitions suffer from a similar hollow

infirmity. The jury was repeatedly reminded that the disclosure of CE while in foster care

was not corroborative; the issue of inconsistencies in the context of the David Tyler memo

suggests that the appellant believes that the entirety of the evidence heard in the 40 odd

day trial should have been read back to the jury, no matter how ancillary or minor the

evidence, when there is no basis in law for such a claim. In relation to the criticism that

the judge did not revisit the issue of how the words -“he had sex with me” came about in

the section 16 interviews with JE; it is submitted that the evidence of Garda Peoples and

the section 16 interviews together with the letters and drawings, as well as the extensive

cross-examination of JE and Garda Peoples on these issues, had already been fully and

extensively recited by the judge in his charge This evidence was also fully referred to by

both counsel in their closing speeches; in addition, the jury requested during their

deliberations to see the DVD interviews again, so the issue of the discussion as to how the

words-“he had sex with me” came about was fully ventilated, and seen again by the jury

on DVD. Finally, the complaint regarding the evidence of Garda Miller which was that the

appellant had told him that CE was the daughter of his “partner” should not have been

admitted because the officer had not noted this in his notebook is unstateable as matter

of law. It was a direct conversation with the accused in circumstances where the law does

not require that this be reduced to writing before the officer could give evidence of same.

Discussion and Conclusion

173. There can be no doubt but that the trial judge’s charge was a most comprehensive one

extending for a period in excess of two days. This was a very lengthy trial and the

evidence was carefully summarised by the trial judge. It is readily apparent from a

perusal of the transcript that the trial judge addressed the jury most carefully on the legal

principles. Moreover, he addressed each of the requisitions in turn and re-charged the

jury in respect of certain issues raised. The role of a trial judge is not to detail all aspects

of the evidence, but to provide the jury with clear directions of law and to summarise the

relevant evidence as the judge thinks fit.

174. In particular as regards the summary of Dr McCormack’s evidence, the trial judge

summarised the evidence most carefully indeed. It appears to this Court that he

Page 35 ⇓

highlighted the relevant evidence. He set out the evidence given in respect of the

medical examination of both CE and JE. The summary of the evidence was entirely

appropriate and comprehensive.

175. Furthermore, the trial judge distinguished the evidence of Aoife Woods from that of the

account given to Dr McCormack and the complaint made to Garda Peoples. We are

satisfied that the judge did not err in refusing to revisit that aspect of the charge.

176. In conclusion we have no hesitation in rejecting this ground of appeal. The charge was

fair and comprehensive and clear.

Ground 9 – Failure to give a stronger warning in relation to press attention

177. On day 42, the last day of the trial, counsel for the appellant made an application to the

Court seeking a warning to be given to the jury in relation to the media. This application

was predicated on the media coverage surrounding the “Belfast rape trial” which was

ongoing at the time. Counsel for the prosecution opposed the application on the basis that

the jury were at a sensitive time of deliberations and the facts of the cases were not

similar and took place in different legal systems. In choosing not to give the warning, the

trial judge stated as follows:-

“The jury were carefully charged. I don't consider it appropriate to recharge the

jury in any way or to give them any further warnings. The issue in relation to the Belfast

trial, it's important to state that it is outside the jurisdiction. We operate by different

rules here. Also, the issues in that trial are completely different and I just don't think it

would be in the interests of justice for me in any way to either recharge the jury on the

general principles or to give them any specific warning on the issues that have arisen.”

Submissions of the appellant

178. The appellant submits that the trial judge erred in failing to give the requested warning

and in not canvassing the jury. The appellant refers to The People (DPP) v. Keith Brady

(Reported in Irish Times 5th December 2018) where the jury was discharged in a murder

trial due to adverse media commentary in relation to the defence of provocation

broadcast on RTE’s Primetime. The trial judge canvassed the jury and ascertained that

some members had watch the show. As a result, the jury was discharged.

Submissions of the respondent

179. The respondent submits that the Belfast rape trial was entirely different from the facts of

the present case and the appellant has failed to identify any real or potential danger

which may be suffered as a result. The respondent notes that even where significant and

persistent specific adverse pre-trial publicity has been identified, trials can still proceed

with the application of fade factor and appropriate directions.

180. The respondent refers to The People (DPP) v. Griffin [2009] IECCA 75 where the Court

refused an appeal on, inter alia, the grounds that the trial judge failed to adequately

charge the jury as to adverse media coverage.

Page 36 ⇓

181. The respondent submits that the appellant’s reliance on the decision of Stewart J. in Keith

Brady is misplaced. Moreover, as the factual matrix of the Belfast rape case is so

fundamentally different to the facts of the present case, to canvass the jury on such

would have been improper, confusing and dangerous.

Discussion and Conclusion

182. The facts of this trial involving, as it did the sexual abuse of two minors under the care of

the appellant were utterly different to the facts in the ‘Belfast rape trial’. We are wholly

satisfied that the trial judge properly dealt with the within application. The Court was

requested to warn the jury, inter alia, not to permit themselves to be affected by

criticisms of the jury system. It has for many years been the position that the courts

view juries as robust and indeed it is the collective experience of this Court that juries are

well aware of their role and the importance of the jury function. We are not persuaded in

any way that the fairness of the trial or the safety of the verdicts were in any way

affected by the judge’s decision not to give the warning requested.

183. We have no hesitation in rejecting this ground.

Decision

184. Accordingly, as we have rejected each of the grounds of appeal, the appeal is dismissed.

Result: Dismiss

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You are here: BAILII >> Databases >> Irish Court of Appeal >> Director of Public Prosecutions v S.A. [2020] IECA 60 (11 March 2020) URL: http://www.bailii.org/ie/cases/IECA/2020/2020IECA60.html Cite as: [2020] IECA 60

Irish Court of Appeal