Court of Appeal: Priest who raped and sexually abused 12-year-old boy loses appeal against his conviction

About this case:

• Citation:
  [2018] IECA 279
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice John Hedigan

In the Court of Appeal, it was argued that the trial judge erred in failing to give a corroboration warning in circumstances where there were “inconsistencies” in the victim’s evidence, and issue was taken with the victim’s assertion that he did not know what was happening was wrong until he was older.

Dismissing the appeal, Mr Justice John Hedigan stated that the case reflected “the tragedy of the sexual abuse of innocent young children who may have neither the understanding nor the vocabulary to correctly assess the nature of the abuse being inflicted upon them”.

Background

The appellant, DN, was a parish priest involved in the Board of Management in the local school of a 12-year-old child who he raped and sexually assaulted throughout 2005 and 2006. The Court heard that DN took the child to his parochial home and another home of his, where he would ask the child “sexually motivated questions and get him to engage in sexual acts including oral sex and digital penetration of the anus”.

In 2013/2014, DN’s victim attended his GP due to pain arising from the injuries caused by the digital penetration to which he was subjected. It was at this stage that the offences came to light; the victim told his mother about being groomed by DN, and the school was informed.

DN denied the claims and pleaded not-guilty at trial.

In March 2017, DN was convicted by a Jury in the Central Criminal Court on two counts of oral rape contrary to s.4 of the Criminal Law (Rape) (Amendment) Act 1990 and four counts of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990.

Thereafter DN was sentenced to eight years’ imprisonment in respect of each s.4 count, and to four years for each s.2 count, both sentences to run concurrently.

The sentences were to be consecutive to a sentence he was currently serving also in respect of sexual offences against a minor.

Court of Appeal

DN appealed against his conviction and sentence, however the present judgment dealt only with conviction. DN’s appeal against conviction was based on one issue: that the trial judge erred in refusing an application to give a corroboration warning to the jury.

Justice Hedigan said that trial judges are given discretion to determine whether a corroboration warning is warranted (s.7 of the Criminal Law (Rape) (Amendment) Act, 1990); however there are circumstances in which a warning should be given.

Considering DPP v JEM [2001] 4 IR 385, which endorsed the principles set out in R v Makanjuola [1995] 1 WLR 1348, DPP v PJ [2003] 3 IR 550, and DPP v Gentleman [2003] 4 IR 22; Justice Hedigan stated that “where there are certain inconsistencies and vagueness going beyond what is normal, there may be grounds for the judge to give an appropriate warning. There will have to be an evidential basis for suggesting that the witness may be unreliable”.

Counsel for DN requested a corroboration warning, arguing that there were inconsistencies in the victim’s evidence:

1. that there were inconsistencies in the dates of assault;
2. that the victim referred to four incidents of oral sex offences in civil proceedings, but referred to just three in his evidence, and that the victim “thought he may have been confusing kissing for oral sex”;
3. that the victim “didn’t understand what was taking place…that it was only later when he got old that he understood what was wrong” but that his mother “confirmed in terms that he knew right from wrong”.

Reiterating that there must be an evidential basis upon which the reliability of the witness’s evidence is questionable, Justice Hedigan said that the matter was comprehensively dealt with in DPP v RA [2016] IECA 110 which held that a corroboration warning was not necessary in circumstances where there were factors which “…might be regarded undoubtedly as elements of inconsistency and matters perfectly legitimately to be highlighted and pursued by the case”.

Justice Hedigan said that it was “hardly surprising that there might quite innocently occur certain inconsistencies in establishing a time line and linking dates” in circumstances where the victim was remembering events of eight years previously when he was a child.

Finding that the victim’s explanation regarding his confusion between oral sex and kissing was understandable, Justice Hedigan also said that “[t]he question of when he knew that what was happening was wrong, reflects the tragedy of the sexual abuse of innocent young children who may have neither the understanding nor the vocabulary to correctly assess the nature of the abuse being inflicted upon them”.

Dismissing the appeal, Justice Hedigan said that there was nothing striking about the inconsistencies and slight vagueness in the victim’s evidence. The victim had graphically described the sexual abuse he suffered which was the core of the complaint, and no “new hurdle of ‘peculiar’ or ‘special’ factors” had been created by the trial judge in refusing to give a corroboration warning.

• by Seosamh Gráinséir for Irish Legal News