Court of Appeal: Man convicted of sexually abusing his step-daughter loses appeal

About this case:

• Judgment:
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The man complained that the trial judge erred in admitting a memorandum of his Garda interview and also evidence about his admissions to the victim’s family which he said was unlawfully prejudicial.

Delivering the judgment of the three-judge Court, Mr Justice Mahon was satisfied that the judge had correctly exercised her discretion in balancing the prejudicial effect against the probative value of the evidence, and dismissed both grounds.

Background

In June 2016, DMcG was unanimously convicted of seventeen counts of sexual assault and rape by a jury at the Central Criminal Court:

He was sentenced to concurrent imprisonment terms ranging from five years to twelve years, and five years of post-release supervision.

The complainant in respect of all counts was DMcG’s step daughter, and the sexual abuse occurred on a regular basis from the age of 11 to 15.

In the Court of Appeal, DMcG complained that the trial judge:

(i) erred in law in admitting into evidence certain alleged admissions made by DMcG which ought to have been excluded.

(ii) erred in admitting into evidence and/or failing to appropriately edit the memorandum of interview with the accused with the result that the jury were unlawfully prejudiced against him.

Evidence of DMcG’s admissions

In the course of the trial, the complainant gave evidence of a confrontation with DMcG involving the complainant, her mother, and her sister, in response to which DMcG said “I only did some of the small things, none of the big things”.

Counsel for the complainant said that this evidence was not admissible under any exception to the hearsay rule. The prosecution submitted that the evidence was of probative value and did not offend the rule against hearsay, and the trial judge allowed the evidence to be admitted “in the limited circumstances” outlined by prosecution. .

Evidence in relation thereto was then given by the complainant’s mother, sister, and grandmother.

DMcG submitted that the foregoing evidence ought not to have been admitted, and that the jury had, in effect, been told that he had admitted to everything alleged against him, but in circumstances where it was unclear what he was accused of at that time.

Considering DPP v. Carney IECCA 53, Justice Mahon said that issues on the admissibility of evidence which is both prejudicial and probative have to be carefully measured and balanced by the tria judge, who has a significant level of discretion in this respect. In this case, Justice Mahon was satisfied that the trial judge properly exercised her discretion to admit the evidence referred to, and was reasonably summarised by her in the course the course of her charge to the jury.

Dismissing this ground of appeal, Justice Mahon said that the Court was satisfied that the admission of such evidence did not render the trial unfair.

Interview memorandum

DMcG sought to exclude certain answers and questions put and listed in the course of a Garda interview while in custody. DMcG submitted that the questions and answers suggested that there was an onus on him to give an explanation as to why an allegation was made against him.

In the trial judge’s charge to the jury, it was emphasised that there is “no requirement and no obligation on anybody in custody to answer any question whatsoever”.

Dismissing this ground of appeal, Justice Mahon said that there was nothing in the course of this interview which was particularly prejudicial, that no unfairness arose by admitting this into evidence.

DMcG’s appeal was dismissed on both grounds.