Court of Appeal: Refusal to sever indictment for child sexual abuse upheld on appeal

About this case:

• Citation:
  [2024] IECA 21
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Ms Justice Isobel Kennedy

Delivering judgment for the Court of Appeal, Ms Justice Isobel Kennedy noted “there was significant probative value to be derived from the inherent unlikelihood of three people making similar false accusations” and agreed with the trial judge that “It would…be entirely illogical and contrary to good sense to deprive the jury of evidence which is central to a core issue which they have to determine.” 

Background

The appellant was convicted of 14 counts of sexual assault and 8 counts of rape in respect of two of his nieces, LH and CH, and his nephew DH at four locations. The appellant was between the ages of 12 and 18 at the time of the offending.

The appellant was entitled to the presumption of doli incapax for the offences that he committed between the ages of 12 and 14 – a rebuttable presumption that he was incapable of committing the offences. 

An application to sever the indictment so that the counts concerning the appellant’s nephew would be tried separately was refused by the trial judge, who noted that whilst there were some dissimilarities in the offending behaviour, the offences all took place on family properties and in each case, the child’s motivation to play various games was exploited by the appellant so that there was a direct evidential link between the children.

The trial judge admitted evidence of another girl, NM, to the effect that the appellant asked her highly sexualised questions, kissed her and tried to touch her inappropriately. The prosecution said that this evidence was highly probative in that CH had been told by the appellant that this conduct was normal and that NM had engaged in it with him.

The appellant appealed his conviction on the basis that the trial judge should have allowed the indictment to be severed and erred in admitting the evidence of NM where its prejudicial effect outweighed its probative value.

The Court of Appeal

Ms Justice Kennedy considered that the starting point is that a judge has discretion to sever an indictment upon application pursuant to s.6(3) of the Criminal Justice (Administration) Act 1924 if the judge is of the opinion that it would be unfair to the accused to proceed on the basis of the indictment as is.

The court considered the principles set out by the Supreme Court in (DPP) v Limen [2021] 2 IR 546, “Where the accused is charged with multiple offences of the same nature against several individuals, some probative value may be found in the inherent unlikelihood that several people had made the same or similar false accusations. The accusations need not be identical or “strikingly similar” but must be of the same nature. However, similarity might add to the probative value, and the greater the similarity is, the greater the probative value…The inherent unlikelihood of multiple false accusations, and therefore the probative value, rises in situations where the complainants were independent of each other and there was no reason to fear collusion or mutual contamination.”

Highlighting that the application had been made for severance on the basis of the graver nature of the abuse alleged by DH, Ms Justice Kennedy commented that as the courts’ knowledge in respect of child sexual abuse has moved on, the courts are “much less likely” to sever an indictment on the basis of the different gender of complainants or different locations.

The court was not persuaded by the appellant’s contention that the trial judge erred in permitting DH’s evidence of threats and damage to his toys in order to rebut the presumption of doli incapax, where the evidence of his niece may have been insufficient to do so. The court pointed out that there was evidence from LH of the appellant locking the door, and that the jury would have been able to consider the use of games as evidence of the appellant’s state of mind.

In response to the appellant’s argument that the accusations need not be strikingly similar but of the same nature, Ms Justice Kennedy stated that “…it cannot be said with any degree of force that the sexual activity was not of a similar nature. Where the abuse falls on the spectrum of gravity will not necessarily be determinative. The fact that some conduct is more egregious than other conduct will not in and of itself require severance of an indictment, particularly where the offending and the surrounding circumstances are broadly similar.”

The court also emphasised that DH was independent of his two cousins and had not had contact with them, which strengthened the respondent’s opposition to the application for severe as the evidence was potentially capable of rebutting collusion.

Dismissing the ground of appeal in respect of the severance of the proceedings, the court stated that “…not only were the allegations broadly similar with the very significant feature relating to the game playing, but DH was independent of his two cousins. Moreover, count 7 involved DH and CH and so that evidence was cross admissible. There was significant probative value to be derived from the inherent unlikelihood of three people making similar false accusations. While such evidence was undoubtedly prejudicial to the appellant, as is the case with all prosecution evidence, the probative value was not outweighed by the prejudicial effect.”

Turning to the appellant’s second ground of appeal, the court noted that the trial judge considered NM’s evidence to be necessary and relevant to CH’s allegation of sexual assault as CH had alleged that the appellant mentioned NM by name whilst committing the offence, and the jury would otherwise be left without evidence which was important to the essential issue that they were determining – “whether the appellant had sexually assaulted CH and…what was said during the commission of the offence”.

The court recognised that “…the key question for the judge was whether in the particular circumstances, the probative value was outweighed by prejudicial effect. That was a matter for determination by the judge on a consideration of the overall circumstances and, significantly, the purpose of the admission of the evidence.” Finding that the trial judge had made it “very clear” to the jury that the evidence had a limited purpose, the court remarked that “we must and do assume that juries do not ignore the directions of a trial judge”.

The judge continued, “…one would be hard pressed to find evidence of greater probative value than the evidence of NM. The evidence of NM was closely connected to the allegation by CH in terms of what CH said the appellant said to her regarding NM during the assault. CH could not have known of the incidents regarding NM and so this evidence was of significance to the credibility of CH. The trial judge was entirely correct to refuse to exclude this evidence…”

Conclusion

Accordingly, the court dismissed the appeal.

Director of Public Prosecutions v. P.M. [2024] IECA 21