About this case:

• Citation:
  [2022] IECA 111
• Judgment:
  External link
• Court:
  Court of Appeal
• Judge:
  Mr Justice George Birmingham

Delivering judgment in the case, the President of the Court of Appeal, Mr Justice George Birmingham, held that the point was of central significance to the case and that the “jury required additional assistance with the evidence on this topic” from the trial judge in her charge. However, the court rejected ever other ground of challenge in the case.

Background

The complainant was the daughter of the accused and 10 years old at the time of the alleged offending. Between January and April 2017, the complainant and her mother visited the accused at his home. On one occasion, the three people were watching television together and the parents were drinking alcohol. The parents began to argue and all three people went upstairs to the accused’s bed.

The argument continued and the mother left to stay in the spare room. The accused and his daughter slept together. It was alleged that the complainant woke up to find her father sexually assaulting her by touching her privates.

It was not disputed by the defence that the accused and his daughter slept together on the occasion in question, but it was denied that any assault took place. An alternative defence was also advanced that, if the alleged touching took place, then the accused was asleep at the time. The defence focused on interviews between the complainant and gardaí, where it was indicated that the accused had been asleep at the time. The complainant was also reported to have said the same thing to her sister.

In responding to this alternative argument, the prosecution submitted that the interview records provided evidence that the accused and complainant had a conversation in the immediate aftermath of the incident. Accordingly, it was submitted that this conversation was evidence that the accused was awake during the offending and that a reasonable jury could convict on this basis.

The accused applied for a direction which was rejected by the trial judge on the basis that the difficulties with the evidence was a matter for the jury to resolve (DPP v. M [2015] IECA 65). Following the judge’s charge to the jury, counsel for the accused addressed the court on possible requisitions. The trial judge was invited to highlight the cross-examination of the sister and to give a corroboration warning to the jury.

The defence also submitted that the judge should have told the members of the jury that they should not feel pressured to subscribe to a verdict if they did not agree with it. The trial judge did not uphold any of these requisitions.

The accused was convicted on a 10-2 majority verdict and was sentenced to three years and four months’ imprisonment, with the final four months suspended on terms. The accused appealed the conviction to the Court of Appeal. It was argued that the trial judge erred by not acceding to the application for a direction of not guilty and that the judge’s charge was unsatisfactory.

Court of Appeal

Mr Justice Birmingham began by noting that the prosecution’s case was that a conversation occurred between the complainant and the accused in the immediate aftermath of the touching. The court considered the extracts of interviews with the complainant and held that this interpretation was “open”.

However, the court stated that it had concerns about the prosecution’s submission that the accused must have been awake if the conversation occurred immediately after the activity. Irrespective of the timing of the conversation, it had to be made clear to the jury that they had to be satisfied beyond a reasonable doubt that the accused was awake at the time of the touching, the court said.

The court rejected the accused’s submissions that the trial judge should have allowed requisitions on the issues of the cross-examination of the sister and corroboration. The evidence in the case was not complex and the trial judge was well-positioned to determine how detailed the review of the evidence needed to be. As such, the court did not need to deal with the sister’s cross-examination in greater detail than that provided to the jury.

On the point of corroboration, the trial judge had explained the concept to the jury but stated that there was, in effect, no corroboration in the case. It was further explained by the trial judge that that the jury did not need corroboration to convict the accused and that the evidence of the complainant alone could be relied on for a guilty verdict. The court held that this was not an impermissible way of dealing with corroboration, although it was noted that it may have been preferable to say nothing on the issue (DPP v. Limen [2021] IESC 8).

The court also rejected the accused’s submission that the trial judge used incorrectly used language which suggested that the jury had an obligation to return a verdict. The court held that the jury was conscientious and careful in its deliberations based on the time taken to return a verdict. It could therefore not be suggested that the jury was overborne.

Mr Justice Birmingham held that the only issue which caused concern in the case was the “arguable ambiguities of the state of the evidence as to whether the accused was awake or asleep”. The trial judge made it clear that the accused was entitled to an acquittal if they were not satisfied beyond reasonable doubt that he was awake at the time.

However, the “crucial significance” of this point and the scope for argument on the state of the evidence meant that the jury required additional assistance with the evidence from the trial judge. Since the trial judge did not specifically draw the jury’s attention to the evidence on the awake/asleep topic, the court held that the verdict was unsafe.

Conclusion

The court quashed the conviction.

The People at the suit of the Director of Public Prosecutions v. PB [2022] IECA 111