DPP –v– TC COURT OF CRIMINAL APPEAL
Judgment was given on June 23rd 2009, by Mrs Justice Susan Denham, sitting with Mr Justice Liam McKechnie and Mr Justice Daniel O’Keeffe.
JUDGMENT
The lack of disclosure of the fact that a complainant in a rape and sexual assault case had previously been sexually abused gave rise to a risk of an unfair trial and the court quashed his convictions. It is open to the DPP to prosecute a retrial.
BACKGROUND
The applicant, TC, was charged with five counts of sexual assault and 10 of rape from three complainants. He was convicted in February 2008 and sentenced in April 2008 to 14 years imprisonment in the Central Criminal Court, with one year suspended. The offences were alleged to have been committed between April 2002 and December 2004.
There were three complainants, two sisters, CH and SH, who were aged 15 and 13 respectively at the time the alleged offences began, and JB, aged 12 at the time, who was involved in a sexual relationship with SH. At the time of the trial they were aged 21, 19 and 18 respectively.
There was one allegation of sexual assault of JB, which was severed from the indictment, and TC is awaiting trial on this charge. An application to sever the indictments so that all three complaints be tried separately was refused.
The jury convicted TC unanimously on some of the counts of rape and sexual assault, acquitted him on one, and convicted him by majority of 10 to 2 on others.
He appealed against the conviction on a number of grounds, including that the non-disclosure of previous abuse of the complainant SH prejudiced his ability to cross-examine both complainants, whose complaints were interlinked, with regard to credibility, and breached his right to a fair trial. The new evidence emerged during the preparation of a victim impact report.
He also claimed that the judge erred in law in that he failed to sever the indictment, so that he was unduly prejudiced in his defence. Counsel for the applicant said it was accepted that the DPP only learned of the earlier sexual abuse after the conviction.
However, it appeared that gardaí were told before the sentencing hearing in April by Dr Gillian Moore-Groarke, who had a consultation with SH for the victim impact report.
During this consultation, SH told her that when she was nine years old she had been abused by a youth aged 17 or 18 who lived nearby. She said she did not want to make a complaint against him. The matter was not mentioned in the victim impact report.
Gardaí in her area subsequently carried out an investigation, but were unable to locate the alleged abuser, and SH refused to make a statement.
Dr Moore-Groarke told the prosecuting garda about the disclosure, who informed the office of the Chief Prosecution Solicitor. However, neither counsel was aware of this when the matter came before the judge for sentencing, and the DPP was not aware of the disclosure until September 11th, 2008.
There was no knowledge of this previous abuse pre-trial, so this is not a matter of non-disclosure, but of new evidence and its disclosure, the court said.
Counsel for the applicant said that his trial had been prejudiced by the fact that this evidence did not emerge. For example, in her statement SH said: “Before he stated raping me I was a virgin. During all this time I didn’t have sex with anyone else.”
Counsel submitted that it was not now clear whether that statement was true.
An application could have been made regarding the previous sexual history of SH. It was for the trial judge to exercise his discretion as to whether to grant leave to adduce such evidence, and had it been admitted it could have had an effect on the way the trial was run. In the light of the fact that many of the convictions were by majority verdict, the effect of such information and any subsequent cross-examination that may have been permitted could have been that the jury would not have been satisfied beyond reasonable doubt as the guilt of the accused, he said.
DECISION
Ms Justice Denham said the court was satisfied that as a consequence of the non-disclosure, there was a real risk there was an effect on the fairness of the trial which breached the right to trial in due course of law of the applicant. She allowed the appeal on this ground and quashed the conviction.
She said it was not necessary to decide on the other grounds of appeal, but added that it was open to the judge to make the decision he did on the issue of severance.
However, on any retrial the new information will be part of the information before counsel and there may be an application for the sexual history of SH to be brought before the court. Severance would then be a fresh issue for the trial judge.
The full judgment is on www.courts.ie
Timothy O’Leary SC and Ronan Munro BL, instructed by Diarmuid Kelleher Solr, Cork, for TC; Aileen Donnelly SC and Noel Devitt BL, instructed by the Chief Prosecution Solicitor, for the DPP.