Supporting Documents:
127-18 Redacted AFL.pdf127-18 Redacted Resp Notice.pdf

APPLICATION FOR LEAVE TO APPEAL TO WHICH ARTICLE 34.5.3° OF THE CONSTITUTION APPLIES

RESULT: The Court does not grant leave to the Applicant to appeal to this Court from the Court of Appeal.

REASONS GIVEN:

ORDER SOUGHT TO BE APPEALED

COURT: Court of Appeal

DATE OF JUDGMENT OR RULING: 8th June, 2018

DATE OF ORDER: 8th June, 2018

DATE OF PERFECTION OF ORDER: 31st July, 2018

THE APPLICATION FOR LEAVE TO APPEAL WAS MADE ON 16th August, 2018 AND WAS IN TIME.

REASONS GIVEN:

General Considerations

1. The general principles applied by this Court in determining whether to grant or refuse leave to appeal having regard to the criteria incorporated into the Constitution as a result of the 33rd Amendment have now been considered in a large number of determinations and are fully addressed in both a determination issued by a panel consisting of all of the members of this Court in B.S. v Director of Public Prosecutions [2017] IESCDET 134 and in a unanimous judgment of a full Court delivered by O’Donnell J. in Price Waterhouse Coopers (A Firm) v Quinn Insurance Ltd. (Under Administration) [2017] IESC 73. The additional criteria required to be met in order that a so-called ‘leapfrog appeal’ direct from the High Court to this Court can be permitted were addressed by a full panel of the Court in Wansboro v Director of Public Prosecutions (2017) IESCDET 115. Accordingly it is unnecessary to revisit the new constitutional architecture for the purpose of this determination.

2. The application for leave filed, and the respondent’s notice thereto, are published along with this determination (subject only to any redaction required by law) and it is therefore unnecessary to set out the position of the parties in detail.

Discussion

3. In this application the Director of Public Prosecutions seeks leave to appeal against the decision of the Court of Appeal to quash the conviction of the respondent on a number of charges of sexual assault and to refuse to order a re-trial.

4. The alleged offences were said to have been committed between 1990 and 1994, when the complainant was a young boy aged between four and eight years old. The respondent was in his early fifties at the time. The complaint was made to the gardaí in 2010.

5. The first trial (in 2013) ended in a disagreement. The respondent was convicted in the second trial, in 2015, and was sentenced to a term of thirteen years with the final five suspended.

6. The substantive issue which the Director wished to address is the finding of the Court of Appeal that the trial judge erred in admitting evidence as to two previous convictions of the respondent in respect of offences against the complainant’s sisters. These had been reported to the gardaí in 1995. The respondent had pleaded guilty to the resulting charges and had served sentences in respect thereof in the late 1990s. The sisters’ statements of evidence and the fact of the pleas were admitted in the trial now under consideration, as potential corroboration of the evidence of the complainant, on the basis that they met the criteria governing “system” evidence and that the probative value outweighed the prejudicial effect.

7. There is a disagreement between the parties as to whether the application of the prosecution in the trial was simply to admit the two witness statements made by the complainant’s sisters, without also adducing evidence of the pleas of guilty. This Court is not in a position to resolve that dispute on the material before us.

8. The Court of Appeal disagreed with the trial judge’s assessment, holding that the evidence would have had an “overwhelming” prejudicial effect (see Director of Public Prosecutions v J.G. [2018] IECA 43). On the application for a re-trial the Court said that the factors of primary concern were the age and poor state of health of the respondent; the fact that the alleged offences, while undoubtedly serious, had been committed a long time ago; the fact that a re-trial would be the third trial on the same charges; the fact that the first trial had ended in a disagreement; and the fact that the respondent had already served a period of imprisonment equivalent to a sentence of three years and six months. The Court also observed that without the evidence in question the prosecution would be, if not fatally undermined, greatly weakened.

9. The Director submits that the decision of the Court of Appeal is inconsistent with other authorities. It is submitted that the Court reached its conclusion on the system evidence because it felt that the admission of the evidence that the respondent had pleaded guilty was overly prejudicial. The Director complains that this offends common sense. It is further contended that, in coming to its conclusion, the Court was influenced by its view that the probative value of the evidence was reduced by (a) the fact that, in its assessment, the evidence given by the complainant had been strong and persuasive and (b) its experience that abusers of children tend to abuse children of one gender only. The Court had also expressed the view that the complainant could have revealed the offending behaviour at the time of his sisters’ complaints, without taking account of the reasons for delay in cases involving childhood sexual abuse.

10. The respondent raises a jurisdictional issue as to the right of the Director to appeal in the circumstances of this case. The objection is not spelled out, other than by reference to s. 23 of the Criminal Procedure Act 2010 as amended by s. 71 of the Court of Appeal Act 2014.

11. On the substantive matters, the respondent argues that the judgment turned on the facts of the case, was not of general application and is unlikely to be relied upon as a precedent. It is submitted that the balance of justice falls against granting leave.

Decision

12. The question whether proposed evidence is more prejudicial than probative is one on which different judges may legitimately reach different conclusions. In this case, the trial judge took one view and the Court of Appeal considered that he had erred. The basis for the decision in each court was an assessment of the evidence, which was necessarily specific to this case. The Court does not consider that the Director has identified any legal error, capable of general application, in the judgment of the Court of Appeal. The Director complains of certain observations made in the course of the judgment, but these appear to have been obiter in that there is no clear link between them and the conclusion. Accordingly, this Court does not consider that the application meets the constitutional criteria and the application will be refused.

Jurisdictional Issue

13. Having regard to its view of the substantive merits of this application, it is not necessary for the Court to comment on the jurisdictional issue. However, it is noted that the Director does not have an unfettered right of appeal against acquittals, either at trial or on appeal. In any future application it is considered desirable that the Director specify the basis upon which the Court is said to have jurisdiction, and the parameters of the proposed appeal. By the same token, the Court considers that a respondent who objects to an application on jurisdictional grounds should set out the basis for such objection.

And it is hereby so ordered accordingly.