Supporting Documents:

THE SUPREME COURT

DETERMINATION

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

REASONS GIVEN:

1. Jurisdiction

This determination relates to an application by James Costello (the Applicant) for leave to appeal under Article 34.5.3° of the Constitution from the judgment of the Court of Appeal being the judgment delivered by Sheehan J. on the 19th November, 2015 on foot of the appeal in respect of conviction. There was a further decision made on the 18th March, 2016 in respect of sentence and the order of the Court of Appeal in respect of conviction and sentence was perfected on the 26th April, 2016 on foot of the decisions of the Court of Appeal made on the 19th November, 2015 and the 18th March, 2016. This determination relates only to the judgment of the Court of Appeal dismissing the appeal against conviction.

As is clear from the terms of the Constitution and from the many determinations made by this Court since the enactment of the Thirty Third Amendment, it is necessary, in order for this Court to grant leave, that it be established that the decision sought to be appealed against either involves a matter of general public importance, or that it is otherwise in the interests of justice necessary that there be an appeal to this Court.

The Court considers it desirable to point out that a determination of the Court on an application for leave, while it is final and conclusive so far as the parties are concerned, is a decision in relation to that application only. The issue is whether the questions raised, and the facts underpinning them, meet the constitutional criteria for leave. It will not, save in the rarest of circumstances, be appropriate to rely on a refusal of leave as having a precedential value in relation to the substantive issues in the context of a different case. Where leave is granted, any issue canvassed in respect of which leave has been granted will in due course be disposed of in the substantive decision of the Court.

2. The proceedings

The Applicant's application for leave is published on the Courts Service website along with this determination together with the respondent's notice. The judgment of the Court of Appeal is also to be found on the Courts Service website.

The summary of the matters leading to the decision of the Court of Appeal which it is sought to appeal is to be found at paragraph 4 of the application for leave in the following terms:

(a) The facts as found by the jury in the case were that on dates between 1988 and 2011, the [Applicant] perpetrated indecent/sexual assaults against young people who were related to him. In total there were six complainants. The offences were committed during the following periods:

"Counts 1 to 8 and 12 and 13 on the indictment all relate to complaints by the younger sister and nieces of the [Applicant's] former wife and occurred between 1988 and 1992.

Counts 9, 10 and 11 relate to complaints of sexual assault by the [Applicant's] son and daughter and these assaults are alleged to have taken place in 2001, 2002 and 2011 respectively.


A summary of the accounts given by each complainant is set out in the judgment of the Court of Appeal. A number of incidents took place in the family home, others outside, all involved the [Applicant] causing the complainants to masturbate him or touch his penis. Five of the complainants are female, one is male. The offences were found to have taken place in six specific incidents over the course of twenty four years. A summary of the offences is set out in the judgment of the Court of Appeal in paragraphs 9 to 15."

"It was submitted on behalf of the [Applicant] during the trial and again in the appeal that the trying together of the six complaints would create an irreparable prejudice against the [Applicant]. This application was refused and all six complainants were heard during the same trial.

On appeal, this ruling was affirmed as being correct and furthermore it was stated, that the admission made by the [Applicant] in respect of the assault against SW, the third complainant, was admissible as evidence which was probative in respect of each of the other counts. The Court of Appeal held that this factor provides 'strong support' for the correctness of the learned trial judge's ruling. This factor was not explicitly stated by the learned trial judge as being one of the bases for his ruling refusing severance."

Thus, the Applicant seeks leave to appeal against the order of the Court of Appeal of the 19th November, 2015 perfected on the 26th April, 2016 in respect of the conviction appeal in which the Court of Appeal dismissed the appeal against conviction.

4. Reasons advanced by the Applicant why leave should be granted

The Applicant in the application for leave said that:

"(1) The issue crystallises as to whether there is an upper limit to the number of complainants who can be included on the same indictment without creating a prejudice to the accused.

(2) Whether there is a requirement where multiple complainant evidence is to be admitted that cogent evidence of a system/similar fact/misconduct be present in each allegation so as to allow cross-admissibility of the complaints.

(3) Whether an admission made in respect of one count can be evidence in respect of other counts where a system is alleged."

The Applicant acknowledges that one of the rationales behind the cross-admissibility of complaints identified in B. v. DPP and DPP v. B.K., that of the inherent improbability of different people making up strikingly similar stories, could warrant multiple complainants giving evidence in this case. However it is contended that where there are a sizeable number of complainants, the probative value of every additional complainant diminishes to a marginal value and that the prejudicial effect of each additional complainant increases geometrically. Thus it is submitted that the cumulative weight of the prejudicial effect of six complainants is so great as to render the ruling of the trial judge to refuse severance as incorrect in law and as creating a real and insurmountable prejudice for the Applicant. This is said to be a question of general application and accordingly a matter of public importance.

Insofar as the finding of the Court of Appeal that the admission (albeit disputed) made by the Applicant is admissible as evidence in respect of each other offence charged, it was submitted that there was no basis upon which such a finding could be made. The admission concerned involved a sole count on the indictment, namely indecent assault against SW.

It was submitted that the considerations which allow for cross-admissibility of complaints cannot apply to admissions in relation to some but not all of the complaints without there being evidence of striking similarity. It was further submitted that the evidence of the admission raises the complaint from being system evidence to being misconduct evidence and that the prejudicial effect is greatly raised. It was further submitted that where the account of SW was so lacking in detail and related to a single episode that it could not be said to have a sufficient number of features which would allow a judge to properly find that it is admissible as system evidence which has such a degree of probative force in relation to the other complaints charged.

In essence it was contended that the account of SW was sufficiently vague not to be capable of being considered as system evidence and further that the admission made in respect of it was too prejudicial to allow that count to be tried in conjunction with other counts unless it was so tied up in the other counts as to allow misconduct evidence such as in People (DPP v. McNeill).

It was further contended that the refusal to order severance of the trials is an error of law which has profound consequences for the Applicant and that in those circumstances it was in the interests of justice that the appeal be heard.

5. Director's reasons for opposing leave to appeal

The first point made by the respondent relates to a factual issue in respect of the information provided by the Applicant. In s. 4 of the application for leave the Applicant had stated that an admission made by him in respect of the complainant, SW was stated by the Court of Appeal to be: "admissible as evidence which was probative in respect of each of the other counts". The respondent set out the precise finding of the Court of Appeal which was in the following terms:

"This is particularly relevant when one considers the final submission made on behalf of the respondent. While it did not form part of the trial judge’s ruling it is germane that the evidence of the appellant’s wife regarding his admission that he had abused SW is evidence that was relevant not only to SW’s complaint but was also relevant evidence in respect of all other counts on the indictment. This Court holds that this piece of evidence provides strong support for the correctness of the judge’s ruling."

The Director made the point that the law in relation to the severance of counts on an indictment is clear and well established and in that context referred to a number of authorities, namely DPP v. B.K. [2000] 2 I.R. 199, DPP v. B. [1997] 3 I.R. 140, DPP v. OS, Unreported, Court of Criminal Appeal, 28th July, 2004 and Martin McCurdy v. DPP [2012] IECCA 76. The law has been further clarified in the judgment of the Court of Appeal in CC v. DPP (No. 2), Unreported, O'Donnell J., 6th December, 2012. Accordingly it is submitted that the decision of the Court of Appeal in this case which applied the dicta in the above cases does not involve a matter of general public importance.

The Director further submitted that the appeal relates wholly to the specific facts of the Applicant's case and required an application of well established principles to those facts. The respective accounts of the complainants were cross-admissible simply to show the inherent improbability that two people would make up similar stories and admissible to rebut accident, innocent explanation or denial.

It was further contended that there was no stateable basis for the appeal in circumstances where the Court of Appeal properly applied the principles set out in the cases referred to above and therefore not necessary in the interests of justice for there to be an appeal to this Court.

It was further submitted that the bald assertion by the Applicant that the Court ruled on the cross-admissibility of a disputed admission in respect of one complainant is artificial and incomplete. The Court accepted a submission by the respondent that the admissibility of the disputed admission was relevant to all complaints in order to contextualise factual matters in the trial.

Insofar as it was submitted by the Applicant that a central element to their contention that the appeal is necessary concerns the consideration of whether there is "an upper limit to the number of complaints who could be heard together", it was pointed out that the judgment of the Court of Appeal does not consider any submission to the effect that there is some "cut-off" point to the respondent's entitlement to have offences tried together. Reference was made to the provisions of the first schedule of the Criminal Justice (Administration) Act of 1924, in which rule 3 sets out the jurisdiction to try matters together where the rules provide in relation to indictments that "charges for any offences, . . ., may be joined in the same indictment if those charges are founded on the same facts, or form or are part of a series of offences of the same or a similar character". As the Court of Appeal made no determination on the issue as to whether or not there was an upper limit to the number of complaints which could be heard together, it was submitted that there could not be an appeal in accordance with the criteria under Article 34.3.3° of the Constitution where the point at issue was not one upon which the Court of Appeal made a determination.

6. Discussion

As is clear from a range of determinations made by this Court since the Thirty Third Amendment of the Constitution came into force, the constitutional function of this Court is no longer that of an appeal court designed to correct alleged errors by the trial court. Where it is said that the High Court, or another court from which the Court of Appeal has appellate jurisdiction prescribed by law, has simply been in error in some material respect, the constitutional regime now in place confers jurisdiction to correct any such error as may be established on the Court of Appeal. Rather the text of the Constitution now in place makes it clear that an appeal to this Court, whether directly from the High Court under Article 34.5.4° or from the Court of Appeal under Article 34.5.3°, requires that it be established that the decision sought to be appealed against involves a matter of general public importance or that it otherwise is in the interests of justice necessary to allow an appeal to this Court. It will rarely be necessary in the interests of justice to permit an appeal to this Court simply because it is said that the lower court was in error. An appeal to the Court of Appeal provides the appropriate remedy for any error made by the High Court. Likewise, a party which has had the opportunity to have the decision of the High Court reviewed by the Court of Appeal will have had the benefit of having been able to put its case both at trial and on appeal. Without more, the interests of justice will not require a further review on appeal to this Court.

At the heart of the decision of the Court of Appeal was the correctness of the trial judge's ruling in relation to an application to sever the indictments in this case. There was criticism by the Applicant of the trial judge's ruling and in particular the finding that ". . .there is a sufficiently striking similarity to allow the counts to proceed before the same jury and on the same indictment so I refuse the application to sever the indictment". It had been submitted before the Court of Appeal that "striking similarity" involved an unusual modus operandi and that that was not the case here. Counsel for the respondent had made the point to the Court of Appeal that the evidence of IC concerning the Applicant's admission that he had abused SW was pertinent to all counts on the indictment and a compelling reason for not severing the indictment as the evidence was relevant to the Applicant's access to his own children and also relevant as to how the extended family dealt with each thereafter. Sheehan J. delivering judgment on the part of the Court of Appeal concluded that the similarities were such as to properly allow the jury to consider the evidence in one case as supportive of that in another. He concluded that the trial judge's ruling demonstrated that the application for severance was approached carefully and took into account the relevant legal principles. Ultimately, the Court of Appeal concluded that the trial judge properly exercised his discretion when he refused to sever the counts. In circumstances where it is clear from the judgment of Sheehan J. that the Court of Appeal in considering this issue carefully considered the issue of cross-admissibility and took into account the well established principles in relation to the question of the severance of an indictment, the applicant has not satisfied the constitutional criteria necessary to warrant an appeal to this Court. Accordingly, on that issue the Court refuses leave to appeal under Article 34.5.3° of the Constitution.

The second issue raised relates to the question of whether or not there is an upper limit to the number of complaints which can be heard together. Counsel for the Applicant made the application to sever the indictment wholly or in part due to the alleged prejudicial effect of there being six complainants in the case; nevertheless as pointed out on behalf of the respondent in its notice that the point as to whether there was an upper limit to the number of complaints that could be heard together was not one upon which the Court of Appeal made a determination and therefore is not one upon which this Court could entertain an appeal in accordance with the provisions of Article 34.3.3° of the Constitution. It is quite clear from the provisions of Article 34.3.3° of the Constitution that an appeal to this Court only lies from a decision of the Court of Appeal and in circumstances where there was no decision as to whether there was an upper limit to the number of complaints which could be heard together, it is clear that no appeal could lie to this Court on that issue. In any event it was accepted throughout the course of the appeal to the Court of Appeal by counsel on behalf of the Applicant and on behalf of the respondent that the trial judge has a wide discretion in relation to the severance of an indictment.

7. Conclusion

The Court therefore refuses leave to appeal under Article 34.5.3°.

AND IT IS HEREBY SO ORDERED ACCORDINGLY.