BETWEEN
DECISION of Mr. Justice Eagar delivered on the 16th day of May, 2016

Application to amend the indictment
1. Counsel for the Director of Public Prosecutions applied to add a number of new charges to the indictment:

a. A charge of threat to kill. Counsel stated that there were actually three threats to kill and referred to DVD 1 and DVD 2. She stated there were at least two charges of threat to kill and also in respect of the threat to throw him out the window, a threat to cause serious injury.

b. She requested the court in respect of the child giving evidence of being filmed by his father, that s. 5 of the Child Trafficking and Pornography Act 1998 could be added to the indictment on the basis that the child had given evidence of being filmed by his father having been coerced to have sex with his mother in the family sitting room. She said that the child was engaged in explicit sexual activity.

c. She also requested counts to be added to the indictment in respect of the child’s evidence that his father had inserted a camera into the keyhole which he said flashed like morse code.

d. She also requested the court to add to the indictment a count of wilful assault in respect of the second incident of being locked in the box.

e. She also sought further counts in respect of sexual assault in respect of the poker inserted into the child’s anus.

f. She also sought further charges of assault in respect of his father kicking him and tripping him over which is contained on DVD 1.

2. In respect of R.N., she requested that the court add to the indictment counts of sexual assault and sexual exploitation.

3. She quoted s. 6 of the Criminal Justice (Administration) Act 1924:

“Where, before trial, or at any stage of a trial, it appears to the court that the indictment is defective, the court shall make such order for the amendment of the indictment as the court thinks necessary to meet the circumstances of the case, unless the required amendments cannot in the opinion of the court be made without injustice.”

4. The two authorities cited by the prosecution related to R. v. Dossi [1919] 13 Cr.App.R. 158 where the amendment amounted to the substitution of relevant dates. In the case of Director of Public Prosecutions v. Raymond Walsh [2010] 4 I.R. 746 the trial judge had amended the indictment by the substitution of four counts where the Director of Public Prosecutions had prosecuted the defendants on fourteen counts. Again the amendments in this case related to the substitution of certain dates. In that case, Fennelly J. stated:

“The purpose of any amendment must be to ensure that the jury will address the true issues when it comes to deliberate on their verdict. The counts in the indictment should correspond as closely as reasonably possible with a real case for the prosecution. A court should not exercise the power in circumstances involving prejudice to the defendant in the defence of the charges against him.”

5. However this Court is of the view that the Director of Public Prosecutions having received three statements of the complainant and the two DVDs of evidence could have proffered these charges which are now sought by counsel for the prosecution. Clearly counsel for the prosecution was not consulted prior to the preparation of the indictment but it is not the court’s function to act as a substitute for the Director of Public Prosecutions in relation to counts in the indictment nor is it the court’s function to act as substitute for the Director of Public Prosecutions in relation to adding counts to the indictment. What is sought is very substantial. Nevertheless, it all arises from the particular evidence of the witness which is contained in the statements of evidence and the DVD interviews. In these circumstances the court is declining to add any of the proposed charges to the indictment in particular having regard to the accused’s right to a fair trial and not a trial by ambush.

Application for a direction
6. The judicial power to direct an acquittal in appropriate circumstances is well established. Principles governing directions to acquit were set out by the English Court of Appeal in R. v. Galbraith [1981] 1 W.L.R. 1039. They have consistently been followed in Ireland and were stated by Lord Lane in the following terms:

“(1) If there is no evidence that the crime alleged has been committed by the defendant, there is no difficulty. The judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the judge comes to the conclusion that the prosecution evidence, taken at its highest, is such that a jury properly directed could not properly convict upon it, it is his duty, upon a submission being made, to stop the case. (b) Where however the prosecution evidence is such that its strength or weakness depends on the view to be taken of a witness's reliability, or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence upon which a jury could properly come to the conclusion that the defendant is guilty, then the judge should allow the matter to be tried by the jury.”

In The Director of Public Prosecutions v. Lacey (unreported, the Court of Criminal Appeal, 3rd July, 2002), the court noted these principles with approval.

Sexual exploitation charges against N.R. and R.N.
7. The prosecution seeks to lay the following acts as sexual exploitation:

i. Forcing the child to watch pornography.

ii. Filming the child in the bathroom.

iii. Inviting the child to take part in sexual activity with his mother.

8. The sexual exploitation counts against N.R. related to Counts 33 to 48 in the indictment. Counsel for N.R. referred the court to s. 3 of the Child Trafficking and Pornography Act 1998. In the margin note on the right hand side of s. 3 states, “Child trafficking and taking etc. child for sexual exploitation”. The structure of this section involves organising or facilitating the entry into, transit through or exit from the State of a child for the purposes of his or her sexual exploitation. It is in the definition section of “sexual exploitation” that the offence of introducing or coercing the child to participate in any sexual activity appears.

9. Section 3 of the Criminal Law (Human Trafficking) Act 2008 amends s. 3 of the 1998 Act and again gives another further definition of sexual exploitation as including at Part d “inviting, introducing or coercing the child to engage or participate in any sexual, indecent or obscene act.” O’Malley, in his book on Sexual Offences (2nd Ed.) sets out the issues of child trafficking and sexual exploitation together. The offences listed in the schedule to the Sex Offenders Act 2001 include all commonly prescribed sex offences including rape, sexual assault, incest and defilement. He describes the offence of meeting a child for the purpose of sexual exploitation which is included in the Criminal Law (Sexual Offences) amendment Act 2007. In relation to the charges proffered in the indictment against N.R. he states that “a charge might possibly be brought under this section where a parent or guardian sexually abused or exploited a child in a manner which did not come within the definition of any existing sexual offence.” He referred to the decision of Edwards J. in the Minister for Justice and Equality v. Adams [2011] I.E.H.C 366.

10. Counsel for the prosecution argued that this section contemplated child trafficking but also that there is a stand-alone offence of sexual exploitation of a child. It does not refer solely to the sexual exploitation of a child within a trafficking context. She stated that one would start with the plain words of the statute. The rules of statutory interpretation do not start with the purpose of the rule. She stated that the kind of acts as identified in the 1998 Act which could be sexual exploitation include using the child for prostitution or the production of child pornography and inducing or coercing a child participate in any sexual activity.

11. In the Minister for Justice and Equality v. Adam [2011] I.E.H.C 366, Edwards J. was considering the issue of a sexual assault in the context of a European Arrest Warrant relating to correspondence. He stated:

“While it might perhaps be argued that the conduct complained of is now covered by the prohibition on sexual exploitation of a child contained in s. 3(2) of the Child Trafficking and Pornography Act 1998, as substituted by s. 3 of the Criminal Law (Human Trafficking) Act 2008, it could also be argued that this offence is restricted to situations where there is trafficking or other commercial exploitation.”

He refers to Gillespie on “Sexual Exploitation of Children” and he continued:

“Be that as it may, the Court does not need to take a position on this because all of the alleged offences with which we are concerned pre-date the enactment of that legislation.”

12. Gillespie states,

“It will be remembered that the basis of sexual assault is that it is assault or battery that is sexual. A particular difficulty with this is that it may not cover situations where, rather than the adult touching the child, it is the child who touches the adult. The Law Reform Commission suggested that an amendment was necessary to ensure that children in Ireland were protected from such behaviour. They recommended the creation of a crime of child abuse sexual exploitation modelled on the definition of sexual abuse from Victoria, Australia.”

13. He continued that,

“The Oireachtas had not expressly closed this loophole and continued that it may have done so implicitly and said the consequences of this may be surprising as the offence under s. 3 bears the marginal note of child trafficking and taking children for sexual exploitation but the 2008 Act appears to widen this by the provision of a new subsection 2.”

However he notes that the Act, other than the marginal notes also suggest that this offence is restricted to situations where there is trafficking or other commercial exploitation. He says that although the marginal notes do not form part of the statute, it is something that can be taken into account by a court when deciding to interpret the legislation. While this Court is considering the interpretation of an Act, it is relevant, in my view, to consider the views of the Minister for Justice Equality & Law Reform which are quoted by Gillespie where he says the gist of the offence is trafficking, not exploitation. It is the view of this Court that sexual exploitation under s. 3 of the Child Trafficking and Pornography Act as amended is enmeshed in the offence of trafficking.

14. It is quite clear that there is no evidence of child pornography. It is also clear that no camera which would appear to be available for use in the bathroom has been produced in evidence and was not found in the search of the premises on 22nd August, 2012. In those circumstances the Court’s view is that in relation to N.R., Counts 33 to 48 in the indictment must fall, and I will direct the jury to find him not guilty by direction of the trial judge in respect of these counts.

Counts in relation to s. 4 rape and sexual assault (with a poker)
15. The sexual assault charges involving the poker commence at Count 17 and continue to Count 32 and they date from 27th May, 2007 when J. was four, and continue to 3rd April, 2011 when J. was seven and would be eight in May, 2011. The s. 4 rape counts are set out in Counts 1 to 16 and cover the same period.

16. In the cross-examination of J. by counsel for N.R., J. says that he thought he was six or seven when the assaults with the poker occurred, both in the bedroom and in the bathroom. Having regard to that evidence, and there being no evidence that J. was subject to this sexual assault of being penetrated by a poker in his anus prior to the age of six, the offences at Counts 17 to 23 must fall and I will direct the jury to find N.R. not guilty of these offences. I will also direct the jury to find N.R. not guilty of the offences from Counts 1 to 7 by direction of the trial judge in relation to the same period. The counts therefore that remain against N.R. are Count 8, Count 9, Count 10, Count 11, Count 12, Count 13, Count 14, Count 15, Count 16, Count 24, Count 25, Count 26, Count 27, Count 28, Count 29, Count 30, Count 31, Count 32 and Count 49.

Charges against R.N. – application for direction
17. In respect of the offences of sexual exploitation at Counts 66 – 81, on the same basis as the Court directed that the jury are directed to bring in not guilty verdicts in respect of those offences, the Court will also direct verdicts of not guilty in respect of Counts 66 – 81. The remaining counts in respect of R.N. are 16 counts of sexual assault and one count under s. 246 of the Children Act 2001. Counsel on behalf of the prosecution indicated that the child gave evidence that, first of all it happened once, secondly that it happened twice, and thirdly that it happened on a number of occasions but the child was not in a position to specify the number. She also said that the prosecution must be able to nominate the number of counts. That meant that the most the prosecution could point to was two occasions. However, in the Court’s view this will require an amendment of the indictment. The Court directs that in respect of Count 58 the charge should read that “you, on a date unknown between 1st April 2009 and 31st March 2010, (both dates inclusive) at [an address in Waterford], did sexually assault one J.”, and Count 65 will be amended that “you, on a date unknown between 1st April 2010 and 3rd April 2011, (both dates inclusive) at [an address in Waterford], did sexually assault one J.” In these circumstances, apart from Counts 58 and 65, the Court will direct the jury to find R.N. not guilty of the other sexual offence charges. However, the Court is satisfied that there is sufficient evidence in Count 82. So there are three counts now in relation to R.N.. I will tell the jury of my direction and tell the foreman that, when issued with the issue paper, he will find marked on the issue paper in respect of the offences for which I have given directions of “not guilty by reason of direction of the trial judge” and I will tell the foreman that, as a result of a legal issue which arises in relation to the charges of sexual exploitation I have given a direction to the jury to bring in verdicts of “not guilty” in relation to those charges and that in relation to the other charges, that the evidence that J. gave did not cover all of the charges against N.R. and R.N.