Court of Criminal Appeal dismisses appeal against conviction for indecent assault and unlawful carnal knowledge. The court finds no miscarriage of justice despite the number of counts.

COURT OF CRIMINAL APPEAL

Kearns J. 2004 No. 201

Herbert J.

Butler J.

DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

v.

E.D.

APPLICANT

JUDGMENT of the Court delivered the 17th day of February, 2006 by Mr. Justice Herbert

E.D. was convicted by a jury at on 6th October, 2004, on 16 counts of indecent assault and 16 counts of unlawful carnal

knowledge of C.D. He was sentenced to two years imprisonment on the first count of indecent assault, to five years

imprisonment on each of the other 15 counts of indecent assault to run concurrently with the two years and the five years

imprisonment on each of the 16 counts of unlawful carnal knowledge to run concurrently with each other and with the other

sentences, all to date from the 6th October, 2004. An application for leave to appeal against both conviction and sentence

was refused by the learned trial judge.

E.D. now seeks leave from this Court to appeal against his conviction on the following grounds:-

“1. That the learned trial judge erred in law in refusing the application on behalf of the applicant to limit the

evidence to incidents which could be attributed to the counts on the indictment.

2. That the learned trial judge erred in law in refusing to limit the amount of counts in the indictment on the

application on behalf of the applicant and that the number of counts on the indictment was prejudicial to

him.

3. That the learned trial judge erred in law in refusing an application for a direction on behalf of the

applicant at the conclusion of the prosecution case on the basis that the number of counts in the indictment

and the receipt of evidence not attributable to any count on the indictment gave rise to a prejudice against

him.

4. That the trial was unsatisfactory in the circumstances.”

In the first 16 counts the applicant was charged, as a male person, with indecently assaulting C.D., a female person, in the

County of L. contrary to common law and as provided by s. 6 of the Criminal Law Amendment Act, 1935:-

Count 1 – on a date unknown between the 8th day of November, 1972, and the 31st day of December,

1972, both dates inclusive,

Count 2 – on a date unknown between the 1st day of January, 1973, and the 30th day of April, 1973, both

dates inclusive,

Count 3 – on a date unknown between the 1st day of May, 1973, and the 31st day of August, 1973, both

dates inclusive,

Count 4 – on a date unknown between the 1st day of September, 1973, and the 31st day of December,

1973, both dates inclusive,

and so on in four monthly periods to count 16 where the offence is charged as having occurred:-

“On a date unknown between the 1st day of September, 1977, and the 8th day of November, 1977, both

dates inclusive.”

The subsequent counts, 17 – 32 inclusive, charged that the applicant, a male person had unlawful carnal knowledge of the

same C.D., a female person, in the County of L. contrary to s. 1 of the Criminal Law Amendment Act, 1935 on a date

unknown between the same dates inclusive as are specified in the first 16 charges.

During the period covered by these 32 counts, C.D. was aged between seven years and thirteen years.

At the very commencement of the trial, Mr. Sweetman, Senior Counsel, representing the applicant, objected to the form of

the indictment. It was common case that the complainant had alleged that the various incidents of sexual misbehaviour of

which complaint was made had taken place at five particular locations only, namely, when she was being brought home

from school by the applicant in his car, in and around a pig shed across the yard from her home, in the bedroom of her

home where she shared a bed with another sister, when she was a passenger on his motor cycle and, while the applicant was

repairing their father’s car. Counsel for the applicant argued that counsel for the prosecution should be directed by the

learned trial judge to identify which counts on the indictment referred to which of these alleged incidents. He argued that

only these counts should be permitted to go before the jury. He further asserted that the leading of evidence of generalised

allegations which could not be specifically related to any particular counts thus identified, was of no probative value and was

prejudicial to the applicant’s constitutional right to a fair trial. He argued that the applicant’s constitutional right to a trial with

fair procedures superseded the right of the People to prosecute. In this respect he relied upon the decision in “B” v. The

Director of Public Prosecutions [1997] 3 I.R. 140 at p. 201 per Denham J., and “Z” v. The Director of Public

Prosecutions [1994] 2 I.R. 476 per Finlay C.J.

Counsel for the prosecution argued that the alleged offending misbehaviour had occurred on very many occasions at each of

the indicated locations over a period of six years or thereabouts. He submitted that a long period of time had elapsed,

between 22 and 27 years (by reference to the evidence actually given at the trial, since this misbehaviour had taken place)

and, the complaint could not be expected in fairness to identify a particular incident as having occurred on a specific date at

a specific location. A requirement, he said, for such particularity would render prosecutions of this nature impossible which

would be contrary to the requirements of public justice. He referred to a decision of “DO’ R” v. The Director of Public

Prosecutions (Unreported, High Court, Kelly J., 27th February, 1997).

In reply, counsel for the applicant asserted, that the applicant was entitled to a fair and separate trial on each count on the

indictment which demanded the calling of relevant and identifiable evidence, so that general allegations must, through their

lack of specificity with regard to the counts charged, necessarily result in evidence being led before the jury, whose

prejudicial impact far exceeded its probative value. He submitted that the calling of such evidence would render it impossible

to know on what basis the jury reached its verdict and raised the real likelihood that the jury might avail of evidence in

respect of one count to support a finding of guilt in respect of another.

The learned trial judge, while acknowledging that the matter was, “a well known dilemma”, ruled that the trial should

proceed on the indictment as laid. He stated that he would not make a theoretical decision in advance of the evidence and

that counsel for the applicant could address the Court at a later stage with regard to the state of the evidence in respect of

particular counts on the indictment.

In the case of The Director of Public Prosecutions v. “E.F.” (Unreported, Supreme Court, 24th February, 1994), the

indictment contained 9 counts, - five in respect of one, “K.B.” and, four in respect of one, “P.F.”, - of indecent assault

contrary to common law and as provided by s. 10 of the Criminal Law (Rape) Act, 1981. These offences were alleged to

have been committed by the accused on two girls who were aged seven years and nine years respectively on the date of the

first alleged assaults on them. Each count charged that the alleged offence occurred on a date unknown between the first

day of January in one year and the first day of January in the following year, for each of the years 1979 to 1988 inclusive.

No complaint had been made by either girl until the end of 1990.

The matter came before the Supreme Court by way of a Case Stated pursuant to the provisions of s. 16 of the Courts of

Justice Act, 1947 and, two of the questions submitted for the determination of the court were whether the indictment ought

to be quashed as duplicitous in form and, whether the charges as preferred, alleging an offence on a date unknown in a

particular year, were manifestly unfair and precluded the accused from having a fair trial in due course of law.

In delivering the judgment of the Supreme Court, (Nem. Diss) Egan J., at p. 13 of the judgment held as follows:-

“There is a large element of unreality in confining each count to one incident when the book of evidence

indicates that K.B. has claimed that the offences occurred roughly every day or second day and, P.F.

claims that it occurred about twice a week. It would have been infinitely preferable that the indictment

should conform with the allegations which were made but, unfortunately, if the suggested form with the

words ‘on divers dates’ were used, there would be duplicity… It seems clear therefore from a consideration

of the rules in the First Schedule to the Criminal Justice (Administration) Act, 1924, in particular Rule 4(1),

that each count can only refer to one offence… The unreality referred to by me may hopefully be cured by

legislation in the future. In the meantime it is my opinion that an approach to realism can be achieved by

increasing the number of counts so that each count will refer to a period of one month rather than one

year.”

In the case of S.F. v. The Director of Public Prosecutions and Others (Unreported, High Court, 17th December, 1997),

Geoghegan J., (at p. 10) in addressing the contention that the accused was faced with an excessive number of charges, (66

charges relating to alleged offences against a number of boys between 1981 and 1987 inclusive, most of which alleged

offences were reported to An Garda Síochána in 1995), stated as follows:-

“Nor do I consider that an Order of Prohibition should issue by reason of an alleged excessive number of

charges…The trial judge of course will have to ensure that there is a fair trial. In order to achieve a fair trial

it might well be necessary for the prosecution to reduce the charges which the Applicant would actually

have to face at the trial. But any problems arising out of this are a matter for the Trial judge.

All I will say at this stage is that if and insofar as there are charges in sequential periods which are of a

similar nature but are not specific, an indictment containing counts of that nature may not be bad or unfair

as specificity would in that situation be impractical and impossible. This is the clear view of the Supreme

Court as expressed in the judgment of Egan, J., in The Director of Public Prosecutions v. E.F. (Supreme

Court. 24th February, 1994).”

The decision in the case of The Director of Public Prosecutions v. E.F., (above cited), was further followed and applied in

the case of, “DO’ R” v. The Director of Public Prosecutions, (Unreported, High Court, 27th February, 1999, per Kelly J.)

at pp. 16 and 17 of the report. That was also a delay case in which the applicant was charged with 90 offences of indecent

assault, sexual assault and unlawful carnal knowledge against nine young girls, alleged to have been committed when the

applicant was a swimming coach at a swimming club attached to a school, between 1st January, 1976, and 31st December,

1992, the complaints having been made to An Garda Síochána between January, 1993, and June, 1995.

In applying the decision in The Director of Public Prosecutions v. E.F., (above cited), Kelly J., held as follows, (at p. 17):-

“In the present case, it is to be noted that many of the charges refer to a specific albeit unknown date

occurring, in many cases, in a specified quarter of a year. Consequently, rather than alleging an offence on

a date unknown in a particular calendar year, each year is broken down into four quarters and the allegation

is made in respect of a quarter. This is not so in all cases which are set out in the Book of Evidence since in

respect of some of them a specific date is identified. However, it is the case in relation to the bulk of the

offences charged.”

Kelly J. concluded as follows (at p. 20):-

“In my view the way in which the charges have been formulated accords precisely with what the Supreme

Court indicated ought to be done in that case. I find no basis upon which an Order of Prohibition could be

issued under this heading of complaint.”

The particular heading of complaint in that case was that the charges lacked adequate specificity as to the date when any of

the events charged was alleged to have been committed.

This Court is satisfied that the form of the indictment in the instant case as regards times and dates, complies with the

judgment of the Supreme Court in The Director of Public Prosecutions v. E.F., (above cited). This Court is satisfied that

there was no, “unnecessary proliferation of counts” in this indictment and that the number of counts laid was sufficient to

maintain reality at the trial without prejudicing the applicant in organising his defence or by creating an undue impression of

gravity and substance in the eyes of the jury. Indeed, senior counsel for the applicant, Mr. Sweetman, at the hearing before

this Court accepted, that it was permissible for the prosecution to lay the indictment by making allegations referable to four

month time spans and, that it would be quite unreasonable to expect or demand exactitude in relation to dates.

Though it does not appear so stated at any of the grounds of appeal to this Court, Mr. Sweetman’s contention before us

appears really to be that only incidents alleged to have occurred at one of the five identified locations, on a date, even if

unknown within a chosen quarterly period, should have been included in the indictment and, only evidence specific to each

such incident should be led by the prosecution. At the trial, senior counsel for the applicant, in his preliminary objection to

the form of the indictment, stated that he could identify at most, four types of incident from the complainant’s statement

contained in the Book of Evidence. This Book of Evidence was not, nor, was the statement of the complainant opened to

this Court during the hearing of the appeal. However, it is clear from the evidence in chief of the complainant given at the

trial, which was not challenged as not being in accord with her statement to An Garda Síochána, that repeated offending was

alleged by her to have occurred at each of five identified locations.

Mr. Fennelly, junior counsel on behalf of the respondent, submitted to this Court that the indictment was in a form which

had been approved by the Supreme Court for this type of case of alleged repeated offending against a minor. He stated that

the complainant, at this remove, was unable to recall actual dates or to identify occasions of offending by reference to other

matters. He claimed that if the prosecution was to meet the objection on behalf of the applicant the counts in the indictment

would have to be increased by a factor of four or five, which would then render the indictment open to challenge as unfair

to the Applicant as containing an excessive number of counts.

This Court was referred by counsel for the applicant to a decision of the Court of Appeal for England and Wales in the case

of Terrance John Rackham, [1997] 2 Cr. App. R., 222. In that case the appellant was charged on indictment and convicted

on seven counts of the rape and indecent assault of his step daughters. Sara was born on May 12th, 1974, and the counts in

respect of her spanned the period from January 1st, 1984, to December 31st, 1990. Jackie was under the age of sixteen

years for the entire period laid in the indictment, that is from January 1st, 1987, to December 31st, 1993. Sara gave

evidence of particular sexual misconduct which she stated had occurred several times a week in the bedroom which she

shared with Jackie. She also gave evidence of other particular sexual misconduct which occurred at her grandmother’s house

when, at the age of fifteen years she went to live there on a temporary basis. Jackie gave evidence of particular sexual

misconduct in the bedroom, while the accused was driving his car and in a caravan. Counts 1, 3 and 5, (rape and indecent

assault), were opened to the jury as “specimen” counts.

The decision of the Court, (McCowan L.J., Kennedy and Stuart – White J.J.), was given by Mr. Justice Kennedy at the

request of Lord Justice McCowan. He held as follows at pp 226 to 227 of the report:-

“As to the deferred application to particularise the counts, Mr. Joyce claimed that he could do so on one of

the counts but not the others. Before us no question of the impossibility of identification was maintained. It

is clear that there were incidents which could be identified by circumstances if not by date, and in any event

the broad categories of the indecencies relied upon could have been specified.

More significantly still, the counts spanned with each complainant some seven years. Mr. Pardoe

maintained his application, but the judge did not require any particularisation or other identification. Counsel

have referred us to a number of recent authorities. The first is Farrugia, the Times January 18, 1988, a case

where the allegations involved a course of indecent conduct against four children. Counsel for the

prosecution having, after some pressure, identified the matters relied on in the various counts, the summing

– up drew no connection between the particular allegations and the several counts. This Court observed

that:

‘The jury were therefore given no direction as to which incident could in their verdicts be related to which

count. They were given no direction as to which evidence before them was capable of corroborating each

individual child on each individual count.’

The conviction was quashed in that there was thus a fundamental and irretrievable error. While

corroboration is not now an issue there was in that case a like imprecision to the present in terms of

particularity. Farrugia was distinguished in Shore (1989) 98 Cr. App. 32, decided some six weeks later.

Shore similarly was a case of indecency with children but there the trial had proceeded without any request

for particularisation or identification. Of Farrugia, Neill L.J., said at p. 38:

‘It is also to be observed that the trial proceeded on the basis that there was no requirement for the

prosecution to identify a particular incident as the subject matter of a count.’

Both counsel before us had predictable submissions on this passage. To our minds there is nothing in the

passage to suggest that identification of the events relied upon ought not to be ordered in a proper case.

In Evans [1995] Crim. L. 245, a case of persistent and multifarious abuse of one child, where the complaint

before this Court was of want of particularity of the indictment, Rougier J. said (at p.8 of the transcript):

‘However, in these cases where a child has allegedly been abused on many occasions, over a lengthy

period, it is quite unrealistic to expect that child to be particularly specific as to precise dates or places under

the sanction that if, owing to the very multiplicity of offences, coupled with the lapse of time and failing

memory caused by a natural desire to put the experience behind him, he cannot do so, his abuser is

immune. To hold otherwise would be a charter for those who commit this sort of offence.

On the other hand, it can validly be said that although the prosecution are not obliged in every case to give

detailed particulars of times and places, at least they should be obliged to specify the type of conduct which

it is alleged constitutes the particular offence which is the subject of account in the indictment. Otherwise,

not to do so would have the defendant at a disadvantage not knowing what it was he was supposed to have

done and being unable to marshal his mind on more important evidence to counter those allegations. It is as

if the prosecution merely said:

‘Well, let us see the evidence of the complainant, see how it turns out and then decide

afterwards.’

That clearly is impermissible. The defendant is, at least, entitled to know the conduct alleged. We

remain, however, somewhat doubtful, whether in this particular case the appellant did, in fact suffer

any prejudice thereby.’

In our judgment it is not necessary to look for authority for the proposition that an indictment should be so

drawn or exemplified that a defendant will know with as much particularity as the circumstances of the case

will admit what is the case that he must meet so that he can, in the words of Rougier J., ‘Marshal his mind

on more important evidence to counter those allegations.’

Hardly less important is the need for the judge in the event of a conviction to know what precisely it is that

the jury have found proved. So, in the case of the present counts 1 and 1a, the age of the first complainant

when she was first raped and whether there was still a proved want of consent when she was seventeen

years old. In our judgment, the reservations in Shore reflect no more than if a defendant chooses to meet

general charges without objection he cannot easily raise want of particularity in the Court of Appeal. With

the more obvious available parameters – age of the complainant and place or circumstances of the incident

– it should not be too difficult in most cases, and would not have been in this case, to settle an indictment

which steered a safe course between prejudicial uncertainty and over-loading. It is common enough against

such a background as the present to lay account alleging say, a rape on a day between the complainant’s

one birthday and the next and so on. It was not contended by Mr. Pardoe that this was impermissible a

difficulty in being precise in every respect is not a reason not to be precise when one can.

Mr. Joyce remarked that because with the passage of time memories become more uncertain, too much

particularity would put the prosecution at hazard, but it is because of that very uncertainty that judges are

enjoined to remind juries of the difficulty for a defendant in meeting old charges. The careful use of the

power to allow an amendment should ensure that there is no unfairness in either direction. It is our

conclusion that the learned judge was in error in not acceding to the request for the better identification of

what was relied upon in these counts. The persisting uncertainty was such that, in our judgment, the

convictions on counts 1 and 1a, 3 and 3a and 5 and 5a are unsafe. Accordingly we quash those

convictions.”

At p. 228 of the same judgment the learned judge added as follows:-

“Moreover in as much as Mr. Pardoe was applying for identification of specific incidents he could not fairly

resist the addition of a modest number of new counts to reflect other specific incidents.”

By s. 4(1) of the Criminal Justice (Administration) Act, 1924 it is provided as follow:-

“Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or

offences with which the accused person is charged, together with such particulars as may be necessary for

giving reasonable information as to the nature of the charge.”

These statutory obligations, which by virtue of the provisions of Article 50 of the Constitution continue in full force and

effect, are given an additional importance by the provisions of Article 38.1 and Article 40.3 of the Constitution, which

guarantee the protection of fair procedures to a person charged with a criminal offence (The Director of Public

Prosecutions v. Byrne [1994] 2 I.R. 236 and “D” v. The Director of Public Prosecutions [1994] 2 I.R. 465) and in those

cases to which it applies, by Schedule I Article 6 of the European Convention on Human Rights Act, 2003.

This Court is satisfied that in every prosecution on indictment the statutory obligation to provide, “such particulars as may

be necessary for giving reasonable information as to the nature of the charges”, can only be satisfied if the indictment is so

framed as to inform the accused person in plain and unambiguous language what it is that each count in the indictment

alleges he or she has done or not done and, with sufficient particularity, by reference to the degree of information available

to the prosecution, to enable the accused, in the words of Rougier, J. to, “Marshal his mind on more important evidence to

counter these allegations”. The Court accepts that these particulars will vary of necessity with the circumstances of each

individual prosecution. In cases of the nature of the instant case, there may well be an inability on the part of the

complainant to be precise as to times, dates and even places, for some or all of the reasons indicated by Rougier J. in Evans

[1995] C.L.R. 452. However, to borrow the elegant phrase of Kennedy J. in Terrance John Rackham (above cited), “a

difficulty in being precise in every respect is not a reason not to be precise when one can”.

This Court is satisfied that in the instant case the indictment could have been framed with greater particularity as to times,

dates and incidents. This becomes apparent from a consideration of the circumstances of the complaint.

The incidents of indecent assault were alleged to have taken place at five very specific and very separate locations:-

(a) In a motor car the property of the applicant parked in the upper half of B. Lane.

(b) In a back bedroom of the family home in which the complainant shared a double bed with her sister and which was next

door to the room in which the applicant slept.

(c) In rooms near a big ivy tree at the back of a pig shed in the yard of the family home.

(d) Outside the back door of the family home while the applicant was fixing the brakes on their father’s car.

(e) On a motor bicycle, the property of the applicant while the applicant was taking the complainant to a local shop for

messages.

The incidents of unlawful carnal knowledge were alleged to have taken place only at location (a) and (b) above.

As to times and dates, certain very definite parameters are discernible in the complaint. The incidents of indecent assault at

(a) above were alleged to have occurred exclusively after school, so that even if precise dates and times could not be

recollected by the complainant, the events could only have taken place during school terms and between the end of the

school day and whatever time the complainant would ordinarily be expected to return home from school. In addition, the

incidents of unlawful carnal knowledge at (a) above, were alleged to have occurred when she was, “a bit older” than when

the incidents of indecent assault started, when she, “could be nine, ten or eleven”, so that they are most likely to have

occurred in the years 1974 to 1978 inclusive. The incidents at (b) above, were all alleged to have occurred at night during a

period when the applicant was working for local farmers but was staying at home. Similarly, the incidents at (c) above, were

all alleged to have occurred during the period when the applicant was working for local farmers but was living at home.

However, unlike the incidents at (a) and (b) above, the complainant did not remember when the incidents at (c) above,

occurred or with what, even approximate, frequency. They occurred, she complained, when she was playing hide and go

seek and the applicant was around and no one was looking. The incident at (d) above, was a single incident, alleged to have

occurred when the applicant was fixing the brakes on their father’s green coloured Austin A.-40. The incidents at (e) above,

were alleged to have occurred when the applicant was eighteen, nineteen or maybe more, so that the complainant, being

eleven years his junior, was then aged seven or eight years and this means that the alleged misbehaving occurred most likely

during 1972 and 1973.

The foregoing is not intended to be an exhaustive analysis of the circumstances which were available to provide a basis for

the indictment. The object is to contrast the material available with the paucity of information provided in the various counts

charged in the indictment so as to demonstrate that additional particulars could and, in the interests of fair procedures and in

order to comply with the statute, should have been furnished in this instance. There is nothing to indicate that Egan J.

intended that the particular timeframe indicated in his judgment in The Director of Public Prosecutions v. E.F. (above

cited) to be the sole template and immutable rule for all indictments in cases of serial offending against minors. The use of

other timeframes or points of reference are not in any manner excluded by this judgment. In the instant case this Court is

satisfied that an unduly rigid and mathematical approach was adopted to drafting the indictment and insufficient attention

was given to the actual times and dates indicated by the complainant. This Court is satisfied that additional particulars of

time, date, and location could have been provided in the indictment while steering “a safe course between prejudicial

uncertainty and overloading”. This would have been of material assistance to the applicant in identifying precisely what

misbehaving was alleged against him on each count in the indictment and therefore in organising his defence. The exact

misbehaviour alleged on the part of the applicant at each of the five specific locations is very clearly indicated in the

complaint of “C.D.” but despite this, each of the thirty two counts in the indictment does nothing more than recite that he

either, “indecently assaulted ‘C.D.’ a female person” or “had unlawful carnal knowledge of ‘C.D.’ a girl under the age of 15

years”. This Court is satisfied that the strong disapproval of this form of ritualised and non specific statement of individual

counts in an indictment which follows from the judgments of the Court of Appeal of England and Wales in Evans, (above

cited) and Rackham (above cited) must apply with even greater force in this State by reason of the express provisions of

s.4(1) of the Criminal Justice (Administration) Act, 1924 and Article 38.1 and Article 40.3 of the Constitution.

This Court is satisfied that the intention of the legislature in requiring that reasonable information be furnished in an

indictment of the nature of the charge or charges proffered against the accused was obviously to ensure that an accused

person did not suffer any material prejudice in the preparation and, additionally or alternatively, in the conduct of his or her

defence by reason of a lack of specificity in the charges. This Court is satisfied that the learned trial judge in the instant case

ought to have acceded to the request by counsel for the applicant and ordered that the indictment be amended so that each

count indicated with as much particularity and specificity as the circumstances of the case would allow the nature of the

misbehaving charged in each count on the indictment.

However, having carefully considered the entire transcript of the trial, this court is not satisfied that the applicant did in fact

suffer any real prejudice as a consequence of the refusal of the learned trial judge to make the order sought. The evidence

reveals that on the 21st June, 2000, at 12.30pm the applicant made a cautioned statement to Garda James Kelly in the

Garda Station. In it he admitted to having indecently assaulted C.D. in his car at B. Lane on one or two occasions having

collected her from primary school when she was seven or eight years of age. He also admitted to having indecently assaulted

her on a number of occasions having persuaded her to assist him in repairing a motor car belong to their father in the yard of

the family home. He denied every having touched her at the pig shed. He admitted that he had indecently assaulted her, but

not many times, on occasions when she was seated in front of him on his motorcycle. He further admitted that he had

indecently assaulted her, fairly often but within a period of a year only, when she shared a double bed with her sister. He

stated that, “he did not ever remember putting him penis inside her vagina”.

At the commencement of the trial a challenge was made to the admissibility into evidence of this statement, on the grounds

that it was not a voluntary statement and had been procured by a mixture of threats and inducements on the part of

members of An Garda Síochána and was elicited by question put to him by those members of An Garda Síochána in breach

of the provisions of rule 7 of the Judges Rules, 1922, and of the Criminal Justice Act, 1984, (Treatment of Persons in

Custody in Garda Síochána Stations) Regulations, 1987. This issue was tried in the absence of the jury and Garda James

Kelly, Sergeant Dan Kelly and Garda James Meade gave evidence. The learned trial judge ruled that the statement was

admissible in evidence, holding that it was voluntary and that the applicant had not been brow beaten and there had not been

a breach of the Judges Rules or the Regulations. No appeal was taken to this Court against that ruling of the learned trial

judge.

This statement by the applicant was subsequently proved in evidence before the jury by Garda James Kelly and he, Garda

Dan Kelly and Garda James Meade gave evidence and were cross-examined before the jury, in relation to whether the

statement was or was not voluntarily made by the applicant. The evidence of these members of An Garda Síochána, which

it was open to the jury to accept or reject, was that the statement of the applicant was made entirely voluntarily after caution

and, in response to the statement of the complainant which Garda James Kelly had read to him in its entirety slowly enough

for the applicant to understand and to absorb what was in it.

The following cross-examination of Garda James Kelly is recorded at Book 2 of the Transcript of Evidence, p. 83, questions

477-480 inclusive:-

“477. Would you agree with me that there is a very large amount of detail in that statement?

- That is correct my Lord.

478. And it would be very difficult for anyone to remember all those details in the order in which you read

them, do you agree with that?

- Well most of the details in the statement were the actual descriptions of places and bedrooms in houses

and things like that that E.D. would be completely familiar with himself.

479. That is not exactly what I mean. Isn’t it correct to say that there are a number of incidents described

in that statement, in C.D’s statement and they are in a particular order?

- Yes, that would be correct.

480. Would it not be difficult for anyone to remember all those incidents in the order that you read them

out and deal with them in the order that you read them out in the statement?

- That possibility could be, but really in essence there are only four different incidents in the statement but

there are four major incidents at different times, the old lane, the pig house, the car, fixing the brakes of the

car and on the motorbike; there are really only four major points in the statement.”

The applicant gave evidence in chief that he used to do a bit of work for farmers locally for a while, during which time he

lived at home. He said he left home in 1969 or 1970 when he was seventeen years of age and thereafter very seldom visited

home and then did not stay overnight. The applicant said that he married in 1975. He told the jury that he never collected

C.D. from primary school in his car. He said that he did not have a motor bicycle when he had lived at home. He said that

there was no ivy tree at the rear of the pig shed but that there was the gable end of a ruined house behind the pig shed

where the younger members of the family often played. He said that he did not abuse C.D. there and could not as their

father was always about. He said that he often did jobs on his father’s car, but he had never sought assistance from C.D. He

said that he had never sneaked into her bedroom in the dead of night and abused her there. He accepted that the written

statement he had signed did agree with some of her allegations against him. However, he insisted that this was not a

voluntary statement. He said that members of An Garda Síochána had threatened to keep him overnight in the garda station,

then let him out, but bring him back in again the next day and to repeat this over and over again until he told them what they

wanted to know. He said that bits of the complainant’s statement were read to him and he was then asked, “what have you

to say about that”. The applicant said that he had got fed up after a while and said “right, ok, fair enough, that’s right yes”,

and the Garda would then right it down on a piece of paper. He said that the Garda then read it to him and gave it to him to

sign, which he did, and the Garda had said, “that’s it now”.

The applicant then gave evidence about a dispute in the family which he thought had started in or about 1988, around the

time C.D. had first made allegations against him. He said that C.D. and two other sisters had objected to another sister being

given a site for a house by their father.

In cross-examination he stated that the only reason C.D. was making the allegations against him was that he would not join

with her and two other sisters in objecting to another sister getting a site where their father now lives and obtaining planning

permission to build a house on that site. He accepted that he did jobs on his father’s car but said that this was before he had

left home when he was seventeen years of age. He said that he knew the lane well but was too young to have a car and did

not have the money for a car in any event. He said that once he had left home he was living about four or five miles away

and not a few hundred yards away from the house as had been suggested. In re-examination he said that the original family

home was a council cottage with three bedrooms and kitchen in which his parents and ten siblings were living at the time he

had moved out.

Evidence was given for the defence by Mrs. D., Mr. L.D., and Mr. R.D. Mrs. C.D., mother of the applicant said that the

applicant had left home at the end of 1969 or at the beginning of 1970, about the time when C.D. was starting primary

school. She said that the applicant had never collected C.D. from school in a car and did not have a car at that time. She

denied that there was an occasion, as alleged by C.D. when she had checked the underwear of the complainant and, she

said that C.D. had never made a complaint to her that the applicant had sexually interfered with her. She said that she did

not condemn the applicant because she believed nothing had occurred. She said that the allegations were first made by C.D.

at the time of the dispute over the site which had seriously divided the family.

Mr. L.D. said that he was a year younger than C.D. and always came home from school with her and with his younger

brother R. In fine weather their mother would collect them from school on foot and otherwise their father would do so in his

car. He said that he barely remembered the applicant about the family home at all and saw him very seldom, only on the

odd occasion. He said he only became aware of the complaints by C.D. in the year 2000. He could make no sense of the

complaints but considered that they might be related to the fact that the applicant would not side with C.D. in the dispute

regarding the site. Mr. R.D. gave evidence essentially to the same effect. He said that he was 13 years younger than the

applicant. He said that the recalled the applicant having a motorcycle in about 1986 at a time when the applicant was living

in another town in the county. Senior counsel for the applicant made a full closing address to the jury. This Court is satisfied

that the charge to the jury by the learned trial judge was correct in law, comprehensive and fairly balanced.

This Court has already held that the number of counts on the indictment in this case did not amount to overloading and was

not prejudicial to the applicant. The evidence of the complainant, which apart from his own admissions, was the only

evidence against the applicant, though non-specific with regard to times, dates, and locations, related solely to alleged sexual

misbehaviour on the part of the applicant towards her at five specific locations within the period 8th November, 1972, to 8th

November, 1977, inclusive. She was taken through her evidence in chief by reference solely to these locations. No evidence

was given by her which did not directly relate to offences alleged to have taken place at these locations. The evidence was

of repeated almost identical offending by the applicant against the Complainant at each of these locations only, with the sole

exception of the yard at the family home. On the evidence of complainant this was the scene of a single indecent assault on

her by the applicant, while in the statement of the applicant, indecent assaults on the complainant were admitted to have

occurred on a number of occasions at this location. No evidence was laid of any other or more general sexual misbehaviour

on the part of the applicant.

Each count in the indictment charged a single offence of indecent assault and a single offence of unlawful carnal knowledge

committed on a date unknown within a specified period of four months. The location where these offences occurred is not

an essential proof in establishing the offences. The fact that the complainant could not state the exact time or date or

location of the counts charged in the indictment, other than to allege that in the case of the indecent assaults, they occurred

at one of five specific locations and, in the case of the unlawful carnal knowledge offences, they occurred in a particular

bedroom, does not mean that her evidence was not, “attributable to the counts in the indictment”. This Court is satisfied that

the learned trial judge acted within his discretion in refusing the application on the part of senior counsel for the applicant at

the close of the case for the prosecution for a direction withdrawing the case from the jury.

Section 3(1)(a) of the Criminal Procedure Act, 1993, provides that:-

“On the hearing of an appeal against conviction of an offence the Court may affirm the conviction (and

may do so, notwithstanding that it is of opinion that a point raised in the appeal might be decided in favour

of the appellant, if it considers that no miscarriage of justice has actually occurred).”

Having carefully considered all the facts of this case, this Court considers that no miscarriage of justice has actually occurred

and will therefore dismiss the application for leave to appeal.