Court of Criminal Appeal refused certificate for appeal on indecent assault count lacking specificity.

Court of Criminal Appeal

Fennelly J.

Budd J. 236/07

de Valera J.

People at the suit of the Director of Public Prosecutions

V

Christopher Kearns

Decision of the Court of Criminal Appeal delivered the 22nd day of October 2009 by Mr Justice Fennelly

On 16 December 2008, this court gave judgment refusing the application of the above named Christopher Kearns for leave to appeal against his conviction

at the Circuit Criminal Court in Wicklow on one count in an indictment containing 49 counts of indecent assault alleged to have been committed against

one complainant.

The applicant now asks this court to grant a certificate pursuant to section 29 of the Courts of Justice Act, 1924 as substituted by section 22 of the

Criminal Justice Act 2006, permitting him to appeal to the Supreme Court.

He applies pursuant to that provision for a certificate in respect of the following question:

“Whether, having regard to the decision of Egan J in DPP v EF, (Supreme Court unreported, 24th February 1994), a count of indecent assault

on an indictment spanning a four-year period is bad in law by reason of a lack of specificity and/or potential for duplicity.”

Section 29(2) of the Act of 1924, as amended, provides, in relevant part, as follows:

“A person the subject of an appeal or other matter determined by the Court of Criminal Appeal may appeal the decision of that Court to the

Supreme Court if that Court ………………certifies that the decision involves a point of law of exceptional public importance and that it is

desirable in the public interest that the person should take an appeal to the Supreme Court.”

The count, number 49, in the indictment in respect of which a certificate is sought was as follows:

“You, Christopher Kearns, on a date unknown between the 4th day of October 1974 and the 3rd day of October 1978, inclusive, being a date

other than the date referred in Count Numbers 1-48 at or near to Djouce Woods in the County of Wicklow, did indecently assault one [name

of complainant], a female, contrary to Common Law as provided for by Section 6 of the Criminal Law (Amendment) Act, 1935”

The count in question was added at trial. It was the only count which specified any location for the alleged commission of the offence. Those were the

procedural circumstances in which the applicant came to be charged with and ultimately convicted of the offence in question.

The gravamen of the challenge in this court on the application for leave to appeal was the alleged “inconsistency” of the jury in convicting of the charge in

count number 49 but not on any other count and the focus of criticism was not on issues as to unfairness or legal invalidity of the wording of that count.

This was dealt with in the judgment of 16th December 2008 as follows:

“The appeal has been presented by Mr. Finlay on behalf of the applicant essentially on two grounds but they merge in effect into one. They

are that the verdict of the jury in convicting the applicant on one count only was essentially inconsistent and/or that the complainant’s

evidence was inconsistent with the indictment. The guiding principle in all of these matters is as laid down in the well known dictum from R. v.

Galbraith [1981] 2 All ER 1060 in England and has been frequently referred to in this court, that it is for the jury to decide and to resolve

matters of inconsistency in the evidence. While it is true that Mr. Finlay ably developed an argument to the effect that the decision of the jury

was essentially inconsistent and that there were inconsistencies in the evidence, the court has come to the conclusion that these were all

matters that were essentially within the province of the jury. The distinguishing feature of the 49th count was that it was more specific than

the other 48 and the jury were entitled to regard it as such. It alleged an offence at a particular place. In addition the evidence developed,

between that of the complainant and to some extent, not entirely but to some extent, supported by her mother, was that there was a tug of

war in Co. Wicklow. Glenmalure has been suggested as the location. In any event it was the occasion for the offence that is alleged in count

49 and the complainant in company of other children was given a lift home by the applicant and that on the way he stopped his car at Djouce

Woods and the other children were asked to leave and that, in the interval when they had left, the applicant sexually assaulted the

complainant. That is the gist of the matter.

The jury it must be recalled, making an obvious point, were of course acquitting on the other 48 counts on the basis of the principle of which

they had been very carefully advised by the learned trial judge that they had to be satisfied beyond reasonable doubt and they were entitled to

reach the conclusion that they could not be satisfied beyond reasonable doubt of the guilt of the applicant in respect of those charges, on

the basis largely advanced indeed by Mr. Finlay that those counts were vague and uncertain. They did not specify particular dates or places

or times and [it is clear] that the distinctive feature of the 49th count was that it identified a particular place which was developed in the

evidence by further reference to the date of tug of war and the family outing to the tug of war and the lift home afterwards and so on. The

judge made it clear to the jury that that was a distinct count. The jury were entitled to treat it as such and they were entitled to find the

applicant guilty on that one count”.

There can be no general complaint in principle where a count is laid in respect of an alleged offence said to have been committed at some time during a

span of years, in this case four years. The particular circumstance of this case was that the jury acquitted the applicant in respect of all the other counts on

the indictment. The principal argument advanced at the hearing of the application for leave to appeal in December 2008 was that the jury verdict was

inconsistent. This court rejected that argument for reasons which appear in its judgment as quoted above.

The court is satisfied that count 49 cannot be viewed in isolation from the other counts in the indictment. Its significance derives exclusively from its

circumstances. It does not raise any general point of law of exceptional public importance. This is not a case where it is “desirable in the public interest

that an appeal should be taken to the Supreme Court.”

The court refuses to grant the certificate which is sought.