A man who was convicted of two counts of sexual assault on a child under 13 contrary to Article 14 of the Sexual Offences (Northern Ireland) Order 2008 has successfully appealed his conviction.
Giving the judgment of the three-judge Court, Stephens LJ stated that there was a failure on the part of the prosecution to make proper disclosure, and this failure rendered the convictions unsafe.
As such, the Court quashed both of the man’s convictions, and declined to order a retrial.
The Court heard that the complainant, “C”, lived with her mother (“M”), her father (“F”), and her siblings, including a half sibling, “S”.
C and two of her siblings spent one weekend a month in the care of the appellant, “A”, and his wife – C’s paternal aunt.
In March 2015, C, who was then between 5 and 6 years of age, informed M and F that on one weekend when she was staying at A’s home, he licked her on her vagina in her bedroom and in the kitchen.
F immediately rang social services who reported the allegations to the police.
In March 2015, C was interviewed by the police with the interview being recorded on DVD which was subsequently played to the jury at the trial. Although there were some inconsistencies in what C stated, her account was that the offending behaviour had occurred the last weekend she had stayed with A and his wife. The Court heard that C had stayed with A once a month, and that
On 6 May 2015, A was interviewed: The Court heard that he denied that anything of the nature alleged had occurred.
No-one witnessed what C alleged had occurred so the case depended on an assessment of the credibility and reliability of the evidence of C on the one hand and of A on the other.
In June 2016, A was arraigned pleading not guilty to all six counts in his indictment; and his trial commenced in October 2016.
At trial, the issue as to the motive or explanation for C having made the allegations against A arose on a number of occasions during the course of the trial.
There was also an issue at trial as to C’s use of the expression “private parts.” M stated that she had never heard C using this expression, and the police officers who had dealt with C denied using this expression.
In Antrim Crown Court, A was convicted on two counts of sexual assault on a child under 13, contrary to Article 14 of the Sexual Offences (Northern Ireland) Order 2008. A sentence of 3 years 6 months’ imprisonment was imposed.
Victim impact report
Dr Michael Patterson, Consultant Clinical Psychologist, prepared a victim impact report in December 2016.
That report recorded, inter alia, that M’ s daughter by an earlier relationship (S) had been sexually abused by a “paternal relation”. The report stated that there had been a police investigation and a number of victims had been identified.
No documents in relation to that previous police investigation or conviction had been disclosed by the prosecution in this case.
Stephens LJ stated that the significance of the documents in relation to that police investigation and prosecution was to be seen in the context that:
- S lived with M and her new partner F in the family home so that she resided in the same household as C;
- the previous incident involved events in a bedroom and in a kitchen; and
- the term “private parts” was used by S in relation to the previous incident s.
Court of Appeal
The grounds of appeal included:
“The prosecution failed to disclose that the complainant’s older step sister (with whom she resided) had been sexually abused by an unrelated individual. This may have provided an answer to the question posed by the learned trial judge (as to why the complainant would make such allegations if not true) and would certainly have formed part of the cross – examination of the complainant’s mother.”
As per R v Hadley and others  EWCA 2544, the test on appeal in relation to a failure by the prosecution to make disclosure at trial:
- Whether the material ought to have been disclosed as being material that would have undermined the case for the prosecution or assisted the case for the defence.
- Whether the failure to disclose renders the convictions unsafe.
As A denied doing what the complainant had alleged during the course of his interview, then it became his case that she was incorrect in her allegations and that there must have been some reason or explanation for her to have made the allegations.
The undisclosed material provided a potential explanation, and not only should it have been disclosed but it should also have been considered in relation to the decision as to whether to prosecute.
Stephens LJ stated that the Court condemned “the explanation that the NICHE system had no record in relation to S’s paternal relation emphasising that non-disclosure is a potent source of injustice. If it had not been for the report from Dr Patterson then this material may never have come to light”.
Stephens LJ was satisfied that A did not have to establish that the disclosure of the material would have affected the outcome of the proceeding but rather that it is reasonable to suppose such failure might have affected the outcome of the defence. The issue as to why the complainant was making the allegations was an issue of significance at the trial.
The Court held that the undisclosed documents would have provided significant cross-examination material, and “could have had an effect on the verdicts of the jury in relation to counts 3 and 4”.
Quashing the convictions, Stephens LJ explained that the prosecution indicated that they did not seek a retrial, and so the Court did not order a retrial.
- by Seosamh Gráinséir for Irish Legal News