Decision not to sever historic sexual abuse case held to be correct and conviction upheld
A man has had his conviction for ten counts of indecent assault upheld after the Court of Appeal rejected his arguments that the trial judge should have severed the indictment, that the trial judge had failed to properly summarise the defence case, and that the trial judge failed to adequately deal with the issue of delay.
The appellant, referred to as J.C., was charged with ten counts of indecent assault and three counts of sexual assault. Counts 1 to 8 and 12 and 13 on the indictment all related to complaints by the younger sister and nieces of the appellant’s former wife and occurred between 1988 and 1992, while Counts 9, 10 and 11 related to complaints of sexual assault by the appellant’s son and daughter alleged to have taken place in 2001, 2002 and 2011 respectively.
All counts referred to the applicant forcing the complainants to touch his penis, often by forcing their hands behind their backs, or by making them put their hand in his pocket.
Prior to the commencement of the trial, counsel for the defence had applied for a severance of the indictment, relying on DPP v B.K. 2 I.R. 199 and s. 6(3) of the Criminal Justice Amendment Act 1924, which allows for the severance if the accused may be prejudiced or embarrassed in his defence by reason of his being charged with more than one offence in one indictment, or if for any other reason it is desirable to direct that the person should be tried separately.
The appellant argued for either all counts to be tried separately, or for the incidences between 1988 and 1992 to be tried separately from those between 2001 and 2011.
However, the trial judge held that due to “striking similarity” of the offences, “the evidence is admissible because there is an inherent improbability of separate persons making up exactly similar stories and it shows a practice which would rebut accident, innocent explanation or denial.”
On appeal, counsel for the defence challenged the striking similarity finding, arguing that striking similarity involved an unusual modus operandi and that that was not what the case was here, citing paras. 14.44 and 14.45 of O’Malley, Sexual Offences, 2nd Ed., (Dublin, 2013) and Attorney General v. Duffy I.R. 144.
Counsel for the respondent contended that the trial judge was correct in refusing to sever the indictment and relied on the following cases: DPP v. B.K. 2 I.R. 199, DPP v. B. 3 I.R. 140, DPP v. O.S. (Unreported, Court of Criminal Appeal, 28th July, 2004), Martin McCurdy v. DPP IECCA 76 and C.C. v. DPP (No. 2) IECCA 86.
The Court of Appeal noted O’Malley’s Sexual Offences as stating that “the decision on ordering separate trials is very much within the judge’s discretion. An appeal court will not overrule a trial judge’s decision to refuse severance, ‘unless it can see that justice has not been done or unless compelled to do by some overwhelming fact’.” (Ref. R. v. Flack 1 WLR 937).”
The Court noted that O’Malley identified many factors that may influence decisions to sever, including: the general prejudice to the accused, the legal and factual nexus between the counts, the complexity of the evidence, whether the accused intends to testify on one count but not on another, the possibility of inconsistent verdicts, the desire to avoid a multiplicity of proceedings, the use of similar fact evidence at trial, the length of the trial having regard to the evidence to be called, the potential prejudice to the accused with respect to the right to be tried within a reasonable time and the existence of antagonistic defences as between co-accused persons.
The case of R. v. Christou AC 117 also identified factors as including “how discreet or interrelated are the facts giving rise to the accounts, the impact of ordering two or more trials of a defendant and his family, on the victim and their families, on press publicity; and importantly whether directions the judge can give to the jury will suffice to secure a fair trial if the accounts are tried together.”
The Court added another factor itself, namely the need to ensure that justice is administered as speedily as possible in light of limited court resources, and the distress caused to victims and their families by prolonged proceedings.
In the present case, it was found that “The trial judge’s ruling demonstrates that he approached the application for severance carefully and took into account the relevant legal principles. Indeed it could be said that severing the indictment would have resulted in the jury not getting the full picture…accordingly this ground of appeal fails”
In relation to the two remaining grounds of appeal, which referred to the trial judge’s summing up to the jury, the Court was satisfied that the judge had flagged the difficulties which can arise out of old cases, and had highlighted the inconsistencies which had arisen as a result of cross examination. Therefore, no unfairness resulted to the appellant, and those grounds of appeal were dismissed.
In a separate decision, the Court of Appeal also upheld the appellant’s ten year sentence, with the last two years suspended, finding that the sentence was a fair reflection of the appellant’s circumstances and the various aggravating factors of the case.
His circumstances included his status as a 50 year old man, of otherwise character, who had lost all contact with his family as a result of these offences.
The aggravating circumstances included the gross behaviour of the most unsavoury nature, perpetrated against young children in relation to whom he was in a position of trust. The victim statements demonstrated the distressing impact of the crimes, and therefore overall the ten year sentence was appropriate.