Irish Court of Appeal

 

THE COURT OF APPEAL

Neutral Citation: [2024] IECA 319

Record Number: CCAOTO0013/2024

 

Edwards J.

McCarthy J.

Kennedy J.

 

 

BETWEEN/

 

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

 

RESPONDENT/

 

- AND -

 

Jacintha McSherry O'Connor.

 

APPELLANT

 

JUDGMENT of the Court delivered on the 19^th day of December 2024 by Ms. Justice Isobel Kennedy.

1.        This is an appeal against conviction. On the 20^th of October 2023, the appellant was convicted of 2 counts of indecent assault contrary to s.62 of the Offences Against the Person Act 1861 and contrary to Common Law.

Factual Background

2.        The appellant, who was a trainee teacher at the time of the alleged offending, was convicted in respect of sexual offending of her student. The offending was committed when the appellant was approximately 24 to 25 years of age, and the complainant was approximately 13 years of age.

3.       The complainant was a first year student at the time of the offences, and the appellant was his teacher in school. The appellant gave the complainant grinds outside of school time in the complainant's house.

4.       The prosecution case was that the appellant abused her position of power over the complainant and groomed him. During the course of this grooming, he developed a "crush" or "obsession" on the appellant, culminating in the indecent assaults.

5.       The complainant alleges that the sexual assaults began during a family holiday in Spain, where the appellant was present and staying in a separate apartment. Charges were not brought in respect of those events. The complainant alleged that the offending occurred two more times after the holiday, both times in the complainant's house.

6.       An issue arose during the trial in relation to the admission of portions of the appellant's memorandum of interview which detailed an incident with another, more senior teacher in the school. The trial judge ruled that this evidence could be admitted, but that the teacher's name be redacted.

Grounds of Appeal

7.        The appellant's grounds of appeal are as follows:-

 

1.   The Trial Judge erred in law and/or in fact in acceding to a prosecution application to admit portions of the appellant's own memorandum of interview referencing an incident with another teacher in [the school]  in and around the time of the offending which the appellant was convicted of. The specific portions of the appellant's own memorandum were in no way probative of the allegations which the Appellant was subsequently convicted of, and the inclusion of these portions of the appellant's own memorandum was prejudicial to the Appellant's case.

2.   The Trial Judge failed to accede to the defence application to exclude those portions of the Appellant's interview which were not probative of the allegations against the Appellant

 

Submissions of the Appellant

8.       The appellant effectively argues the two grounds of appeal as one net point: the trial judge erred in refusing to accede to the defence application to exclude portions of the appellant's interview which were, it is argued, not probative of the allegations against the appellant.

9.       The appellant submits that the background evidence in relation to the incident with the senior teacher was neither "relevant nor necessary" to establish the nature of the relationship, citing the test in People (DPP) v McNeill [2011] 2 IR 669.

10.   The appellant also places reliance on the judgment of this court in The People (DPP) v S.A. [2020] IECA 60, particularly the statement that "the purpose for the admission of the evidence is crucial".

11.   The appellant submits that in this case the purpose for the admission of the evidence was flawed and based upon an erroneous understanding of the appellant's memorandum of interview.

12.   The appellant contends that the prosecution's basis for inclusion of the background evidence, that the complainant's "obsession" with the appellant began due to this incident, was incorrect. Counsel for the appellant submits that the appellant's memorandum of interview details the "obsession" beginning prior to this incident, and only becoming "more" intense after the incident.

13.   The appellant also submits that the inappropriate nature of their relationship was already established by the evidence given by the complainant, and this background evidence was not necessary for that purpose.

14.   The appellant seeks to distinguish the decision of this court in DPP v T'OB [2021] IECA 187, which also related to the admission of background evidence, on the basis that the instant case does not relate to the beginning of the inappropriate relationship between the appellant and complainant.

15.   The appellant also seeks to distinguish the decision of this court in DPP v AM [2023] IECA 205. That case related to the admission of records of written communication between the appellant and complainant which highlighted the inappropriate nature of the appellant's conduct. The appellant seeks to distinguish this case on the basis that the background evidence here goes to the inappropriate conduct of a third party.

16.   The appellant also relies on DPP v Comerford, Brennand and Griffen [2014] IECCA 32 to underline the highly unusual nature of admission of background evidence in relation to the acts of a third party.

17.   The appellant submits that the background evidence was used during cross examination and during the prosecution closing speech to undermine the credibility of the appellant, and in furtherance of the prosecution argument that the appellant was grooming the complainant.

18.   The appellant further submits that the jury might have drawn parallels between the appellant's experience with the senior teacher and the complainant's purported experience with the appellant. In essence it is argued that the prejudicial effect of the background evidence outweighs any probative value.

 

Submissions of the Respondent

19.    The respondent submits that the excision of portions of the appellant's memorandum was opposed at trial to avoid "an air of artificiality to her account" and "cherry-picking of favourable portions of her evidence".

20.   The respondent submits that the trial judge's ruling was not erroneous in law and/or in fact, and that the portion of the appellant's interview memorandum provided context, from the appellant's perspective, as to why the complainant became so obsessed with her.

21.   The respondent further submits that the evidence pointed towards the presence of grooming on the part of the appellant, and that it was important in order to establish the full picture of the grooming which took place over the course of the complainant's first year in secondary school.

22.   The respondent places reliance on the case of People (DPP) v McNeill, DPP v TO'B, DPP v AM, and DPP v Comerford, Brennan and Griffin.

Discussion and Determination

23.   It is succinctly argued that the impugned evidence was neither relevant or necessary and caused significant prejudice to the appellant.

24.   The jurisprudence concerning background evidence is well-settled at this stage commencing with the McNeill decision where Denham J. (as she then was) distilled the applicable principles. Evidence of this type may be admitted to provide the deciders of fact with a complete picture of the nature of the relationship between the parties prior to the alleged offending. Background evidence may provide context and ensure that a jury has a complete and comprehensive picture. While the factual situation in McNeill differed from that in the present case, the principles are of course the same. To be admitted the evidence must be relevant and necessary.

25.   The respondent sought to admit the evidence in order to demonstrate that the appellant groomed the complainant over a period of time. The appellant argues that background evidence was adduced in that evidence of events in Spain was before the jury and that the impugned material contained in the appellant's pre-prepared statement was superfluous, irrelevant and unnecessary.

26.   It must be recalled that the impugned evidence was contained within a pre-prepared statement given to the Gardai, following which the appellant was interviewed. The impugned material related to an incident to which the appellant referred, between her and a senior teacher in a locked room which caused her upset. The complainant, according to her was outside the door while the incident was ongoing and when she left she "blurted out what had happened". She stated in her statement that following that he became more obsessed with her.

27.   The prosecution's case was that there were many incidents of inappropriate conversations of a sexual nature on the part of the appellant, where she informed the child of her sexual life.

28.   The respondent wanted the jury to be aware of the appellant's contention as to why she said the child had become obsessed by her which concerned her informing the child of this incident.

29.   In our view the impugned material was relevant and necessary. The fact that evidence was given of events in Spain did not preclude the prosecution from adducing this material. Grooming of a child is, by definition, an ongoing continuing process and may be multifaceted in its nature. The behaviour may seek to try and develop a connection between the adult and the minor over time.

30.   The appellant was aware that the child had a crush on her. Against that background, she maintained inappropriate sexualised conversations with him and on her account informed him of the incident with the senior teacher.

31.   Whatever way one looks at this, the evidence disclosed inappropriate and continuing conduct on the appellant's part, which the respondent was entitled to rely upon as evidence of grooming, and which falls within the parameters in McNeill. The evidence complained of showed a progression in the level of obsession which the appellant, by her conduct, encouraged in a 13 year old child. This particular incident, by her own account, intensified the obsession.

32.   We are not persuaded by the grounds advanced and accordingly the appeal is dismissed.