Irish Court of Criminal Appeal

Judgment Title: D.P.P.-v- Christopher Kearns

Neutral Citation: [2009] IECCA 115


Court of Criminal Appeal Record Number: 236/07

Date of Delivery: 22 October 2009

Court: Court of Criminal Appeal

“Whether, having regard to the decision of Egan J in DPP v EF, (Supreme Court unreported, 24^th 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.”

“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.”

“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 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 49^th 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 49^th 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”.