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Irish Court of Criminal Appeal |
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You are here: BAILII >> Databases >> Irish Court of Criminal Appeal >> D.P.P. (People) v. Bangu [2008] IECCA 90 (30 June 2008) URL: http://www.bailii.org/ie/cases/IECCA/2008/2008_IECCA_90.html Cite as: [2008] IECCA 90 |
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Neutral Citation: [2008] IECCA 90
Kearns J.
Gilligan J.
Feeney J.
[CCA. No. 16 of 2007]
BETWEEN
THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
And
APPELLANT
JUDGMENT of the Court (ex tempore) delivered the 30th day of June, 2008 by Kearns J.
Kasenge Bangu, the appellant in this case, was convicted in the Central Criminal Court following a trial by judge and jury on 2nd December, 2006 of four counts of rape in respect of which he was sentenced to fifteen years imprisonment on each count to run from 27th
April, 2005. These sentences were concurrent sentences and the last two years of the fifteen years imprisonment was suspended in all cases.
He originally filed grounds of appeal himself and when there was a change of legal representation in the case this Court permitted amended grounds of appeal to be lodged. A comprehensive document in that regard was duly filed before this appeal came on for hearing. Counsel has been very fair in recognising the limitations which necessarily arise from the non-taking of certain points while the trial itself progressed consequent upon the jurisprudence which has developed in recent years, as set out in decisions of this Court and the Supreme Court in the two Cronin cases (The People (Director of Public Prosecutions) v. Cronin [2003] 3 I.R. 377, Court of Criminal Appeal and The People (Director of Public Prosecutions) v. Cronin (No.2) [2006] 4 IR 329, The Supreme Court)
However, the first complaint which is raised in relation to the appeal is that the trial judge failed to give an adequate direction as to the requirements of corroboration in this case. Having heard Mr. Phelan's submissions in this regard the Court is satisfied that the charge given by the learned trial judge was a textbook example of what an appropriate charge should contain. He pointed out, without being asked to do so, that a corroboration warning was in his view appropriate. He explained to the jury that corroboration was independent testimony tending to show not
alone that the offence was committed but that the offence was committed by the accused person. He illustrated the particular evidence which was capable of being seen as corroboration in this case which consisted of a fresh transection or a laceration to the vagina of the complainant. He was clearly entitled to do that and no requisition was raised at the end of the prosecution case to suggest that the direction which he gave, either with regard to the legal principles or with regard to the application of those principles to the facts of the case, was in any way deficient.
The second and third ground of appeal can be taken together. Essentially there is a suggestion that the learned trial judge failed to put the defence case to the jury, that there were certain weaknesses in the prosecution case which should have received greater emphasis and also that having withdrawn one particular count the trial judge should perhaps have considered withdrawing others also.
However, that latter argument, while it was notified to the Court, has not been argued in any detail, so essentially the case on this leg of the appeal is a criticism of the trial judge for failing to adequately put the defence case. Of course, the problem with this point is that it runs straight into the difficulty that when prosecuting counsel sought to raise a point by way of requisition (the defence not having raised any requisitions) it was the defence team who protested more than once that the trial judge had been "extremely fair" in his summing up to the jury, an approach
which really takes the ground from under this submission. No requisitions were raised in the manner outlined today by counsel for the appellant that there was some deficiency or shortcoming in the trial judge's summing up. The Court is satisfied that it was an impeccable charge and is in no way open to criticism.
Finally, a point was also raised about the evidence of Mr. Byrne, to the effect that it was more prejudicial than probative. Again this point was not argued in any detail on the hearing of the appeal but the Court is satisfied in any event that evidence in question had an important probative role and was properly admitted by the trial judge.
In all those circumstances the Court will dismiss the appeal against conviction.
As already indicated the appellant in this case was sentenced to fifteen years in respect of four counts of rape by the Central Criminal Court on 5th February, 2007. That was backdated to the 27th April, 2005 when he went into custody in this jurisdiction.
Mr. Phelan has pointed out that his client went into custody in Zambia as far back as 24th January, 2003 and I believe Mr. Buckley accepts that that, on behalf of the State, is the correct and true position. I will explain later why these dates strike the Court as being of some significance.
However, dealing with the offences themselves there is no doubt that these were particularly serious offences, having regard to the fact that the appellant brought this young girl into this jurisdiction. She was only fourteen years of age and the rapes which did occur, as is evident from the victim impact statement, had very serious psychological and physical consequences for his victim. She became pregnant, she had to undergo the trauma of an abortion in the situation she found herself in and in fact, as the report makes clear, she was seen by a child psychiatrist in the context of a suicidal situation. When she was first assessed by that psychiatrist not only was she traumatised by having been raped and having become pregnant but she developed a significant post-traumatic stress disorder and has remained extremely frightened of her assailant and indeed fearful for her family back in Zambia because of connections that the appellant has there. She is obviously very concerned on those grounds also.
On any version of events the learned trial judge was certainly entitled to see this case as being at the more serious end of the spectrum when imposing sentence. In so far as the appeal today is concerned it has been urged upon the court that Mr. Bangu has no previous convictions and we must bear in mind that he is not a native of this country. It has been suggested he originally came from the Congo but be that as it may the Court is unwilling to enter into the sphere of speculation as to what
might happen when Mr. Bangu completes his sentence. It may be that he would consider going back to one or other country, but really the Court does not feel it has adequate information to make any assessment in that regard.
The learned trial judge saw fit, no doubt taking into account the absence of previous convictions, to suspend the final two years of the sentence and this Court is not going to interfere with the sentence imposed by the learned trial judge, but will go this far, that it will backdate the sentence to the 24th January, 2003. Otherwise the sentence will remain as enunciated by the sentencing judge in the Central Criminal Court.
