Court of Appeal dismisses appeal on joint enterprise conviction, upholding jury direction on statutory duty.

THE COURT OF APPEAL

Record Number: 54/2022 The President. McCarthy J. Kennedy J.

BETWEEN/

THE PEOPLE AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS

RESPONDENT

- AND -

M.B.

APPELLANT

JUDGMENT of the Court delivered on the 12th day of June 2023 by Ms. Justice Isobel Kennedy.

1. This is an appeal against conviction. On the 29th October 2021, the appellant was convicted of two counts of causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act, 1997 and three counts of child cruelty contrary to s. 246 of the Children Act, 2001 in relation to the injured party, his daughter. The appellant was tried jointly with a co-accused, his wife, the mother of the injured party. The Counts

2. Count 6 on the indictment concerns the 2nd July 2019, where the child sustained a serious head injury inflicted by the co-accused, leaving her requiring permanent care for the rest of her life. The injuries were inflicted in her home by the co-accused whilst the appellant was at work.

3. Count 7 relates to a timeframe between the 28th June 2019 and the 2nd July 2019 where the child was disfigured as a result of severe burns to her hands and feet. Again, it is said the injuries were inflicted by the co-accused.

4. Counts 8, 9 and 10 are charges of child cruelty under the Children Act, 2001. Count 8 refers to the time frame between the 28th June and the 2nd July 2019 and the subject matter of that count concerns an incident of choking by the appellant rendering the child unconscious. This count is not the subject of this appeal.

5. Count 9 concerns the same time period, but is that of causing, procuring or allowing the child to be assaulted in the manner reflected in count 7, that is the assaults between the 28th June 2019 and the 2nd July 2019.

6. Finally, count 10 concerns the 2nd July 2019 and is that of neglecting the child following the head injury, that count is not the subject of this appeal.

7. This appeal rests with counts 6, 7 and 9 and is concerned with the doctrine of joint enterprise. Ground 1 relates to all three counts and ground 2 relates to counts 6 & 7 only. Background Facts

8. The evidence established that on the morning of the 2nd July 2019 the appellant left for work at approximately 7:15 and arrived at 8:00. Later that morning, the co-accused, who was at home with their children, became aware that the injured party had wet herself and attacked her, leaving her unconscious.

9. At 13:01 a video call took place between the appellant and his co-accused that lasted for 28 minutes. AA, (initials anonymised), another of the appellant’s daughters, gave evidence that she was standing beside her mother while this video call took place and that the co-accused said words to the effect of "I told -- I told you I'm going to do it” and "Why didn't you stop me?" and the appellant appeared shocked. The parties exchanged a number of brief audio calls and the appellant then arrived home at 15:17. The appellant’s son, CC, (initials anonymised) indicated that on his arrival home, the appellant said words to the effect of "Why did you do that? You went on the wrong path. Why did you -- why do you hurt [the injured party] all the time?"

10. On arriving home, the appellant moved the injured party into the sitting room, opened the balcony door to allow air to circulate and attempted to administer CPR. The co-accused rubbed coconut oil into the child’s skin in an attempt to hide her bruises. Both parties were reluctant to call an ambulance. AA and CC gave evidence that they were coached to say that the injured party had fallen in the shower and that their parents called for an ambulance straightaway.

11. Phone evidence showed that the appellant commenced a 999 call at 20:01 which lasted only two seconds. At 21:25, he received an email about an item he was interested in on adverts.ie and he accessed this website to view the item. He called 999 again at 21:57 and sought an ambulance, claiming that his daughter had fallen in the shower and was unconscious, that she had fallen off her bicycle two days previously, hit her head and had been unable to get up afterwards.

12. Shortly thereafter, emergency services arrived at the scene and found the injured party unconscious and unresponsive on a mattress in the living room. They became suspicious of her injuries and notified An Garda Síochána. The appellant told emergency services that the injured party had fallen off her bike, that she had been self-harming and that she was mentally unwell. On arrival at Temple Street Hospital, the injured party was critically ill and had to be intubated, ventilated and transferred to paediatric intensive care. In addition to a serious brain injury, the child was covered in extensive bruises, abrasions and burns. She had 28 scars. She never regained full consciousness.

13. A photograph in evidence at the trial showed the injured party to be mark-free at a trip to the beach on the 28th June 2019. Evidence was given by AA that after this trip, the co-accused put the palm of the injured party’s hand to the hob of the oven and burned her, she also burned her with a hot knife and tied her hands and feet. The prosecution contended that the appellant was not working on the weekend of the 29th and 30th June.

14. The children of the appellant and his co-accused; AA and CC said that the appellant and his co-accused were violent towards the injured party on many previous occasions. They alleged inter alia that the appellant had choked the injured party until she fell unconscious, lifting her off her feet into the air, that he had kicked and punched her and made fun of her difficulty walking after sustaining these injuries and that the co-accused pulled her hair out, leaving her with bald spots, that she bit her and that she would rouse her from sleep at night to beat her. It is noteworthy that the child slept in the room with her parents, although the appellant was at pains to point out that this was in a separate bed.

15. The appellant’s initial account to Gardaí was that the injured party self-harmed and that her injuries were self-inflicted. In later interviews, he maintained that he had not noticed any marks on her body upon his return home on the 2nd July and that she was sickly and mentally unwell. He also attempted to attribute the injuries to mistreatment when the injured party lived abroad. Further, having been shown CCTV footage of his return home at 15:17, he denied that he had returned home at this time.

16. Evidence was given by an Inspector McInerney, PhD of the Garda Intercultural Office, that the appellant believed his daughter to be possessed by a devil or “jinn” and that he along with some friends in the Arab community had taken steps to exorcise the child. Further evidence in this regard was given by Dr Oakley, a Senior Lecturer in psychology and Chair of a UK National working group for child abuse linked to faith or belief, that violence documented during familial attempts to rid children of jinns can include beating, burning, cutting, semi-strangulation, starving, and rubbing chilli peppers on a child’s eyes or genitalia. Grounds of Appeal

17. The appellant relies on the following grounds of appeal against conviction:-

“(i) The learned trial judge erred in law in refusing to direct the jury to find the appellant not guilty in relation counts 6, 7 and 9 on the indictment;”

(ii) The learned trial judge erred in law in incorrectly addressing the jury in relation to the law of common design.” The Direction Application The Appellant’s Submissions

18. An application for a direction pursuant to R v Galbraith [1981] 1 WLR 1039 was made by the defence on the 27th October 2021 in respect of three of the five counts preferred against the appellant:-

• Count 6: causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act, 1997 by way of brain injury;

• Count 7: causing serious harm contrary to s. 4 of the Non-Fatal Offences Against the Person Act, 1997 by way of disfigurement; and

• Count 9: child cruelty, contrary to s. 246 of the Children Act, 2001 in causing, procuring or allowing an assault to take place.

19. It is maintained by the appellant that the trial judge erred in failing to direct a verdict of not guilty where the prosecution had not reached the threshold in relation to joint enterprise, in that the Director failed to provide evidence of an agreement, tacit or otherwise, between the parties; or, alternatively, failed to establish that what occurred on the 2nd July 2019 was within the scope of any such agreement.

20. It is submitted that while the evidence of his children established that he had previously been involved in what was termed as the physical chastisement of the injured party, none of those acts were comparable in nature or severity with the injuries discovered in the hospital. Moreover, the children provided specific evidence against the co-accused, of biting, tying up the injured party, applying hot metal to her skin, putting her hand on a hot hob and using pliers which, it is said, aligns with the injuries discovered on her body on the 2nd July 2019. Their evidence was that the appellant was not present during these incidents.

21. The case against the appellant on count 6 was solely based on joint enterprise. It is submitted that the evidence of the child AA, in particular, established that the appellant was out of the house when the brain injury was inflicted on the injured party and that on the video call that took place between the co-accused and the appellant, approximately an hour and a half afterwards, the appellant reacted in shock to the news that a serious injury had taken place. It is further submitted that the appellant’s absence from the scene and the fact he was not told for some time of the incident excluded the possibility that he could have altered the outcome of the traumatic brain injury.

22. The appellant refers to the case of R v Anderson & Morris [1966] 2 All ER 644 which defines joint enterprise as follows:- “Where two persons embark on a joint enterprise, each is criminally liable for acts done in pursuance of the joint enterprise, including unusual consequences arising from the execution of the joint enterprise; but if one of them goes beyond what has been tacitly agreed as part of the joint enterprise, the other is not liable for the consequences of the unauthorised act.”

23. In People (DPP) v Dekker [2017] 2 IR 1, Dunne J stated as follows:- “It will be relevant in a case of joint enterprise to consider what the participants in the crime had agreed to do, tacitly or expressly. To that extent issues of foresight are very relevant. Thus if an individual participates in an assault which they know is intended to cause serious injury and death occurs, given that the principal would be guilty of murder if death ensued, it seems to me that having regard to the provisions of s.4, it follows as a matter of logic that the accessory should also be guilty of murder, even if the accessory did not realise that the principal actually assaulted the victim with intent to kill.”

24. The appellant relies on the recent case of People (DPP) v Cummins [2021] IECA 198 wherein this Court quashed a conviction for murder and substituted it with a conviction for assisting an offender pursuant to s. 7(2) of the Criminal Law Act, 1997 on the basis that the jury did not have before it evidence of an agreement, tacit or otherwise to commit the murder in question. It is submitted that a similar paucity of evidence exists regarding the existence of an agreement in this case. Attention is drawn to the following comments of the court:-

“87 However, the first issue in the context of a case of common design is the existence of an underlying tacit or express agreement to take part in a joint enterprise. There must be evidence that the agreement extended to the actual offence committed. At a risk of restating the obvious, such an agreement does not need to be expressly stated but may be inferred from the surrounding facts and circumstances. It is for the jury in any given case to decide if the facts disclose that there was an agreement and if so, whether the actions of each or any of the accused fall within that agreement.

88 In The People (DPP) v Cumberton unreported, Court of Criminal Appeal, 5th December 1994), Blayney J. at p.501 agreed that the direction given by the trial judge was substantially correct where the trial judge stated:- ‘If two or more people make an agreed plan to carry out some unlawful act, each of those persons is as liable as the other is for what eventually takes place that is within the reasonable contemplation of that plan.’

89 However, Blayney J. went on to opine that the judge ought to have advised the jury that if one party goes beyond what is contemplated, then the other party is not criminally responsible. He then states the test as follows:- “The test is what was tacitly agreed between the parties and whether what happened was within the common design.”

90 We quote this paragraph in that it is essential to the doctrine that there be evidence of an agreement before there can be a joint enterprise.”

25. The appellant rejects the prosecution contention that the allegations of physical chastisement made against the appellant, in particular, the allegation of choking, was “behaviour not dissimilar to the behaviour on the day” as this is at odds with the profound difference between those acts and the violence perpetrated against the injured party leading to her hospitalisation. The prosecution submission that the appellant “had to be aware and had to have assented to” the child’s burn injuries is also rejected as impermissible speculation.

26. Similarly, it is submitted that the contention that the jury could infer an agreement to inflict injury from the appellant’s belief that the injured party was possessed by a jinn was speculation where AA had given evidence that the brain injury was inflicted because she had wet the bed. The appellant cites the evidence given by Dr Oakley that “the beliefs themselves are not intrinsically harmful” and the evidence of CC and Inspector McInerney that the appellant had tried to rid the injured party of the jinn by non-violent means.

27. In response to prosecution’s reliance on the behaviour of the appellant in remaining at work after being made aware of the injuries that had been inflicted, failing to call an ambulance after arriving home and lying to hospital staff and the Gardaí, the appellant notes that a similar issue arose in Cummins where this Court commented that:- “The conduct of James Davy and Matthew Cummins in the aftermath of the murder of Mr Dooley was reprehensible. The efforts to burn the body, the stealing of property and the disposal of incriminating items are all deeply unsavoury. However, while those factors could certainly be considered in inferring the existence of an agreement, they are not determinative. If the circumstances concerning the possession of the baseball bat and the entry into the house were different, then the conduct in the aftermath would certainly be additional factors lending weight to the existence of an agreement and acts done in furtherance of and in contemplation of that agreement. But, this is not the evidence in the present case.”

28. Accordingly, it is submitted that the appellant’s behaviour in this regard is a factor which the jury could consider but is not determinative and could not, in the absence of other evidence of agreement, be a safe basis for a conviction.

29. It is further submitted that the lies told by the appellant required the giving of a Lucas warning. When approving Lucas in this jurisdiction Fennelly J in People (DPP) v Brady (Unreported, Court of Criminal Appeal, 5th May 2005) commented that:- “This was clearly something that was going to weigh with the jury and that should have been directed, in the view of the Court and the evidence in question, could be used against the applicant, as, of course, it could but only on the basis that they were entitled to rely on it and if they were satisfied beyond reasonable doubt, that being the general standard of proof that there was no innocent and to say no non criminal explanation for the untruthful answers.”

30. Moreover, the appellant draws attention to evidence before the jury which negatived the suggestion of agreement between the co-accused; including AA’s evidence that her mother was afraid to tell the appellant about what had happened, that the appellant was shocked and confused during the video call and that when he arrived home he shouted at the co-accused saying, “Are you crazy?”; “Why would you do that?” and CC’s evidence that on arrival, the appellant shouted “What did you do to her? What did you do to her?” and words similar to “Why did you do that? You went the wrong path. Why do you hurt [the injured party] all the time?”

31. While it is acknowledged that the appellant delayed in calling an ambulance, it is submitted that by ignoring the evidence of his surprise and fixing him with responsibility in this way, the prosecution conflated a failure to act with participation in a joint enterprise.

32. It is submitted that identical considerations apply in relation to count 7 which was also based on joint enterprise. It is the appellant’s position that while there was evidence that he had previously physically assaulted the injured party, there was no attempt by the prosecution to anchor those allegations within the relevant four-day period during which the injuries resulting in the scarring were inflicted. Moreover, that they were unable to point to evidence that any of the assaults perpetrated by the appellant had caused any mark on the injured party nor to link any of the marks to the particular allegations against him. It is maintained that the allegations of physical chastisement against the appellant are not the type of assaults which cause scarring and that the same issues regarding lack of evidence of an agreement arise.

33. In relation to count 9, it is submitted that while there was evidence that the co-accused had been present on an occasion when the appellant choked the injured party, there was no evidence before the jury that the appellant had been present during his co-accused’s acts of violence. The Respondent’s Submissions

34. It is submitted by the respondent that the trial judge was correct to refuse the applicant’s application for a direction pursuant to the Galbraith principles. The respondent relies on the case of Cumberton, in which the appellant had lured a target to a location where he was shot. The appellant’s case was that the discharge of the firearm was not within the contemplation of common design and so his acquittal ought to have been directed. The following comment of Blayney J is cited:- “whether it was within the contemplation of the common design or not was a question of fact for the jury. It was for them to decide in the light of the evidence what was the common design, and then to decide whether what Reilly did fell within it.”

35. The respondent also relies on Cummins. It is emphasised that in that case this Court held that the jury was entitled to take account of events that took place after the offence had been committed. The respondent cites the test from the judgment of Blayney J in Cumberton as cited by Kennedy J in Cummins:- “The test is what was tacitly agreed between the parties and whether what happened was within the common design.”

36. It is submitted that the evidence in the present case demonstrates that the appellant and his co-accused agreed to use violence against the injured party as they were dissatisfied with her behaviour and were motivated to alter it. The following is relied on as evidence of such an agreement:-

• Both the appellant and his co-accused used brutal violence against the child almost daily, often as disproportionate and inappropriate punishment for minor perceived transgressions;

• The appellant choked the child while holding her off the ground, rendering her unconscious. This was done with the knowledge and support of his co accused, who on a separate occasion also choked the child until she was unconscious;

• The co-accused woke the child from her sleep and beat her while the appellant was present in the family home;

• The appellant was aware that his co-accused “hurt [the injured party] all the time”;

• Following the 28th June 2019 beach trip, the appellant had been home over the weekend of the 29th and 30th June 2019, during the period when the child had sustained a considerable number of serious injuries of varying ages;

• The appellant lied to Gardaí about the time of his return home on the 2 nd July, his whereabouts on that afternoon, and that he had called an ambulance 15-20 minutes after his return home;

• The appellant and his co-accused knowingly contrived to lie to Gardaí about the child selfharming, that her injuries were self-inflicted, and about her physical and psychological condition;

• The appellant and his co-accused lied about not having noticed the evident injuries that covered the child’s body before her hospitalisation;

• The appellant lied to Garda Walsh on the evening of the 2nd July 2019, about the child playing with candles, to explain the burns that he had supposedly not noticed at that point;

• The appellant and his co-accused knowingly contrived to lie to Gardaí about how the child came to be injured on the 2nd July;

• The appellant and his co-accused persuaded their children to lie about these matters relevant to the injured party’s injuries before they called an ambulance for her.

37. In terms of the behaviour of the appellant after the offence was committed, the respondent draws attention to the appellant’s lies to Gardaí, his reluctance to call an ambulance in circumstances where he thought it appropriate to attempt CPR and that he did not call the ambulance until the other children had been coached on the account they were to give to the emergency services. The respondent does not accept the appellant’s submission that such behaviour is not determinative, absent other evidence. However, it is submitted that the appellant’s lies are not the only evidence upon which the respondent submits that a jury was entitled to find that the appellant was part of the agreement alleged.

38. The respondent accepts that there are different reasons that people tell lies to Gardaí and that it is necessary to consider such lies in the context of a Lucas warning but asserts that the appellant did not merely tell a number of significant lies but also sought to engage his children in a patchwork of lies ascribing an innocent explanation to injuries he knew to have been maliciously caused. In this way, it is submitted that it was not only open to the jury to consider his lies as evidence of guilt but they provide significant evidence in the circumstances of the case.

39. The respondent contends that whether there was evidence negativing the suggestion of an agreement is clearly a matter for a jury and that it is clear from the evidence highlighted by the appellant that the co-accused had told the appellant that she was going to kill the injured party before the 2nd July 2019. It is submitted that in these circumstances and where the co-accused had brutally assaulted the child before the 2nd July, the jury was entitled to find that the appellant was aware that his co-accused might again harm her and that such an assault could cause her serious harm and that he remained part of the joint enterprise.

40. In relation to count 7, in response to the appellant’s contention that the prosecution failed to anchor allegations of the appellant’s previous assaults of the injured party to the relevant four-day period, the respondent submits that this ignores the evidence that the appellant used violence against the injured party on most days and that the joint enterprise to subject her to physical violence was an ongoing enterprise which preceded the 28 th June 2019. In relation to the scarring, it is submitted that the evidence established that both the appellant and his co-accused frequently used violence on the injured party including punching, kicking and the use of various items and that given the level of violence he himself inflicted upon her, there was sufficient evidence for a jury to conclude that it was within the contemplation of the joint enterprise that the injured party would be left with scars.

41. In relation to count 9, the respondent notes that AA and CC gave evidence of the appellant being present when his co-accused woke the injured party and beat her, of his co-accused beating the injured party daily, and of the appellant being off from work on the weekend preceding the 2nd July 2019. It is submitted that this evidence, in tandem with the lies of the appellant and his comment that “Why do you hurt [the injured party] all the time?” were sufficient to entitle a jury to convict the appellant on count 9. Discussion

42. The subject matter of count 6 is that of the assault on the child on the 2nd July 2019 causing a serious brain injury. The appellant was not present when this injury was inflicted by his wife. Count 7 relates to the assault between the 28th June and the 2nd July 2019 where the child sustained severe burns to her hands and feet and other marks as a result of assaults to her person. Count 9 concerns the same timeframe and is a count of child cruelty, particularised as wilfully causing, procuring, or allowing the child to be assaulted between the 28th June and the 2nd July 2019.

43. The appellant was tried and convicted as a participant to a joint enterprise, he was not present on the 2nd July 2019 when the victim was assaulted by her mother, however, the prosecution contended that he had assaulted the child on previous occasions, including an occasion when the appellant choked the child to the point of unconsciousness. Moreover, the prosecution contended that the appellant was present at times between the 28th June 2019 and the 2nd July 2019 when the child sustained serious injuries which were the subject of count 7 on the indictment. The Evidence

44. The respondent adduced evidence that on the 28th June 2019, the victim, aged 9 years, went to the beach with her family. Photographs were adduced in evidence which did not disclose any visible marks or injuries on the child’s body.

45. The appellant’s children gave evidence that the appellant and his wife had on many occasions prior to the 2nd July 2019 physically assaulted the child. The evidence led disclosed that he had kicked her, struck her with a slipper or a belt and that he had choked her, lifting her off the ground so that her feet pointed downwards, until she was rendered unconscious. The evidence given prior to the extract below set out a series of shocking assaults on the child by her mother including a specific incident where the child’s hand was placed on a red-hot hob plate. Her sibling described how the injured party did not always attend school as her mother did not want anyone to see the bruises. A schoolteacher gave evidence that she noticed bruising on the child and that she appeared unwell.

46. We set out hereunder an extract from the examination-in-chief of one of the children for the purpose of assessing whether there was evidence from which an agreement or plan could be inferred. That plan amounting to a campaign of violence on the child in order to drive out an evil spirit.

“A. My mam once choked her. It was beside the bathroom she choked her and then [the injured party] passed out.

Q. And when you say she choked her, was it with one hand or --?

A. Against the wall.

Q. -- two hands or --?

A. Both.

Q. Both?

A. Two hands.

Q. And how long did she choke her for?

A. Four or five minutes.

Q. And you said [the injured party] passed out?

A. She said that she's faking it but my dad choked her as well.

Q. We'll just go back to the -- we'll come to that, [AA], but just going back to the day with your mam, so you said she was outside at the wall and she did -- she choked her for four or five minutes. And then did she let --?

A. She wasn't --

Q. -- did she let her go?

A. After five minutes. It wasn't outside, it was beside the bathroom.

Q. I beg your pardon, okay. And what happened to [the injured party]? Did she --?

A. Fall on the floor.

Q. She fell. And how long was she passed out for, would you say?

A. Ten minutes, I'd say, 10 minutes.

Q. And did she just leave her there on the floor?

A. No, she kept slapping her. She was like: "She's faking it, she's faking it".

Q. I see, and she kept slapping her. And did you -- was [the injured party] left on the floor or was she moved? It doesn't matter --?

A. She was moved, I think.

Q. Where was she moved to?

A. To her bed, I think.

Q. I see.

A. I don't remember.

Q. Okay. Now, you've told the jury about all these times that -- your mam and how she would hit [the injured party] and all that. In any week would you say how often would this happen?

A. Most times.

Q. And when you say most times do you mean most days?

A. Yes, and most times in a day.

Q. And most --?

A. Like the --

Q. Is that more than once in a day?

A. More than once in a day. Like --

Q. Yes?

A. -- when it starts it doesn't stop.

Q. So how long could it last?

A. The whole day until [the injured party] goes to bed and then she'll wake her up at the middle, like, time in the night and then she was like: "Are you asleep?" and all and then she starts hitting her and all.

Q. What about your father and [the injured party]?

A. He choked [the injured party] once and he was hitting her with the belt and all.

Q. He choked her once. Can you tell us about that, please?

A. It was in the sitting room.

Q. First of all, it was in the sitting room and what did he do?

A. He -- I saw him choking her in the air.

Q. When you say in the air, where were her feet?

A. He was, like, holding her, choking her.

Q. I see. And where were her feet? Were they on the ground?

A. Off the ...

Q. And do you know why he was doing that? Did he say why he was doing that?

A. No.

Q. And how did [the injured party] react that day when this was happening?

A. She passed out again and my mam was like: "She's faking it" and all.

Q. So she passed out again, and did she -- did he let her go?

A. Yes.

Q. And what -- where -- was she -- did she stay standing?

A. No, she fell.

Q. She fell. And your mam said -- did your mam do anything then after she fell?

A. Yes, yes, she started slapping her and being like: "She's faking it".

Q. That was while she was on the ground, was it?

A. Yes.

Q. And your dad was there?

A. Yes.

Q. Were there other times when your dad hit [the injured party]?

A. Yes.

Q. Can you just tell us about those?

A. He could -- he kicks her when she's walking. He kicks her and he -- he punches her and kicks her.

Q. And do you remember one -- any time in particular when he kicked her?

A. She was just walking and then he just kicked her and started making fun of her and all and started making fun of the bruises.

Q. And what part of her body did he kick?

A. Her leg.

Q. And did she stay standing?

A. She fell.

Q. And after she fell, did anything happen?

A. My mam started telling her to walk properly but she had a sore leg.

Q. I see?

A. She had like -- her leg was swelling and all so she couldn't walk properly, so my mam started hitting her because she couldn't walk properly.

Q. I see. And did you ever see any incident with a slipper, your father and a slipper?

A. Yes.

Q. Would you tell us about that?

A. He started hitting her with a slipper when he comes back to work.

Q. And what kind of a slipper was it?

A. It was the same purple slipper or sometimes a shoe.

Q. And why would he say he was hitting her?

A. Because I don't -- because mam told him.

Q. I see. And I'm just trying to find out how often it might happen that he would hit [the injured party]?

A. When he comes from work.

Q. Say it was a week with seven days, would it be --?

A. Five --

Q. -- once or more than once in that week?

A. More than once in that week.

Q. Would you -- doing the best you can, how often might it be in -- would it be in that week?

A. Five days a week.

Q. Now, in terms of the belt that you talked about your mother using, did anybody else ever use that belt?

A. My dad.

Q. And what did he -- what do you recall him doing with the belt?

A. Hit [CC] or [the injured party].

Q. And again was there any particular part of the body he would hit?

A. Legs and this side of the body and that side. And my mam used to pinch us as well. She used to pinch us.

Q. And was it a hard pinch or a soft pinch?

A. A hard pinch that our skin used to usually pull after the ...

Q. After the pinch?

A. Mm-hmm.

Q. And what -- were you ever pinched?

A. Yes.

Q. Would it be on one occasion or more than one occasion?

A. More than one occasion. She would -- once -- most times she -- when I'm sleeping she comes and wakes me up at night time pinch -- not on night time, in the morning time pinching me.

Q. And what part of the body -- of your body did she pinch?

A. My stomach.

Q. And did you ever say anything to her?

A. No, I just said I'm sorry.

Q. You just said: "I'm sorry". And did you know what you were saying sorry for?

A. No.

Q. We saw -- we looked at the photograph of the attic. We saw the entrance to the attic. Do you ever remember anything happening --?

A. Yes.

Q. -- in that attic? Can you just tell us what happened, what you remember?

A. My dad putting [the injured party] in the attic.

Q. Your dad put [the injured party] in the attic?

A. Yes.

Q. I see. And how did he -- how did he do that?

A. So he stood up in a chair and then he lifted [the injured party] up and then he put her to sit in the attic and then he closed it and [the injured party] was crying.

Q. And do you know how long was she left up there? Roughly? Would it be a minute?

A. No.

Q. An hour?

A. Fifteen minutes to half an hour.

Q. I see. And why did he put her up there, did he say?

A. For a punishment.

Q. And was this day or night, can you remember?

A. Night time.

Q. Night time. Do you know if there's any light in that attic?

A. No, there was no light.

Q. And when [the injured party] was in that attic did you hear her say or do anything or --?

A. Yes, she was like: "Please get me out" and then she was like hitting the attic:

"Please let me get out".

Q. And when eventually she was let out, did your dad lift her down?

A. Yes.

Q. And did anything happen then?

A. He was just hitting her and all and made her clean up the whole house.

Q. I see, made her clean up the house?

A. Yes.”

47. When cross-examined about encouraging the other children to laugh at the injured party when she was injured, the following arose:- “Q. And you told us today that after he kicked her he was laughing at her?

A. Yes, he -- he used to laugh at her, he used to make us laugh at her, he used to always make her like laugh at her what -- and then make her clean up and all and then make her say something. I forgot how to translating (sic) it but she'd say something, he'd say something to her and like make her dance while with the bruises and all to laugh at her and all.

Q. I don't think you've ever mentioned that in any of the interviews before; isn't that right?

A. I was -- I was embarrassed, I thought people would judge me be -- with what happened. I was too embarrassed to say any of that.

Q. But I think you told them a lot of details about things that you're saying; isn't that right?

A. Yes. No …

Q. I think that --?

A. I…

Q. I think it's the case that now you're living with your foster family and life is a little bit easier there --?

A. I -- I realise how strange that was. At the time I used to think all that was normal.

I used to think it was normal because they told us it was, so I used to think it was normal. So, I didn't think I'd need mention all that because I thought it was normal.”

48. The above extract is illustrative of the nature of the violence inflicted on the injured party by her mother and by her father, either separately or in each other’s company. Insofar as the specific incident where the child was burnt by her mother, the evidence disclosed that the mother forced the child’s hand onto the hot hob some days before the 2nd July 2019. Having burnt her in this manner, she then cuffed the child’s hands and feet with strong tape, told her to undo the tape in 10 seconds, otherwise she would burn her. The child was unable to untie herself and her mother then burned her foot and arm with a knife which had been heated on the hob and also bit the child. The child was screaming in pain.

49. Regarding the incident of the 2nd July leading to the brain injury, AA gave the following evidence:- “A. I stayed in my bedroom.

Q. And did it continue for a while, the shouting and banging?

A. Yes, and my mam was saying: "What -- you're not five. Why did you pee the bed? You're not five, why -- don't do it again" and hitting her and all, and then before I saw [the injured party] laying down her -- my mam was, like, to her:

"Are you going to do it again? Are you going to do it again? Did you learn from this chokin?" And then [the injured party] was like: "I'm not going to do it again."

My mam said: "Would you do it again?" She said: "No." And then [the injured party] was -- fell on the floor and my mam was calling me then.”

50. The evidence continued:-

“—I heard [the injured party] fell but my mam pushed her. [The injured party] said: "Don't push me, please don't."

51. This Court viewed certain photographs of the child’s injuries, specifically a severe burn injury to her hand and injuries to her back. The medical evidence disclosed that the child’s body was covered in cuts and bruises, she had burn marks to the palms of her hands and the soles of her feet. A paramedic who arrived at the scene gave evidence of noticing marks and bruises to the child’s legs and body. He described the quantity as “numerous.” The appellant told a station officer from Dublin Fire Brigade, who also attended the scene that the child self-harmed.

52. When the appellant was interviewed, he told the Gardaí he was unaware of her injuries until she was hospitalised and that she self-harmed. The Direction Application

53. This application was moved regarding the aforementioned counts on the basis that the Director had failed to reach the necessary threshold on the conclusion of the prosecution case that there existed an agreement, express or tacit between the appellant and his wife to inflict violence on the injured party, or, alternatively, that the Director failed to establish that the incident on the 2nd July 2019 fell within the scope of any such agreement.

54. In response to the defence submission on the direction application, counsel for the respondent contended for the following:- “In my respectful submission, it is open to the jury to find that there was a tacit agreement between the parties to do whatever was necessary to this child to bring her to heel, to alter her behaviour, to get rid of a djinn, whatever, but the agreement was that that -- and that included behaviour which there had to be an aspect of recklessness as to whether or not serious harm would ensue.”

55. The judge succinctly stated the prosecution argument in the following terms:- “So, to repeat, your theory of the case is that all the actions of both parties before this Court are referable to an ambition on their behalf around this time to deal with "a difficult child". It seems, you say, from their conversations with Inspector McInerney post the events that they believed that this child was possessed of a malevolent spirit, a djinn, and these actions were taken to rid this child of this djinn. And you're saying that's why they embarked upon this course.”

56. To which Ms Rowland SC counsel for the respondent replied:- “I'd respectfully submit that's open to the jury to infer that. It's also open obviously to the jury to infer that these two people were on a course of violent -- that they were administering violence, inflicting violence on the child, simply to get her to swallow her food faster and behave differently.”

57. Mr Dwyer SC for the appellant rejoined in the following terms:- “The prosecution need to prove that we were part of a common design and intended as part of that joint enterprise to commit it, notwithstanding the fact that although [AA] and [CC] gave very detailed evidence of witnessing the burns there wasn't any suggestion whatsoever that [the appellant] was present for any of that. And similarly to what happened on the 2nd of July, to suggest that the participation in the physical chastisement of a child, however we might view it, is the signing of a blank cheque by [the appellant] to say: "Whatever you do I intend to do it with you", in my respectful submission that can't be the case. And in relation to djinn and their belief that the child was possessed by a demon, Dr Oakley gave evidence that this is something that's prevalent throughout the Middle East, throughout the Islamic world and beyond, and it's very often harmless. And to say that to believe that because djinn has on other occasions been a cause in child abuse isn't to say that belief in djinn automatically means you are signing a blank cheque to allow somebody you live with to do anything they want to a child that is your child and that you are, therefore, a common participant in it in my respectful submission is to obliterate the concept of common design as we note and to obliterate the concept of mens rea. In my respectful submission the jury would have to be able to find that the defendant [the appellant] intended or was reckless, and there's no evidence of that and it can't be inferred from what would be speculation on their part in the absence of concrete evidence and mens rea in relation to any of those counts.”

58. Having heard the parties, the judge ruled as follows:- “What Mr Dwyer is saying, that a properly directed jury could not convict [the appellant] of the section 4 assault on the 2nd of July, he says even if you accept some form of tacit agreement to deal with the misbehaviour of this child in this way, it cannot go as far as what occurred on the 2nd; that is the infliction of a traumatic brain injury on [the injured party.] Now, would the jury be speculating or inferring from the evidence if they came to the conclusion of guilt? Ms Rowland says that it's very obvious from the particular facts of this case, from the evidence particularly of [AA] and [CC], that [the appellant] was involved in this plan, scheme, to deal with the misbehaviour, as they saw it, of [the injured party]. She says there is evidence of [the appellant] choking the child and kicking the child. She also says that the injuries that were, it seems, the state say, inflicted between the 28th and prior to the 2nd must have been obvious to him. He must have known about them and he must have approved of them. So, therefore, the inference a jury could draw that he was on board in relation to this joint enterprise to deal with this child's perceived misbehaviour. Mr Dwyer I suspect is saying even if you accept that, what occurred on the 2nd goes way outside that, the attack it seems by [the co-accused] - that's what the state say at least - on the child, and basically to bolster that submission he says the evidence of surprise and what occurred when he arrived home. Ms Rowland says that's not necessarily the case but it's for the jury to take all these factors into account and it's for the jury to decide. She also indicates that both parties and in particular [the appellant] told lies about their involvement, or at least where they were on the particular date and when they arrived home and suchlike, and this is corroborative in relation to the case of [the appellant] Obviously, lies or suggested lies have to be dealt with in a certain way and undoubtedly all counsel will warn the jury of the dangers in relation to that particular aspect of the case as well as hopefully this Judge will, and if I don't I have no doubt I'll be reminded to do and I certainly will do it.

So, where does that leave us? I think I started out saying the jury is paramount. The jury can make up their own mind. The jury will have the assistance of very able counsel who will point out to them the deficiencies or the strengths of the case. And it seems to me at this point the Court is not going to accede to the application of Mr Dwyer. It seems it's quintessentially a jury case and it seems to me every case has its own particular facts.

And it seems to me that one of the particular facts in this case is that this family were living in very closed surroundings and they were living in very close proximity to each other, and it seems a jury can take this into account in deciding the state of knowledge of [the appellant] and what he knew and other matters in relation to the case. So, despite a very well made application by Mr Dwyer, it seems to me I will leave it to the good sense of the jury in this matter.”

59. As is readily apparent from the above, this most experienced judge properly identified the legal principles in terms of an application for a direction and clearly identified the issues in dispute between the parties. He considered the salient features of the evidence and the arguments and refused the application. We will now consider whether this was a proper exercise of his discretion.

Common Design

60. At the heart of this ground of appeal is whether there existed an agreement, tacit or express between the appellant and his wife to cause harm to their child and, if such an agreement existed, whether what occurred fell beyond the scope of that agreement.

61. There is no disagreement as to the applicable legal principles which were stated in R v Anderson & Morris and approved in this jurisdiction in Cumberton. It is of assistance nonetheless to set out the principles commencing with Anderson & Morris, where it was stated:- “Where two persons embark on a joint enterprise, each is criminally liable for acts done in pursuance of the joint enterprise, including unusual consequences arising from the execution of the joint enterprise; but if one of them goes beyond what has been tacitly agreed as part of the joint enterprise, the other is not liable for the consequences of the unauthorised act.”

62. The first point to consider is whether there was evidence from which an agreement could be inferred absent any direct evidence of an express agreement. In the more recent decision of Dekker, the Supreme Court observed:- “…..It will be relevant in a case of joint enterprise to consider what the participants in the crime had agreed to do, tacitly or expressly. To that extent issues of foresight are very relevant.”

63. As said by this Court in Cummins:- “The essence of the doctrine is that two or more persons agree to participation in a criminal act or acts and therefore will be responsible for acts committed to further that plan. The criminal responsibility is dependent on the existence of an agreement or a plan to take part in criminal acts. There must be evidence of such an agreement, which can be express or implicit.”

64. The test was succinctly stated by Blayney J in Cumberton:- “The test is what was tacitly agreed between the parties and whether what happened was within the common design.”

65. Bearing those principles in mind, we look to the case for the prosecution which was that the appellant and his wife acted together to use violence against their daughter. This agreement, it is said, could be inferred by the jury from the surrounding circumstances, the injuries on the child over time, which it is said, must have been visible, the close living conditions of the family, the evidence of the infliction of injury on the child by the appellant and the lies told by him regarding the time he returned home from work on the 2nd July 2019.

66. The appellant contends that there was no evidence of an agreement, that any inference of such an agreement was speculation but that even if such an agreement existed, the actions of the co-accused in inflicting the injuries on the child during the relevant time period on the indictment, went beyond the scope of any such agreement. The appellant points to the evidence from the children as to his reaction on hearing of the incident on the 2nd July 2019 and his response on his arrival home, as nullifying any suggestion that what had occurred fell within the scope of any agreement, bearing in mind that the appellant says there was no evidence justifying the existence of any such agreement, express or otherwise.

67. As can be seen from the jurisprudence, the nature of the agreement is of significance. The prosecution must prove that the offences alleged fell within that agreement, which plan, agreement or enterprise may be express or tacit; a tacit or implied plan or agreement may be inferred from the surrounding circumstances.

68. People (DPP) v Doohan [2002] 4 IR 463 is of assistance concerning whether an individual ought to be held criminally responsible for unusual consequences arising from an agreement. In that case, the plan was to administer a beating to the victim, and the appellant informed the Gardaí in interview that he expected the beating to take the form of the use of a baseball bat or some such, however, the victim was shot and died. The Court of Criminal Appeal found that there was evidence of a common design to cause serious injury and thus there was sufficient mens rea for the offence of murder. Moreover, that whilst the discharge of the firearm was not expressly agreed, it was not outside the scope of the tacit agreement.

69. It seems clear from the evidence that the appellant and his wife were of the view that the injured party was possessed by an evil spirit, known as a djinn. Certainly, evidence from one of the children disclosed a type of exorcism conducted by the father to remove the demon from the child.

70. There is also no doubt that the child was subjected to a pattern of violence by her parents, on occasion, by the mother on her own while the father was at work, and on other occasions, the appellant inflicted violence and severe violence on her. The incident where he choked her, suspending her in mid-air to the extent that she lost consciousness is a case in point. The evidence disclosed that he inflicted violence on the child when he came home from work, and that this occurred 5 days a week. In the meantime, his wife inflicted violence on the child. There was overwhelming evidence from the injured party’s siblings that violence was meted out to the child most days of the week by one or other or both of her parents. We believe whether this was for the purpose of eliminating the so-called djinn or for the purpose of rectifying her behaviour to be of lesser importance. What is significant is that there was evidence, which certainly could be inferred from the circumstances that there was a campaign of violence on the child carried out by both parents.

71. Given the evidence of the observations by the medical personnel, both at the scene and in the hospital, it is evident that at least some of the injuries sustained by this unfortunate child were readily apparent. Indeed, this Court was shown a particular photograph of a severe burn mark to the palm of her hand, and it simply must be the case that this was also apparent to her father, the appellant. We note the evidence that the child slept in the same room as the parents, albeit in a separate bed. There was, therefore, evidence from which a jury could conclude that a parent would observe such an appalling and obvious injury. The living conditions were also relevant, the family lived in very close proximity to each other. We also note that the soles of the child’s feet were blistered following burning by the hot knife some days prior to the 2 nd July 2019. It is inconceivable and an affront to common sense that the appellant would not have noticed his child had difficulty in walking or that she was even perhaps unable to walk at all due to the severity of the burns.

72. We are not at all persuaded that the appellant was unaware of the injuries suffered by his child at the hands of his wife. He also assaulted his child and did so on a very frequent basis. The fact that he informed one of the first responders that the child self-harmed is significant also, not just from the perspective of the Director seeking to rely on lies, but more so from the perspective, that he felt it necessary to comment that she self-harmed. This is indicative that felt the need for some explanation for her injuries and thus, he was aware of at least some, if not all of those injuries.

73. We believe that the incident of choking by the appellant is significant, this type of significant assault is not at all removed from the type of assault which was inflicted on the child on the 2nd July 2019 when he was absent from the residence. The fact that the child lost consciousness is significant.

74. It is also significant that one of the children gave evidence of hearing the injured party say to her mother whilst in the bathroom on that fateful day, not to push her; “Don’t push me, please don’t.” Thereafter, the child sustained the serious brain injury. Therefore, the type of violence inflicted on the child that day does not appear to differ in character from the type of violence that was inflicted on her many other days by her parents.

75. Moreover, it is clear from the evidence of AA on the occasion when the appellant put the injured party in the attic that he did so to punish her, and during the incident of the 2nd July, AA heard mother say to the injured party “Are you going to do it again? Did you learn from this lesson?” to which the injured party replied, “I’m not going to do it again.” The injured party was later heard to say: “Don’t push me, please don’t.” It appears that she was being punished for wetting the bed. So, the evidence disclosed a concerted effort on the part of the appellant and the co-accused to inflict injury on the child in order to punish her for perceived misconduct.

76. It is argued by the appellant that his reaction on hearing about the incident on the 2nd July and his reaction and remarks on his return to the home are indicative that what occurred on that date went beyond the scope of any agreement. We do not agree with this submission, there was certainly evidence from which could be inferred an agreement to inflict serious injury on this child. The choking incident was, in our view, on the evidence, the type of violence which fell within the scope of the agreement, tacitly agreed upon, to harm the child. Indeed, that assault could have yielded of more significant consequences.

77. The assault on the 2nd July was one which the jury were entitled to consider on the evidence fell within the scope of an agreement to harm the child. The fact that that assault caused a brain injury to the child was a consequence which the jury could consider was one for which the appellant was liable on the basis of the doctrine of joint enterprise.

78. It was open to the jury to conclude that there was an agreement to cause the child a serious injury. How that was to be inflicted may not have been determined upon, but it was certainly open to the jury to find that the injuries inflicted between the 28th June and the 2nd July were within the scope of what had been tacitly agreed by the appellant and his co-accused. This could be inferred from the surrounding circumstances and so the appellant could be held responsible for the consequences.

Decision on Ground 1

79. We are not persuaded that the judge erred in refusing the application for a direction on counts 6, 7 or 9 for the reasons above. Applying the principles in R v Galbraith (1981) 73 Cr App R

124 which were clarified by this Court in People (DPP) v M [2015] IECA 65 (Edwards J) and the law on joint enterprise, there was evidence from which the jury could infer an agreement to inflict injury on the child over a period of time and certainly within the timeframe of the counts preferred on the indictment. Moreover, that the offences fell within the scope of that agreement.

80. We are entirely satisfied that there was evidence from which the jury could conclude that the acts of the co-accused were committed on foot of that enterprise and that the appellant was criminally responsible for the offences committed in furtherance thereof. The Charge to the Jury- Ground 2 The Appellant’s Submissions

81. The appellant submits that the trial judge’s charge in respect of the central issue of joint enterprise was flawed in a number of ways:-

• That there was a failure to outline the defence case in relation to the absence of any agreement between the accused;

• That the judge did not distinguish between the two classes of offences, in that regard, it is argued that while he instructed the jury of the statutory duty of parents and guardians of children under the Children Act, 2001, he failed to point out that this did not apply to the section 4 offences which was compounded by his failure to clarify that mere presence is insufficient in respect of counts 6 and 7.

• That the judge failed to properly address the jury in relation to the mens rea required of the appellant;

• That when setting out the prosecution case the trial judge mistakenly stated that the injured party had slept in the same bed as her parents the night before the brain injury when in fact evidence established that she had slept in the same room but a different bed.

(This was significant as the prosecution relied on the sleeping arrangement as allowing the jury to conclude that the appellant must have been aware of the burn injuries);

• That evidence relating to the appellant’s shock at the injuries or of his co-accused’s fear in making him aware of them were not also highlighted;

82. In relation to the mens rea required for a secondary participant, the appellant refers to R v Jogee [2016] UKSC 8, where the Supreme Court of the United Kingdom set aside the concept of “parasitic accessory liability” whereby foresight of the relevant criminal act was sufficient mens rea for the secondary participant. The Court held that the mens rea required an intention on the part of the secondary participant to assist or encourage the primary participant to act with the requisite mens rea for the offence. As such, it is argued, the secondary participant is only liable for the acts of the primary which were foreseen and for which he intended to assist.

83. Jogee was cited with approval in this jurisdiction in People (DPP) v Gibney [2016] IECA 336, however, in People (DPP) v Kelly [2016] IECA 404 it was found that Jogee “does not have any direct relevance to Irish law” on the basis that the Irish courts never took the “wrong turning” which the UK courts had done and had always concentrated on intention rather that foreseeability. The Supreme Court in People (DPP) v Dekker [2017] 2 IR 1 found that a secondary offender must also have the requisite mens rea for the offence committed.

84. Requisitions were raised on behalf of the appellant requesting the court to clarify the mens rea required of the appellant in a common design, however, the trial judge declined to re-charge the jury. The jury then asked a question concerning recklessness, in reply to which, it is said the judge recharged the jury in relation to the mens rea for the appellant’s co-accused. Counsel asked the judge to clarify the mens rea concerning the appellant which the trial judge declined to do.

85. The jury asked another question as follows:- “The third thing is we're looking for clarification. When it comes to the charge No. 1, about intentionally or recklessly causing serious harm to [the injured party], did the person actually -- are we talking about physical or are we talking about neglect here? I don't know if that makes it clear. I'm not sure if I'm allowed to say the person's name, the defendant's name.

JUDGE: Yes, oh yes.

FOREPERSON: So, we're talking about [the appellant].

JUDGE: Yes.

FOREPERSON: That the charge of intentionally or recklessly causing serious harm to [the injured party]. Does that mean he physically was present or if he wasn't there but knew that she was in danger, is that -- we just need clarification of that.”

86. It is submitted on behalf of the appellant that the jury were considering a test of foreseeability and that substituting foresight for mens rea is exactly the “wrong turning” which was corrected in the UK in Jogee but which according to Kelly, never formed part of Irish law.

87. It is submitted that while the judge recharged the jury in answer to their question, it was insufficient to undo their apparent confusion and fundamental misunderstanding of the concept of joint enterprise.

88. It is further submitted that the trial judge failed to explain to the jury that mere presence at the scene of a crime does not give rise to criminal liability given their questions and clear confusion about the law. A requisition was raised and the court declined to recharge the jury on that point. It is noted that the trial judge explained that a failure to intervene on behalf of a child in one’s custody can give rise to liability under the Children Act, 2001 and it is suggested that this might have compounded the confusion in the jury’s mind. The Respondent’s Submissions

89. The respondent submits that the trial judge dealt briefly rather than exhaustively with the prosecution’s theory of the case in circumstances where the jury had just heard closing speeches from prosecution and defence counsel and where the points of controversy were made clear by counsel as well as the relevant law. It is submitted that the brevity of the charge was appropriate and did not affect the balance struck and the fairness of the charge when viewed in its totality.

90. In relation to the error in respect of where the injured party slept on the night of the 1 st and 2nd July, it is submitted that this error is not one of significance as the appellant would have had a comparable opportunity to observe her injuries whether she slept in the bed with him or simply in the bedroom and where, as the evidence established, he was home for the entire weekend preceding the 2nd July. It is noted that prosecution counsel had correctly described the sleeping arrangements.

91. In terms of the failure to address the mens rea required of a secondary participant, it is submitted that the trial judge’s charge was correct and, if anything, inured to the benefit of the appellant.

92. The respondent contrasts the charge in the present case with the passage of Jogee relied on by the appellant:- “If the jury is satisfied that there was an agreed common purpose to commit crime A, and if it is satisfied also that D2 must have foreseen that, in the course of committing crime A, D1 might well commit crime B, it may in appropriate cases be justified in drawing the

conclusion that D2 had the necessary conditional intent that crime B should be committed, if the occasion arose; or in other words that it was within the scope of the plan to which D2 gave his assent and intentional support. But that will be a question of fact for the jury in all the circumstances.”

93. It is submitted that the charge confined the jury to considering whether the offending committed by the co-accused was within the scope of crime A which was a narrower basis upon which guilt could be found than if the judge had expressly invited the jury to consider whether the co-accused had gone beyond the scope of the intended offending, committing crime B as referred to above, and allowing the jury to hold the appellant criminally liable because he had the necessary contingent criminal intent. It is further submitted that the evidence in this case which was clearly accepted by the jury was that the appellant had the requisite mens rea, that the common purpose to physically chastise involved a degree of violence so as to compel the inference that it was carried out at least reckless to causing serious harm to the injured party.

Discussion

94. This ground concerns counts 6 and 7 on the indictment. As we have stated, the essential element of a joint enterprise requires two or more people to enter into an agreement, tacit or otherwise to engage in a criminal endeavour. Each is liable for the acts committed in furtherance of that agreement which includes unusual consequences arising therefrom.

95. It is necessary to set out aspects of the trial judge’s charge where he directed the jury in the first instance as to the respondent’s case saying:- “Now we'll move on to a central theme of the state's case. It's the issue of common design. Now, the state's case is that [the co-accused] and [the appellant] tacitly agreed, or agreed that basically because of the behaviour of [the injured party], the little child, they were going to physically chastise her and do violence to her to make her change her ways.”

96. He then went on to give an example of a joint enterprise, following which he said:- “Now, you're going to have to work out first of all are you satisfied beyond reasonable doubt that there was plan, a tacit or an express plan, or an agreement or an understanding between the father and mother to use violence and chastisement to bring this child in line, either themselves or to get rid of a djinn. That's a spirit. You're going to have to decide that. If you decide that that is the case, obviously one is responsible for the other. Then you should ask yourself were the actions of [the co-accused] on the Tuesday, the 2nd, outside that plan before you can levy Mr Dwyer's client with responsibility for whatever occurred on the 2nd. You must be satisfied beyond reasonable doubt that what [the co-accused] was -- within the tacit or expressed agreement, or the common design between these two parties, the defendants. That's for you.” (our emphasis).

“On the other hand - I should have said this - it is obvious that if you accept the submission by Mr Gageby that the facts on the 2nd do not disclose an intention to cause serious harm, intentionally or recklessly, I indicated that [the co-accused] is entitled to an acquittal.

But I think it's logical if [the co-accused] is entitled to an acquittal, so is Mr Dwyer's client. It's as simple as that.” (our emphasis).

97. At a later stage, the trial judge addressed the child cruelty counts and in pointing out the statutory duty said:- “Now, the most serious charges in this case are the two section 4s; that’s serious harm.

Now, there’s also three other counts against each of the defendants and they mirror each other. They are basically charged with child cruelty, that basically speaking that a person … You all realise that adult versus adult, two adults, we have no real responsibility to each other; as simple as that, except in special cases. For instance, if you’re going home tonight and there’s somebody bleeding on the side of the street, you can legally walk on. Obviously morally it's different but you can legally walk on. But that’s not the case where you’re a parent of a child. You have responsibility. And basically, you have to make sure – child cruelty, and I have it here: “It shall be an offence for any person who has custody, charge or care of a child to wilfully assault, ill-treat, neglect, abandon or expose the child or cause to procure or allow a child to be assaulted, ill-treated, neglected, abandoned or exposed …”. Basically, if you see somebody assaulting your child, you’ve a responsibility, I think everybody will realise, to stop that. If you see your spouse, if a mother sees a father, assaulting a child, a mother must do all in her power to stop a father assaulting and vice versa.” (our emphasis).

98. He then moved on to say:- “In relation to [the appellant], it's reversed. They have charged him with actually assaulting and treating the child badly and cruelly and not stopping [the co-accused] from assaulting the child. So you'll read them, they are the reverse of each other, but they come from the Children Act and that put into code what was the common law, that basically parents have an obligation, a legal obligation, to protect their children from harm and cruelty and bad behaviour.” (our emphasis).

99. We say at the outset that it appears to us the judge was very clear in the manner he instructed the jury on joint enterprise. While succinct, his directions were specific and in clear language.

100. Mr Dwyer raised a number of requisitions relating to joint enterprise specifically;

• That the judge failed to outline the defence case in respect of the absence of an agreement between the appellant and the co-accused.

• That the judge failed to inform the jury of the requisite mens rea for each of the offences, specifically that the acts were reasonably foreseeable within the contemplation of the parties to the agreement.

• That the judge indicated that adults owe a duty of care to children, but that he failed to point out that mere presence is insufficient to give rise to an inference of an agreement in terms of joint enterprise.

101. The trial judge declined to re-charge the jury on these issues and on return, the jury posed a question concerning recklessness at which point, the judge charged the jury as follows:- “ Now, I think recklessness probably came into more or less the -- I think it was dealt with particular (sic) in relation to the head injury on the second. Obviously, if you find that [the co-accused] -- she was the actor and had acted recklessly on the date -- that you can find her guilty. Recklessness is defined as taking a known risk. And in relation to that count where -- that she intentionally or recklessly caused serious harm. Obviously, if you find that she intentionally caused serious harm to the child, obviously you can consider convicting. Obviously, in that case, if you -- recklessly means taking a known risk. In other words, I explained what recklessness meant in relation to this. And obviously, if you find beyond reasonable doubt that she acted recklessly on the date, on the second, then you can consider convicting.”

102. The judge was again requisitioned on the basis of a concern that if the jury found the appellant’s actions in going to work on the 2nd July to be reckless that he could be found guilty of the s. 4 offence. The judge declined to do so.

103. The jury returned with a question concerning the appellant, specifically regarding the s. 4 assault on the 2nd July 2019. The question was asked in the following way:- “The third thing is we're looking for clarification. When it comes to the charge No. 1, about intentionally or recklessly causing serious harm to [the injured party], did the person actually -- are we talking about physical or are we talking about neglect here? I don't know if that makes it clear. I'm not sure if I'm allowed to say the person's name, the defendant's name.

JUDGE: Yes, oh yes.

FOREPERSON: So, we're talking about [the appellant] JUDGE: Yes.

FOREPERSON: That the charge of intentionally or recklessly causing serious harm to [the injured party] Does that mean he physically was present or if he wasn't there but knew that she was in danger, is that -- we just need clarification of that.

JUDGE: This is the first -- which count is that we're -- FOREPERSON: The count No. 1.

JUDGE: Is that the disfigurement or the brain damage?

FOREPERSON: No, it's the brain damage.”

104. The judge then directed the jury:- “And in relation to [the appellant]; the charge of causing serious harm in relation to the brain damage to the child, we're not talking about neglect here. Basically, for you to convict [the appellant] of that crime, you would have to be satisfied that there was an ongoing common design between [the appellant] and [the co-accused]. You understand?

FOREPERSON: Yes.

JUDGE: That basically, both had engaged in a course of conduct or were involved in the course of conduct to deal with [the injured party] in a certain way. And this was part of that.

FOREPERSON: Yes.

JUDGE: You understand?

FOREPERSON: Yes.

JUDGE: Neglect doesn't come into that.

FOREPERSON: Yes. Okay.

JUDGE: You understand?

FOREPERSON: Yes. Yes.

JUDGE: Does that answer your question?

FOREPERSON: Yes.

JUDGE: Now, obviously, as I indicated to initially, that's the question you wanted answered in relation to that matter.

FOREPERSON: Yes. Yes. It is.

JUDGE: No. Basically, neglect doesn't come into that.

FOREPERSON: Okay.

JUDGE: Basically, before you can consider convicting [the appellant] in relation to the brain damage count, you must be satisfied that both [the co-accused] and [the appellant] acted in a -- by common design or a concerted action. And this was part of this. Of that. You understand?

FOREPERSON: Just to be really clear; you're saying that they were in collusion together -- JUDGE: Yes.

FOREPERSON: If they were in collusion together -- JUDGE: Yes.

FOREPERSON: -- that even if one person didn't physically damage the child, but yet is still guilty of -- JUDGE: If it was part of the common design. In other words, the state's case is that both [the appellant] and [the co-accused] engaged in a course of conduct against a child for whatever reason.

FOREPERSON: Okay.

JUDGE: And this included physical chastisement and violence. That's what they say. Now, if you say what happened on the second was part of that, if you decide beyond reasonable doubt that was part of it, it's open to you to convict. Obviously, it's for you. But you must be satisfied beyond reasonable doubt that this -- the conduct by [the co-accused] was part of this common design. You understand?

FOREPERSON: I do.

[…] Sorry. I was just reminded by someone. Does that apply to the other two charges as well, the assault and also the disfigurement?

JUDGE: Yes.” The Failure to Outline the Defence Case in Relation to the Absence of any Agreement

105. It is argued that in setting out the respondent’s case to the jury, a corresponding duty lies to point out aspects of the evidence which contradict the respondent’s proposition. In that regard, it is said that the judge erred in stating that the injured party slept in her parent’s bed on the night of the 1st July 2019, whereas, she slept in the same room but in a different bed. We do not find this to be of any significance, the facts are for the jury and while the judge summarises those facts, the jury heard the evidence and the closing speeches.

106. Insofar as the judge did not highlight certain evidence, such as the appellant’s shock when he learnt of what had happened on the 2nd July, there is no obligation on a trial judge to reprise the evidence in full. A judge is entitled to reprise as he or she feels appropriate. The charge must be considered in the round, bearing in mind the jury have heard all the evidence.

107. Moreover, on reading the judge’s charge, it cannot be said that he placed greater emphasis on the respondent’s case. He certainly set forward what he termed as the central theme of the respondent’s case, being that of joint enterprise, and indeed it would be quite extraordinary if he had remained silent on that central issue. In relation to that, he pointed to the evidence of two of the children, the general circumstances of the case, including that the family lived in close proximity and the inadvertent mistake that the child slept in her parents’ bed on the 1 st July. He then pointed out the respondent’s contention and the defence contention, on opposite sides of joint enterprise. We do not believe there is substance to this argument. The Mens Rea

108. Obviously, the jury must be satisfied that what occurred was within the scope of the agreement and that the acts complained of were within the appellant’s contemplation, on first being satisfied of the existence of an agreement, express or tacit. It must be borne in mind that a secondary offender will be liable for unusual consequences which arise from the execution of the agreement. Dekker confirmed that the secondary offender must have the necessary mens rea.

109. The mens rea for joint enterprise is founded on the agreement. In Doohan, Denham J commented:- “There was evidence upon which the trial court could determine that the applicant intended to cause serious injury to Mr Madden. He was in a joint enterprise to cause serious injury to Mr Madden. Consequently, there was the necessary intent, the mental element, for murder.”

110. Doohan was a case of murder, where there was an agreement to give a beating to the deceased, the nature of which beating was left to the discretion of one of the accused. The argument advanced was that the appellant could not be held liable for his co-accused’s actions, the appeal was dismissed.

111. The above comments by Denham J are apposite to the present case in that where a person is party to a joint enterprise, such as to cause serious harm, the necessary intent may be inferred from the nature of the agreement.

112. Prior to re-charging the jury following requisition, the judge had advised the jury that if they accepted that the facts concerning the 2nd July did not disclose an intention or recklessness on the part of the co-accused to cause serious harm to the child, then she should be acquitted. He went on to say, that if that were so, the appellant was also entitled to an acquittal.

113. Following a question from the jury on the issue of recklessness, he explained the issue of recklessness, albeit in connection with the co-accused, but the initial direction to the jury cannot be ignored. The concept of recklessness was explained which augmented the initial direction.

114. However, following a request from the jury for clarification regarding the appellant and the issue of intention and recklessness and the distinction between acts and neglect, the trial judge took great care to explain the position to the jury.

115. With considerable clarity, the judge explained that the issue was not one of neglect insofar as s. 4 was concerned, but that the jury had to be satisfied that there existed a common design between the co-accused and the appellant, that both engaged or were involved in a course of conduct to deal with the injured party in a particular way and that the events in question were part of that agreement. He emphasised to the jury that the respondent’s case was that both parties engaged in a course of conduct including physical violence and that if they concluded that the events of the 2nd July were part of that, only then could they convict.

116. Following a further requisition on behalf of the appellant the judge again gave an example of joint enterprise, and said:- “Now, everybody agrees that [the appellant] wasn't at the house at the relevant time. The question you have to decide was what [the co-accused] did, was that within the plan or the common design, or what the parties agreed or tacitly agreed? You have to decide whether the actions taken by [the co-accused] -- whatever actions you decide they were -- were within that common design or plan. If you find that [the co-accused] -- if you have a reasonable doubt whether what [the co-accused] did was within that plan or within that understanding, then you acquit. You must be satisfied beyond reasonable doubt before you can consider convicting [the appellant], that what [the co-accused] did was within the common design or the common plan to deal with [the injured party]. You understand?

FOREPERSON: Yes.

JUDGE: And you must be satisfied. Now, you see, you're going to have to decide what occurred on the 2nd. And what in general terms or particular terms [the co-accused] did, if you find at all she did anything. But if you find that she did assault or cause the damage in question, before you can attribute blame to [the appellant] for that, you must be satisfied beyond reasonable doubt that it was within the plan for dealing with [the injured party]. If you're not so satisfied beyond reasonable doubt, [the appellant] is entitled to an acquittal on that. Does everybody understand that?”

117. Even if the jury were unclear in the first instance, we are quite satisfied that the jury were fully informed that if the actions of the co-accused went beyond the scope of the agreement, her actions were not part of the joint enterprise. They can have been left in no doubt whatsoever following this re-charge. We do not accept that the jury were confused or had a fundamental misunderstanding of the concept of joint enterprise. The first question raised concerned the issue of recklessness, the second concerned intention and recklessness in the context of physical acts/neglect. The judge fully answered these two questions which do not in and of themselves display a fundamental misunderstanding of the concept of joint enterprise. It may well be that one or more jurors, being assiduous, simply wanted to be sure of the concept. This does not necessarily imply of a fundamental misunderstanding. In any event, it seems that the jury had been deliberating for 2 hours and 35 minutes when they sought clarification as above. Immediately following the judge’s clarification, counsel asked for the further direction, which was then given by the judge. The jury deliberated for a total of 3 hours and 10 minutes before returning a verdict and therefore deliberated for a further 1 ½ hours approximately having received the final direction from the judge.

118. We are not persuaded that the judge failed to properly address the jury on the requisite mens rea. The Issue of the Statutory Duty

119. It is clear from the judge’s initial charge that when he raised the statutory duty owed to a child, he did so in the context of the child cruelty offences. He first indicated that the s. 4 assault charges were the most serious and he then turned to the child cruelty offences and in that context, he referred to the duty of a parent or guardian to a child. Then, having outlined the child cruelty offences facing the appellant, he stated, in effect, that the Children Act codified the common law, that parents have a legal obligation to protect their children. We are quite satisfied that he informed the jury of the statutory obligation in terms of the cruelty counts and that it was readily apparent that the obligation to protect arose in that context.

120. However, the interesting point is made that the jury may have laboured under the impression that if the appellant were present for any of the acts over the weekend approaching the 2nd July 2019, that mere presence was sufficient to infer agreement in light of the statutory duty under the Children Act.

121. The concern was expressed and is now expressed that the jury should have been informed that the s. 4 counts were standalone counts for fear the direction regarding the statutory duty owed to a child leaked into those counts. In essence, it is said that the jury ought to have been told that the s. 4 counts were standalone counts, that the statutory duty only applied to the cruelty counts and that mere presence without participation was insufficient to give rise to an inference of an agreement to a joint enterprise.

122. The judge first addressed the assault counts, explaining to the jury the nature of that offence, before moving to joint enterprise. Only then did he move to the child cruelty counts and as stated in that regard explained the statutory obligation to protect a child from harm and cruelty. We cannot agree with the defence that the jury could have apprehended that the statutory duty applied to the s. 4 assault counts. If there was any possibility of that, it was removed by virtue of the re-charge.

123. We are satisfied that the judge properly directed the jury on joint enterprise, the final words spoken by the judge could not have been clearer. The jury continued deliberating for some time into the following day before returning a verdict.

Decision

124. Accordingly, as we reject both grounds of appeal, the appeal against conviction is dismissed.