Director of Public Prosecutions v F.B.

• Jurisdiction: Ireland
• Judge: Mr. Justice Edwards
• Judgment Date: 16 November 2023
• Neutral Citation: [2023] IECA 296
• Court: Court of Appeal (Ireland)
• Docket Number: Record No: 140CJA/2022

In the Matter of An Application Pursuant to Section 23 of the Criminal Procedure Act 2010

and

In the Matter of Bill CCDP0114/19

Between/

The People (At the Suit of the Director of Public Prosecutions)

Applicant

and

F.B.

Respondent

[2023] IECA 296

Edwards J.

McCarthy J.

Kennedy J.

Record No: 140/2022

THE COURT OF APPEAL

Acquittal – Rape – Retrial – Appellant appealing against the acquittal of the respondent – Whether the respondent should be retried on the same charge

Facts: The appellant, the Director of Public Prosecutions, appealed to the Court of Appeal on a point of law pursuant to s. 23 of the Criminal Procedure Act 2010 against the acquittal of the respondent by direction of the trial judge at his trial on indictment, on a count of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990. The appellant sought an order directing that the respondent be retried on the same charge. The respondent was acquitted of that count following a direction to the jury by trial judge, in the Central Criminal Court, to the effect that the jury should find the respondent not guilty on the basis that the necessary proofs had not been made out in respect of the sexual assault element of rape contrary to s. 4. The appellant contended that this direction was wrong in law, and that the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond a reasonable doubt of the respondent’s guilt in respect of the offence concerned.

Held by the Court that there was abundant evidence on foot of which a jury could find the existence of compulsion as a matter of reality. The Court held that there was evidence on foot of which a relationship of trust could be imputed based on familial connection and circumstances. The Court held that there was arguably evidence of the exercise of dominance due to the age differential. The Court held that there was evident appreciation by the respondent of the “wrongness” and violatory nature of what was invited. The Court held that there was arguably evidence, in the complainant’s testimony, that the circumstances were oppressive of the complainant. Turning to the issue of whether the invitation tendered could have led to or have resulted in the application of force to or the causation of an impact on the body of the complainant, the Court thought that this issue could safely have been left to the jury. The Court held that the penetrative nature of the engagement, the mutuality of the contact itself, and the reality that participation in the incident at the centre of the case required the involvement of both parties provided a sufficient basis for a jury to have been invited to consider whether there was the application of a force, or the causing of an impact to, the body of the complainant. As to the causation of an impact, the Court thought a jury would have been entitled to consider whether an invitation by a 16 year old adolescent male, to a 6 year old girl, to receive his penis into her mouth, where that invitation is subsequently accepted, in the circumstances in which it occurred, was violatory of the body of the girl concerned, in circumstances where it was inherently indecent, and was inimical to any sense of respect for her human dignity and/or personal autonomy and/or sexual autonomy; and if satisfied that there was indeed a violation in that sense, to consider if such a violation was an impact on the body of the complainant.

The Court held that the direction to the jury to acquit the accused was wrong in law. The Court held that the evidence adduced in the proceedings was evidence upon which the jury, if the issue had been left to them, might reasonably have been satisfied beyond a reasonable doubt of the respondent’s guilt in respect of the offence concerned. The Court allowed the appeal.

Appeal allowed.

JUDGMENT of the Court delivered byMr. Justice Edwardson the 16th of November 2023.

Introduction

1 This is an appeal brought by the Director of Public Prosecutions (i.e., “the appellant”) on a point of law pursuant to s. 23 of the Criminal Procedure Act 2010, as amended, against the acquittal of F.B. (i.e., “the respondent”) by direction of the trial judge at his trial on indictment, on a count of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990 (i.e,. “the Act of 1990”), and seeking an order directing that the respondent be retried on the same charge. The respondent was acquitted of this count following a direction to the jury by the trial judge, in the Central Criminal Court, to the effect that the jury should find the respondent not guilty on the basis that the necessary proofs had not been made out in respect of the sexual assault element of rape contrary to s. 4. The appellant contends that the trial judge's said direction to the jury to find the respondent not guilty was wrong in law, and that the evidence adduced in the proceedings was evidence upon which a jury might reasonably be satisfied beyond reasonable doubt of the respondent's guilt in respect of the offence concerned.

2 The direction to acquit complained of was made by the trial judge of his own motion, and not in response to any application by counsel representing the respondent, in circumstances where the female complainant (who was 6 years old at the time of the alleged offending) had been invited by the male respondent (who was 16 years old at the time, and a cousin of the complainant), to put her mouth on the respondent's penis, with which request the complainant had complied.

3 The net issue on appeal is whether the trial judge erred in law in directing the jury to find the respondent not guilty in such circumstances. This itself turns on whether the necessary proofs had been made out by the applicant in relation to the assault element of the sexual assault component to s. 4 rape, in circumstances where there had been an invitation by the respondent to the complainant to put her mouth on the respondent's penis; where in response to that invitation the complainant had done so; and where the trial judge's concern had been that it was therefore not clear that there was any act done by the respondent to the complainant, much less any act involving compulsion or force, that could comprise the “touching” that he considered to be necessary for there to have been an assault on the complainant by the respondent.

Background

The relevant count on the indictment

4 The relevant count on the indictment, in respect of which the jury in the trial found the respondent not guilty, was a count of rape contrary to s. 4 of the Act of 1990. The particulars of the offence alleged in this count were described on the indictment as follows:

“[The respondent], on a date unknown between the 1st day of January 2005 and the 30th day of September 2005, both dates inclusive at [address redacted] in the County of the City of Dublin, did sexually assault [the complainant], a female, by putting his penis into the mouth of [the complainant]”.

Complainant's evidence in respect of the relevant count

5 On the second day of trial, the 28th of June 2022, the complainant gave evidence in respect of the s. 4 rape count on the indictment. The complainant described how, on a date approximately two months before an incident that she recalled occurring in March 2005, in which she had suffered a laceration to her head when it came into contact with a wall, she had been alone with the respondent in the respondent's upstairs bedroom at her grandmother's house at an address in Dublin, when the incident said to comprise the offence of s. 4 rape occurred. The complainant was, at the time of the alleged offending, between 6 and 7 years of age.

6 The transcript reveals that the complainant gave the following evidence as to what occurred:

“Q. Okay. Could you just then say what happened? What were you doing upstairs, first of all? And who was up there with you?

A. At the beginning it was me and my two older brothers and they then went downstairs. And they used to always hate me following them, so, I didn't follow them. And so, I was in the room alone with [respondent's first name]. And he then closed over the door (sic) and he got me to sit on the bed. And then he asked me did I want to see his penis and he used to refer it as a cannon. Then he asked me would I touch his penis. And I didn't want to but at the age I was, I wasn't — I didn't know what right and wrong was. So, I done what he asked me to do (sic). And then he asked me could I pull down my pants to my hips, below my hips, so, I done that. Then he started to touch my leg and then he started to insert fingers into my vagina. And then he asked me would I put my mouth on his penis and I did. But I don't recall him ejaculating this time.

Q. And when you say put his mouth — put your mouth on his penis, where exactly was his penis in relation to your mouth?

A. In my mouth.

Q. In your mouth, okay. And I'm sorry to go over these details with you Ms [complainant's surname] —

A. That's okay.

Q. — but could you explain what happened then?

A. He kind of just stopped but there was I think it must have been that someone was coming up the stairs, so, it was stopped straight away and he —

Q. But can you remember how long this went on for?

A. About 10 minutes.

Q. Okay. And was that the entire incident or was that when his penis was in your mouth or what was 10 minutes?

A. From the beginning when the door was closed and I was sitting on the side of the bed and —

Q. Okay. Okay. And I'm sorry, I interrupted you there, Ms [complainant's surname], you mentioned something about someone coming; is that right?

A. Yes. I think it was my two brothers coming back up the stairs to come back into thebedroom.

Q. Yes.

A. And then it was stopped and [name redacted] helped me to tug back up my pants. And I was told to not say anything, to keep it as a secret.

Q. Yes....