DPP v C.S.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 01 December 2022 |
| Neutral Citation | [2022] IECA 282 |
| Court | Court of Appeal (Ireland) |
| Docket Number | Appeal No. 150/22 |
[2022] IECA 282
Edwards J.
Whelan J.
Donnelly J.
Appeal No. 150/22
THE COURT OF APPEAL
Conviction – Sexual assault – Perverse verdict – Appellant seeking to appeal against conviction and sentence – Whether the verdict was perverse
Facts: The appellant was convicted by a jury of one count of sexual assault. He was sentenced to eighteen months imprisonment with the final three months of the sentence suspended on entering into certain conditions. He appealed to the Court of Appeal against his conviction and sentence. The sole ground of appeal filed in relation to his conviction was that in all the circumstances of the case, the verdict was perverse and/or contrary to the weight of the evidence. The appellant relied on a number of grounds of appeal against severity of sentence. The primary focus in the appeal was on the “headline” sentence, i.e. the sentence that the offence would attract pre-mitigation. Allied to this were submissions that the offence was one which was at the lower end of the scale and which ought not to have attracted such a severe sentence and that the personal circumstances of the appellant were such that his mitigating factors ought to have resulted in a greater reduction in the sentence imposed. In written submissions, there was also a significant emphasis on the unfairness of the introduction into evidence of the victim impact report.
Held by the Court that there was no basis upon which it could be said that the verdict was perverse. The Court held that the trial judge dealt with the impact evidence in an appropriate fashion. The Court held that the judge did not set the headline at the very top of the lower end of sexual offences. The Court did not consider that the judge acted outside her discretion in fixing the sentence at two years and six months. The Court noted that the judge gave a very generous discount from the nominated headline figure by reducing, on account of the mitigating factors, by more than one third. The Court did not see any basis for saying that this was insufficient mitigation. The Court held that the sentence imposed was within the range of proportionate sentences available to reflect the gravity of the offence and the personal circumstances of the offender.
The Court dismissed the appeals against conviction and sentence.
Appeals dismissed.
JUDGMENT of the Court delivered on the 1 st day of December 2022 by Ms. Justice Donnelly
The accused was convicted by a jury of one count of sexual assault. He was sentenced to eighteen months imprisonment with the final three months of the sentence suspended on entering into certain conditions. He appealed his conviction and sentence, and this judgment covers both his conviction and his sentence appeal.
The sole ground of appeal filed in relation to his conviction was that in all the circumstances of the case, the verdict was perverse and/or contrary to the weight of the evidence.
The appellant went on trial on indictment in respect of two counts. The first count alleged another serious offence of which he was acquitted by the jury.
The appellant was a man in his thirties at the time of the incident giving rise to the conviction. On the evening before the incident, the appellant and the victim had been socialising with mutual friends at an event in the Dublin city centre and later, in a pub. They talked and kissed before they left by taxi to go to the home of the appellant. Both the appellant and the victim had consumed alcohol during the evening.
In the flat, the kissing continued and thereafter consensual sexual contact occurred in the bedroom of the appellant, including digital and oral penetration of the victim by the appellant. The victim gave evidence that the appellant asked her to perform oral sex on him, but she had refused. She gave further evidence that the appellant indicated that he wished to “ejaculate inside [her]”. She said “I made it clear even though he asked again, that he wanted to have sex, and I made it clear that I didn't want to. I suggested at one point that we would wait until the morning where if we decided to, that we could get condoms, I suppose, at that stage in the morning”.
The victim gave evidence that she then fell asleep in the bed. She woke up “to the weight of [the appellant] on top of [her] and he was at that point groping [her] breasts”. When asked if she consented to him lying on her or groping her in that way, and moving his hand around her body, she answered “[a]bsolutely not. [She] was asleep”. The victim asked the appellant to stop and to get off her, and he did so.
She also gave evidence during the trial that she had fallen back to sleep and had again been woken by an incident in respect of which the first count was laid.
The appellant gave a voluntary statement to the Gardaí under caution. He agreed that he engaged in the consensual sexual activity outlined above. His statement did not acknowledge the conversation about not having sexual intercourse. He said that the victim was attempting to masturbate him, but he could not get an erection. He said he “fell asleep but awoke later and wanted to resume the sexual activity we were engaging in before we went asleep. She was asleep so I attempted to wake her. I started to kiss her and got on top of her but still didn't have an erection. She then asked me to stop and I did.” He denied any activity occurred which formed the basis of the first count laid against him.
After the victim dressed, the appellant drove her home. On returning home, the victim immediately told her friend and housemate what had occurred. This friend gave evidence of the state the victim was in when she arrived home and described her as upset and shaking.
During that day, a number of phone calls were made, and text messages were sent and received between the victim and the appellant, where the victim expressed her upset at what had occurred. The appellant was invited to the house of the complainant later that evening where they discussed the matter for an hour alone in her bedroom. Further text messages followed that evening. Thereafter there was no further contact between the appellant and the victim.
Evidence was given of the victim's attendance at counselling and her subsequent report to An Garda Síochána approximately eleven months after the incident.
It is of some significance that at the sentence hearing, senior counsel on behalf of the appellant, having referred to the appellant's statement to the Gardaí, submitted the following as part of the plea in mitigation:
“He put before them his understanding of the events of that evening, the jury took their view, we respect the verdict of the jury, and that is an important aspect in the sentencing process…”
Counsel went on to rely on letters where the appellant had expressed remorse and regret for the matter.
At the end of the plea in mitigation, the trial judge adjourned the matter for sentence. On the adjourned date, the trial judge did not deliver sentence, but she sought a Probation Report. It was only when this was received that it became apparent that the appellant was not accepting the verdict but was expressing regret that the incident had caused upset and unhappiness.
The written submissions of the appellant were directed towards establishing that the verdict was perverse. It was accepted that exceptional circumstances were required before a jury verdict may be regarded as perverse. A good synopsis of the law is found in DPP v Cecil Tomkins [2012] IECCA 82 (MacMenamin J.) at para 21:
“Thus, this court will be very slow to intervene where it is satisfied that a judge has placed all relevant matters before the jury, and has fully and properly instructed them as to the burden and standard of proof. However, an appeal court may intervene if the judge's direction to the jury is inadequate either concerning witness credibility, or some matter of law. This is entirely distinct however, from finding fault with the verdict of the jury (see O'Malley, The Criminal Process, Roundhall 2009 para 23.12 and 23.13). This court will only quash a decision as being perverse where there are very serious doubts about the credibility of evidence which was central to the charge, or where a guilty verdict, even by a properly instructed jury was against the weight of the evidence. (See DPP v Quinn 23 March 1998 CCA; DPP v Morrissey CCA 10 July 1998). In assessing this point the court will look at all the evidence which was before the jury, not selected portions of that evidence.”
The appellant's written submissions were entirely directed at attempting to establish that the jury's determination (beyond a reasonable doubt) that the appellant did not honestly believe that the complainant was consenting was, in all the circumstances, perverse and/or contrary to the weight of the evidence. These written submissions were filed by the same solicitor and junior counsel that had represented the appellant at the trial, and by a different senior counsel who was representing the appellant at the conviction/sentence appeal. These submissions reflected the manner in which the trial had been run.
At trial, senior counsel for the appellant had raised with the jury the question of whether the appellant had an honest belief that the victim was consenting at the time he woke her up. The trial judge was requisitioned by the prosecution, which requisition was adopted by the defence, to recharge the jury on the issue of honest belief. The trial judge duly did so and there is no complaint about that aspect of her charge.
At the oral hearing of the appeal,...
To continue reading
Request your trial