DPP v Counihan

 
FREE EXCERPT

[2015] IECA 60

THE COURT OF APPEAL

The President

Peart J.

Edwards J.

[144/13]

Between
The People at the Suit of the Director of Public Prosecutions
Respondent
and
J.S.
Appellant

Conviction – Sexual assault – Rape – Appellant seeking to appeal against conviction – Whether conviction was safe

JUDGMENT of the COURT (Ex tempore) delivered by The President on the 23rd day of February 2015
1

On 18th and 19th April 2013, the appellant was convicted of four counts of sexual assault contrary to s. 2 of the Criminal Law (Rape)(Amendment) Act 1990, as amended by s. 37 of the Sex Offenders Act 2001, and of two counts of rape contrary to s. 4 of the Criminal Law (Rape)(Amendment) Act 1990. On 10th June 2013, the appellant was sentenced to eight years imprisonment in respect of the s. 4 rape counts and to five years imprisonment in respect of the sexual assaults, all sentences to run concurrently from 19th April 2013, with the final 12 months of the sentences suspended on conditions. The appellant appeals against his conviction but not the sentences.

2

The offences were charged in the indictment to have been committed on occasions between 1st June 2002 and 30th November 2002. The complainant, who was then a 14-year old girl, had travelled from her home in England to visit her natural father, the appellant, who lived in County Kilkenny, and she travelled over on three separate occasions. The offences are alleged to have occurred during the second and third visits. There was dispute at the trial about the timing and duration of the visits but it is clear that each one extended over a number of weeks. On the first visit, the complainant stayed with the appellant's daughter, but on the other two occasions she resided in the family home. There was no evidence of any impropriety during the first visit, but the complainant testified as to sexual abuse that was perpetrated on her by the appellant during the periods of the second and third visits. Her evidence was that she suffered sexual assaults in a variety of forms, including sexual touching by the appellant and being required to feel him and masturbate him. In addition, there were the s. 4 rape charges which encompassed oral sex. These incidents happened, according to her evidence, in different locations including the family home of the appellant and when she was travelling with him by car, and also on occasions when he brought her to motorcycle rally events.

3

The complainant's mother gave evidence at the trial that each visit extended over a period of about five weeks. The first visit was in April/May 2002, on which occasion the girl was brought to Ireland by one of the appellant's sons. The second visit was in June/July when she was brought over to Ireland by the appellant himself, travelling on a motorcycle. The third visit was said to have begun on 7th September and to have ended in October 2002. On that occasion, it was the appellant's niece who brought the complainant from England to Ireland.

4

The evidence given at the trial was that the matter came to light on 13th December 2002, when the complainant spoke to her aunt in England, that is, her mother's sister. The aunt notified the mother to whom the girl spoke and repeated the complaints that her father had been touching her, by which she meant intimate touching of a sexual nature, and that this had happened during the period of her second and third visits to Ireland. The mother contacted the appellant by text message and phone call. At first, he denied that anything untoward had happened. However, the mother said that the appellant had then rung back and admitted that he had been guilty of inappropriate sexual behaviour with his daughter. The girl's mother also testified that the appellant had proceeded in subsequent text messages and in a conversation that happened in Rosslare, County Wexford in July 2003, to admit that he had committed sexual abuse with his daughter.

5

The appellant sent letters to his daughter, which were sent some time after December 2002 and before June 2003, when the mother spoke to a Police Officer in England about this abuse. She gave the Police the two letters which were read to the jury at the trial and provided as exhibits in the case. The mother also showed the Police Officer her mobile phone which had text messages from the appellant. The Police Officer copied down details of the messages including the date and time and the message in each case which began on 13th December 2002, that is, the date on which the girl complained to her mother about having been abused and on which the mother said that she had contacted the appellant. The text on 13th December at 11.36 read ‘do you want me to hand myself up to the Police?’ The last text of which evidence was given was on 28th April 2003 at 08.12pm when the message was ‘there is not a day goes by when I regret what I done. I am so sorry, love you loads’.

6

The evidence consisted, accordingly, of the testimony of the complainant in respect of the abuse that she described as having happened during her second and third visits in 2002; her mother, who described receiving the complaint from her daughter on 13th December 2002, and her subsequent conversations with the appellant including phone conversations and the text messages. She also described the meeting that she said took place in Rosslare in July 2003, when she confronted the appellant personally and she testified that he again admitted the abuse of his daughter. The occurrence of this meeting was denied by the appellant in the course of his evidence to the trial. The letters from the appellant, as above described, were in evidence, as were the text messages noted down by the Detective Constable. There was a variety of other evidence including that of Gardaí who interviewed the appellant, but the prosecution case was essentially that of the complainant and her mother plus the evidence of the appellant's two letters to his...

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