DPP v J. O'C
 IECA 30
THE COURT OF APPEAL
Trial on indictment - 29 counts of sexual assault - s.2 Criminal Law (Rape) (Amendment) Act 1990 - Plea of not guilty-Eight years imprisonment - Appeal against conviction - Grounds of appeal - Whether trial judge erred in law or fact - Safety of conviction
This is a case in which the appellant faced trial on indictment in the Circuit Criminal Court for the South Western Circuit and County of Kerry in respect of 29 counts of sexual assault, contrary to s.2 of the Criminal Law (Rape) (Amendment) Act1990 to which he had pleaded "not guilty" upon arraignment on the 8th March, 2012.
There were four female complainants: three girls from one family, L.H., S.H., and N.H., respectively, and another girl, G.K..
L.H.'s allegations spanned the period from the 1st March, 2004 to the 30th June, 2008. There were seventeen counts of sexual assault on the indictment relating to abuse of her, one for each three month period during that time span. N.H.'s allegations spanned the period from the 1st December, 2003, to the 31st October, 2008. There were eight counts of sexual assault relating to abuse of N.H., each covering a three month period during the relevant time span. S.H.'s sole allegation of sexual assault was the subject of a single count, charged as occurring between the 1st April, 2003, and the 30th June, 2003. Finally, there were three discrete counts of sexual assault relating to abuse of G.K., each of which was initially alleged to have occurred on a date unknown between the 1st July, 2003, and the 31st August, 2003. However, the indictment was amended in the course of the trial to expand the dates to cover a period from the 1st July, 2002, to the 31st August, 2003.
On the 23rd March, 2012, at the end of a ten day trial, a jury convicted the appellant by an 11:1 majority verdict in respect of counts 1 to 18 inclusive, and counts 20 to 29 inclusive, on the indictment. Later on the same day the jury also returned a guilty verdict on count 19, this time by a majority of 10:2.
Following his conviction, the appellant was sentenced, on the 4th May, 2012, to imprisonment for a term of three years on each count in respect of counts 1 to 17 inclusive (i.e., those relating to the complainant L.H.) and each such sentence was to run concurrently with the others. These sentences were backdated to the 23rd March, 2012, i.e., to the date on which he went into custody.
The appellant was further sentenced on the 4th May, 2012, to imprisonment for a term of two years on each count in respect of counts 18 to 25 inclusive (i.e., those relating to the complainant N.H.) and each such sentence was to run concurrently with the others in that group, but consecutively to the sentences in the first group i.e., those in respect of counts 1 to 17 inclusive.
The appellant was further sentenced on the 4th May, 2012, to imprisonment for a term of one year in respect of count 26 (i.e., that relating to the complainant S.H.) and this sentence was to run consecutively to the sentences in respect of counts 18 to 25 inclusive.
Finally, the appellant was further sentenced on the same date to imprisonment for a term of two years on each count in respect of counts 27 to 29 inclusive (i.e., those relating to the complainant G.K.) and each such sentence was to run concurrently with the others in that group, but consecutively to the sentence for count 26.
The total sentence imposed was one of eight years imprisonment.
The appellant appeals against his conviction in respect of all the offences.
The principal evidence against the accused was the evidence of the four complainants.
L.H. was a nineteen year old college student at the time of the trial. She has two sisters and a brother. Her brother is the oldest; her sister S.H. is next and is just over two years older than L.H., and the youngest in the family is N.H., who is eleven months younger than L.H..
The H sisters' parents ran a family business. In addition, their father and mother each had part time employments. Prior to 2009, there were a number of drivers employed in the parents' family business, one of whom was the appellant. During the week the appellant drove a council van, but at the weekends he worked for the H's in their business.
The appellant was also the partner of the H sisters' aunt, who resided in their mother's old family home. The appellant and this aunt had been going out for as long as L.H. could remember.
L.H testified that as she was growing up the appellant was always in the house where she lived with her parents and siblings. He used to meet her aunt there on days when the aunt used to come to their house, leave her car there and go with the appellant to his home in another town in the same county. He used to call every other day as well. She stated he was there more often than he was not. He was also there on many evenings. L.H. stated that her parents trusted the appellant. He made himself at home in their house and treated it like it was his own.
L.H described being in fifth class in primary school, being aged ten or eleven, and making her confirmation during that school year. Their mother had organised a babysitter to mind L.H. and her sisters after school. The babysitter lived next to the school. However, as they grew older, and particularly if the day was fine, they would not go to the babysitters and would walk home.
L.H. described an incident that occurred about a month before her confirmation. On the day in question she and her sisters had walked home. Their parents were both at work when they arrived home, although their father was due home before long. L.H. was watching television alone in the main living room when the appellant came in and sat beside her on the three seater couch. L.H stated that
"then, as time goes on, he just pushed himself close, like moved closer to and put his hand on your thigh and just keep rubbing it and just keep going up and down and he just make his way towards your private part." L.H. was clothed at the time. The incident lasted only a few minutes. She claimed the appellant desisted because "he probably heard a car", either that belonging to her father or her aunt.
L.H. told the jury that numerous similar incidents happened over the next number of years until she was in third year in secondary school. Sometimes he would put his hand up her top and touch up her top as well. It mostly happened on the three seater couch in the main living room.
After L.H. moved from primary school to secondary school in September, 2005, she and her older sister S.H. used to travel home from school by bus. They would be dropped off at a handball alley close to their home and usually both of their parents would be at work. Sometimes the appellant was there when they got home. They would see his council van from the handball alley. On other occasions he would arrive after they came home. L.H. described an incident in September, 2005, where, having come in from school, she was using a computer in the sitting room to go on Bebo, a social media site, when the appellant came in and sat on the arm of an adjacent chair. She stated"he started doing what he usually did", and described him rubbing her thigh and stated that he then made his way inside her pants and started sticking his finger into her private part, and moving it up and down. He again stopped after some minutes because, she stated, "someone must have came home".
L.H. told the jury that thereafter there were many similar incidents and that they happened quite regularly - up to three times a week. Sometimes the appellant used to open the zip in his pants and catch her hand and would try to make her rub him on his private area. L.H. stated that she used to always take her hand away and he used to wait about 30 seconds and attempt the same thing again.
In September, 2006 L.H. commenced second year in secondary school. The appellant was continuing to perpetrate similar incidents, whereby he would rub her thigh and put his hand inside her pants, but by this stage they had become more frequent and were occurring four or five times a week. It could happen at weekends if L.H.'s parents were gone somewhere but it mainly happened on week days in the house after school before her parents got home.
L.H. described how the abuse continued into her third year in secondary school. On one occasion in that year he was doing the same thing he usually did but"stuck up two fingers" into L.H.'s vagina following which L.H. found she was bleeding.
N.H. gave evidence similar to that of her sister L.H. concerning the family circumstances, the family business, her parents' respective employments, the after school babysitting arrangement, the relationship between the appellant and her aunt, and the frequency with which, and circumstances in which, the appellant would visit their home.
N.H.'s first allegation pertained to December, 2003, when she was ten. It was before the occasion of her grand uncle's death which had occurred on the 17th December, 2003. N.H. stated that she...
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