DPP v S.L.
| Jurisdiction | Ireland |
| Judge | Edwards J |
| Judgment Date | 08 May 2020 |
| Neutral Citation | [2020] IECA 129 |
| Docket Number | Record No: 257/2017 |
| Court | Court of Appeal (Ireland) |
| Date | 08 May 2020 |
[2020] IECA 129
Edwards J.
McCarthy J.
Kennedy J.
Record No: 257/2017
THE COURT OF APPEAL
Conviction – Indecent assault – Indictment – Appellant seeking to appeal against conviction – Whether an error had been demonstrated with respect to the trial judge’s decision not to sever the indictment
Facts: The appellant, on the 19th of October 2017, was convicted by a jury of eleven counts of indecent assault contrary to common law and as provided for by s. 6 of the Criminal Law (Amendment) Act 1935, being counts no’s 1, 2, 3, 4, 5, 6, 14, 15, 16, 17, 18 and 25 respectively (the first group); eight counts of indecent assault contrary to common law and as provided for by s. 10 of the Criminal Law (Rape) Act 1981, being counts no’s 7, 8, 19, 20, 21, 22, 23 and 24 respectively (the second group); and one count of sexual assault contrary to s. 2 of the Criminal Law (Rape) (Amendment) Act 1990, being count no 26 on the indictment. On the 27th of October 2017, the appellant was sentenced to twenty months imprisonment in respect of each of the offences in the first group with the exception of count no 25. The appellant received a sentence of sixteen months imprisonment on count no 25. The appellant was also sentenced to seven years imprisonment in respect of each of the offences in the second group. Finally, the appellant was sentenced to three years and six months imprisonment on count no 26. The appellant appealed to the Court of Appeal against his conviction. Although the Notice of Appeal initially filed on behalf of the appellant listed a total of seventeen grounds of appeal against his conviction, it was confirmed to the Court (by email to the registrar) that the appellant would ultimately be relying on just a single ground of appeal, namely, ground of appeal number 2 which was in terms that: “The learned trial judge erred in refusing to direct separate trials in respect of the counts 25 and 26 on the grounds connected to the fact (sic) that the said counts related to different complainants.”
Held by the Court that no error had been demonstrated with respect to the trial judge’s decision not to sever the indictment.
The Court held that the appeal against conviction would be dismissed.
Appeal dismissed.
On the 19 th of October 2017 the appellant was convicted by a jury of eleven counts of indecent assault contrary to common law and as provided for by s. 6 of the Criminal Law (Amendment) Act 1935, being counts no’s 1, 2, 3, 4, 5, 6, 14, 15, 16, 17, 18 and 25 respectively (“the first group”); eight counts of indecent assault contrary to common law and as provided for by s.10 of the Criminal Law (Rape) Act, 1981, being counts no’s 7, 8, 19, 20, 21, 22, 23 and 24 respectively (“the second group”): and one count of sexual assault contrary to s.2 of the Criminal Law (Rape) (Amendment) Act 1990, being count no 26 on the indictment.
On the 27 th of October 2017 the appellant was sentenced to twenty months imprisonment in respect of each of the offences in the first group with the exception of count no 25. The appellant received a sentence of sixteen months imprisonment on count no 25. The appellant was also sentenced to seven years imprisonment in respect of each of the offences in the second group. Finally, the appellant was sentenced to three years and six months imprisonment on count no 26.
The appellant has appealed against both his conviction and sentences. This judgment deals with the appeal against conviction only.
The twenty-one counts of which the appellant was convicted related to offences involving three complainants, all of whom were sisters and neighbours of the appellant. Their father was a first cousin of the appellant, and the appellant lived within 200 yards of the complainants’ home. Nineteen of the twenty-one counts related to complainant “F”, one count related to complainant “M” and one count related to complainant “E”.
The evidence was that all three complainants were members of a large family comprising their parents and nine children who lived in a farmhouse in a rural part of Ireland. M was the oldest, having been born in 1966, that F was born in 1967 and that E was the youngest in the family and was born in 1982.
The appellant was born in 1955. His father had died when he was quite young. At all times material to these proceedings he lived in a farmhouse with his widowed mother and four siblings. They were immediate neighbours to the complainants’ family.
It was common theme in the evidence of all three complainants that their father and the appellant’s father had always had a close relationship and that they were more like brothers than first cousins. Both men were dairy fanners and they were constantly helping each other out with farm work such as silage cutting, saving hay, moving cattle and so on. Further, they would lend each other machinery and share farm equipment. They also socialised and went drinking together. Because of their close relationship their respective wider families were also close such that they were in and out of each other’s houses regularly and attended each other’s family events, such as weddings, baptisms and so on, as though they were all part of one extended family. The complainants’ family would also look out for and help the appellant’s widowed mother, particularly as she got older and had some health problems.
In her evidence to the jury F stated that she was abused by the appellant regularly, “probably once a week, twice a week over the summer months” over a four or five year period from when she was 11 or 12 years of age until she was 16 years of age. She said “[i]t was basically always the same, nearly always the same that I would have to masturbate him and he would put his finger up my vagina”.
F told the jury that the first incident that she recalled occurred on an occasion when she was returning home after walking cows back from milking to a field located 400 or 500 yards away from her family’s farmyard. Her route home took her past the appellant’s farmyard. She claimed that she was 10 or 11 or 12 years of age at the time. Although pressed under cross-examination she could not be more precise. She accepted that she had said in her statement to Gardaí that “I think I was between 9 and 12 years old”. She also accepted that she might have told her GP in 2015 that her abuse had started at 12 years of age.
F stated that the appellant was in his farm yard as she passed by. She then described what happened next:
“… So next thing I’m in the shed part of his dairy and it’s a small part I’m in, it’s about ten or 12 feet wide and about 15-foot deep, an old style house converted to a dairy. So I go in, he is there, I don’t know did he tell me to go in or how I ended up in there. And there’s a table with a bench kind of with all sorts of farm equipment on it on the right-hand side. And he goes, he’s in front of me and he goes over to the wall plate in the shed which is on the far end, it’s the opposite side of the door where I went in. And he reaches up into the wall plate and he pulls down this magazine that’s fold up and then he comes towards me and he grabs me and he pushes the door closed behind him. And he pushes his back into the door and he has his arm around me, and he is holding the magazine in the other arm and he grabs my left hand and he shoves it down into his trousers. I didn’t know what that hard and hairy thing was that he made me touch, he made me put my arm – hand around it and move it in and out. And the magazine –
Q. Can you tell us – can you tell us what it was he made you – made you put your hand on?
A. Masturbate.
Q. Sorry?
A. Masturbate, he made me masturbate him.
Q. And what was it he made you put your hand on?
A. His penis.
Q. Thank you?
A. And his right arm then he put down into my underwear and he put his finger into my vagina and he took the magazine, he had left it on the wall, he made – he had made me start masturbating him and then when he released his hand from my hand he took the magazine and opened it and there was all these women with their legs open and no underwear. So I couldn’t look at them, it was absolutely disgusting, the whole lot of it was absolutely disgusting, and I continued to masturbate him until it got soft and then he would have taken his hand out of my underwear and then he’d open the dairy door and I stepped out into the sunlight in that yard knowing things had changed.”
When F was asked if he had said anything afterwards she replied that the only thing that she could remember was heavy breathing. She said that she was in total shock and that she didn’t tell anybody what had occurred.
F went on to describe a further incident in the appellant’s dairy in the late summer of the same year at an evening milking. She said that she had more clothes on her on this occasion than on the first time that he had abused her. She stated:
“So the cows are being milked and there’s that lovely smell of cows and milk in the dairy and the pulsating sound of the milking machine and he grabs me and he makes sure the dairy door is closed and puts his back to it. And again he gets my left arm and he pushes it into his underwear, makes me masturbate him and he puts his hand into my underwear and puts his finger up my vagina.
Q. And when he took your hand and put it into his underwear, was that skin on skin, what did he put your hand on?
A. Pardon?
Q. What did he put your hand on?
A. On his penis, I had to – I had to masturbate him.
Q. What happened then?
A. I went home and I didn’t say anything.”
When asked was there anything that caused that incident to...
To continue reading
Request your trial