DPP v S.M.

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 24 June 2020
• Neutral Citation: [2020] IECA 170
• Docket Number: Record No.: 194/2019
• Court: Court of Appeal (Ireland)
• Date: 24 June 2020

BETWEEN/

THE PEOPLE (AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)

RESPONDENT

-AND-

S.M.

APPELLANT

[2020] IECA 170

Birmingham P.

Donnelly J.

Ni Raifeartaigh J.

Record No.: 194/2019

THE COURT OF APPEAL

Sentencing – Indecent assault – Consecutive sentences – Appellant seeking to appeal against conviction and sentence – Whether the trial judge erred in law and in fact in imposing consecutive sentences

Facts: The appellant was convicted of five counts of indecent assault in respect of his first sister and one count of indecent assault on his second sister. He was sentenced on 22nd July 2019 to a total term of imprisonment of 5 and half years with the final two years suspended. This was structured as follows: (a) Counts 1, 2, 3 (offences against the first sister) – one year imprisonment in respect of each to run concurrently; (b) Count 4 and 5 (further offences against the first sister) – two years imprisonment to run concurrently to each other but consecutively to the term imposed in respect of Counts 1, 2 and 3; (c) Count 6 (offence against the second sister) – two and half year imprisonment to run consecutively to Counts 4 and 5. The appellant appealed to the Court of Appeal against his conviction and his sentence. The sole ground of appeal against conviction was as follows: “That the learned trial judge erred in law and in fact in admitting into evidence the no comment answers given by the Appellant during his Garda detention.” The appellant relied upon the following grounds of appeal against sentence: (a) the trial judge erred in law and in fact in imposing consecutive sentences; (b) the trial judge erred in law and in fact in failing to have any or any adequate regard to the principle of totality; (c) the trial judge erred in law and in fact in failing to have any or any adequate regard to the age of the appellant during the period of the relevant offences; and (d) the trial judge erred in law and in fact in failing to have any or adequate regard to the good character of the appellant during the period of the relevant offences.

Held by the Court that it was just and proportionate to have admitted the questions in light of the totality of the circumstances in which that evidence was given in this case and where the jury were told as to the reason for the admission and were warned not to draw an adverse inference. The Court dismissed the appeal against conviction.

The Court held that it was an error in principle to impose a consecutive sentence in respect of the first victim i.e. the first sister. The Court held that while there was ongoing abuse, this was reflected in the decision to give an increased sentence of two years in respect of the final two offences against this victim. The Court held that the making of the one year sentence consecutive to the two year sentence was not warranted in light of the young age of the appellant at the time of those offences. The Court allowed the appeal to such an extent that the concurrent sentences of one year imposed in respect of offences 1, 2 and 3 were to run concurrently with the sentence imposed in respect of offences 4 and 5; the sentence in respect of offence 6 remained consecutive to the sentence imposed in respect of offences 4 and 5.

Appeal against conviction dismissed. Appeal against sentence allowed.

JUDGMENT of the Court delivered by Ms. Justice Donnelly delivered on the 24 ^th day of June 2020

Introduction

1 The Appellant was convicted of five counts of indecent assault in respect of his first sister and 1 count of indecent assault on his second sister. At the time of the indecent assaults on his first sister, the appellant was 14/15 years old and at the time of the offence on his second sister, he was 18/19 years of age. These offences occurred in the 1980s. The first sister was aged 11 or 12 at the time of the offence and the second sister was aged 12/13 at the time she was indecently assaulted.

2 The offences against the first sister occurred between June 1981 and June 1983. The appellant snuck into the bedroom of his sleeping sister. He was naked and masturbated himself whilst licking her vagina. This happened on at least five occasions.

3 The offence against the second sister occurred on a date unknown between March 1985 and March 1987. The appellant performed an indecent assault on his sister without her consent by kissing the outside of her vagina and inserting his tongue into her vagina.

4 He was later sentenced on 22 ^nd July 2019 to a total tenu of imprisonment of 5 and half years with the final two years suspended, a net tenu of imprisonment of three and half years. This was structured as follows:

a) Counts 1,2,3 (offences against the first sister) - One year imprisonment in respect of each to ran concurrently.

b) Count 4 and 5 (further offences against the first sister) - Two years imprisonment to run concurrently to each other but consecutively to the tenu imposed in respect of Counts 1, 2 and 3.

c) Count 6 (offence against the second sister) - two and half year imprisonment to run consecutively to Counts 4 and 5.

5 The appellant appeals against his conviction and his sentence.

Anneal against Conviction

6 The sole ground of appeal against conviction is as follows:

“ That the learned trial judge erred in law and in fact in admitting into evidence the no comment answers given by the Appellant during his Garda detention.”

7 The trial judge allowed the prosecution to re-examine a Garda witness and elicit from her the content of a number of questions and the “no comment” answers made by the appellant to those questions. The permission to do so had arisen in very specific circumstances, the understanding of which is vital to the appeal.

8 While the appellant was in detention, he was questioned by the Gardai in relation to the allegations that had been made against him. The appellant answered many of these questions at great length. Indeed, the memoranda of interviews left to the jury ran to 78 pages. Significantly, the appellant did not answer some 13 questions relating to the allegations. He did so in a variety of ways: by not replying, by saying no comment or by saying he had already given his account and was not commenting further. In this judgment, those type of answers will generally be referred to as “no comment” answers.

9 During the course of the trial, prosecution and defence counsel edited the interviews to exclude reference to any questions to which a ‘no comment’ answer had been given. By convention, and in accordance with the practice that has grown up since the decision in The People (DPP) v. Finnerty [1999] 4 I.R. 364, the jury were not informed that material had been excluded from the original memoranda of interview. No such evidence was therefore given by the interviewing Garda who was aware that such evidence was expressly excluded and was not to be introduced.

10 In cross examination of the interviewing Garda by counsel for the appellant, the transcript records the following exchange

“ Q: Thanks, good afternoon, [Garda K], just a few questions. [S.M.], [S.M.] is a person with no previous convictions, I understand?

A: That's correct, yes.

Q: And I think that obviously it's apparent now from the long process that we've just gone through in relation to the interviews and I think when we total it all up, I think altogether I think the two interviews I think comprise about 78-pages or thereabouts? A: That's correct, I'd imagine, yes.

Q: Yes, okay, and I think to strip it all down and to boil it all down, when [S.M] was asked about the allegations that were made individually by [E.M.] and [N.M.], and what his attitude in response to those was he denied the allegations that were made by each of them; isn't that correct?

A: Thai's correct.

JUDGE: I think the jury have figured that out.

COUNSEL: Yes, Judge?

A: Yes.

Q: Now, and just in relation to the interview process, just one or two matters, I think as we know and as [Counsel for the prosecution] outlined, prior to each interview very properly of course, An Garda Síochána when they're conducting any interview with a detained person, they have to administer a caution to that person?

A: That's correct.

Q: Advising them that they're not obliged or required to say anything during the course of such interview, but anything that they may say will be maybe taken down in writing and may be given in evidence?

A: That's correct, the jury will have a copy of the memos and on the beginning of each memo the caution is there.

Q: That's correct, yes, and the purpose of that again very properly is to advise essentially, they have already received a notice of their rights when they're detained and this is a continuation of advising a person of the various rights that they have when they're detained?

A: That's correct.

Q: So in essence what the gardai are saying to somebody is you have a right to silence, if you wish to exercise it; isn't that correct?

A Yes, that's correct.

Q: And I think that I'm sure in your own experience and you have considerable experience, there would have been occasions when a person has been detained and you would have arrested them and that particular person in light of the caution they have received and the advice and notice they received may have decided to exercise their right to silence, and opt not to answer any questions asked by An Garda Síochána?

A Yes, that's correct.

Q: But obviously in this case, it's readily apparent from the lengthy interviews we've listened to, they’ were lengthy questions and lengthy answers given by [S.M]?

A Yes, that's correct.

Q: And he answered questions given by — by yourself?

A He did, he answered questions freely.” (Emphasis added)

11 Counsel for the DPP considered that the above assertions amounted to a fundamentally inaccurate account of the true facts. In those circumstances, counsel...