DPP v S.Q.

• Jurisdiction: Ireland
• Judge: Mr Justice McCarthy
• Judgment Date: 21 December 2021
• Neutral Citation: [2021] IECA 347
• Docket Number: Court of Appeal Record No. [11/2019]
• Court: Court of Appeal (Ireland)
• Year: 2021

Between/

The People (At the Suit of the Director of Public Prosecutions)

Respondent

and

S.Q.

Appellant

[2021] IECA 347

Edwards J

McCarthy J

Keane J

Court of Appeal Record No. [11/2019]

THE COURT OF APPEAL

Conviction – Rape – Unsatisfactory trial – Appellant seeking to appeal against conviction – Whether the trial was unsatisfactory

Facts: The appellant was, on the 22nd of October 2018, convicted of the rape of the complainant on the 20th of January 2016. Evidence pertaining to sentence was heard on the 20th of December 2018; a relatively brief summary of the facts was given in evidence by a Sergeant Guerin and victim impact evidence was given by the complainant. She had prepared a statement in that regard (in Polish) and a translation thereof was served on the appellant and furnished to the court. Whilst it appeared that she gave her evidence in Polish, on perusal of the transcript, it was the English translation thereof (an interpreter was present) which appeared therein. A plea in mitigation was heard on the 14th of January 2019 and sentence was imposed on the 21st of January. That sentence was one of six years’ imprisonment backdated to the 22nd of October 2018. While a number of grounds of appeal were pleaded, the only one which was pursued was that hinging on the fact that the appellant or his then lawyers were not aware of, and could not have been aware of, the fact of the engagement of the gentleman identified as “R.” and his girlfriend.

Held by the Court of Appeal that it was not satisfied that in the absence either of information to the effect that such persons had an engagement in the matter prior to their arrival with the complainant in the Garda station or what, speculatively, they might say, gives rise to any such risk or renders the trial unsatisfactory. The Court held that this must be a matter of judgment on a case-by-case basis on the facts.

The Court dismissed the appeal.

Appeal dismissed.

JUDGMENT of the Court delivered on the 21st day of December 2021 by Mr Justice McCarthy

1 S.Q., the appellant herein, was on the 22nd of October 2018 convicted of the rape of one K.S. on the 20th of January 2016. Evidence pertaining to sentence was heard on the 20th of December 2018; a relatively brief summary of the facts was given in evidence by a Sergeant Guerin and victim impact evidence was given by K.S. She had prepared a statement in that regard (in Polish) and a translation thereof was served on the appellant and furnished to the court. Whilst it appears that she gave her evidence in Polish, on perusal of the transcript, it is the English translation thereof (an interpreter was present) which appears therein. A plea in mitigation was heard on the 14th of January 2019 and sentence was imposed on the 21st of January. That sentence was one of six years' imprisonment backdated to the 22nd of October 2018.

2 At one time the complainant and the appellant lived at respective addresses comparatively close to each other and accordingly, the complainant knew the appellant to see for about a year and a half. In any event, in January 2016 the complainant moved to an apartment in the premises in which the offence occurred, and to where the appellant had also moved. Their initial introduction there occurred when she went to a randomly chosen apartment in the building (which turned out to be the appellant's) seeking information as to the Wi-Fi code for the building – it appears that this was mere coincidence. Further to this, they met on at least three further occasions either in the hallway of the building or in a shopping centre in which the complainant worked. On several occasions, the appellant asked her to meet for coffee, invitations which she declined save that made on the day of the offence. She gave him her phone number that day as she had agreed to go to his apartment and somewhat to her surprise, she was informed that the appellant was to entertain her to dinner. She arrived at around 7pm and they had a number of drinks.

3 At a certain stage during the course of the evening, after they had eaten, she went to the toilet three times elsewhere in the building and on the fourth occasion, immediately prior to the offence, she used the ensuite bathroom in the appellant's bedroom. At some point during the evening, she felt unwell. She attributed this to one of the drinks which she had had and sent a text to her employer to the effect that she would not be in position to attend for work the following day.

4 The appellant waited in his bedroom for her whilst she went to the toilet there and, on her evidence, her next memory was “falling off” (as she put it) onto a bed and, thereafter, she had further memory of lying on the bed and suffering pain in her vagina. She found that she was naked, and that the appellant was on top of her. He was having intercourse with her, she told him to stop, which he did not at first do and upon repeating that demand, he then did so. During the course of the incident, in substance, he told her to be quiet (saying “shhh”) and put his hand over her mouth at one point.

5 When the incident ended, she did not know where her clothes were, and he gave them to her. She then left the apartment and returned to her own. The complainant gave her mobile phone to the Gardaí, and it is not disputed that there were numerous communications by text between the parties in the afternoon and early evening of the of the 20th, after the event and on the next day. She found that she could not locate a necklace which she had been wearing on the evening in question and she communicated with the appellant since she thought it might have been in his apartment – as indeed it was. It was returned to her in a state of disrepair.

6 She visited a Garda Station on the evening of the following day and initially made a complaint to a Garda Agnew. She arrived at the Garda Station at approximately 9pm. She was then assisted by a Garda Brandley who took her to a Sexual Assault Treatment Unit where she was seen by a Dr Derham. He gave evidence to the effect inter alia that when the complainant arrived, she was in the company of Gardaí Agnew and Brandley and a representative of the Rape Crisis Centre. Present during the examination itself was Dr Derham's nurse, Garda Brandley, and he also said a Rape Crisis Centre representative was present. On an examination of the genital area, amongst Dr Derham's findings was evidence of trauma consistent with recent vaginal penetration in the vaginal vestibule or entrance. The history given to him by the appellant extended to a statement by her, as he noted it, that the appellant had “put his right hand over her face and pushed her down”; she had already given evidence herself about that event. He observed bruising on the inner aspect of her upper lip consistent with the history of pressure against the face, attributed by him to the pushing of the lip against the teeth.

7 The appellant was interviewed by the Gardaí. The telephone messages were put to him where he advanced explanations in respect of them. It is legitimate to summarise his evidence as being to the effect that consensual sexual intercourse took place between him and the complainant on the evening in question, she having been his guest for dinner and after a number of drinks intercourse occurred.

8 No evidence was adduced of any so-called recent complaint of the offence made by the complainant to show consistency. There is no suggestion in the evidence nor was there material in the book of evidence or any material disclosed to suggest that the complainant was in company when she arrived at the Garda Station on the 21st of October or had spoken to anybody prior to that time about the offence. However, subsequent to the verdict and in the course of her evidence as to the effect of the offence upon her, on the 20th of December 2018, she gave inter alia the...