DPP v W.M.

JudgeMr. Justice Edwards
Judgment Date15 May 2018
Neutral Citation[2018] IECA 150
CourtCourt of Appeal (Ireland)
Docket NumberRecord No: 203/2013
Date15 May 2018

[2018] IECA 150

Edwards J.

Mahon J.

Edwards J.

Hedigan J.

Record No: 203/2013


Conviction – Aggravated sexual assault – Discharge jury – Appellant seeking to appeal against conviction – Whether the trial judge erred in refusing to discharge the jury

Facts: The appellant, on the 8th of July 2013, was convicted by a ten member jury of the offences of aggravated sexual assault, contrary to s. 3(1) of the Criminal Law (Rape) (Amendment) Act 1990, and causing serious harm, contrary to s. 4 of the Non Fatal Offences Against the Person Act 1997, respectively. On the 29th of July 2013, he was sentenced on each count to 13 years imprisonment, both sentences to run concurrently. The sentences were to take effect from the 11th of January 2012. The appellant appealed to the Court of Appeal against his conviction on the grounds that the trial judge erred in: (i) not affording the appellant any/or sufficient time to obtain and/or instruct a new solicitor after difficulties arose between the solicitor on record and the appellant during the trial, resulting in the appellant discharging his solicitor; (ii) refusing to discharge the jury and adjourn the trial on the application of the appellant; (iii) not affording sufficient regard to the appellant’s concerns as raised over the reduction in the number of jurors prior to the beginning of their deliberations; (iv) refusing to discharge the jury after the complainant, during her evidence, stated that the appellant was a “sex offender” and listed on the “sex offender list”.

Held by the Court that, regarding ground (iii), the jurisdiction of the trial judge was properly and legitimately exercised, and there was no unfairness in allowing the trial to proceed with just ten jurors. The Court saw no reason to regard the trial as unsatisfactory or the verdict unsafe as a result of the matters complained of in grounds (i) and (ii). In the circumstances the Court did not consider that the failure by the trial judge to discharge the jury due to the matters complained of in ground (iv) rendered the trial unsatisfactory or the verdict unsafe.

The Court held that the appeal against conviction should be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered 15th May, 2018 by Mr. Justice Edwards

On the 8th of July 2013, the appellant was convicted by a ten member jury of the offences of aggravated sexual assault, contrary to s. 3(1) of the Criminal Law (Rape) (Amendment) Act 1990, and causing serious harm, contrary to s. 4 of the Non Fatal Offences Against the Person Act 1997, respectively.


On the 29th of July 2013, he was sentenced on each count to 13 years imprisonment, both sentences to run concurrently. The sentences were to take effect from the 11th of January 2012. The appellant now appeals against his conviction and sentences.


This judgment deals solely with the conviction issue.

The facts of the case.

The case was concerned with an incident that took place some days prior to the 8th of December 2011 at an address in a small village in rural Ireland. The jury heard that the complainant in the case was a thirty three year old woman who is an alcoholic and who also had had a drug problem, although she was off drugs at the time of the incident. The complainant first encountered the appellant approximately eighteen months prior to the incident. At that time she was living alone in rented accommodation in the village. On the evening on which she first met the appellant she had been drinking and had lost her keys. The appellant, a resident of the village and sixty six years of age at the time, came upon the complainant as she was searching for her keys. He was helpful to her, and when it was evident that the keys could not be found, he brought her to his house and let her stay until she managed to get new keys.


Thereafter a friendship developed between them, and the complainant began to visit the appellant's house regularly. She moved away from the village for a time but eventually returned. Throughout this time she remained friendly with the appellant. Upon her return to the village the complainant had nowhere to stay, having given up accommodation she had previously been renting. At the appellant's invitation she moved into his house, and was allowed to sleep on a sofa. Over time the complainant and the appellant became sexually intimate. In her evidence the complainant maintained that this was not because she regarded herself as being in a relationship with the appellant, but rather because it was expected of her in lieu of payment of rent. She stated that he said that if she didn't want to have sex with him she knew where the door was. She further stated that he wanted her to do things that she did not want to do, and sometimes she would ‘have to drink a lot of drink to be out of it to do some of the things he wanted me to do.’


The complainant described how, on the occasion of the incident the subject matter of the charges, she was woken from sleep in the middle of the night to find her trousers down. Referring to the appellant, she told the jury:

‘I remember lying -- I remember there, and he got his hand, his whole fist and put it up inside me and I could feel, do you know my stomach, I could feel the pain. I could feel it up in my stomach. It was the worst pain I ever, ever felt in my whole entire life, and I felt his hand twisting around inside and I screamed. I said, ‘F off.’ I screamed and he put his hand over my mouth and he told me to be quiet, and I can remember getting my two hands and getting his fist and pulling him. I don't know where I got the strength and I pulled -- pulled his hand out of me and that's when I started bleeding. After that I said, ‘I think you should call an ambulance.’ That, ‘I think I'm haemorrhaging.’ And he said to me, ‘Ah no, you'll be okay but if you feel something passing’, he said, ‘It'll just be a clot, a blood clot.’


The complainant went on to say:

‘I can remember after this happened, after I got his fist out from out -- when I took his fist out -- when I took his fist away from me out from inside of me I can remember I started getting, kind of, you know, like, back pains in my back and I started not to feel well, do you know like, in my stomach. I didn't -- really did not feel well. Do you know, I didn't really feel well, and all I know is then I ended up in the hospital.’


She was further asked, and answered:

‘Q. …. did you ever give him permission to put in his hand into your vagina?

A. No. Never, ever.

Q. Had this ever happened before?

A. No.

Q. Did he ever want to put any -- anything other than a vibrator into you at any time?

A. He had this thing called a turkey baster, and he said that if I did not want to have sex with him he wanted to, like, put --

Q. What did he want?

A. He wanted to put sperm inside and put it in - you know like try to put it inside me to try and get me pregnant to have a child for him, and offered me €10,000, that if I had a kid for him they'd give me €10,000 and I wouldn't have to worry about it. He said I'd just have the child and give it to him and go away.’


In further describing the assault the complainant said:

‘A. …as I woke up like I felt him open my -- my trousers. Do you know, my trousers were down. I felt him doing that and I just -- I felt him getting his fist and he just -- he done it so vicious he just went straight up really fast and quick just like that and right up, and I could feel him twisting around in my stomach. I could feel his hand twisting around.

Q. What pain were you in at that time?

A. The pain was unbelievable, like. I have children and it was actually worse than giving birth, this pain.’


The complainant said that although she had been sleeping on the sofa before the assault, she ended up on the ground as a result of it, next to an electric fire. There was then the following exchange:

‘Q. Yes. And were you able to stand at that time or where were you?

A. I couldn't -- I could barely walk -- I couldn't even walk, you know, after it, because when I stood up I could feel the blood was just gushing out of me and it wouldn't stop, and I was so frightened because I thought that it's not going to stop. But that time that I felt that I needed an ambulance to be called, that was the one time he wouldn't call an ambulance.

Q. So what happened then in your own words?

A. He just -- I said to him that sure -- I said I swore, I said, ‘F-off your hands -- your hand out of me’, but he blocked my mouth and said -- told me to be quiet and covered my mouth and as --

Q. Why did he cover your mouth?

A. Because I was screaming, I was in so much pain.

Q. And what happened to you next after that?

A. After that I stood up and I needed to go to the toilet to try and clean myself and the blood -- because the blood was coming out of me, and I just -- I just did not feel well.’


The evidence was that the complainant became progressively more unwell over succeeding days. Eventually the appellant called the complainant's general practitioner on the 7th of December 2001, who made a domiciliary call, and formed the view that the complainant had a significant infection for which she needed hospitalisation. Although the complainant was initially reluctant to go to hospital, and resisted the suggestion for a further 24 hours, by the evening of the 8th of December 2001 her condition had deteriorated to the point where the complainant was unable to put up further resistance and she was taken to hospital by ambulance.


The jury heard evidence from a Consultant Obstetrician/Gynaecologist who, together with a general surgeon, attended to the complainant in the hospital. He told them that she was initially admitted to intensive care...

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4 cases
  • DPP v S.C.
    • Ireland
    • Court of Appeal (Ireland)
    • 19 December 2019
    ... ... Twenty-four years ago, the Court of Criminal Appeal in The People (DPP) v. Z ( Unreported 14th March 1995) , acknowledged that consecutive sentences may be appropriate where there is more than one victim of a sexual offender ... 35 More recently in The People (DPP) v. WM [2018] IECA 281 , consecutive sentences were imposed concerning the abuse of four complainants, resulting in a sentence of 13 years’ imprisonment. This Court considered that the facts in that case manifestly called for consecutive sentences having regard to the multiplicity of victims and the ... ...
  • DPP v M.S. 2
    • Ireland
    • Court of Appeal (Ireland)
    • 17 November 2020
    ...of the case and therefore concluded that there was no injustice as a result. 18 The respondent further refers to The People (DPP) v. WM [2018] IECA 150. Here the complainant made reference to the accused being a sex offender during the course of her cross-examination. No application was mad......
  • DPP v A.M.
    • Ireland
    • Court of Appeal (Ireland)
    • 20 December 2022
    ...to stop the trial, relying upon the inherent jurisdiction of the court in terms of the PO'C jurisprudence. 15 . The People (DPP) v WM [2018] IECA 150 is relied upon wherein the complainant gave evidence that the accused was a convicted sex offender. No application to discharge the jury was ......
  • DPP v W.M.
    • Ireland
    • Court of Appeal (Ireland)
    • 3 July 2018
    ... ... In that regard, I agree with the submissions on behalf of the DPP. However, I hasten to say, this was not an aggravated sexual assault that was not accompanied by serious physical injuries. The accused [WM] inflicted life-threatening injuries. That she survived is a tribute to the skill and professionalism of the medical consultants and all the members of the medical team in Kilkenny. Anyone who was present in court for the description of the medical injuries is unlikely to ever forget the ... ...

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