The People [At the Suit of the DPP] v A.D
| Jurisdiction | Ireland |
| Judge | Mr Justice McCarthy |
| Judgment Date | 11 March 2021 |
| Neutral Citation | [2021] IECA 66 |
| Docket Number | [33/19] |
| Court | Court of Appeal (Ireland) |
| Date | 11 March 2021 |
[2021] IECA 66
Edwards J.
McCarthy J.
Donnelly J.
[33/19]
THE COURT OF APPEAL
Conviction – Sexual assault – Perverse verdict – Appellant seeking to appeal against conviction – Whether the verdict of the jury was in all the circumstances perverse
Facts: The appellant, on the 19th of November 2018, was convicted of a count of sexual assault. The appellant was sentenced on the 5th of February 2019, to two and a half years imprisonment with the final eighteen months suspended. The appellant appealed to the Court of Appeal against conviction. The grounds of appeal were as follows: (ii) the trial judge erred in law in refusing the application for a direction; (iii) the verdict of the jury was in all the circumstances perverse.
Held by the Court that the trial judge thoroughly considered all of the relevant evidence when the application was made and correctly applied the relevant principles of law to facts. The Court was not persuaded that any error arose. The Court held that whether or not to accede to an application of the type in question will, by definition, be dependent upon the evidence in the case and the trial judge will make an assessment on that evidence. The Court had no doubt but that such infirmities as existed in the evidence were matters to be resolved by the jury. The Court held that there was nothing exceptional about this case. The Court held that the issue of whether or not the case should be left to the jury was decided by the trial judge on the application to withdraw it: there was sufficient evidence upon which the jury could properly convict. The Court found that the circumstances in which a verdict on the merits, as here, might be held to be perverse will be rare, especially when the judge has properly refused a direction. The Court held that this is not such a case. The Court held that examples of perversity will ordinarily involve more than a contention that the evidence was insufficient to found a conviction.
The Court held that the appeal against conviction would be dismissed.
Appeal dismissed.
JUDGMENT of the Court delivered by Mr Justice McCarthy on the 11 th day of March 2021:
. This is an appeal against conviction and sentence: this judgment addresses conviction only. On the 19th of November 2018, the appellant was convicted of a count of sexual assault. The appellant was sentenced on the 5th of February 2019, to two and a half years imprisonment with the final eighteen months suspended. The appellant had no previous convictions. He was 32 years of age at the time of sentencing. He is married.
. The offence took place on the 21st of June 2015, at a location in a Dublin suburb, his home. We think it necessary to refer to the evidence with a degree of detail having regard to the issues raised on appeal but out of necessity we cannot do so in full.
. The complainant Ms P went to the engagement party of Ms L. B and the appellant. She had known them for years and she had lived with them for a while — she described them in evidence as being very close to her and good to her. She was to stay with them overnight. At the party at a licensed premises in she had approximately ten whiskies and a “couple of shots”. In the early hours of the morning of the 21st of June, when the bar closed, a group including the appellant, Ms B and the complainant went back to Ms B's family home where the party continued but it seems she had no recollection of who accompanied her and thought the house was that of Ms B's sister. She did not recall what occurred at the latter party but presumed she had more alcohol there. She returned the house in a taxi ‘ around '7-ish’ with the appellant and his fiancée.
. The complainant was tired and said in evidence; ‘you know I wasn't like alert or just—you know, oh, I don't know’ (she said), and, later, ‘ I was up for literally two days at that stage, and the tiredness. I'd went to their house to go asleep’. The complainant had stayed in the house previously in a spare room with a single bed. On this occasion she went to a spare room which had a double bed: “ I don't know why I went to the one with the double bed…I said goodnight to [L] and I am sure that we gave each other a kiss goodnight and then I went up to bed.’
. She described the immediate event as follows:-
“[she was] going to sleep and he lifted the duvet and I opened my eyes but I wasn't alarmed at all. … he put his hand up my skirt and he started touching me and he put like the tip of his finger in and he whispered at me ‘show me your clit, show me your clit’ twice. And I couldn't move…and then, like I tried to wiggle my legs like, a little it and I don't know how but I did eventually turn- rolled over to face the wall and he was grinding up against me like, as in, like having sex with the back of me, but my clothes were all still on and everything. And I can't really remember if I did say it but I'm guessing I said it ‘get the fuck away from me’ at that stage. I think I must have said it because he did go away then.’ She accepted she had said in her statement: ‘I don't recall saying one word to him…presuming I said it.. I don't .. you know, If I didn't say it, maybe he wouldn't have went away. I said it either in my head or out loud, but I'm guessing it must have been out loud because he went away.’”
. When she got out of the bed she got her shoes and went straight downstairs and was going to walk home. This was around 7a.m and she was accidentally locked in the porch as she tried to leave. She said that she started to panic and knocked on the door. The appellant then came down and opened the door after the complainant banged on the door more loudly. He asked her ‘ why are you going home’ and she answered ‘ because I can't sleep’. He phoned a taxi for her and she said that she feared he was going to get her by the throat and say ‘ shut your mouth, don't tell anyone’. The complainant had always previously had a good relationship with the appellant and his fiancée and they were protective of her. She said ‘ see you later’ and left. She indicated the appellant was wearing boxer shorts at that stage.
. On that night complainant was not wearing underwear as there would have been a visible line given that her skirt was so tight. It extended below the knee. She said that the appellant had not pulled up her skirt nor had he been aggressive or violent. However, in cross-examination she said that ‘ when his hand was going up the skirt would have just automatically went with his hand’ and in response to the question “in order to try to put his penis in your vagina it would have been the same, he would have had to take your skirt up; wouldn't he?” answered “yes.”
. The complainant was taken to a Sexual Assault Treatment Unit where she was forensically examined by a Dr Columb whose report was read into evidence. According to the doctor she told her that ‘ she drank a large amount of alcohol between 9pm and 2.30 am on the 21st June 2015. Then she went to — a house of her friend's mother where she stayed for approximately two to three hours and then went to [—house in] [S] went to sleep in in the spare bed and next she found [the appellant] in her bed and he started touching her in the lower body. He inserted, she thinks, his penis in her vagina and had penile/vaginal sex with her after a few attempts. She was wriggling away from him and resisting, so he gave up and left the room.’
. Dr Columb said that the complainant was composed during the examination. She was asked a series of questions by Dr Columb. In reply, she said that she was unsure if there had been any kissing, licking or biting. There was penile vaginal penetration. She was unsure whether there had been digital penetration or whether the appellant ejaculated onto her skin or her hair or her clothes. She was also unsure as to whether the appellant had kissed, licked, or bit her. In cross examination on the issue of penile penetration the following exchange took place:-
“ Q Are you telling the jury that [the appellant] tried to put his penis in your vagina?
A I don't know.
Q You're not making that case now, sure you're not. That's not your recollection is it?
A My initial thing that I said was he tried to rape me, so, I know what he done.
Q Did he try to put his penis in your vagina?
A His finger went in. I don't know..
Q did he try to put his penis in your vagina?
A I don't know.
Q You don't know?
A like, at the start I wasn't sure if it was his finger or his penis, but it had to have been his finger.”
The complainant agreed under cross-examination that shortly after arriving home she had phoned the Gardaí and told Garda Keogh that she was reporting an attempted rape: “ I said he tried to rape me”. Shortly afterwards she had told Garda Stears “ he attempted to put his penis in my vagina”.
Furthermore, the complainant said she was not still unsure regarding all of the above:-
“ Q If you told her (Dr. Columb) you had penile sex, were you mistaken?
A Yes
Q If you told her you didn't know if you were licked, bitten or kissed, you were mistaken, you were wrong about that, weren't you?
A Yes.
Q Or was that that was what was in your mind at the time?
A That wasn't in my mind…
Q I'm suggesting to you that at the time what your mind had built up in your mind was this picture of sex. Sexual penetration, attempted sex and that [the appellant] and had full sex with you. I suggest to you—?
A I'm not accusing him of having full”
. When the complainant returned to the garda station on the 23rd of June to make a detailed statement she brought a five page handwritten document with her. Written on the back was “ Why would he not have told her if he got into bed by accident with me. Then I walked downstairs and I said I was asleep because I was...
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