The People [At the Suit of the DPP] v S.K

• Jurisdiction: Ireland
• Judge: Mr Justice McCarthy
• Judgment Date: 26 March 2021
• Neutral Citation: [2021] IECA 90
• Docket Number: [96/2016]
• Court: Court of Appeal (Ireland)
• Date: 26 March 2021

Between

The People [At the Suit of the Director of Public Prosecutions]

Respondent

and

S.K

Appellant

[2021] IECA 90

Edwards J.

McCarthy J.

Ní Raifeartaigh J.

[96/2016]

THE COURT OF APPEAL

Conviction – Sexual offences – Delay – Appellant seeking to appeal against conviction – Whether the trial judge erred in law and in fact in failing to withdraw the case from the jury at the close of the prosecution case on foot of an application by the defence concerning delay in bringing the prosecution and the effects of that delay

Facts: The appellant, on the 19th of January 2016, was convicted after a five-day trial in the Central Criminal Court of 49 counts of sexual assault, rape and rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990 between the years 1999 and 2005. The appellant was sentenced on 15th March, 2016 to eleven years imprisonment in respect of the rape and s. 4 rape offences, and to three a half years imprisonment in respect of the sexual assault offences, to run concurrently. The appellant appealed to the Court of Appeal against his conviction on the following grounds: (i) the trial judge erred in law and in fact in ruling that the jury should not be discharged after counsel for the prosecution led the witness, the complainant’s mother, as to whether the accused had made any admission about experimenting with the alleged injured party; (ii) the judge erred in law and in fact in allowing the prosecution to adduce hearsay and/or opinion evidence from the complainant’s father that the appellant threatened the alleged injured party in order to keep her silent in circumstances where the judge erred in ruling that same was necessary for the purposes of contextualising a confrontation between the complainant’s father and the appellant; (iii) the judge erred in law and in fact in ruling that there was a case to answer in relation to counts of rape on the indictment and in ruling that there was sufficient evidence of lack of consent to allow such counts of rape to be left to the jury, and erred in law and in fact in failing to grant a direction at the close of the prosecution case; (iv) the judge erred in law in ruling that s. 14 of the Criminal Law Amendment Act 1935 applied to s. 4 of the 1990 Act; (v) the judge erred in law and in fact in failing to withdraw the case from the jury at the close of the prosecution case on foot of an application by the defence concerning delay in bringing the prosecution and the effects of that delay; (vi) the judge erred in law in failing to give a corroboration warning to the jury; (vii) the judge erred in law and in fact in failing to warn the jury properly or at all on delay and in failing to contextualise the delay warning in her charge.

Held by the Court that: (i) the fact that the evidence of the witness pertaining to experimentation was elicited by the impugned question could not possibly fall into the category which would justify a discharge; (ii) the reference to the threats provided context for the rest of the father’s response and the judge was correct to admit it; (iii) whether or not there is consent will be a factual matter in every case and once, as in this case, there is prima facie evidence which would permit a jury to be satisfied, inter alia, of the want or lack of consent they would be entitled to convict; (iv) the judge was right in the conclusion she reached that s. 14 of the 1935 Act applied to offences under s. 4 of the 1990 Act; (v) there was no reasonable possibility that any prejudice was caused to the appellant by the lapse of time which could not be remedied by an appropriate charge pertaining to the issue of delay; (vi) there was no basis for believing that the judge’s discretion was improperly exercised such as might justify interference; and (vii) it was not persuaded that there was any infirmity in the charge.

The Court held that the appeal would be dismissed.

Appeal dismissed.

JUDGMENT of the Court delivered by Mr Justice McCarthy on the 26 ^th day of March 2021:

1 . This is an appeal against conviction and sentence; this judgement deals with the issue of conviction only. On the 19th of January 2016 the appellant was convicted after a five-day trial in the Central Criminal Court of 49 counts of sexual assault, rape and rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act, 1990 between the years 1999 and 2005. The appellant was born on 17th November 1982 and his sister Ms V.K who was born on 29th October 1988 was the victim. Count number 32 on the indictment was withdrawn from the jury the respondent having entered a nolle prosequi upon it at the end of the prosecution case. The offences of which he was convicted are as follows:-

• (i) twelve counts of rape spanning a period commencing 1st January 2000 and ending on 28th October 2005;

• (ii) one count of rape on a date unknown between 1st January 2005 and 31st December 2005 at the appellant's own home (subsequent to his departure from his and the complainant's original family home);

• (iii) four counts of rape contrary to s. 4 of the Criminal Law (Rape) (Amendment) Act 1990 spanning a period between 1st January 1999 and 31st December 2000 and involving vaginal penetration with a screwdriver;

• (iv) fourteen counts of rape contrary to s. 4 of the same act of 1990 spanning the period between 1st January 1999 and 20th October 2005 involving oral penile penetration;

• (v) fourteen counts of sexual assault between 1 January 1999 spanning a period of between 1st January 1999 and 24th October 2005;

• (vi) one count of sexual assault on a date unknown between the 1st of January 2005 and 31st December 2005 at the appellant's then own home aforesaid;

• (vii) two counts of rape contrary to 4 of the 1990 Act on dates between the 29th of October 2001 and the 28th of October 2003 involving vaginal penetration with a vibrator.

2 . The appellant was sentenced on 15th March, 2016 to eleven years imprisonment in respect of the rape and s. 4 rape offences, and to three a half years imprisonment in respect of the sexual assault offences, to run concurrently. The appellant now appeals against both conviction and sentence.

3 . According to the injured party, she was aged between ten and sixteen years during the period when the offences were committed and the appellant was aged between sixteen and twenty two. The abuse was prolonged, continuing for a period of some six years and, with the exception of Counts 13 and 47 (which occurred in the appellant's own home when he moved out), the incidents occurred in the family home of the victim and her brother when their parents were out; they went shopping from time to time and attended Mass every week. The offences which took place in the family home were perpetrated during the day, and once at night. That which took place in the appellant's home occurred at night. We shall deal with those which occurred in the original family home of the appellant and his victim, since they constitute the events giving rise to the overwhelming preponderance of the charges, and that which occurred at the appellant's home separately.

The evidence of the complainant

4 . The evidence of the complainant at the trial was as follows. She says that the appellant began the sequence of offences by touching her neck; she didn't understand at the time what it was that he did to her but now understands that he gave her a ‘love bite’. After that first incident he began touching her in a more overtly sexual way. He would touch her vagina with his hands and that he would use his tongue to lick the inside and the outside and insert his finger. He would ask her to touch him and to masturbate him and he also asked her to put his penis in her mouth, which she did. She said that these offences happened often though she could not remember if it was every week, and that it was always when there was nobody else in the house. The sequence was that the appellant stood in front of her when she was sitting and would put her hand around his penis and guide her mouth around it. He would then put his hand at the back of her head and if she failed to perform the action to his satisfaction he would force her to put his penis into her mouth to a greater extent pushing her head in doing so.

5 . She said that she was between the ages of ten and eleven years of age when he started putting his penis into her mouth. There was evidence of incidents in the course of which the appellant inserted a screwdriver into her vagina. He would use the red handle thereof and he also gave the screwdriver to her and told her that she needed to practice with that particular item. He also used vibrator upon her. The screwdriver use began in the early stages of the abuse and the vibrator was used when she was thirteen or fourteen years of age.

6 . The complainant said the situation changed after she began menstruation at the age eleven or twelve; at that stage the appellant began putting his penis into her vagina. This occurred in her bedroom. She said that they lived in a four-bedroomed house and her bedroom was the smallest. At the time of the first such incident there was no one else in the house; her brother called her upstairs and told her to take off her clothing and lie back on the bed and her evidence was that he inserted his penis into her vagina. She described it as being very painful. She said she did not know at that stage what sexual intercourse was and that she was bleeding afterwards. She said that the appellant threatened her all the time to the effect that he would tell her parents that she had done something wrong, such as smoking or being out late. After the sexual penetration began the appellant would threaten the complainant that if she told anyone what occurred he would drive his car off a cliff or into a wall, that he could be killed and it would be her fault.

7 . The complainant recalled her brother then moving...