The People (At the Suit of the DPP) v Slawomir Gierlowski

• Jurisdiction: Ireland
• Judge: Ms. Justice Donnelly
• Judgment Date: 19 January 2021
• Neutral Citation: [2021] IECA 13
• Docket Number: Record No.: 155/2018
• Court: Court of Appeal (Ireland)
• Date: 19 January 2021

Between:

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

Respondent

and

Slawomir Gierlowski

Appellant

[2021] IECA 13

Birmingham P.

McCarthy J.

Donnelly J.

Record No.: 155/2018

THE COURT OF APPEAL

Conviction – Sexual assault – Unlawful detention – Appellant seeking to appeal against conviction – Whether there was unreasonable delay in detaining the appellant which rendered the detention unlawful

Facts: The appellant, Mr Gierlowski, appealed to the Court of Appeal against his conviction on various counts of sexual assault, false imprisonment and assault causing harm in respect of three separate incidents involving three unrelated victims. The offences relating to the three incidents were joined on the same indictment and were tried together. Following conviction by jury at the Dublin Circuit Criminal Court, the appellant was sentenced on the 17th May, 2018 to a total of 22½ years’ imprisonment with the final 4 years suspended with conditions. The appeal was brought under four headings: holding a joint trial in relation to the three incidents; failure to discharge the jury; a delay in detaining the appellant under s. 4 of the Criminal Justice Act 1984 after his arrest; and an error in extending his detention in a subsequent arrest authorised by s. 42 of the Criminal Justice Act 1999.

Held by the Court that the trial judge was correct in her refusal to sever the indictment and was correct in refusing to discharge the jury upon application of counsel for the appellant. In relation to the detention of the appellant, the Court found that there was no unreasonable delay in detaining the appellant which rendered the detention unlawful. The Court held that an authorisation for arrest under s. 42 of the 1999 Act amounts to an authorisation to detain a person for such period as is authorised under s. 4 of the 1984 Act; therefore, the authorisation of the Member in Charge that the detention is necessary for the proper investigation of the offence(s) is not required as this important protection of the rights of a suspect has been assessed by the judge of the District Court. The Court held that it was on that basis that the extension by Chief Superintendent Clavin and the subsequent change in the detention by Member in Charge, Sergeant McDonnell, did not render the detention unlawful as they were not even required to undertake that exercise in the first place.

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

Appeal dismissed.

UNAPPROVED

JUDGMENT of the Court delivered by Ms. Justice Donnelly on the 19 ^th day of January, 2021

1 . This is an appeal by the appellant against his conviction on various counts of sexual assault, false imprisonment and assault causing harm in respect of three separate incidents involving three unrelated victims. The offences relating to the three incidents were joined on the same indictment and were tried together. Following conviction by jury at the Dublin Circuit Criminal Court, the appellant was sentenced on the 17th May, 2018 to a total of 22 ¹/₂ years' imprisonment with the final 4 years suspended with conditions. In brief synopsis, the appeal is brought under four headings; holding a joint trial in relation to the three incidents, failure to discharge the jury, a delay in detaining the appellant under s. 4 of the Criminal Justice Act, 1984 after his arrest and an error in extending his detention in a subsequent arrest authorised by s. 42 of the Criminal Justice Act, 1999.

The Offences

2 . In her evidence, Ms. A (also referred to as, “the first complainant”) stated that on the 11th September, 2011, she was returning to her home from a night out at approximately 3am when she was attacked by a man on Monastery Walk in Clondalkin. The man brought her to the ground, placing one hand on her mouth and the other on her genital area under her skirt but outside her underwear, for approximately three to five seconds. The first complainant managed to stand but was brought to the ground again. She managed to bite and scrape the man's face. She was punched a number of times to her face before she was released and managed to get inside her home. She attended Tallaght hospital and was found to have significant swelling and bruising to her nose and around her right eye, and a fracture to her nose. The appellant was convicted of offences of false imprisonment, sexual assault and assault causing harm (counts 7, 8 and 9 on the indictment).

3 . Ms. B (also referred to as “the second complainant”) gave evidence at trial that on the 3rd September, 2015, she was returning home from a night out at approximately 1am when, while on Monastery Walk in Clondalkin, she was restrained from behind by what felt like a thick leather belt around her neck. She was brought to the ground where tape was wrapped around her head and hands. The second complainant heard sounds from her assailant like he was getting pleasure by touching his genital area. Gardaí arrived in response to an emergency call by local residents, causing the assailant to run away. The second complainant was assisted by Gardaí. The appellant was convicted in respect of this incident of false imprisonment, sexual assault and assault causing harm (Counts 4,5, and 6 on the indictment).

4 . The final incident occurred on the 16th May, 2016. Ms. C (also referred to as, “the third complainant”) gave evidence at trial that she left her home at approximately 6:40am to walk to the Red Cow Luas to go to work. She entered a pedestrian laneway and said that two arms came from behind her, each on either side of her. She saw a cloth in the left hand and a knife in the right hand. The knife was raised to her right cheek and then down towards her neck. She grabbed the knife with her left hand, pulled it down, screamed and turned around, at which point the appellant ran back towards the entrance to the laneway. She ran in the opposite direction emerging onto Monastery Road, at which point she was aided by civilian witnesses and emergency services were contacted. The third complainant was taken to hospital and evidence of her injuries were given by way of a section 25 certificate. She suffered significant tendon injuries to her left middle, ring and little fingers. She was discharged on the 18th May, 2016. The tendons ruptured while she was performing hand exercises and had to be repaired subsequently on the 31st May, 2016. She was expected to suffer long-term mobility issues.

Forensic Evidence Obtained

5 . The first complainant's clothes were seized and submitted for forensic analysis; her underwear was analysed by Dr. Connolly and a minor DNA profile was obtained which at that time was designated as “unknown male 1”. Later this was matched to the appellant's DNA profile.

6 . In relation to the second complainant, the tape, belt and her clothes were seized by the Gardaí and DNA swabs were taken by Dr. Bates as well as replacement underwear worn by the second complainant following the initial seizure of her clothes, all of which were submitted for forensic analysis. A partial DNA profile was obtained from a trace of semen on the perineal swab. Insufficient DNA for a profile was present in semen from the peritoneum swab. A full DNA profile was obtained from a trace of semen on the replacement underwear. Insufficient DNA for a profile was present on the jeans worn by the second complainant. A full DNA profile was obtained from blood on the belt. These DNA profiles were, at that time, designated as “unknown male 1”. Later these were found to match the appellant's DNA profile.

7 . Members of the Gardaí arrived and preserved the scene of the incident involving the third complainant. Photographs were taken and a number of items were seized from the laneway and from the area around the entrance to the laneway on St. Brigid's Cottages. Among the items seized were black cable ties found in the laneway and on St. Brigid's Cottages, a bottle of beer found on a wall of St. Brigid's Cottages and a roll of grey duct tape found on a wall near the entrance to the laneway. A partial DNA profile from the mouth of the beer bottle matched the appellant's DNA profile. Fingerprint analysis was conducted by Garda Kiely in relation to the roll of duct tape, found near the scene of the false imprisonment of the third complainant. Two marks were found to match the appellant's fingerprints.

CCTV Footage

8 . Prior to entering the pedestrian laneway, the locus the of the third incident, the third complainant noticed a white van parked on St. Brigid's Cottages on the laneway side, facing the N7. She had seen it previously while driving to work over the previous two months, parked on St. Brigid's Cottages, on three or four occasions. A number of witnesses gave evidence in relation to a similar white van parked on St. Brigid's Cottages on different occasions prior to the 16th May, 2016. The witnesses provided partial registration numbers to Garda Dolan. Garda Dolan obtained CCTV footage from St. Brigid's Cottages which captured what he identified as a White Volkswagen Crafter driving on St. Brigid's Cottages. Garda Dolan did a wildcard search for an 08D white Volkswagen Crafter and found a registration similar to the partial registrations provided and with an address reasonably close to the scene of the incident. A certificate was issued by the Motor Tax Office confirming that the appellant was the registered owner of the vehicle in question and the date of sale was the 18th April, 2016.

9 . CCTV footage was harvested from a number of different locations in the surrounding area, some of which were marked on maps created by Garda Harley and entered into evidence as exhibits. From that, a compilation was entered into evidence and linked to the location maps during the course of Garda Farrell's evidence. The compilation showed a white van parking outside an address at New Road and a...