The People at the Suit of the Directorof Public Prosecutions v FN

• Jurisdiction: Ireland
• Judge: Birmingham P.
• Judgment Date: 25 August 2021
• Neutral Citation: [2021] IECA 238
• Court: Court of Appeal (Ireland)
• Docket Number: [30/21]

Between

The People at the Suit of the Directorof Public Prosecutions

Respondent

and

FN

Appellant

[2021] IECA 238

The President

Edwards J

Kennedy J

[30/21]

THE COURT OF APPEAL

Conviction – Sexual assault – Delay – Appellant seeking to appeal against conviction – Whether the judge fell into error in declining to halt the trial by reason of the lapse of time

Facts: The appellant, on 22nd December 2020, was convicted in the Central Criminal Court of the offence of sexual assault. Thereafter, on 29th January 2021, he was directed to undergo a period of probation supervision. The appellant appealed to the Court of Appeal against conviction. On the hearing of the appeal, there were two grounds of appeal pursued: whether and in what circumstances motive can become relevant, in particular whether motive is relevant where there is any ambivalence as to the nature of the activity engaged in; and the second ground relating to the delay in the prosecution of the case. It was not said that the delay is exceptionally lengthy if viewed in isolation, but it was said that the delay is very significant when the complainants are very young, and in this case, it was said that there was a further element in that not only were the two complainants very young, but the complaints were being made against a minor.

Held by the Court that the trial judge was correct in taking the view that the appropriate legal test to be applied was whether or not the circumstances of the assault, when objectively viewed, were indecent. The Court held that, insofar as motive is a consideration, it is a matter to be inferred from the state of the evidence. It seemed to the Court that factors which had to be considered included the fact that physical chastisement was not a normal and accepted part of life in Ireland in 2020/2021 and insofar as it was an issue that was canvassed, the appellant was never in loco parentis and never someone who could have lawfully administered chastisement, even when the concept of lawful chastisement formed part of the law; furthermore, the complainant had never done anything which could ever have merited chastisement. The Court accepted that the appellant’s youth at the time was relevant, as was the history of sham-fighting, but it seemed that, in the round, these were all matters to be considered by a jury and were not such as to demand the withdrawal of the case from the jury, either by way of a Criminal Procedure Act 1967 s. 4E application or by way of a directed acquittal. The Court was not persuaded that there was any prejudice arising from the delay. The Court held that, at one level, the allegation was a very straightforward one with a contemporaneous complaint; unlike some other cases, it was not a question of a young complainant seeking to describe a prolonged pattern of behaviour where the basis narrative could get lost among the detail. It also seemed relevant to the Court that the only account that the jury heard was the account to specialist interviewers; there was no cross-examination so the question of the ability to conduct a meaningful cross-examination being compromised by the lapse of time had not been established. The Court held that the appellant was not prevented from pursuing the chastisement theory by the passage of time. The Court was not convinced that the judge fell into error in declining to halt the trial by reason of the lapse of time.

The Court dismissed the appeal against conviction.

Appeal dismissed.

UNAPPROVED

NO REDACTION NEEDED

JUDGMENT of the Court delivered (electronically) on the 25 ^th day of August 2021 by Birmingham P.

1 . On 22 ^nd December 2020, the appellant was convicted in the Central Criminal Court of the offence of sexual assault. Thereafter, on 29 ^th January 2021, he was directed to undergo a period of probation supervision. The appellant had stood trial charged with two offences: (i) an allegation of rape contrary to s. 4 of the Criminal Law (Rape) Amendment Act 1990 (as amended) of a four-year old boy (‘X’) in respect of which the jury disagreed, and (ii) a count of sexual assault, on which a conviction was recorded and which is now the focus of this appeal, where the assault was alleged to have been committed against a six-year old boy (‘Y’) who is the older brother of X, the complainant in the first count. The sexual assault aspect involving Y concerned an allegation that the appellant, a 14-year old boy at the time of the alleged incident, was guilty of sexual assault where the allegation was that he had slapped a six-year old boy on his bare buttocks up to nine times, having taken down the boy's pants and underpants.

2 . The grounds of appeal are as follows:

• (i) That the trial judge erred in law and in fact in refusing the application on behalf of the accused for an order dismissing count 2, being the charge of sexual assault, on the basis that there was not a sufficient case to put the accused on trial for the said charge;

• (ii) That the trial judge erred in law and in fact in permitting the complainant to view a DVD of an interview with him in circumstances where there had been a significant delay of some 20 months between the making of the recording and the playing of it prior to trial;

• (iii) That the trial judge erred in law and in fact in permitting the playing of a DVD of an interview as the direct evidence of the complainant in circumstances where there had been a significant delay of some 20 months between the making of the recording and the playing of it at trial;

• (iv) That the trial judge erred in law and in fact in determining that the complainant was capable of giving an intelligent account and therefore giving evidence at the trial;

• (v) That the trial judge erred in law and in fact in refusing to halt the trial of the accused in relation to the charge of sexual assault on Y due to prosecution delay in progressing matters;

• (vi) That the trial judge erred in law and in fact in refusing to grant the application for a direction made on behalf of the accused in relation to the charge of sexual assault, given the evidence on the charge, and in particular, where it was accepted that there was no evidence of any sexual motive or indecent intent on the part of the accused; and

• (vii) That the trial judge erred in law and in fact in refusing to give a corroboration warning to the jury in relation to the charge of sexual assault.

3 . Grounds (i) and (vi) are linked, and essentially, the point made is that there was no specific evidence as to the motive of the accused in doing what he did. It is said that the actions are as consistent with chastisement as with an assault motivated by indecency. In response, the Director says that the actions in question, which involved taking down pants and underpants and then striking the complainant, had been seen and should be seen by right-thinking people as indecent assault

4 . So far as the issue about permitting the complainant to view the DVD is concerned, the argument advanced is that the delay between the recording of the interview and the playing of the interview was very considerable and the concern had to be that, as a result, the complainant would give evidence, not by reference to what he remembered of the incident, but by what he recalled watching on the video. It is argued that this rendered an effective cross-examination impossible. On behalf of the Director, it is said that in the ordinary way, any witness is entitled to refresh their memory before trial and to read the statement that they had made. Permitting the complainant in this case to view the video was simply to afford him equality of treatment with every other witness. In the course of the appeal hearing, this ground of appeal was, in effect, subsumed into the delay grounds.

5 . In relation to the delay argument, which is at the heart of a number of the grounds of appeal, the Director says that the delay was not such as to require the halting of the trial. the Director was prepared to acknowledge that depending on how any cross-examination at trial progressed, it was not impossible that it might become an issue at that stage. However, in fact, there was no cross-examination, and so the question of halting the trial did not arise.

6 . So far as the corroboration warning is concerned, the Director says that there was nothing in the case to oust the general discretion of the trial judge and to give rise to a situation where there was only one way in which a discretion could be properly exercised, that being by giving a corroboration warning. In fact, there was nothing in the case to raise doubts about the complainant as a witness. However, in the heel of the hunt, the ground of appeal relating to the absence of a corroboration warning was not pursued.

7 . In essence, therefore, on the hearing of this appeal, there were only two grounds pursued: whether and in what circumstances motive can become relevant, in particular whether motive is relevant where there is any ambivalence as to the nature of the activity engaged in; and the second ground relating to the delay in the prosecution of the case. It is not said that the delay was exceptionally lengthy if viewed in isolation, but it is said that the delay is very significant indeed when the complainants are very young, and in this case, it is said that there was a further element in that not only were the two complainants very young, but the complaints were being made against a minor.

Background

8 . To put the grounds of appeal in context, it should be explained that the appellant is now 16 years of age. He was 14 years of age at the time of his alleged offences and his arrest in respect of them. The complainant, Y, was six years of age at the time of the alleged offence and was a child of eight years at the time of the trial. The appellant and complainant are neighbours.

9 . The mother of the complainant (‘Mrs....