The People (At the Suit of the DPP) v J.W.
| Jurisdiction | Ireland |
| Judge | Mr Justice Edwards |
| Judgment Date | 14 October 2021 |
| Neutral Citation | [2021] IECA 263 |
| Docket Number | Record No: 276/2019 |
| Year | 2021 |
| Court | Court of Appeal (Ireland) |
[2021] IECA 263
Birmingham P.
Woulfe J
Edwards J.
Record No: 276/2019
THE COURT OF APPEAL
JUDGMENT of the Court delivered on the 14 th day of October, 2021 by Mr Justice Edwards
This is an appeal against the appellant's conviction by a jury on the 29th of November 2019 of forty counts of indecent assault/sexual assault following a three-day trial. The appellant was subsequently sentenced to concurrent sentences of imprisonment for three years and six months (i.e., 42 months) on each count.
The complainant in this case was born in 1982 and was adopted by the appellant and his wife. She was the youngest of the couple's five children, and their only daughter. The family initially resided at an address in a Dublin suburb (address no 1) before moving in June 1997 to another address in the same postal area (address no 2).
The appellant had worked as a taxi driver, but at the time of his trial he was 84 years of age and retired.
The offences complained of related to a period of approximately ten years starting on 1st June 1990 until 30th April 2000, when the complainant aged between 8 and 18 years, and the appellant was aged between 55 and 65 years.
The complainant was a pupil in a primary school in the locality in which she lived during the earlier years of the period during which she alleged the appellant committed the offences of which he was convicted, and then moved to a secondary school within the same postal area of Dublin where she remained for the rest of that period.
The matters complained of were revealed in April 2000 when the complainant made relevant disclosures to a friend, who was also the girlfriend of one of her older brothers, on the night of the complainant's mother's funeral. She subsequently made a formal complaint to An Garda Síochána.
The Appellant was arrested on the 3rd August 2018 on suspicion of sexual assault and was detained at a Garda Station for the proper investigation of the offences for which he was arrested. During his detention he was interviewed and in the course of being interviewed he was confronted with the complainant's allegations and denied them.
The accused maintained that position of denial all throughout the course of the trial until conviction.
The complainant confirmed her date of birth and the identity of her birth mother, and further confirmed that she had been adopted by the appellant and his wife (she referred to them as “Mam and Dad”). She confirmed that she had lived initially at address No. 1 with her Mam, Dad, and brothers G, C, K and N, and that after some time they had moved to address No. 2. She identified the primary school she had attended from age 5 or 6, and the secondary school she had later attended after finishing primary school. She said that she had been in secondary school from 1995 to 2000. She testified that while growing up she had loved to participate in figure skating, swimming, gymnastics, and indeed any school sports.
She described for the jury the layout of the house at address No. 1, using a floor plan and photographs exhibited earlier by witnesses from the Garda Technical Bureau. She had her own upstairs bedroom. There were also other bedrooms upstairs, variously occupied by her Mam and Dad, and by her brothers, some of whom had their own rooms and some of whom were sharing.
She also described the layout of the house at address No. 2, again identifying for the benefit of the jury the bedrooms occupied by different family members with the assistance of a floor plan and photographs.
She described the first occasion on which she was abused as having occurred when she was 8 years old. She was in the bath. Her Dad was talking to her and he leaned over and gave her a lingering kiss. She was asked if she liked it, and said “ Yes”, although she didn't in fact like it. It had felt strange and uncomfortable.
A few weeks later, her Dad was in the bath and the complainant was in her bedroom. He called for her to bring him a towel, which she did leaving it on the toilet seat. As she was about to leave he asked her if she could get the soap at the end of the bath for him. She got the soap and went to hand it to him and he tipped it out of her hand so that it fell back into the bath. She reached in to retrieve it and in doing so “ touched off his willy”. The witness said that she jumped back straightaway and he told her not to tell her Mam, that she'd get into big trouble for that. She then left and went into her bedroom and was very upset because she didn't want to get in trouble. She was crying.
The witness testified that over the next while, her Dad started coming into her bedroom. He insisted on sitting on her bed and he would kiss her on the lips. He would rub her hair and rub her legs and tell her how much he loved her and that they had a special relationship. He instructed her not to tell her brothers because he loved her more than he loved them. She said that this continued on for a long time and happened quite a lot. She would be in the bedroom on her own whenever he came in and he'd close the door behind him.
When she was 9, her existing single bed was replaced with a double bed from her parents' room as they in turn had got a new bed. She recalled her Dad telling her that they now had more room for cuddles. She said that, “ his cuddles were where we'd lie down and he'd just rub my hair and he'd rub my legs and just kiss me on the lips.” She stated that she had accepted this as normal. Asked about the frequency of these incidents, the witness said it was definitely weekly.
The witness described an incident which occurred in school when she was about 11 or 12. She had a teacher called Mrs. C who was doing sex education and the “Stay Safe Programme” with her class. She recalled that, “ they were talking about feeling uncomfortable, not letting people touching and making you feel uncomfortable.” She remembered listening really carefully to this because part of her knew that what her Dad was doing was wrong. It just felt wrong. At one point the teacher had said, “ Really, it could be anybody, it could be your uncle, it could be your brother, it could be your dad.” At that moment in time she had felt physically sick and threw up on her books. The teacher had called for her Mam to collect her from school and she was sent home. When her Dad came home he came up to her bedroom with 7-Up. She told him what the teacher had said, i.e. that Dad's weren't supposed to kiss and touch the way he did. He suggested to her that she had misheard the teacher, that that's what fathers and daughters do. She described being more confused than ever. Her father had got really upset and said to her that he couldn't believe that she would think that of him, and he left the room.
The witness said that for a few weeks after that he didn't come into her bedroom or come near her. However, some weeks later he returned to her bedroom and started kissing her again with lingering kisses. It was a bit different this time. He was a bit more aggressive and she was more fearful. He had put a lock on her bedroom door and he had told her to start locking the door so that her brothers wouldn't walk in on her when she would be dressing. However, he would lock the door whenever he came to her room to abuse her. These incidents usually lasted 15 or 20 minutes.
The witness described a car journey in which her Mam and her brother N were in the front seats and she and her Dad were in the rear seats. They were going on a long journey. Her Dad had got a blanket and had put it over the two of them. He started rubbing her leg under the blanket. She had wanted to shout out but felt she couldn't because her Mam was in the car. This incident had occurred after her Confirmation.
She described another occasion when her brother C, and his girlfriend NC, who were living in England, were home for a visit. They were out in the car and having a lovely day. They had been laughing because while she and her brother were singing along with a song on the radio called “Aon Focal Eile”, NC, who was from England, had thought they were cursing. When they got home the complainant went up to her bedroom. Her Dad followed her up, came into the bedroom and locked the door after him. He laid down beside her and was rubbing her hair and kissing her. She had tried to distract him by saying there was somebody coming up the stairs but he persisted. At one point, however, they did hear somebody coming up the stairs and her Dad had jumped up. He shushed her and told her to fix herself and he went to the door, opened it up and found the witnesses brother C outside. The witness said she was crying at this point and that C had asked her why she was crying. Her Dad then had interjected to say that she was just upset because he (i.e., C) was going back to England and she would miss him.
After this incident her Dad started to make threats to her. He told her that he would drive her into the Liffey if she told anyone, that she wasn't to tell her Mam or indeed anybody. She said she was fearful and described him as being “ such a bully”. It had often been at the tip of her tongue to say to her mother but she never did because she feared what her Dad would do to her if she told the truth.
The witness said that when she had moved on to secondary school she dreaded Wednesdays. Her mother, who worked in a department store, worked Wednesdays and her father would collect her from school. There was half day on Wednesdays. She recalled the first day he picked her up on a Wednesday. When they got back to the house he took her by the hand and brought her down to his bedroom where he had laid her down...
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