The People (at the suit of the DPP) v FN (A Minor)

• Jurisdiction: Ireland
• Judge: Mr Justice Peter Charleton,Mr. Justice Gerard Hogan,Mr. Justice Woulfe
• Judgment Date: 23 May 2022
• Neutral Citation: [2022] IESC 22
• Court: Supreme Court
• Docket Number: Supreme Court appeal number: S:AP:IE:2021:000111 Central Criminal Court record number CC0072/2020

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

and

FN (a minor)

Accused/Appellant

[2022] IESC 22

[2021] IECA 238

Charleton J

O'Malley J

Woulfe J

Hogan J

Murray J

Supreme Court appeal number: S:AP:IE:2021:000111

Court of Appeal record number: 2021/30

Central Criminal Court record number CC0072/2020

An Chúirt Uachtarach

The Supreme Court

Trial verdict – Sexual assault – Intention – Appellant appealing from the upholding of the trial verdict by the Court of Appeal – Where there is ambiguity in the circumstances of an alleged sexual assault, must the prosecution prove an intention not just to commit an assault, but also an intention to commit an indecent one?

Facts: The jury’s verdict was that the accused/appellant, aged 14 years at the time of the offence, was guilty of sexual assault on the 6-year-old victim on 13 April 2019 (count 2). The jury disagreed on a charge of s. 4 rape of his younger brother on the same occasion (count 1). Since the trial in the Central Criminal Court in December 2020, concern for the witnesses had led to the prosecution discontinuing count 1. At issue was whether the facts sufficed to support a verdict of guilty on the sexual assault charge since on behalf of the accused it was argued that not only must there be an assault in circumstances of indecency but that, in certain cases of which this was contended to be one, a sexual motive in the assault must also be proven. The issue of law of general public importance enabling an appeal from the upholding of the trial verdict by the Court of Appeal, [2021] IESCDET 138, was stated in the Supreme Court’s determination to be “where there is ambiguity in the circumstances of an alleged sexual assault, must the prosecution prove an intention not just to commit an assault, but also an intention to commit an indecent one?”

Held by the Court that juries might usefully be instructed that a sexual assault comprises touching the victim without consent in an indecent manner or in indecent circumstances. The Court held that touching someone without their consent is an assault where that touching occurs outside socially acceptable norms, such as gently attracting attention. The Court held that some people, such as the young and those with disabilities may not be capable of giving consent. The Court held that sexual assault is committed where it is the purpose of the accused to touch the victim without consent and the purpose of that touching includes the indecent nature of the touching or includes bringing about through that assault of the indecent circumstances. The Court held that no element of hostility or aggression is required and nor need the prosecution prove any sexual desire motivating the assailant. The Court held that what the prosecution must prove is that the accused purposely assaulted the victim in an indecent manner or in indecent circumstances. The Court held that only if there is a contest as to whether the accused intended the indecent nature or circumstances of the assault might it be useful to refer the jury to an alternative verdict of simple assault as a lesser included offence. The Court held that a trial judge should not leave a case to the jury to try an indecent assault charge unless the circumstances in which the assault is committed are, on the prosecution case, objectively indecent. The Court held that as to whether, in such rare circumstances, a judge would rule out indecent assault and leave only a charge of assault to a jury is a matter for assessment in the light of all of the evidence. The Court held that persons in adolescence may all too easily cross boundaries in matters of this kind. The Court held that this was a case where the accused, a young teenage boy, stripped a 6-year-old boy by pulling his lower clothing down to his knees and hitting him on his bare buttocks when he was on the ground. The Court held that such facts enabled the jury to return a verdict of guilty of sexual assault. The Court held that this conviction was humanely dealt with by supervision orders by the trial judge in a manner which reflected the youth of the accused and the other surrounding circumstances that had been most unfortunate for both families involved.

The Court held that the order of the Court of Appeal would be affirmed.

Appeal dismissed.

Judgment of Mr Justice Peter Charleton delivered on Monday 23 May 2022

1 The jury's verdict was that the accused, aged 14 years at the time of the offence, was guilty of sexual assault on the 6-year-old victim on 13 April 2019 (count 2); but the jury disagreed on a charge of s 4 rape of his younger brother on the same occasion (count 1). Since the trial in the Central Criminal Court in December 2020, concern for the witnesses has led to the prosecution discontinuing count 1. A jury verdict in its essence simply states that, exercising shrewdness and commonsense, either the charge has been found proven beyond reasonable doubt (guilty) or that there is some want in the prosecution proofs that would cause reasonable people to doubt the proof offered (not guilty). Hence, where there is evidence upon which a jury could act reasonably in convicting the accused, barring legal error in the trial, a verdict should be secure. If that evidence is missing, then a jury should not be asked to speculate. The issue here is whether the facts sufficed to support a verdict of guilty on the sexual assault charge since on behalf of the accused it is argued that not only must there be an assault in circumstances of indecency but that, in certain cases of which this is contended to be one, a sexual motive in the assault must also be proven.

Basic facts

2 On this appeal, as is legitimate, both sides have sought to interpret the evidence at trial in pursuit of their argument in the case. Hence, it is appropriate to take the victim's evidence and to set out the essentials as to what his video-recorded testimony was. That recording was played as the victim's evidence in chief. There was no cross-examination and the accused did not give evidence as to any alternative narrative. Those facts are simple. In the context of playacting in a field near his family home, which may have involved, either on that day or the previous day, play fighting of a very mild kind with sticks, and out of sight of the victim's father, the accused pulled down the victim's pants and underpants. While the victim was pushed down and was prone on the ground, the accused hit the victim on his bare buttocks “a few times”, clarified after counting by the victim on his fingers as “nine times” and that this was like “a big smack” so that “it was sore.”

3 The issue of law of general public importance enabling an appeal from the upholding of the trial verdict by the Court of Appeal, [2021] IESCDET 138, is stated in the Court's determination to be “where there is ambiguity in the circumstances of an alleged sexual assault, must the prosecution prove an intention not just to commit an assault, but also an intention to commit an indecent one?” On the helpful written and oral submissions, concepts such as purpose, intention, motive and ambiguity of circumstance have surfaced with a degree of flexibility such as to prompt as helpful a restatement of some fundamental concepts in criminal law as a foundation for any analysis as to what the prosecution must prove on this regrettably all too frequently and necessarily brought charge of sexual assault.

Intention to commit a crime

4 In every prosecution for a crime, the prosecution must prove that the accused brought about the external elements of the crime. What those external elements are will depend on the definitions inherent in the prohibition, the breach of which makes bringing these about an offence. As an offence, assault requires that the prosecution prove that the accused touched the victim. This action may range widely from the accused nudging or hitting or slashing with a knife or attacking with a blunt weapon; the circumstances being outside the trivial interactions of accidental jostling in a crowd or of attracting someone's attention with a polite touch to their back or shoulder or arm. To be guilty of a non-regulatory offence, the accused must have intended to so act, or must have acted recklessly or with knowledge or gross negligence; depending on how the offence is defined as to the mental element. Here, the mental element is intention. As to that the question may sometimes be asked: how is the jury to look into the accused's mind? The answer is that people may be inferred to have intended what they have done where the circumstances so suggest; in other words, to have as their purpose what naturally flows from what they have done. A person who on all the available evidence goes up to someone and hits them may be inferred to have intended this action. But this is not in any way an inflexible legal rule: it is simply a commonsense way whereby intention may be inferred: there is no rule requiring any jury to make that inference since interpreting the facts are for them. The facts within the province of a jury include both the external elements of the offence (what happened and did that fit the definition of the offence) and the mental element (with what state of mind did the accused bring about the external facts).

5 Most of the case law on intention derives from murder prosecutions. Here is not the place to go through a comparative and historical analysis as to the turns which the law has taken in other jurisdictions, often puzzlingly; see Charleton & McDermott's Criminal Law and Evidence (2nd edition, Dublin, 2020) 1.59–1.67. The reason why murder prosecutions have led appellate courts to treat this concept in detail is that an unlawful killing, in other words one not in the heat of battle during a war or in proportionate self-defence responding to a deadly attack, is not...