About this case:

• Citation:
  [2022] IESC 22
• Judgment:
  External link
• Court:
  Supreme Court
• Judge:
  Mr Justice Peter Charleton

Delivering the majority judgment in the case, Mr Justice Peter Charleton held that the offence of sexual assault did not require the prosecution to prove that the motive for the assault was sexual in nature. Rather, if an assault involved indecent circumstances, this was sufficient to sustain a conviction for sexual assault.

Background

In April 2019, the accused (FN) was playing with two younger children, who were his neighbours. These children were four and six years old respectively. At a certain point, the accused ran in the direction of a lake which was out of the view of the victim’s father, who was keeping an eye on the children.

The following events were somewhat unclear due to the young age of the individuals. However, the victim gave evidence that he followed the accused. When he caught up with him, the accused directed the victim to go in one direction, then in another. The victim became confused and, at this point, FN pushed him to the ground on his stomach. FN then pulled down the victim’s trousers and underwear and smacked his bare bottom approximately nine times. FN then pulled the victim’s trousers back up and called him an idiot.

The accused and the victim then walked back to their homes. The victim’s parents learned of the assault and reported the incident to the Gardaí. There was also an allegation that FN had digitally raped the four-year-old.

FN was charged with rape and sexual assault and was returned for trial in the Central Criminal Court. The prosecution entered a nolle prosequi in respect of the rape charge, but FN was convicted of the sexual assault of the six-year-old. During the trial, the trial judge rejected an application for a direction on the basis that there was insufficient evidence to ground the sexual assault charge.

The jury convicted FN of sexual assault. At a sentencing hearing, the trial judge observed that there was no evidence that the assault was motivated by sexual purposes. The assault was placed at the low end of the scale and applied the Probation of Offenders Act 1907 with extra conditions relating to supervision and contact with the victim.

FN appealed the decision to the Court of Appeal, arguing that he should not be convicted of sexual assault where the offence was not motivated by any sexual desire. The Court of Appeal rejected this submission, holding that the correct legal test was “whether or not the circumstances of the assault, when objectively viewed, were indecent”. While motive was not irrelevant, this was a matter to be inferred from the state of the evidence. As such, FN appealed to the Supreme Court.

Supreme Court

The Supreme Court upheld the conviction in a 3-2 majority verdict. Writing the principal judgment of the court, Mr Justice Charleton determined that the intention to commit a crime was distinct from the motivation to commit a crime. It was noted that the offence of assault “requires only an intent to do the action that comprises the assault; the touching, the punch, the tripping up”.

It was held that intent was a “simple concept” and stated: “Intent means: was it the purpose of the accused to bring about the event on which the charge is founded?” In this context, the court noted that the analysis of cases could be complicated by the introduction of motive in evidence. The court endorsed the comment in R v Lewis [1979] 2 SCR 821 that motive was legally irrelevant to criminal responsibility and was not an essential element of a prosecution’s case.

Next, the court considered the offence of sexual assault and described it as “touching the victim without consent in an indecent manner or in indecent circumstances”. No element of hostility or aggression was required. Further, it was not necessary to prove the sexual desire of the assailant. Instead, the elements of the offence were 1) the intentional assault or touching of the victim; 2) that the assault was indecent by objective standards and; 3) that the accused’s purpose was to indecently assault the victim.

It was held that if sexual motive was necessary for the offence of sexual assault, then this would blur the lines of the offence. The court rhetorically questioned how a jury could “look into the mind of an accused to ascertain an intent of self-arousal or private sexual titillation?” In any event, it would simply be wrong to introduce a new element to sexual assault without legislative intervention, the court said.

The court used several examples to support its decision, including one where a boy may be tied to a tree by other boys as a form of bullying. If the boy was stripped naked, the motivation would be humiliation and would be indecent, even if there was no sexual desire on the part of the bullies.

It was further held that any assessment of indecency had to be, objectively, “an affront to ordinary modesty”. As such, the touching of the hem of a dress was assault, but not indecent (see R v Thomas (1985) Cr App R 331). In this regard, the court noted that it was open to a trial judge to refer a jury to the lesser included offence of assault where indecency was in doubt.

Conclusion

Based on the court’s assessment of the law, it was held that the conviction for sexual assault was justified based on the indecency of FN’s actions and that there was no need for sexual motive to be proven for the conviction to be valid. The appeal was dismissed.

The court also noted that it would be useful for the Oireachtas to codify the entire range of sexual offences into one Act as had occurred for dishonesty offences under the Criminal Justice (Fraud and Theft) Offences Act 2001.

The People at the Suit of the Director of Public Prosecutions v. FN (a minor) [2022] IESC 22