Supreme Court decision in DPP v FN

DPP v FN 2022 IESC 22 - Date of Judgment 23rd May 2022

The Supreme Court has given judgment in the case of DPP v FN dismissing the appeal on the issue of the requirement of a sexual motive in relation to sexual assault to be proven. The majority judgment was given by Charleton J with Hogan and Woulfe JJ dissenting preferring to allow the appeal and substitute an assault conviction under.2 (1) Non Fatal Offences Against the Person Act 1997 rather than the sexual assault conviction.

In his judgement Charleton J stated:

Conclusion

31. Juries might usefully be instructed that a sexual assault comprises touching the victim without consent in an indecent manner or in indecent circumstances. Touching someone without their consent is an assault where that touching occurs outside socially acceptable norms, such as gently attracting attention. Some people, such as the young and those with disabilities may not be capable of giving consent. 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. No element of hostility or aggression is required and nor need the prosecution prove any sexual desire motivating the assailant. Rather, what the prosecution must prove is that the accused purposely assaulted the victim in an indecent manner or in indecent circumstances. 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. 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. 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.

32. Regrettably, persons in adolescence may all to easily cross boundaries in matters of this kind. 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. Such facts enabled the jury to return a verdict of guilty of sexual assault. 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, detailed in the dissenting judgments of Hogan J and Woulfe, that have been most unfortunate for both families involved.

33. The order of the Court of Appeal will be affirmed.