THE COURT OF APPEAL
207/2018
The President Whelan J. Kennedy J. BETWEEN/
THE DIRECTOR OF PUBLIC PROSECUTIONS
RESPONDENT
- AND -
TEYMUR BABAYEV.
APPELLANT
JUDGMENT of the Court ( ex tempore ) delivered on the 5th day of July 2019 by Ms. Justice Kennedy
1. The appellant faced two counts before Dublin Circuit Criminal Court, a count of burglary contrary to s.12 of the Criminal Justice (Theft and Fraud Offences) Act, 2001 to which he pleaded guilty on a count of sexual assault contrary to s.2 of the Criminal Law (Rape)(Amendment) Act 1990 in respect of which he was convicted by a jury. A sentence of three and a half years' imprisonment was imposed in respect of the burglary count and a sentence of eighteen months' imprisonment in respect of the sexual assault count, such sentences were imposed concurrently. This appeal concerns the conviction for sexual assault.
Background
2. The offence in question took place in the early hours of the 15th June, 2014. The complainant who lived alone was sleeping naked in her bed and awoke just before 3am to feel a hand on her leg. The complainant wrapped the duvet around herself and tried to get out of bed and sought to remove the individual from her apartment. The complainant tried to push the appellant from the apartment and it appears that this took place in the hallway. Ultimately, she was standing in the doorway to the bathroom and the appellant proceeded to walk down the hall towards her, causing her to back into the basin in the bathroom. At this point, she was still covered by the duvet, but the duvet slipped and the appellant started to grab at her along her legs and she said she thought he was going to rape her there and then. This is the instance of sexual assault. The appellant then ran out the front door and the following day the complainant contacted the Gardaí.
3. The complainant discovered that two mobile phones were missing from her apartment. The Gardaí attended at the scene and fingerprint marks were found in the apartment, one of which matched those of the appellant. A warrant was obtained in respect of the appellant's home address and this was executed on the 16th June, 2014. During this search, two mobile phones belonging to the complainant were recovered from the appellant's car. The appellant was then arrested and taken to Rathmines Garda Station. He made no admissions during the course of his detention and denied being present at the scene.
4. The appellant pleaded guilty to the burglary at an early stage, he sought to vacate that plea but it was refused. The appellant pleaded not guilty to the count of sexual assault and the trial in respect of this offence commenced on the 6th June, 2018.
Grounds of Appeal
5. The appellant sets forth 3 grounds in his notice of appeal but only one ground was pursued which concerned ground 2 which is as follows:-
"The trial judge erred in his charge to the jury"
Submissions 6. In his submissions to this Court, Mr Dwyer SC on behalf of the appellant contends that in respect of the offence of sexual assault, the prosecution must prove that the accused intentionally assaulted the injured party but must also prove that in so assaulting, the assailant intended to commit an indecent assault. He refers to the trial judge's remarks during an application for a direction at the end of the prosecution's case whereby the judge says as follows:- "If you, without the consent of that person, touch or grapple with a naked person, it could be-- or a partially naked person-- it could be construed as a sexual assault."
7. Whilst Mr Dwyer readily and properly concedes that this point was not raised at trial and therefore cannot be raised before this Court, he seeks to underline the necessary proofs for the offence of sexual assault. In this regard he argues that it is not appropriate to consider whether the prosecution had proven the actus reus and the mens rea and then proceed to look at the circumstances of indecency. He argues that it is necessary that the prosecution prove that not only did the individual intentionally assault the injured party but that in so doing he intended to commit an indecent assault.
8. The point raised on behalf of the appellant is a net one and can be stated in simple terms. It is submitted on behalf of the appellant that in charging the jury, the trial judge brought into the equation the state of mind of the complainant at the relevant time. Mr Dwyer argues that the complainant's state of mind is not relevant to a jury's consideration as to whether the charge of sexual assault is made out but that it is the appellant's state of mind that is central to their deliberations.
The Trial Judge's Charge
9. In order to place the trial judge's charge in context, it is necessary to look to the evidence given by the complainant. In her direct testimony the complainant said as follows:-
In cross examination the complainant said as follows:- "A. He just tried to grab me, and at one stage the looks in his eyes told me that he wanted to rape me"
10. Thereafter, in his charge to the jury, the trial judge instructed the jury in the following terms:- "Now, the crime in this case is sexual assault, basically. "Assault" means touching or, I suppose, the application of unlawful force - or force to another person without that person's consent. Now, sexual assault means assault in the circumstances of indecency. What is indecent is for you to decide. The act itself could prove indecency. Sometimes, the act together with the circumstances of the act, you can look at that as well.
Now, let's look at the State's case, what they say in this case, that in the bathroom, you've heard what happened, the duvet slipped. The person in the apartment grappled with that person and touched her leg. She thought she was going to be raped, and the incident stopped then, for a particular reason, and he ran away. That's what the State say. It's as simple as that. Now, you have to decide whether that was an assault. If it was an assault, then you have to decide whether it was in the circumstances of indecency. You can take into account, to some degree the belief of the injured party --or the complainant, I should say-- but you must decide yourself, first of all, did this occur, and secondly, if it did occur, does it amount to a sexual assault, as simple as that. Now, that is for you. You must be satisfied beyond reasonable doubt of both of those. Did the events occur as described and, secondly, even if they did occur, you must be satisfied beyond reasonable doubt that it was indeed a sexual assault, that this was - this occurred in the circumstances of indecency. Obviously, the state that this lady was naked, if not - or, partially naked. It seems she backed herself into the bathroom of the toilet area. It seems her belief was that she was going to be further assaulted, but that is only her belief; you have to look at it, and you have to decide, is this a sexual assault or not."
11. Following the charge, counsel for the appellant raised a requisition on the basis that the Court erroneously indicated that the belief of the injured party might be something of relevance to the jury. The trial judge rejected this, stating that he thought the jury understood the matter before them.
12. In response on behalf of the Director of the Public Prosecutions, Ms McGowan BL concedes that the complainant's state of mind is not relevant to the jury's determination as to whether the elements of sexual assault have been proven beyond reasonable doubt. She argues that it is however necessary, to look to the totality of the evidence and the totality of the judge's charge to determine whether or not there was an error in principle.
Discussion
13. A sexual assault is an assault accompanied by circumstances of indecency. It is the mens rea of the offence which is in issue in the present case. Mr Dwyer argues that the judge failed to direct the jury in any terms as to the requisite mens rea but directed the jury in clear terms that they were entitled to consider the state of mind of the complainant. Whilst accepting that the failure to direct the jury as to the requisite mens rea was not a matter which he could argue before this Court, he contends that the trial judge erred in principle in instructing the jury that they could take into account to any degree the belief of the injured party.
14. It is the position, that what amounts to circumstances of indecency depends upon the prevailing social standards. Sexual assault is a type of assault whereby an individual intentionally or recklessly assaults another which includes the unlawful touching of another without consent and indeed it is not necessary that any physical touching actually take place.
15. A sexual assault is an assault accompanied by circumstances which are objectively indecent, and the requisite elements of the offence are; firstly, that the individual intentionally assault the complainant. Secondly, that the assault itself or the assault and the accompanying circumstances are objectively indecent and thirdly, that the accused intended to commit an indecent assault.
Conclusion
16. It follows therefore, that the state of mind of the complainant, a complainant's belief or opinion as to the circumstances is not relevant to a jury in order to determine whether the offence has been proven beyond reasonable doubt. Accordingly, whilst the trial judge correctly advised the jury that they should take into account all the evidence and the surrounding circumstances, he erred in his charge to the jury in advising the jury that they could take into account, albeit "only to some degree" the belief of the complainant.
17. We observe that the circumstances of the incident certainly were capable of being regarded as indecent by a properly directed jury. However, the judge clearly informed the jury that they must decide whether the events complained of occurred, and also if such events took place, whether the events amounted to a sexual assault.
18. In instructing the jury that they could take into account the belief of the complainant, this, in our view, amounts to an error in principle and accordingly, we will quash the conviction for sexual assault and allow the appeal.
