An appeal by a teenager convicted of sexually assaulting a neighbouring child by slapping his bare buttocks is to be heard by the Supreme Court.
The boy, who was aged 14 at the time of the April 2019 offence and cannot be named, was found guilty by a jury in December 2020 of one count of sexually assaulting the then six-year-old.
In a determination, a three-judge Supreme Court granted leave to the boy to bring an appeal before it over his conviction which was upheld by the Court of Appeal.
The appeal will seek clarity on an issue of law the court deems to be of general public importance regarding situations where there is ambiguity in the circumstances of an alleged sexual assault.
The court will examine whether in such instances the prosecution must prove an intention not just to commit an assault, but also an intention to commit an indecent one.
Chief Justice Donal O’Donnell, Mr Justice Séamus Woulfe and Mr Justice Gerard Hogan noted in their determination that it is said that the appellant had the maturity of a 10-year-old and it was not suggested or alleged that the appellant’s motive was sexual. They said there was evidence the boys had been playing together and had engaged in play fighting.
Circumstances
During the trial, the Circuit Criminal Court heard that the two boys were in a local field adjacent to both their homes when the older boy pulled down the trousers and pants of the younger child and smacked his bare bottom a number of times.
The Supreme Court judges noted that the defence team had applied pre-trial to have the charge dismissed on grounds that the evidence, if established, could not constitute a sexual assault offence. The prosecutor maintained that the test of whether the assault was indecent was an objective test.
The trial judge refused the defence’s application, as well as another similar application at the close of the prosecution case, said the judges.
In dismissing the appeal, the Court of Appeal had considered the appropriate legal test was whether or not the circumstances of the assault, when objectively viewed, were indecent, said the Supreme Court judges.
The question to be addressed by the Supreme Court may be adjusted and refined at the case management stage, the judges said.
Sentencing
Sentencing the boy in January 2020, Mr Justice Paul Coffey said the sexual assault had had a significant impact on the victim and his family. He said the child was left “traumatised, vulnerable and intimidated” after the incident.
The judge placed the offending at the lower end of the scale and said he would deal with it by way of a community sanction. He ordered that the boy be placed under the supervision of the Probation Service until November 2023, when he turns 19.
He outlined a number of conditions, including that the boy have no contact with the victim or the victim’s family, have no unsupervised contact with children and continue with his full-time education.
