The Court of Appeal has dismissed S.M.’s appeal against his convictions for six counts of indecent assault but allowed his sentence appeal in part, changing how the sentences for offences against his first sister run.
S.M. was convicted of five counts involving his first sister and one involving his second sister. The offences occurred in the 1980s, when the sisters were children. The court’s judgment says S.M. was 14 or 15 during the offences against the first sister and 18 or 19 during the offence against the second.
His conviction appeal challenged the admission at trial of questions to which he had answered “no comment” or given no substantive response during Garda interviews. The Court of Appeal said the defence questioning had given the jury the impression that S.M. had not exercised his right to silence, although he had declined to answer 13 questions. It held that the prosecution could correct that impression in the circumstances of this case.
The court said the decision did not mean that the prosecution could introduce all unanswered questions whenever the right to silence was raised. It required an individual assessment of what was proportionate; in many cases, evidence that the accused did not answer every question would be sufficient. Here, the court considered the specific defence questioning, the small number of unanswered questions in the context of lengthy interviews, and the trial judge’s warning that the jury must draw no adverse inference from S.M.’s silence. It dismissed the conviction appeal.
S.M. had originally received a total sentence of five and a half years, with the final two years suspended, leaving three and a half years to serve. The sentencing judge imposed concurrent one-year terms for counts 1 to 3, concurrent two-year terms for counts 4 and 5 to run consecutively to those one-year terms, and a two-and-a-half-year term for count 6 to run consecutively to the terms for counts 4 and 5.
The Court of Appeal found no error in making the sentence for the second sister consecutive, citing the gap between the offending and S.M.’s age at the time. But it held that making the one-year terms for counts 1 to 3 consecutive to the two-year terms for counts 4 and 5 was an error in principle, given his age during the first period of offending.
The court resentenced him: the one-year terms for counts 1 to 3 now run concurrently with the two-year terms for counts 4 and 5. The sentence for count 6 remains consecutive to the terms for counts 4 and 5. The judgment does not state a revised aggregate term.