The arrest of a homeless man who was caught on security cameras attempting to rape another homeless man in the street was not lawful, his lawyers argued at the Court of Appeal on Tuesday.
William Dollard (32) had pleaded not guilty to the sexual assault and attempted anal rape of a 61-year-old male at a location in Co Cork on May 30th, 2017.
A jury at the Central Criminal Court found him guilty, however, and he was sentenced to four years’ imprisonment by Mr Justice Paul McDermott in June 2020.
Dollard later appealed the conviction on the grounds that Mr Justice McDermott erred by holding that his arrest under Section 24 of the Criminal Justice (Public Order) Act 1994 was “exercised lawfully by gardaí”.
The appellant also claimed that the judge erred by holding that gardaí had lawfully seized his clothing after his arrest and “consequently the evidence obtained was admissible”.
At the Court of Appeal on Tuesday, Seamus Clarke SC, for Dollard, said his client was detained after a garda had viewed footage, recorded by CCTV equipment installed at a nearby premise, of Dollard sexually assaulting the man.
At that stage, counsel said the heavily intoxicated victim was not willing to make a complaint. His client was then arrested under Section 24 of Criminal Justice (Public Order) Act 1994.
Counsel told the court that arrests of this type were usually made when someone was perceived to be either a danger to the public or themselves.
Mr Clarke claimed that in this case the legislation had been used as a “colourful device” to arrest his client to make sure he would be available if gardaí needed to act on any complaint of sexual assault.
‘Seizure of clothes’
“What flows from that arrest is a seizure of clothes,” Mr Clarke said. Siobhán Lankford SC, for the Director of Public Prosecutions, told the court that the CCTV footage “was part of the garda’s consideration when she went out and arrested the accused”.
“It informed her decision,” Ms Lankford explained.
Ms Lankford said the recording showed Dollard lying behind his victim and making “thrusting motions” against the man’s “bare bottom”.
“She [the garda] was entitled to make the arrest under Section 24. There was nothing wrong with the arrest and no complaint can be made in relation to it,” counsel said, adding that forensic evidence “in this case was not of as much importance as the CCTV [evidence]”.
“The complainant was unclear about matters. The crucial evidence was the CCTV footage,” she said. Judgment has been reserved.
At the sentencing hearing, Mr Justice McDermott had noted that the victim had been a defenceless and vulnerable man who was drunk and was trying to sleep on the street.
He said the offences had been carried out in a public place in a “humiliating and degrading way”.
The judge noted Dollard was also a homeless man with alcohol abuse issues and that a psychologist’s report handed into court outlined he had “deep seated and troubling problems”.
He said Dollard was socially isolated from others including family members and had very little support.
He took into account that the attempted anal rape had not been completed but said both offences were serious.
He said the offences appeared spontaneous and were not part of Dollard’s usual behaviour.
Mr Justice McDermott set a headline sentence of six years for the attempted anal rape and, taking into account the mitigation, imposed a sentence of five years and six months with the final 18 months suspended for two years.
In his victim impact statement, the victim said he suffered from flashbacks and found it upsetting walking past the area where it had happened.
He said the trial had been difficult, but he now wants to move on with his life.