Director of Public Prosecutions v M.X. [2020] IECA 46 (02 March 2020)
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Birmingham P.
McCarthy J.
Donnelly J.
THE COURT OF APPEAL
Record Number: 3/2019
BETWEEN/
THE PEOPLE
(AT THE SUIT OF THE DIRECTOR OF PUBLIC PROSECUTIONS)
RESPONDENT
- AND -
M.X.
APPELLANT
JUDGMENT of the Court delivered delivered on the 2nd day of March, 2020 by by Ms.
Justice Donnelly
1. The appellant was convicted by a jury at the Eastern Circuit Criminal Court on 19th July,
2018, on a sole count of the sexual assault of the eldest of his three daughters on 26th
July, 2015. This was a re-trial. An earlier trial in 2017 had ended with a disagreement by
the jury on a verdict.
2. The sentencing process took place on 31st July, 2018 and 17th December, 2018 and
resulted in the imposition of a sentence of four years’ imprisonment with the final 18
months suspended on conditions. That sentence was imposed on 17th December, 2018
but backdated to 31st July, 2018.
3. The appellant’s appeal is against conviction only. Two issues were argued on appeal:
(a) whether in her charge to the jury the trial judge had dealt with the defence of
intoxication correctly; and
(b) whether the trial judge had wrongfully admitted into evidence that the appellant
was the subject matter of a barring order as a result of a previous incident
involving a physical altercation with one of his daughters.
The First Issue on Appeal: The Defence of Intoxication
The Evidence Relating to the Sexual Assault
4. On Sunday, 26th July, 2015 the complainant and her sister, B, were visiting their father’s
home as part of the appellant’s then-weekly access to his children. The appellant was
cohabiting with his partner, C, in a house in Dublin where they occupied a room and
shared the house with others. On that date, the appellant collected the complainant and
her sister from their family home and drove them to his home.
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5. The complainant in her evidence-in-chief described events when she arrived at the
appellant’s home. Feeling tired, she went upstairs to lie down with her sister in the bed
her father shares with his partner. The complainant was with her sister watching
something on her phone. Their father got into the bed between them. At some point A
fell asleep. A stated:
“When I woke up, I didn't really move around much, and the first thing I could
remember was I felt his hand in my underwear and he was kind of rubbing it a little
bit, and he was touching my vagina, and I kind of -- I didn't -- I was kind of scared,
so I just kind of moved around to let him know I was awake. And then when I –
when he realised, I was awake he kind of just left and then I called [O] at the time,
my boyfriend at the time, and then I asked him to stay on the phone with me, just
in case, and he said, that's okay. And then I went to the bathroom just to, like,
talk to him for a bit before my dad called me to say we had to go get [B] and [C] at
the coffee shop because there was no one else at the house.”
6. A complained to her mother on the same day. This complaint was consistent with a
statement which she later made to An Garda Síochána and was consistent with her
evidence to the Court.
7. When interviewed by An Garda Síochána, the appellant, as was accepted by him at trial
and again on this appeal, gave a false account of the crucial events.
8. The appellant, as he had done at his first trial in 2017, accepted in his evidence at trial
the veracity of the account given by the complainant. The following exchange took place
during his cross-examination:
“Q. But I just want to clarify now before we move on to your interview with the guards
what do you say, once and for all Mr.[M.X], what do you say happened? Do you
accept that [A] is telling the truth or not?
A. Well, I accept that [A] -- what [A] said is true.”
9. At issue in the trial, was the appellant’s claim that when he engaged in the act of touching
A, he believed he was touching his partner. At various stages in evidence, he said he
thought he was dreaming, he thought he was dizzy and that he was still drunk. The
reference to being drunk was made because he had been out late the night before with
other musicians who were celebrating. He said he had left the company of the musicians
at around 4-5am. He arrived home. He slept but when he awoke, he contacted the
estranged mother of his children to say that he could not collect them at 10am. He said
this was because he was still drunk. He collected them later at about 12 noon in the car.
When he was at home with the children, he said he was tired. He went up to the
bedroom and got into bed between his daughters. His partner gave evidence that he was
quite drunk when they left the party and that it was a concern for them in terms of
picking up the girls.
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10. In his evidence in chief, the appellant told the jury about the party the night before, and
how he drank far more than he usually did as he was not a drinker. He described
collecting the girls in the car and wanting to go swimming with them “to ease the
alcohol”. In relation to the incident itself the examination was as follows:
“Q. And can you tell the jury what happened then when you awoke?
A. Yes. I was awakened by maybe her movement. And then I was traumatised when
I saw that it was my daughter beside me. I don't know what what happened. I
was so scared. I was so I was so upset. I don't know what to feel. I went
downstairs, looking for [his partner, C and his younger daughter, B], texted them
where are they. I don't really have a full recollection of what was happening,
because I think I was traumatised. On that day I don't know what happened. I
was the next thing that I could remember is I was holding my toothbrush.”
11. When asked to explain why he told the gardaí in interview that A was moving and he
pulled her on top of him, he said he could have been dreaming at that time. He did not
recall what happened and he said he was traumatised in the garda station. Overall in his
evidence in chief, his defence was equivocal as to whether he was asleep during the
course of the sexual incident with his daughter or was waking from sleep when he
mistook his daughter for his partner.
12. The appellant was cross examined at length by the prosecution. At various stages he said
he was not sure what had occurred as he was asleep, he was dreaming and when asked
to tell the truth of what occurred he said “I’m telling you I will never in my life do any
sexual assault to anyone, especially to my kids.” In relation to the issue of alcohol, the
appellant said as follows:
“Q. And were you still awake when [A] fell asleep?
A. I'm not too sure, your honour. Because even when we were downstairs that my
[daughter B] was showing me something. I was just looking, but my head was not
there. Even when we were in bed she was showing me something on her phone
but I was just there to you know say yes to her or something like that, but I
couldn't remember what she was showing me.
Q. What do you mean your head was not there?
A. Well I was, I was still dizzy and I still feel tired and still drunk.
Q. Still drunk?
A. Yes, your honour. Still feel dizzy at that time.
Q. You didn't have any drinks since you left the party; did you?
A. No, your honour. We ended up around 5 or something like that, 4 or 5.
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The Charge to the Jury with Respect to Proof of Sexual Assault
13. A number of features about the trial and the charge have some relevance to the issue
before us. The trial appears to have proceeded on the basis that the defence being raised
was one of “mistake as to identity”. It also appeared to proceed on the basis that the
prosecution was obliged to prove intention as to the various aspects at issue in the case.
This is apparent from the following excerpt from the judge’s charge to the jury:
“So, therefore, the prosecution must prove to you to the required standard of proof
the following elements:
(1) that the accused intentionally assaulted the complainant, being [A].
(2) That the assault, or the assault and the circumstances accompanying it, are
proved to be indecent according to the contemporary standards of right-
minded people.
(3) That the accused intended to commit such an assault as is referred to, that
he intended to touch in that indecent or in the sexual manner.”
14. At all times therefore, it was put to the jury that the appellant had to have intended to
sexually assault his daughter i.e. he had to have carried out the assault with the specific
knowledge and intention that he was indecently assaulting his daughter. This was a very
high standard. The trial judge’s charge appears to have been taken from the judgment of
the Court of Appeal in People (DPP) v. Babayev [2019] IECA 198 where that Court held:
“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.
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.”
15. The trial judge in her charge appears to have placed a literal interpretation on the first
element stated in Babayev to require that the intention is to sexually assault a particular
individual and no other person. This error was to the benefit of the appellant as the jury
were required to be, and ultimately were, satisfied to a higher standard of proof that he
had committed the offence intentionally against this complainant and against no other
person.
16. It can be observed that there is some tension between the first and second paragraph
cited above in Babayev. The second paragraph appears to indicate a change in the mens
rea for a sexual assault as compared to a non-sexual assault. In a non-sexual assault,
the mens rea includes recklessness, but the dicta in Babayev only refers to an intentional
committing of the offence as an element of the offence of sexual assault. That intentional
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element may refer to the carrying out of the physical act which amounts to an assault and
it may not have been intended to include the required state of knowledge as to whether
the complainant was consenting. The point at issue in Babayev was not the issue of
consent but the question of whether the complainant’s view of the assault was to be
taken into account in assessing whether the assault was sexual.
17. It should be recalled that in rape, recklessness as to whether the complainant is
consenting is sufficient for the offence to be committed: a man commits rape if he has
sexual intercourse with another person knowing that she does not consent or being
reckless as to whether she consents to the intercourse. With respect to the offence of
sexual assault, O’Malley in Sexual Offences 2nd Edn., (2013, Round Hall) having quoted
from R v. Kimber [1983] 1 W.L.R. 1118 in which the English Court of Appeal effectively
applied the principles regarding rape set out by the House of Lords in R v. Morgan
[1976] AC 182 to the crime of indecent assault, stated: “The onus rests on the prosecution to
prove the mental element of the offence which is that the accused did not believe that the
complainant was consenting. However, there is no reason why recklessness as to the
presence or absence of consent should not also suffice for indecent assault, as for rape.”
18. In our view, recklessness as to whether the person is consenting to the sexual act is
sufficient to prove the mental element in the crime of sexual assault.
The defence of intoxication at the trial
19. An issue in the trial was whether intoxication was relevant to the defence of “honest
mistake as to identity”. We will return to whether that truly was the defence at issue in
the course of this judgment. It is noteworthy that the defence of intoxication was only
raised at the last possible moment on behalf of the appellant. It is necessary and
appropriate to set out the circumstances in which it arose in the following paragraphs.
20. The trial judge invited counsel for the prosecution and defence to raise any issues with
her that they wanted addressed in her charge. Counsel for the prosecution raised a
number of issues. He submitted the following in respect of the issue of alcohol: “There is
a potential for an issue in relation to drinking to arise. It seems to be linked to [M.X.’s]
condition on the day where he describes being dizzy and so on and so forth. It's not a
clear-cut issue of intoxication, but insofar as it has been raised, it might be worthwhile to
mention to the jury that if they are considering that drink is a factor in it, intoxication
does not offer a defence to this alleged offence.”
21. Senior counsel for the defence was invited by the prosecution at that point to add
anything further. He only raised the issue of corroboration but submitted it was
“completely unnecessary given that the defence accepts that the act took place”
22. In the course of his closing, senior counsel for the defence referred to the party that the
appellant had attended the night before, the drinks he had and to the fact that he arrived
home in a taxi at about 5am. Counsel then stated: “[A]nd then you have to ask yourself,
well, given that somebody doesn't ordinarily drink, if they're suddenly in a situation where
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there's a lot of drink involved, what after effects would that have in terms of that person’s
state of being the following day?” (Emphasis added)
23. Shortly after that, senior counsel submitted the following to the jury with reference to the
appellant’s decision to collect the children: “So, on this occasion, dealing with that, if that
was the position, you're now talking about the spontaneity of the girls, but [M.X.] is hung
over, and another happenstance, because of what happened…..” (Emphasis added)
24. Senior counsel then went on to address the alleged sexual assault. He contrasted what is
alleged to have happened with the behaviour of a paedophile. He made reference to the
lack of evidence that his client was awake at the time of the assault. He referred the jury
to the dream world between sleep and wakefulness. He stated: “It's also important to
remember that, when it happens, that it's only a matter of seconds and he's withdrawing
his hand, and, again, it's that sort of consistent with somebody who's deliberately doing
it, or is it somebody who, coming out of sleepfulness, is doing something and then
realises that, my goodness, what have I done? This is my daughter, [A].” (Emphasis
added)
25. After the end of the closing speech for the defence, the trial judge said she had certain
concerns about matters raised in the closing by the defence. Some issues were then
raised by both her and the prosecution. At that stage, no issue was raised about the
defence of intoxication.
26. The trial judge in the course of her charge to the jury stated as follows:
“In relation to the case, the defence is that [M.X.] admits touching, but not
intentionally touching his child that way as he made a mistake as to the identity of
whom he was touching. So, in relation to the defence that's raised, I would also
ask you to bear in mind there's been mention of intoxication. That intoxication is
not a defence, all right? There's no suggestion that he was intoxicated going to
collect the children, he slept in that morning. Intoxication, ladies and gentlemen,
does not arise as a defence for you to consider in the case.
So, what you must consider then firstly is that if you find beyond a reasonable
doubt that he did so intentionally touch her, you must convict. Or if you find that
you have a reasonable doubt as to whether he so intentionally touched her, you
must acquit. If you find that he had a mistaken belief as to her identity when he
was touching her, you must acquit.”
27. At the end of the charge, counsel for the prosecution made the following requisition:
“There's -- it's really -- it's not something that the Court didn't touch on, you did
actually touch on it, but I'm just going to mention it. It deals with the issue of
mistake and it deals with the issue of intoxication. And the only reason that I'm
just going to invite the Court, perhaps, and it is a matter for the Court because, I
say, you have raised the issue and you've informed the jury about the question of
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mistake and intoxication, and, in fact, you said intoxication does not arise, but
and I think, in fact, you said intoxication does not arise as a defence, which is
obviously correct. In page 6 of the memo of the interview… [...] Just above the
middle of the page, Judge, there was the question asked: ‘So you went to bed with
your daughters, how is it possible that you thought you were asleep with your
girlfriend just a short time later?’ So this really does -- this is the question which I
think the Court has put to the jury as the issue here is mistake. And the answer is:
‘I fell asleep, and maybe it's because I was so tired and still drunk.’ So, I was
going to invite the Court to say, well, if the jury arrive at a conclusion that a
mistake was made because of drunkenness, well then that does not offer [M.X.] a
defence to this charge against him. This is not a crime of specific intent. And I
think the law is clear on the fact that voluntary intoxication does not offer a defence
in these circumstances. So that's the only -- as I say, the Court has mentioned it,
but I suppose I'm asking the Court to, perhaps, clarify that -- in maybe just more
specific terms, because they will read this memo of interview, they will see that it's
[M.X.] is putting it in there as a potential factor, and if they find that, well, there
was a mistake, and giving [M.X.] -- giving [M.X.] the benefit of the doubt on what
he said about that, that, potentially, he was drunk at the time, but still, well if they
make that finding that doesn't offer him a defence, Judge. That's my submission,
Judge.”
28. In reply, junior counsel for the appellant made the following submission:
“Two matters I was going to canvas with the Court, one of them is the intoxication
matter which my friend mentioned, and the Court's direction that intoxication
wasn't a defence, and that I think the Court said to the jury that there was no
suggestion that [M.X] was intoxicated at the time that he went to pick up the
children. Now, my recollection is that --
JUDGE:
Counsel:
JUDGE:
Counsel:
JUDGE:
Counsel:
JUDGE:
He said he was dizzy --
Yes.
-- afterwards?
Yes, and he was saying that in the interview --
Hung over.
Yes, but I think [prosecution counsel], when cross examining [C], asked
her did she have a concern when [M.X.] was going to pick up the
children in this motor vehicle, that there was intoxication there, I can't
remember the exact formula of words that he used, but certainly he
asked was there a concern about [M.X.] going to collect the children
whilst drunk, or words to that effect, and [C]'s response was in the
affirmative, as far as my recollection is concerned, I don't have a
convenient note to hand, but that, I think, was the evidence. And I
suppose the position is [M.X.]’s evidence -- or --
She said she had a concern about driving.
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Counsel: Yes, and I think that was in response to a question which was
specifically directed towards [M.X.]’s state of intoxication, so that was in
the picture, and, in fairness, and I'm not placing any heavy reliance on
this fact, but it was led by the prosecution by that question, so...
JUDGE: Well --
Counsel: But it is there, but either way, wherever it came from it's in the case
from [C]'s evidence, it's also there in terms of [M.X.]’s explanation of his
condition on the day, particularly given in his memorandum of interview,
and obviously as the Court, I think, quite rightly put to the jury, the
defence is one of honest mistake, but it's part of the factual matrix that
[M.X.], and the reason he was in the bed asleep was that he was tired
and he --
JUDGE: Hung over --
Counsel: -- was…
JUDGE: Hung over.
Counsel: Yes, well he --
JUDGE: Not drunk, he said he was hung over.
Counsel: Well, he said drunk I think in the statement. ‘I'm still drunk, you see,’ I
think was one of the phrases used in the interview with An Garda
Síochána. And all of this contributed I think to a --
JUDGE: You see, I have a reluctance about going too far near that interview, --
Counsel: Yes, oh, yes, no, I think --
JUDGE: in the context of the fact he admitted he told lies to the gardaí, so what
do you want me to dredge up in that regard, because I have a concern -
Counsel: Yes.
JUDGE: that he admitted he lied to the gardaí, and everyone --
Counsel: Yes, no, no --
JUDGE: -- was careful about that because of the fact of how much do you want
to pick up was a lie which wasn't in relation to the act and what
happened in that bed.
Counsel: No, I see the Court's point there, and I think the position was that
[M.X.]’s senses were dulled, in effect, and he was in a sleepy, drowsy
state, which is what had him in the bed in the first place. And just one
final point on that, my friend says that sexual assault is not a crime of
specific intent. I think, in fact, it is, and I think we have a case there, R
v. Couch, which I've given to my friend.
JUDGE: An English case?
Counsel: It's an English case, yes.
JUDGE: I'm not -- at this point in time, bearing in mind that yesterday it was
accepted that intoxication is not a crime is not a defence, in this
instance --
Counsel: Yes.
JUDGE: -- I'm leaving it. I wasn't going to go down the specific intent route
because I don't -- the legalese -- as utilized in the closing speeches, let
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alone anything else. I'm trying to keep this simple in the -- no, hear me
out, first before your start interrupting me, the legalese required keep it
sample. We're talking about intent to touch someone in a sexual
manner. That's quite specific. I am not going into specific and basic
intent, and those crimes and to identify when intoxication is involved,
whether it be voluntary or involuntary, I'm dealing with the aspect of
intoxication as a defence, it doesn't arise in this instance.”
29. The trial judge then gave a recharge on that issue as follows:
“Just one or two matters that I should have also referred to you, and I just want to
clarify to make sure, in relation to the memos of the interview, you're going and
remember, linked in with the evidence of [M.X.] there was mention of being drunk
and being dizzy and in relation to various matters and how he was on that day, but,
if for example, ladies and gentlemen, you make a finding that the mistake he made
was due to intoxication, that's not a defence. Voluntary intoxication is not a
defence, and I think we all give words their ordinary meaning when you know about
voluntary intoxication, it's not a defence, so you must bear that in mind also. And
in relation to my references to the summary of the speeches of counsel, I made
reference to Mr Finnegan and I made mention, briefly, to what Mr O'Carroll said,
because I was summarising it and I should come to the nub of his submissions to
you, which was the mistake made by [M.X.], is his defence, is that the person he
was touching was he thought he was touching his girlfriend, that is his defence.
And in relation to the honest mistake, ladies and gentlemen, as a defence you've
got to assess the surrounding circumstances and use all of those facts that are
established in the evidence to assist you in regard as to whether or not that's
reliable and credit worthy in the context of your assessment of that and all of the
evidence in the case. I just wanted to remind you of that and just clarify that
should any queries arise in that regard, okay? And now I'm going to send you to
resume your deliberations.”
30. From the foregoing, it can be seen that the defence closed its case on the basis that this
was a case where he was hungover, lacking sleep and as a result, in an entirely
unintentional manner, engaged in sexual touching with his daughter. This was because
he made a mistake believing she was his partner. Counsel for the defence did not in any
way object to the manner in which the prosecution suggested that intoxication be dealt
with. The defence had also been invited to raise any issue and it did not do so. The issue
was only raised by them after the requisition by the prosecution as above. Indeed, in the
course of that final submission it can be seen that when the trial judge raised the issue of
the lies that were told in the interview, counsel backed away from it and returned to the
submission that the appellant’s senses were dulled and he was in a sleepy, drowsy state.
Was a defence of intoxication actually raised at the trial?
31. Having regard to the history of the trial proceedings set out above, we have grave
concerns that a defence of intoxication was actually raised in this case. That he was
drunk at the time of the incident was not raised by the appellant in his evidence in chief.
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He had stated in his garda interviews that he was drunk, but it was accepted by him at
the trial that his version of events as to what occurred in the bedroom at the relevant
time was not true. Instead, he maintained at the trial that he was asleep or awakening
from sleep when this happened. The reference to him being drunk in cross-examination
has to be seen in the context in which it was raised. The issue of being drunk was stated
to be before he went to sleep. He did not change his version of how he came to have
engaged in the sexual act with his daughter.
32. Of particular importance, the appellant’s counsel closed the case without reference to him
being intoxicated but used his “hung over” state to explain how he could not have had the
intention to sexually assault his daughter. Counsel closed the case in that fashion having
declined the invitation to contest the prosecution’s pre-charge submission to the trial
judge that intoxication provides no defence in the case of sexual assault. Moreover, even
after it was raised subsequently at the requisitions stage, counsel for the appellant
appeared to move away from the issue of his client being drunk when the contradictions
and lies in his interviews with the gardaí were raised by the trial judge. It should be
noted that the issue of “sonambulism” or any sleep disorder that the appellant might have
had was never raised in the trial.
33. In those circumstances, the issue of the appellant being intoxicated was really one that
went towards the reasoning as to why he was in a sleepy state; it was not raised by him
that he was actually intoxicated at the time he committed the act. It should also be
noted that he did not raise a defence of automatism in any direct manner with the trial
judge and has not sought to do so on appeal. His defence was that he had never
intended to engage in the sexual act with his daughter. This defence was left to the jury.
It had the advantage from the appellant’s point of view that the issue of recklessness as
to the taking of alcohol was never raised with the jury and there was a high onus on the
prosecution to prove that he actually had an intention to sexually assault his daughter i.e.
that he knew that he was carrying out a sexual assault on his daughter.
34. As was acknowledged in People v. Cronin (No. 2) [2006] IESC 9, there has to be some
error or oversight of substance which is sufficient to ground an apprehension that a real
injustice has occurred before the court should allow a point not taken at trial to be argued
on appeal. In Cronin (No.2), it was stated that there had to be an explanation as to why
the point was not taken at trial. There has been no explanation as to why the defence of
intoxication was conceded as not applying to this type of offence at an earlier stage in the
trial but raised after the trial judge’s charge.
35. This situation is slightly different from Cronin (No.2) because the issue was raised at trial
although it was conceded at an earlier stage. The reason why that concession occurred
was not explained at the trial or indeed on this appeal. Indeed, in this situation there
appears to have been a disconnect between the manner in which the defence was run i.e.
from the appellant’s evidence as to not being fully awake, followed by the careful and
thorough closing of the case by senior counsel and the subsequent requisition in respect
of the defence of intoxication.
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36. We are satisfied that even if there was an oversight or error in charging the jury in
respect of intoxication, this was not one of substance in the circumstances of this case. A
line of defence was chosen; that he never intended to sexually assault his daughter
having thought in his hazy, hung over, half-awake state that he was engaging in a sexual
act with his partner. That defence of mistake was left to the jury. It was not an error of
substance to rule out intoxication given that his own case was squarely based upon not
being fully awake at the time of the incident.
Should the defence of intoxication have been left to the jury?
37. Notwithstanding our conclusion above, we have decided to address the issue of
intoxication to assuage any lingering doubt that there may have been a defence properly
open to M.X. that was not put before the jury.
38. At the outset, we should address what was really at issue in this trial.
Mistake as to Identity or Mistake as to Consent?
39. The trial judge left the matter to the jury on the basis that the appellant had to have
intended to sexually assault his daughter and not any other person. In the present case,
it was conceded by the appellant that A had not consented to this sexual touching. It was
also conceded that the act of touching A was an indecent act. The trial judge identified
the issue for the jury was whether the prosecution had proved beyond a reasonable doubt
that the appellant had not made a mistake as to the identity of the person he was
touching. This explains the trial judge’s focus on the necessity to intend to sexually
assault a particular person, but in strict application of the law that is incorrect. For
example, a person who deliberately broke into a house intending to sexually assault X,
but mistakenly entered the wrong room and sexually assaulted Y, would still be guilty of
sexual assault.
40. Of course, in the present case the appellant’s defence was not that he intended to
sexually assault C, but instead sexually assault A. His defence was that in his sleepy
state he thought was engaging in consensual sexually activity with C, but mistakenly
engaged in a sexual act with A, his daughter. A did not consent to that sexual activity.
From the aforesaid we are satisfied that mistake as to identity is so closely linked to a
mistake as to consent of the complainant as to make the defences indistinguishable. The
reason the mistake as to identity is relevant is because it leads to a defence of belief in
consent. His alleged mistake as to the identity of the person he was engaged in sexual
activity with was relevant to consent, because the implication of what he is saying is that
if it was his partner she would have been consenting. On that issue of consent of his
partner, we would simply comment that little or no thought seems to have been given at
the trial as to whether, even if the appellant thought it was his partner, he would have
had a defence in any event; if his partner was asleep when he started touching, how
could there have been consent? There was nothing in his evidence to suggest either that
she was awake or that he believed she was consenting to his touches.
Intoxication as a defence
41. In People (DPP) v. Reilly [2005] 3 IR 111, the Court of Criminal Appeal held that
voluntary intoxication was no defence to the offence of manslaughter even where such
Page 12 ⇓
intoxication resulted in a state of automatism. The Court of Criminal Appeal referred to
the older Irish case of People (Attorney General) v. Manning [1955] 89 I.L.T.R. 155 where
it was held that the only effect of a defence related to alcohol in a murder case may be to
reduce it to manslaughter even if it had rendered the accused incapable of knowing what
he was doing.
42. In the recent case of People (DPP) v. Eadon [2019] IESC 98, the Supreme Court
confirmed that, where intoxication was a defence to a crime of specific intent, the jury
had to determine whether the intoxication was relevant to the issue of whether the
accused in fact had the necessary intent to commit the act and not whether the accused
had the capacity to form the necessary intent. In that case, the Supreme Court held that
the trial judge’s charge had not been sufficiently clear on the issue. Although the
distinction between crimes of specific and basic intent was not at issue in that case, it is
nonetheless worth noting, the Supreme Court’s (McKechnie J.) statement as to the law as
follows:-
“54. This judgment does not require a full treatment of the law relating to the
defence of intoxication. It is accepted by the parties that intoxication may be a
defence to a charge of specific intent but not to a charge of general intent. Having
quoted extensively from Lord Birkenhead, L.C. in DPP v. Beard [1920] A.C. 479,
Lord Elwyn-Jones, in the seminal case of DPP v. Majewski [1977] AC 443, ‘[i]t is
only in the limited class of cases requiring proof of specific intent that drunkenness
can exculpate. Otherwise in no case can it exempt completely from criminal liability’
(p. 473). Majewski was adopted in DPP v. Reilly [2005] 3 IR 111 and has since
been followed in this jurisdiction.
55. Although it pre-dates Majewski, the following statement of Lord Denning in
Bratty v. Attorney General for Northern Ireland [1963] AC 386 is worth reciting
because it captures the principle well: ‘If the drunken man is so drunk that he does
not know what he is doing, he has a defence to any charge, such as murder or
wounding with intent, in which a specific intent is essential, but he is still liable to
be convicted of manslaughter or unlawful wounding for which no specific intent is
necessary …’ (p. 410).”
43. The Court of Criminal Appeal in DPP v. Reilly said that the decision in AG v. Manning was
“a strong affirmation of the general principle that intoxication is not a defence except in
the rare cases where a specific intent is required”.
44. The Court of Criminal Appeal, having been addressed in relation to subsequent
developments in the common law world, quoted approvingly from the decision of the
House of Lords in DPP v. Majewski [1997] AC 443. Given the importance of the dicta
relied upon, it is worthwhile citing a lengthy passage from the judgment in Reilly:
“The case primarily relied upon by the prosecution is Director of Public Prosecutions
v. Majewski [1997] AC 443. The basic principle in that case was set out in the
speech of Lord Elwin Jones at page 150:-
Page 13 ⇓
‘If a man of his own volition takes the substance which causes him to cast off
the restraints of reason and conscience, no wrong is done to him by holding
him answerable criminally for any injury he may do while in that condition.
His course of conduct in reducing himself by drugs and drink to that condition
in my view supplies the evidence of mens rea, of guilty mind certainly
sufficient for crimes of basic intent.’
In that case, as in the present case, there had been scientific evidence
relating to the possibility of automatism brought about by drugs and alcohol.
However, it made a clear distinction between crimes such as murder
requiring a specific intent, and crimes such as manslaughter which do not
require such a specific intent. The House of Lords in the Majewski decision
recognised that this was not a particularly logical distinction and Lord Salmon
in his speech at page 157 said:-
‘There are many cases in which injuries are caused by pure accident. I have
already given examples of such cases: to these could be added injuries
inflicted during an epileptic fit, or while sleep walking and in many other
ways. No one, I think, would suggest that any such case could give rise to
criminal liability.
It is argued on behalf of the appellant that a man who makes a vicious
assault may at the material time have been so intoxicated by drink or drugs
that he no more knew what he was doing than did any of the persons in the
examples I have given and that therefore he too cannot be found guilty of a
criminal offence.
To my mind there is a very real distinction between such a case and the
examples I have given. A man who by voluntarily taking drink and drugs
gets himself into an aggressive state in which he does not know what he is
doing and then makes a vicious assault can hardly say with any plausibility
that what he did was a pure accident which should render him immune from
any criminal liability. Yet this in effect is precisely what counsel for the
appellant contents that the learned judge should have told the jury.’
He then continued to comment on the question of the logicality:-
‘A number of distinguished academic writers support this contention on the
ground of logic. As I understand it, the argument runs like this. Intention,
whether special or basic (or whatever fancy name you choose to give it), is
still intention. If voluntary intoxication by drink or drugs can, as it admittedly
can, negative the special or specific intention necessary for the commission of
crimes such as murder and theft, how can you justify in strict logic that it
cannot negative a basic intention, e.g. the intention to commit offences such
as assault and unlawful wounding? The answer is that in strict logic this view
cannot be justified. But this is the view that has been adopted by the
Page 14 ⇓
common law of England, which is founded on common sense and experience
rather than strict logic.’
The House of Lords in the Majewski case did not seek to justify its decision on
the basis of logic, but on far more pragmatic reasons grounded on public
policy. The duty of the Courts to protect the public from harmful actions of
others was emphasised, and this is undoubtedly a consideration which ought
to be in the minds of any Court which is seeking to do justice between the
rights of an accused and the rights of the citizens of the State to be protected
from violence. While it is certainly to some degree illogical that a person
should be afforded a defence of intoxication to crimes regarding one type of
intent but not to crimes requiring another type of intent, surely it is equally
illogical that a person should be guilty of a crime if they have consumed
some alcohol, and yet should be innocent of the crime if they consume a
much greater amount of alcohol. It appears to this Court that it is not
possible to determine an issue of this nature based on pure logic.
The question of logicality was also considered in the speech of Lord Edmund Davies
in the Majewski case at page 167, where he said:-
‘Are the terms of logic, then, so compelling that a man behaving as the
Crown witnesses testified the appellant did must be cleared of criminal
responsibility?’
As to this, Lawton LJ rightly said (in the Court of Appeal in the same case):-
‘Although there was much reforming zeal and activity in the 19th century,
Parliament never once considered whether self-induced intoxication should be
a defence generally to a criminal charge. It would have been a strange result
if the merciful relaxation of a strict rule of law has ended, without any
parliamentary intervention, by whittling it away to such an extent that the
more drunk a man became, provided he stopped short of making himself
insane, the better chance he had of an acquittal.
If such be the inescapable result of the strict application of logic in this
branch of the law, it is indeed not surprising that illogicality has long reigned,
and the prospect of its dethronement must be regarded as alarming.’”
45. The Court of Criminal Appeal in Reilly then discussed the situation in Canada and
Australia. In Canada, Majewski had repeatedly been followed until the enactment of the
Canadian Charter of Rights and Freedoms. The Canadian Supreme Court held that
fundamental rights would be infringed if an accused could be convicted despite the
existence of reasonable doubt pertaining to one of the essential elements of the offence.
In Australia, the High Court held that if the evidence of intoxication was sufficient to raise
a doubt as to the voluntariness or as to the presence of the requisite intent, there was no
logical ground for determining its admissibility upon a distinction between a crime which
Page 15 ⇓
specifies only the immediate result of the proscribed act and a crime which in addition
requires a further result dependent on purpose.
46. With regard to the what was said, especially in the Canadian and Australian cases, about
the illogicality of the distinction between a specific and a general or basic intent, the Court
of Criminal Appeal held:
“It can certainly be argued that it is illogical to have such a distinction or to have
what appear to be two levels of mens rea in relation to different types of crimes.
However, that distinction, both in theory and in practice, has been present in the
common law since before the foundation of this State and has been the basis of
numerous decisions, particularly in the realm of unlawful killings and unlawful
assaults. If such a distinction is to be removed, that can only be done by the
Legislature.”
47. The Court of Criminal Appeal concluded:
“As has been pointed out the issues in this case cannot be determined by pure
logic. The Majewski decision is undoubtedly illogical in that it could be said that it
ignores the question of mens rea, although this is an essential element of
manslaughter. It is indeed reasonable to ask whether a person should be punished
for an action which he was incapable of preventing, whatever may be the reason for
such incapacity. It is equally illogical that a person should escape the
consequences of an action which he performed while drunk, while he would be
liable for the results of such action had he been less drunk, provided of course that
his consumption of alcohol was voluntary. However, whatever may be the logic,
the Court is here concerned with the commission of actions of violence by one
person against another. It is not sufficient to make decisions on such issues in a
purely theoretical manner. The Court must have regard to the rights of an accused
person, but it must also have regard to the interest of the public at large who are
entitled to be protected from acts of violence. If a person by consuming alcohol
induces in himself a situation in which his likelihood to commit acts of violence is
increased, particularly to the stage where he commits an act which he would not
have committed had he not consumed the alcohol, then surely the Courts would be
failing in their obligations to the public if they allowed the cause of his violence,
namely the alcohol, to excuse his actions. The reasoning behind the Majewski
decision appears to this Court to achieve the balance between the rights of the
accused, who would be entitled to be acquitted if the jury found automatism which
was, in the words of the trial Judge, "Free standing", as against the rights of the
public to ensure that the Applicant will be held liable for actions which were induced
by alcohol voluntarily consumed.”
48. The rationale of Reilly is powerful. There has been a distinction of crimes of basic and
specific intent since before the foundation of the State. That distinction is now, post
Reilly, even more entrenched within the law of this State. There is a balance being struck
between the rights of an accused and the rights of the public to be protected from acts of
Page 16 ⇓
violence. A person who has voluntarily consumed alcohol and commits an act he would
not have performed if not intoxicated, is responsible for the commission of crimes of
violence of basic intent.
49. The next issue is whether sexual assault is a crime of basic intent. In order to assess
this issue, it is necessary to look at what is meant by a crime of specific intent. The Court
of Criminal Appeal in Reilly did not provide any definition of crimes of specific or basic
intent but accepted that they existed. In Majewski, which of course was relied upon by
the Court of Criminal Appeal in Reilly, Lord Simon stated as follows:
“the best description of “specific intent” in this sense that I know is contained in the
judgment of Fauteux J. in Reg v George (1960) 128 Can CC 289, 301-
‘In considering the question of mens rea, a distinction is to be made between
(i) intention as applied to acts considered in relation to their purposes and (ii)
intention as applied to acts apart from their purposes. A general intent
attending the commission of an act is, in some cases, the only intent required
to constitute the crime while, in others, there must be, in addition to that
general intent, a specific intent attending the purpose for the commission of
the act.’”
50. The UK House of Lords decision in DPP v. Morgan [1976] AC 182, established that rape
was a crime in which the issue of recklessness had to be assessed in light of whether the
accused had an honest, even if unreasonable belief that the complainant was consenting
to the act of sexual intercourse. Lord Simon reached his conclusion as to this standard
upon which the state of mind of the accused had to be addressed by considering whether
rape was a crime of specific or basic intent. He stated at p.216: -
“By ‘crimes of basic intent’ I mean those crimes whose definition expresses (or,
more often, implies) a mens rea which does not go beyond the actus reus: The
actus reus generally consists of an act and some consequence. The consequence
may be very closely connected with the act or more remotely connected with it; but
with a crime of basic intent the mens rea does not extend beyond the act and its
consequence, however remote, as defined in the actus reus.”
51. In England and Wales, following DPP v. Morgan, the position is that rape is a crime of
basic intent. The crime does not involve an intent going beyond the actus reus, namely
the carrying out of an act of sexual intercourse. There does not appear to be any Irish
cases directly on this point with regard to either the offence of rape or the offence of
sexual assault. O’Malley in Sexual Offences, 2nd Ed., (Thomson Reuters, 2013) at p.82,
having quoted from the conclusion in Reilly at pp. 121-122 cited above, states:-
“It follows, therefore, that voluntary intoxication resulting from the consumption of
alcohol or dangerous drugs, even if it produced a state of automatism, would be
irrelevant for the purpose of establishing liability for an offence of basic intent such
as rape or sexual assault.”
Page 17 ⇓
52. Again, at p. 112, O’Malley states: “Sexual assault, like rape, is a crime of basic intent,
which means the accused cannot rely on evidence of self-induced intoxication to negative
the necessary mental element.”
53. O’Malley went on to address the type of situation which arose in R v. Court [1989] A.C.
28. This is the case raised at trial and in the appeal by this appellant. In that case, the
appellant shop keeper had struck a 12 year old girl who attended the shop 12 times on
the buttocks for no apparent reason. His reply to police who questioned why the
appellant had done so, he replied “I don’t know – buttock fetish”. He accepted he had
committed an assault but denied it was indecent. His appeal against conviction was
unsuccessful. In the course of his speech, Lord Ackner distinguished between assaults
which are inherently indecent e.g. removing a woman’s clothes against her will and those
where the circumstances of the alleged offence can be given an innocent as well as an
indecent interpretation. In the latter situation, it was necessary to prove that the accused
intended to commit an indecent, as opposed to an ordinary assault. It could be said that
this final element may require proof of specific intent. O’Malley at p.122 concluded that
“[h]owever, in many cases this latter element will be so obvious as to not need any
specific proof.”
54. We are satisfied that the facts of the present case do not present the type of equivocal act
where the purpose of the appellant’s actions has to be examined. To put a hand under a
girl’s clothing and touch her vagina is an inherently indecent act. Indeed, it was never
disputed at the trial that this act was such an inherently indecent one if carried out
against the consent of another person. We therefore do not have to decide if the dicta
contained in R v. Court represents the law in this jurisdiction.
55. In England and Wales, in the case of R v. Heard [2008] QB 43 , the Court of Appeal was
asked to rule upon self-induced intoxication as a defence to the offence of sexual assault
set out under the Sexual Offences Act, 2003. That Act had set out in detail that an
intentional touching was required. This raised an issue as to whether it could be said that
the new offence of sexual assault was no longer a crime of basic intent.
56. The Court of Appeal of England and Wales referred approvingly to the case of R v. C
saying in respect of it:
“The Defendant had penetrated a child’s vagina with his finger when drunk. That,
like the present, was a clear case of drunken intent, with possible absence of
memory. The decision of this Court, presided over by Lord Woolf CJ, was that
indecent assault remained a crime of basic intent for these purposes, at least
unless the act was an equivocal one so that the purpose of the defendant had to be
examined. We are wholly satisfied that there is no basis for construing the new
Sexual Offences Act 2003 as having altered the law so as to make voluntary
intoxication available as a defence to the allegation that the defendant intentionally
touched the complainant.”
Page 18 ⇓
57. For the sake of completeness, we refer to the English case of R v. Fotheringham
[1988] Crim L.R. 846 where the respondent had been charged with raping a 14 year old
babysitter. His defence was that, inter alia, he was so drunk at the time of the offence
that he thought he was having sexual intercourse with his wife. While the Court of Appeal
of England and Wales acknowledged that there was nothing in the case of DPP v. Morgan
which stated that self-induced intoxication in a case of mistaken identity cannot be a
defence, they were “firmly of the view that mistake, as is consent, being a question of
fact cannot be raised as a defence if, as here, it arises from self-induced intoxication.”
Conclusion
58. Having considered the decision in Reilly, we are satisfied that a defence of intoxication is
not open to a person who commits a crime of basic intent while intoxicated. A crime of
basic intent is one in which the mental element required does not go beyond the actus
reus. Having reviewed the available authorities from the United Kingdom and considered
the views of the leading textbooks in this jurisdiction, we are satisfied, that a crime of
sexual assault is in essence, a crime of basic intent. The purpose of the act of sexual
assault does not go beyond the act itself. Different considerations may possibly but by no
means certainly, apply in those rare cases where a specific intent is required to prove the
sexual element where the act is equivocal as to whether it is indecent. No such issue
arose on the facts of this case and we are not required to decide that issue and therefore
do not do so. We are satisfied that all of the elements required to be proven in respect of
the mental element of this appellant were closely related to the actus reus or physical act
of the commission of the offence. Thus, the alleged sexual assault for which this
appellant was tried is a crime of basic intent.
59. Not permitting the appellant in this case to rely upon a defence of intoxication is neither
illogical or unfair to him. He voluntarily became intoxicated leading him to get into bed
with his daughter, resulting in him, if his defence put forward on this appeal is to be
believed, falling asleep and in his drunken, sleepy (or even sleeping) and confused state
he carried out a sexual act on his sleeping daughter mistakenly believing her to be his
partner. Sleeping people, and in particular sleeping children, have a right to protection
from sexual violence. A person who engages in a sexual act with a non-consenting
person while intoxicated because of mistake as to consent or identity, is not in a similar
situation to the accused in the case of CC v. Ireland [2006] 4 IR 1. That case, which
dealt with strict liability for the offence of unlawful carnal knowledge, was relied upon by
the appellant. The Supreme Court was of the view that the accused person was lacking in
moral culpability. In the situation of a person who commits a sexual assault as a result of
being intoxicated, the moral culpability lies in permitting themselves to be in a situation
where the alcohol has loosened restraints on their conduct.
60. For the reasons set out above, we reject the issue raised on appeal concerning the refusal
of the trial judge to permit a defence of intoxication to go to the jury.
The Second Issue on Appeal: Cross-examination on the Existence of a Barring Order
61. The appellant’s submission under this ground is that the trial judge erred in admitting
evidence that the appellant was the subject of a barring order under the Domestic
Page 19 ⇓
Violence Act, 2018 arising from a previous incident involving one of his children. This, it
was submitted was very damaging evidence which suggested that the appellant was a
person of bad character. The evidence had no bearing on the proof of the case against
the appellant and was thus more prejudicial than probative.
62. Certain background evidence had been given by the complainant in relation to family
circumstances. She had stated that her mother and father had lots of fights and they
split up in 2013. She confirmed that when they split up, it was her dad who left the
family home. At another point under cross examination, the complainant having been
asked about suffering from nightmares, was asked about the night of the 25th July and
whether it was fair to say that this was one of the rare occasions when her sleep was
disturbed. She replied it was because of what happened with B, the youngest daughter.
63. The appellant had been made the subject of a barring order in February 2013 as a result
of an incident in that month in which he slapped the youngest daughter. After that
evidence, the matter was discussed with the judge in the absence of the jury. At that
point the prosecution and defence both appeared to be in agreement that they would say
there was no allegation of sexual assault made against the younger daughter or anything
like that. The judge also indicated that she did not want to go down the route that a
barring order had been obtained.
64. The complainant’s mother was led through her evidence in chief. She confirmed that her
relationship with the appellant had ended and that he moved out of the family home. She
said they were separated and they were having marital issues. Prosecution counsel then
said to her “you don’t have to explain that to anybody”. She also confirmed the access
arrangements between the parties which was about once a month. Her evidence had
confirmed that it was made pursuant to a court order.
65. In his evidence in chief, the appellant stated as follows:
“Q. And then I think around 2013, your relationship between yourself and [your wife]
soured?
A. Yes, your honour.
Q. And by agreement you moved out of the house, did you?
A. Yes, your honour.”
The clear implication of that evidence was that he had left the home by agreement with his wife.
66. That evidence lead the prosecution counsel, in the absence of the jury, to seek leave to
cross-examine the appellant on the basis that he had left the house not by agreement,
but pursuant to a barring order. In his submission, the evidence of the appellant was
leading the jury to believe there were unfortunate difficulties in the marriage and that by
agreement he left the family home which she submitted was far from the truth.
Page 20 ⇓
67. The appellant submits that the issue of whether he left the home voluntarily or by
compulsion of a barring order was therefore in issue. In the course of the trial, the
evidence from the appellant in the absence of the jury was that on 14th February, 2013,
when he “went home from my job in the evening my family were no longer at home”. He
said he rang them, they said that they had a sleepover in their aunt’s place. He then
went on to say “[a]nd then that morning of February 14 I received a phone call from the
gardaí that I have to report to them and that they have my passport. I think even my
garda card they have. So, when I went there, they told me I have to move out of the
house.”
68. The appellant also said that the gardaí did not give him any documentation and he was
never made aware at that stage that any orders, such as a barring order had been made
in respect of the home. He said he was only made aware of the barring order at a later
stage. It appears from the evidence that the interim barring order was not obtained until
the 15th February whereas the appellant contends that his evidence supports the view
that he left the family home on 14th February.
69. In our view, this contention that he left on 14th February does not bear scrutiny. It
seems that it was the morning after the appellant had arrived home that he got the call
from the gardaí. As he indicated, it was the 14th February that he arrived home to find
his family gone, it was the next day, the 15th February that he left the home. Moreover,
when later questioned by the trial judge, he again confirmed that he had been told to
move out of the house by the gardaí although he said he was not told that it was because
of the incident with his youngest daughter. When asked why, he did say however that he
didn’t ask why “because I know that I did a mistake with [B]”. Importantly, the following
exchange took place in cross-examination:
“Q. Yes. And after that happened, your wife…, obtained an interim barring order to
keep you out of the family home; isn’t that correct?
A. Yes your honour.
Q. And then a week later that interim order became a full barring order against you;
isn’t that correct?
A. I think so, your honour, yes.
Q. Yes. And isn’t that the reason that you left the family home in February 2013?
A. Yes, your honour.
Q. Yes. It was not by agreement; was it?
A. Yes, your honour.”
In the above exchange, he accepted that the reason he left was because of the interim
barring order.
Page 21 ⇓
70. Most importantly, the evidence establishes that he did not leave the home by agreement
with his wife. At a minimum he says that he left because he was told to move out by An
Garda Síochána. It is difficult to understand how it can be asserted he left by agreement
when in fact he left because the gardaí told him to leave.
71. Counsel asked the trial judge not to admit this evidence. Again on the appeal, counsel
strongly objected to the admission of this evidence. It was submitted at trial that it would
be explosive and highly prejudicial to his case. Counsel also submitted that it would not
be true to say that the coming into existence of the barring order had precipitated his
departure because he had already left the home at that time. Despite objections, the trial
judge clarified that she was allowing the questions to be asked of him because they
correct the record and are relevant to the issue in being concerning his credibility.
72. Following from the ruling of the trial judge, the appellant was cross examined in the
presence of the jury. It was put to him that the reason he left the family home was after
an interim barring order had been obtained by his wife. It was also confirmed that the
reason for the barring order was because of a physical incident in the family home.
Counsel for the prosecution agreed that the incident was in no way related to any sexual
assault of any kind, nothing of a sexual nature in respect of anybody in the house. It was
then stated that subsequent to that, himself and his wife agreed access terms for the
three girls. The access that was agreed was supervised access once a month.
73. In the course of her charge, the trial judge reminded the jury that the appellant had given
evidence that the parties had separated by agreement and that they had heard that this
was corrected and that in relation to the barring order he had seen the children on a once
monthly basis of supervised access and that in June 2015, access to them was by
agreement once a week on Sundays. The trial judge then said “[s]o again, in relation to
the matter that you have before you, you’re dealing with the facts as they are in this
instance.”
74. The appellant did not make any requisition on that aspect of the charge to the jury. The
appellant however maintained in submissions that there was no correction of the
appellant’s evidence to be made because it was correct in the first place. Counsel also
submitted that that the reference to the barring order and supervised access was
excessive and likely to compound the prejudice caused by its introduction into evidence.
In written submissions, counsel also submitted that she also failed to charge the jury as
to the purpose of the evidence. This left open the possibility that the jury would attach
weight to the evidence in question as being probative of the guilt of the appellant in
respect of the charge before the court. The complaint about the failure to charge was not
addressed further at the oral hearing of the appeal.
75. At the appeal, counsel for the appellant submitted that this had been an inappropriate use
of s.1 of the Criminal Justice (Evidence) Act, 1924. Section 1 of that Act states that “a
person charged and called as a witness in pursuance of this Act shall not be asked, and if
asked shall not be required to answer, any questions tending to show that he has
Page 22 ⇓
committed or been convicted of or been charged with any offence other than that
wherewith he is then charged, or is a bad character, unless –
(i) the proof that he is committed or been convicted of such other offence is admissible
evidence to show that he is guilty of the offence wherewith he is then charged; or
(ii) he has personally or by his advocate asked questions of the witnesses for the
prosecution with a view to establish his own good character, or has given evidence
of his good character, or the nature and conduct of the defence is such as to
involve imputations on the character of the prosecutor or the witnesses for the
prosecution; or
(iii) he has given evidence against any other person charged with the same offence.”
76. In the view of the Court, this was a case where the evidence put before the jury by the
appellant was misleading. Regardless of whether the appellant knew of the interim
barring order or not, his evidence in the voir dire on why he left the family home
established beyond reasonable doubt that it was not by agreement. The appellant
submitted that the reference to the barring order was excessive but the same if not worse
import would have resulted from a direct reference to the fact that he had been told by
the gardaí to move out of the family home. This was a matter with which it was
appropriate to “correct the record” by allowing the prosecution to cross-examine in
respect of it. The appellant had opened himself up to this cross-examination by
presenting an incorrect reason as to why or how he left the family home. It was a
situation that had been handled with delicacy by counsel for the prosecution in dealing
with his own witnesses and required similar delicacy on the part of the appellant and his
counsel. The fact that he had not left by agreement but as a result of an incident which
resulted in a barring order was an appropriate matter to raise in cross-examination.
77. We are also satisfied that the trial judge addressed the issue with a minimum of fuss, in
circumstances where it had already been clarified to the jury that there was no sexual
misconduct relating to this barring order. That there was nothing improper in her charge,
as evidenced by the fact that counsel did not challenge that aspect of her charge at trial
and it was not pursued at the oral hearing.
78. In all the circumstances, we also reject this second ground of appeal.
Conclusion
79. For the reasons set out in this judgment, the Court rejects the two issues that were
raised by the appellant in this appeal.
80. Accordingly, the Court therefore dismisses this appeal.
Result: Dismiss
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