Court of Criminal Appeal dismisses appeal against conviction for sexual act with child, upholding jury verdict.

COURT OF CRIMINAL APPEAL

Fennelly J.

Herbert J.

Gilligan J.

No. 195/09

THE PEOPLE AT THE SUIT OF

THE DIRECTOR OF PUBLC PROSEUCTIONS

Respondent

and

SEÁN EGAN

Applicant

JUDGMENT of the Court delivered on the 26th day of March 2010 by

Fennelly J.

1. On the 18th June, 2009, the applicant was convicted in the Central Criminal Court by a jury presided over by Charleton

J., of an offence of engaging in a sexual act with a child under the age of 17 years contrary to s. 3 (1) of the Criminal Law

(Sexual Offences) Act 2006 (hereinafter “the Act of 2006”). He was sentenced to fifteen months imprisonment.

2. He applied to this Court for leave to appeal against the conviction.

3. The trial took six days. There were four counts on the indictment: two counts of rape and two of a sexual act with a

child. There were two complainants. The jury acquitted the applicant of both counts of rape and of one count of engaging in

a sexual act with a child but convicted on the other.

4. Counsel on behalf of the applicant, Mr. Erwan Mill-Arden, S.C., advanced four grounds of appeal:

The jury verdict was inconsistent insofar as the jury convicted the applicant on the charge of engaging in a sexual

act with a child, whereas they acquitted him of the charge of rape on the same occasion;

The jury verdict was inconsistent insofar as they convicted the applicant in respect of the charge of engaging in a

sexual act with a child in one case but acquitted him of a similar offence with another child in the other where the

evidence was virtually identical;

The learned trial judge was wrong in law in admitting into evidence a piece of cloth found in the applicant's car,

which had unidentified seminal stains on it;

The learned trial judge misdirected the jury with regard to the burden of proof of “honest belief” provided for in

s. 3 (5) of the Criminal Law (Sexual Offences) Act 2006.

First Ground: Inconsistency with Acquittal on Rape Charge

5. The first ground is patently unarguable. To be fair, counsel made it clear that he was advancing this ground on

instructions. It is axiomatic that there is a difference between the offence of rape and the offence of engaging in a sexual act

with a girl under a specified age. The first requires proof of the absence of consent; in the second case consent is no

defence. It is not in any way inconsistent for a jury to acquit of the first but convict of the second. This ground fails.

Second Ground: Inconsistency with Acquittal on Charges Relating to First Complainant

6. The second ground is also without merit. The first two counts on the indictment related to the complaint made by one

complainant of sexual acts by the applicant on the 10th January, 2007. The second two counts concerned sexual acts alleged

by a different complainant on a different date. Each complainant gave her own separate and distinct account. The jury was

perfectly entitled to discriminate between the two complainants as witnesses, to believe one fully and to conclude that the

other had not convinced them beyond reasonable doubt. It is enough for them to have a reasonable doubt as to the

truthfulness of the account of one of the complainants. In any event, a perusal of the transcript discloses ample grounds

entitling the jury to distinguish between the two cases. Counsel for the applicant, in his closing argument to the jury, referred

extensively to alleged inconsistencies in the story of the first complainant, which were quite different from the case of the

second. The fundamental principle is that these are matters for the jury. This ground also fails.

Third Ground: Admissibility of Cloth with Seminal Stain

7. The third ground relates to the admission into evidence of a piece of cloth found by the gardaí in the applicant's car.

According to the complainant’s evidence, the sexual act in which the applicant engaged with her took place in that car. She

said that following intercourse the applicant took a cloth out of the glove compartment of the car and that he wiped his penis

with it. The gardaí, in the course of their forensic examination of the applicant's car, found a piece of cloth in the glove

compartment. They took photographs of it, which were presented to the complainant during her evidence. She identified the

cloth. No objection was made to the admissibility of the evidence of the garda search of the car, their photographing of the

cloth or the evidence of the complainant identifying the cloth. The objection now made is based on the forensic or scientific

evidence, to which it is now necessary to refer.

8. The cloth was examined by Dr. David Casey of the Forensic Science Laboratory at garda headquarters. He gave

evidence of finding semen on the cloth. He was unable to determine the age of the seminal stain.

9. Dr. Yvonne O'Dowd from the Forensic Science Laboratory at University College Dublin also gave evidence of examining

the cloth. She found the semen stain of an unknown human male. No blood or other sample had been taken from the

applicant. Thus there was no means of establishing any D.N.A. connection with him.

10. Counsel objected at the trial to the admissibility of the evidence of the two scientific witnesses. He pointed out that they

could not assign any date to this piece of evidence or link it with any person. It was open to any one of a number of possible

innocent explanations, including various hypotheses of sexual activity in the car other than with the complainant. In these

circumstances, counsel submitted that the admission of the evidence was grossly dangerous and prejudicial. The learned trial

judge ruled that the evidence was admissible. He pointed out that the prosecution merely alleged that it supported the

account of the complainant. As to its prejudicial effect, he noted all the possibilities but said that the jury could apply their

shrewdness and common sense. He did not believe that it was prejudicial.

11. The Court is satisfied that the evidence was relevant and admissible and that the ruling of the learned trial judge was

correct. The evidence tended to establish two things: firstly, that some sexual act had been committed in the motor car and

secondly, that it was consistent with and supportive of the complainant's account of the applicant’s behaviour following the

sexual act. It did not establish conclusively, taken on its own, any connection with the applicant. Evidence is not, however,

rendered inadmissible for that reason. The test is whether it is relevant, which it clearly was for the two reasons already

mentioned. It was, of course, entirely a matter for the jury to consider and to accept or reject its probative value. Many

examples can be cited of evidence which tends to prove something without being conclusive. Evidence of the presence of a

motor car of a well known make and of a particular colour at a crime scene is not inadmissible because there are many other

similar motor cars. The Court is satisfied that the evidence was correctly admitted. This ground of appeal fails.

Fourth Ground: “Honest Belief”

12. The fourth and probably principal ground of the application for leave to appeal concerns what the applicant describes as

"the unsatisfactory nature of the learned trial judge's directions in respect of the defence of honest belief" in a case of a

charge, such as this, of an offence contrary to s. 3 (1) of the Act of 2006. That section provides, so far as relevant to the

issues on the application, as follows:-

“Any person who engages in a sexual act with a child who is under the age of 17 years shall be guilty of an

offence and shall, subject to subsection (3), be liable on conviction on indictment—

(a) to imprisonment for a term not exceeding 5 years, or

(b) if he or she is a person in authority, to imprisonment for a term not exceeding 10 years.

(5) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or

she honestly believed that, at the time of the alleged commission of the offence, the child against whom the

offence is alleged to have been committed had attained the age of 17 years.

(6) Where, in proceedings for an offence under this section, it falls to the court to consider whether the

defendant honestly believed that, at the time of the alleged commission of the offence, the child against whom

the offence is alleged to have been committed had attained the age of 17 years, the court shall have regard to

the presence or absence of reasonable grounds for the defendant’s so believing and all other relevant

circumstances.

(7) It shall not be a defence to proceedings for an offence under this section for the defendant to prove that the

child against whom the offence is alleged to have been committed consented to the sexual act of which the

offence consisted.”

13. The present ground of appeal concerns the defence of “honest belief,” which s. 3(5) of the Act permits to be raised. It is

first necessary, however, to mention how the matter was treated in the court of trial. The complainant gave evidence that

she had been born on the 18th January, 1992. Thus, she was fourteen years of age on the date of the alleged offence; in

fact she was fifteen on the following day. At any rate, she was well under the age of seventeen. She was not challenged on

this.

14. In the first instance, it should be noted that the defence did not attempt to advance any particular evidence of the belief

of the applicant regarding the age of the complainant. The applicant gave no evidence on the point and no cross-examination

was directed to establishing that the applicant had an honest belief that she had attained the age of seventeen years. The

matter of an honest belief as to age was not raised in the closing address of counsel to the jury. In short, the defence took no

active steps in the course of the trial directed at establishing a defence by reference to s. 3(5). No suggestion was made to

the jury touching on the belief of the applicant as to the age of the complainant. The evidence was generally to the effect

that the applicant frequently met the two complainants and a number of their contemporaries while they were wearing

school uniforms. On occasion he drove some of them to school. Counsel for the prosecution told the trial judge that this

evidence was led in anticipation of a possible defence based on honest belief. .

15. The learned trial judge, however, in the course of the trial raised the issue with counsel of his own motion. He expressed

the view, following exchanges with counsel, that “if there is evidence on the prosecution case which raises a reasonable

doubt whereby it is possible -- by which I mean reasonably possible -- that the accused genuinely believed that these girls

were more than 17 or over, then he is entitled to be acquitted on those charges.” He charged the jury as follows:-

“It’s not a defence to prove the child against whom the offence is alleged to have been committed consented to

the sexual act. It is, however, a defence to proceedings where the accused can show on the basis of the

evidence, he doesn't have to get into the witness box, that he or she honestly believed that at the time of the

alleged commission of the offence the child hadn't yet reached the age of 17. In looking at that, as a matter of

fact you have regard to the presence or absence of reasonable grounds for the belief of the accused and all the

relevant circumstances, but you still, whether if there are reasonable circumstances or not you still have to get

into his mind and you have to say, and “ yes, in those circumstances he knew that this girl was under 17.”

Some people reach conclusions on the basis of unreasonable circumstances; you have regard to whether there

are reasonable circumstances, and so it's what's in his mind. Did he know that they were under 17 at the time?

They were at school. Did he inquire into their ages? Is there evidence there, upon which you can say, ‘Yes, he

knew that they were under 17’?”

16. Senior Counsel for the applicant complained, in the absence of the jury, that this charge departed from what the judge

had indicated on the previous day. He had intended to say to the jury: that if they looked at the prosecution case and were

not satisfied beyond reasonable doubt that the accused knew they were under age, they should acquit him. The judge replied

that he had reconsidered the section and that his actual belief was that there was a burden on the accused to give evidence

that he did not know the complainant was under 17 and that he had misinterpreted the law in favour of the accused.

Counsel for the defence submitted that it was sufficient for the defence to raise the matter; the burden of proof then lay on

the prosecution to negative that defence according to the standard, beyond reasonable doubt. Counsel for the prosecution,

on the other hand, submitted that the burden of proof lay on the defence, and that it was not simply an evidential burden but

a legal burden of proof and that the legislature had clearly intended that there be evidence regarding honest belief whether

the accused himself gave evidence are not.

17. The learned judge, continuing his charge, told the jury that the accused had to show, on some evidence in the case, that

he honestly believed that the girls or one or other of them were 17 or more. He told the jury that they had to find something

in the evidence whereby the accused could believe that each of the girls, treating them separately, was 17 or over. He was

giving them a legal direction to look at the evidence and see if there was any evidence whereby the accused could honestly

have believed that at the time the alleged offence was committed each of the girls, considering each separately, had attained

the age of 17 years. In considering whether the accused believed that or not, they were entitled to have regard to the

presence or absence of reasonable grounds for the belief. Counsel for the accused said that there were such grounds. The

girls were palling around together and they were taking lifts. Counsel for the prosecution said that there were no reasonable

grounds for believing that either of them was 17 or over. At the end of the day, it was what the accused subjectively

believed. If the jury felt that the accused subjectively believed that the girls were over 17, then, in those circumstances, they

should acquit the accused as the prosecution would not have made out the case. So the jury should look at whether he

believed it. Was or were they 17 years or over? In his mind, did he believe that? Was there anything in the evidence to

suggest that to them?

18. In the course of requisitions on this charge, senior counsel for the defence submitted that the learned trial judge should

direct the jury that they must look at the evidence and whether it showed that the accused had an honest belief. The

accused does not have to establish that he had an honest belief either beyond reasonable doubt or on the balance of

probabilities. The jury had to be told that the direction concerning the case being proved beyond reasonable doubt did not

apply to the accused. All the accused had to do was raise a reasonable doubt on the evidence as to honest belief. Senior

Counsel for the prosecution submitted that s.3 (5) of the Act of 2006 imposed not just an evidential but a legal burden of

proof on the accused. He had to establish the defence of honest belief as a matter of probability. The words of the section

were “to prove that” and in their ordinary meaning these words required the accused to prove that he honestly believed that

each of the girls had attained the age of 17 years. There had to be evidence. It was not enough to talk about establishing a

reasonable doubt.

19. In recharging the jury following upon these requisitions by counsel, the learned trial judge said:

“I am definitively telling you now that the accused has to show, on some evidence in the case, that he honestly

believed that those girls were 17 or more. Mr Owens says: "where is the evidence? There is none." Mr Mill-

Arden says: “Look, there is a reasonable doubt about it.” But, if there is a reasonable doubt as to whether or

not that defence is established, in other words that the accused honestly believed at the time of the sexual act

that they had attained the age of 17, then you acquit. But if there isn't that evidence, in other words, if there

isn't that reasonable doubt in the case, on that evidence, then you convict.”

20. On the onus of responsibility in underage sexual intercourse, he described this as “a reversed burden of proof.” He said

that while normally the prosecution had to prove that the accused knew the girl was under 17, instead the burden of proof

was cast upon the accused. He explained that this did not mean that the accused had to give evidence of the fact. He merely

had to be able to point to something in the evidence whereby the jury could have a reasonable doubt that he may in fact

have honestly believed she was under 17. The learned trial judge said that there had to be something on the prosecution

case, a piece of evidence, because of which they felt there was a reasonable doubt as to whether he thought that the girl was

17 or more. He then made some comments on the evidence in the case. He stated:-

“The evidence certainly, as it seems to me, it's up to you, clearly established that the girls were under 15

at the relevant time. The evidence also establishes that they were going to school. Now, what's the

accused’s state of mind? Well if you had to look at it on the basis of the reversed burden of proof and ask

yourself: is there anything on the prosecution evidence whereby we could say, ‘yes, there is a reasonable

doubt there, this man could in those circumstances have believed that this girl or the other girl, giving

each separate consideration, was 17 years of age.’ Now, that's what I understand the law to be on the

matter……”

21. The applicant submitted that with regard to this ground of appeal the judge should have left the matter with the jury on

the basis that there was only an obligation on the applicant to raise the issue, as in the case of provocation in a murder trial.

Once there is a basis for the defence of honest belief, the normal onus in the trial resting on the prosecution is to rebut that

and prove the case beyond reasonable doubt. In other words, the applicant submits, under s. 3 of the Act of 2006, that an

accused person is in the same position as that of a person making the defence of provocation in a murder trial. He merely

has to raise the defence of provocation. The jury must look at that in terms of credibility and then decide whether the

prosecution has rebutted the defence beyond reasonable doubt.

22. At the hearing of the appeal, counsel referred to the evidence that the complainant had met the applicant going to school.

Specific reference was made to the evidence of one witness, Ms. Lisa Thackaberry. That witness was established in the

evidence to be a year or more older than the other girls including the complainant. In fact, at the relevant time she was 16

years of age. She swore that the applicant knew her age. This was not challenged. Counsel submitted that the applicant

could well have formed the view that the complainant had reached the age of 17 years. He acknowledged, however, that he

had not raised the issue explicitly at the trial.

23. Counsel submitted that the judge’s charge to the jury should be on the lines suggested by Barrington J. in The People

(Director of Public Prosecutions) v. Kelly [2000] 2 I.R. 1. In effect, where the court has decided that there is sufficient

evidence in the case to permit the jury to consider the defence of provocation in a murder case, the trial judge must still

direct the jury the onus is not only on the prosecution to prove its case beyond reasonable doubt but also to negative beyond

reasonable doubt any defence raised by the accused.

24. Counsel for the respondent replied that there was no evidence in the present case from which the jury could form the

conclusion that the applicant had an honest belief that the complainant was over the age of 17 years. He referred to the

evidence mentioned above, the fact that the applicant was 20 years of age at the time, and that the complainant and her

friends were schoolgirls. He referred in particular to the age of Ms. Lisa Thackaberry, which has been mentioned above. In

other words, if Ms. Thackaberry was, to the knowledge of the applicant, under 17, then the other girls who were younger,

were obviously known to him to be under age.

25. Counsel referred, in particular, to the wording of s. 3(5) of the Act of 2006. He pointed to the distinction which must be

drawn between a provision of this kind and sections creating offences which merely specified the criminal act and the age of

the victim. For example, in B. (A Minor) v. Director of Public Prosecutions [2000] 2 A.C. 428, the House of Lords were

concerned with the provisions of s. 1(1) of the Indecency with Children Act, 1960the section making it an offence to

commit “an act of gross indecency with or towards a child under the age of 14…” The Justices at Harrow Youth Court

had ruled that the terms of s. 1(1) imposed strict liability and that a mistaken belief as to the age of the victim could not

amount to a defence. There was no specific statutory provision for any defence based upon genuine misapprehension as to

the age of the child. The House of Lords quashed the conviction holding that a mens rea was an essential element of every

criminal offence unless Parliament expressly or by necessary implication provided to the contrary.

26. Counsel for the prosecution referred to the three possible approaches to the interpretation of the section:

Firstly, the approach proposed by the applicant: that the accused does not have to prove honest belief , that the

defence merely has an evidential burden to discharge, whereupon the legal burden reverts to the prosecution,

which must rebut the defence of honest belief; the defence need do no more than raise the issue on the whole of

the evidence.

Secondly, the approach adopted by the learned trial judge in this case, namely that s. 3(5) of the Act of 2006

casts a persuasive burden of proof on the accused person. He must prove the defence of honest belief by

reference to some evidence in the case, whether by cross-examination or otherwise, but not necessarily by giving

evidence himself. The burden upon him is no higher than to establish a reasonable doubt in the mind of the jury;

Thirdly, that s. 3(5) of the Act requires the accused to show by way of proof on the balance of probability that

he had an honest belief that the complainant was more than the age specified.

27. The Court accepts that the section can be analysed by reference to those three possibilities. The first is advocated by the

applicant; the second was adopted by the learned trial judge; the prosecution proposes the third.

The First Option

28. The applicant submits that a trial court should treat a defence of “honest belief” permitted by the statute in exactly the

same way as a defence of provocation to a murder charge. He did not advance any particular reason as to why this should

be so. There are obvious differences between the two situations. The rules with regard to the defence of provocation have

been developed through the case law over a number of years. (See, in particular, The People (D.P.P.) v. MacEoin [1978]

I.R. 27; The People (D.P.P.) v. Bambrick [1999] 2 I.L.R.M. 71; The People (D.P.P.) v. Kelly [2000] 2 I.R. 1; The People

(D.P.P.) v. Davis [2001] I.R. 146 and The People (D.P.P.) v. McDonagh [2001] 3 I.R. 201). They relate only to the

offence of murder; a successful reliance on the defence may have the effect of reducing the offence to manslaughter, but no

more. The extent of the evidence necessary to enable the defence to be raised has been described as “…whether on the

state of the evidence it would be open to a jury to conclude that it was reasonably possible that the accused had been the

subject of provocation…” (The People (D.P.P.) v. McDonagh [2001] 3 I.R 201 at p. 208.) There is no obvious reason to

apply that judge-made test to the provisions of an Act of the Oireachtas, and in particular, an Act with the legislative

background of this Act.

29. In any event, in all of these cases, it has been held that the court must, in the first instance, rule as to whether, on the

state of the evidence, the defence may be raised. It may be that, as was suggested by O’ Flaherty J. in one of the cases (The

People (D.P.P.) v. Halligan (Unreported Court of Criminal Appeal, 13 July, 1998), “there is a low threshold test.”

30. In the present case, the defence did not adopt that procedure. As already indicated, the defence of "honest belief" was at

no point and in no form whatever raised in the course of the evidence before the jury. Moreover, the defence did not ask

the judge to rule on whether, on the state of the evidence, the defence might be raised. The issue of honest belief and the

burden of proof was, as already stated, raised by the learned trial judge of his own motion in the course of the evidence.

Indeed, even on hearing of the appeal, the defence did not point to any evidence from the trial from which, in the view of

the court, it might be concluded that the applicant might, even as a matter of possibility, have considered the complainant to

be above the statutory age. It is true that counsel referred to the fact that the girls had been palling around, were out late and

were taking lifts in cars. It is impossible to see how any of this could provide a basis for an honest belief in the mind of the

accused that the complainant was above the age of 17. In reality, all the evidence points in the opposite direction.

31. Accordingly, the Court is satisfied that the applicant must fail in his application for this simple reason. Even assuming the

procedure in provocation cases to be applicable by some form of analogy, the present case does not qualify. The judge did

not rule and was not asked to rule at the close of the prosecution case on whether the defence might be raised. If he had

been asked, it seems more than doubtful that he could have concluded, on the state of the evidence, that there was a basis

for raising it.

32. Insofar as it is necessary to say so, the Court is of the opinion that there is no sufficient analogy between the defence of

“honest belief” permitted by s. 3(5) of the Act of 2006 and the defence of provocation in murder cases.

The Second Option

33. In light of what has already been said, it is probably unnecessary to proceed to the second stage. The applicant would

not be entitled to succeed even if the provocation procedure should have been followed. The learned trial judge ruled clearly

that there was a burden, which he described as a reversed burden of proof, placed upon the applicant to prove, by reference

to the evidence, that he had the required “honest belief.” He also explained that it was not necessary for an accused person,

in order to discharge this burden, to give or call evidence himself. He could rely on any part of the evidence given by the

prosecution or points raised in cross-examination.

34. On the face of it, and construing the section in accordance with the normal rules of interpretation, the Court is satisfied

that it places a burden on the defence to “prove that he or she honestly believed that, at the time of the alleged

commission of the offence, the child against whom the offence is alleged to have been committed had attained the age of

17 years.” It is clear, nonetheless, that such a burden could be discharged otherwise than by the defence giving evidence.

Quite obviously, the defence is entitled to rely on any of the evidence given in the case. It will be entitled, by cross-

examination or by raising matters before the jury which are supported by the evidence in order to seek to prove the defence

of honest belief.

35. The courts have been exercised, over a number of years, by issues of burden of proof and the extent of the need for

proof of mens rea in cases of alleged sexual offences against children or young persons. B. (A Minor) v. Director of Public

Prosecutions [2000] 2 A.C. 428, is but one such case from a neighbouring jurisdiction. Much more to the point are the

judgments of the Supreme Court in C.C. v Ireland [2005] IESC 48: (Unreported, Supreme Court, 12th July, 2005), where

it was held that the offence created by s. 1(1) of the Criminal Law (Amendment) Act 1935 excluded any reliance on a

defence based on belief as to the age of the complainant. In none of these cases have the courts been confronted with a

statutory provision such as s. 3(5) of the Act of 2006, which explicitly casts a burden on the accused to prove his honest

belief regarding the age of the complainant.

36. The Court must clearly give effect to the provision. It cannot ignore the fact that the Oireachtas requires the accused

person to prove the state of his “honest belief.” The learned trial judge gave effect to that statutory requirement. He did not

go so far as to adopt the submission of the prosecution to the effect that the burden must be discharged on the balance of

probabilities. He held that the defence must show that there is a reasonable doubt as to whether he had the required “honest

belief.” This, as he described it, is “a reversed burden of proof.” As such, it is a novelty in our criminal law. It proceeds,

however, from an interpretation of the statutory provision which goes no further than to require the accused to prove that

there is a reasonable doubt as to whether he had an honest belief that the complainant was 17 years of age or more. In the

view of the court, the learned trial judge was correct to require that the applicant discharge at least that burden. It may be

that the section, correctly interpreted, places a heavier burden on the accused person, namely to prove, on the balance of

probabilities that he had the requisite honest belief. The decision of the Court of Appeal (Criminal Division) in England in R.

v Daniel [2003] 1 Cr.App.R.6 99, at page 105, states that “there is ample authority to support the……direction to the jury

that the appellant had to discharge a persuasive, not merely evidential, burden of proof by showing on the balance of

probabilities that he had no intention to defraud or conceal the state of his affairs.” The court was dealing with a section

requiring a defendant to prove absence of intent to defraud. However, this authority was not opened to the court. There are

others: R v. Carr-Briant [1948] 1 K.B. 213; Convening Authority v Doyle [1996] 2 I.L.R.M. 213. The court can deal with

the matter by invoking the maxim that the greater comprehends the less. If the appellant was unable to satisfy the jury even

that there was a reasonable doubt on this point, axiomatically, the jury could not have believed that he probably had the

requisite honest belief. It is sufficient to sustain the conviction that the applicant was unable to raise a reasonable doubt in

the minds of the jury that he had an honest belief that the complainant was 17 or more.

37. The jury convicted the applicant on the basis of a ruling more favourable to him than the burden of proof on the balance

of probabilities, even assuming that to be the correct interpretation. In these circumstances, it is neither necessary nor

appropriate for the Court to decide whether the section requires proof to that higher standard. The court expresses no view

on that question.

38. The Court, therefore, rejects the application for leave to appeal.