DPP -v- Seán EganNeutral Citation: [2010] IECCA 28 Court of Criminal AppealJudgment was given on March 26th, 2010, by Mr Justice Fennelly, sitting with Mr Justice Gilbert and Mr Justice Gilligan
Judgment
A man convicted of having sex with a 14-year-old girl, who did not raise the defence during his trial of an “honest belief” that she was over 17, could not evade conviction
on the grounds that the burden of proof to rebut that belief rested with the prosecution, and that the defence needed to do no more than raise the issue on the whole of the evidence.
Background
The applicant was charged with four offences before the Central Criminal Court: two of rape and two of engaging in a sexual act with a child under the age of 17, contrary to s 3(1) of the Criminal Law (Sexual Offences) Act 2006.
This Act states that it is a defence to the charge of sex with a child under 17 if the defendant “prove[s] 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”.
The applicant was acquitted of the two rape charges and of one of the under-age sex charges. He was convicted of the other.
He appealed his conviction on four grounds: that the jury verdict was inconsistent in that they convicted him of the under-age sex charge while they acquitted him on the rape charges; it was also inconsistent in that they convicted him of one under-age sex charge while acquitting him on the other; the judge was wrong to admit in evidence a piece of cloth found in his car; and the judge misdirected the jury with regard to the burden of proof of “honest belief” concerning the age of the child.
Mr Justice Fennelly said the first three grounds failed. The principal ground of the appeal was the issue of judge’s directions in respect of the defence of “honest belief” regarding the child’s age.
The Act stated that the court should have regard to the presence or absence of reasonable grounds for the defendant’s so believing.
Mr Justice Fennelly outlined the evidence given at the trial. The complainant said she had been born on January 18th, 1992. She was just one day short of her 15th birthday when the alleged offence took place.
The defence did not attempt to advance any particular evidence of the belief of the applicant regarding the age of the complainant. The evidence was generally that the applicant, then aged 20, frequently met the two complainants and a number of their contemporaries when they were wearing their school uniforms, occasionally driving some of them to school.
It was the trial judge who raised the issue. In his charge to the jury he said it was a defence where the accused could show on the basis of the evidence that he or she honestly believed the child had not reached the age of 17.
Counsel for the accused said that the judge’s charge was different to what he had indicated he would give on the previous day. The judge said he had reconsidered the section and his belief was that there was a burden on the accused to give evidence he did not know the complainant was under 17.
Counsel for the defence submitted that it was sufficient to raise the matter, the burden of proof then lay on the prosecution to negative that defence beyond reasonable doubt. All the accused had to do was raise a reasonable doubt on the evidence as to his honest belief.
Counsel for the prosecution said that the Act imposed a legal as well as an evidential burden on the accused, as it used the words “to prove that”. There had to be evidence.
Following requisitions, the judge said that if there was a reasonable doubt, on the evidence, that the accused honestly believed the girl to be over 17, then the jury must acquit.
In his appeal, the applicant said that the only obligation on him was to raise the issue, similar to the defence of provocation in a murder trial. The onus was on the prosecution to rebut that and prove the case beyond reasonable doubt.
Decision
Mr Justice Fennelly said there were three possible approaches to the interpretation of this section of the Act: the defence need do no more than raise the issue of honest belief on the whole of the evidence, whereupon the legal burden shifted to the prosecution, who had to rebut the defence; the approach of the judge in this case – that the accused had to prove the defence of honest mistake by reference to some evidence in the case, the burden was no more than establishing reasonable doubt in the mind of the jury; the approach advocated by counsel for the DPP that the accused had to show by way of proof on the balance of probabilities that he had an honest belief that the complainant was no more than the age specified.
In relation to the first approach, the defence did not point to any evidence from the trial that might point to an honest belief on the part of the accused that the girl was over 17. All the evidence pointed in the other direction.
The defence had asked the court to consider an analogy with the defence of provocation in murder cases, but there was no sufficient analogy between the two. The appeal must fail on this point alone.
Mr Justice Fennelly said it was probably unnecessary to consider the other options, but he went to do so. He said the court could not ignore the fact that the Oireachtas required the accused person to prove the state of his “honest belief”.
The trial judge did so, though he did not go so far as to adopt the submission of the prosecution that the burden must be discharged on the balance of probabilities.
It may be that the section, correctly interpreted, places a heavier burden on the accused to prove on the balance of probabilities that he had the requisite honest belief. In this specific case, if the defendant was unable to satisfy the jury even that there was a reasonable doubt on this point, it was obvious the jury could not have believed he probably had such a belief.
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. It was not necessary for the court to decide whether the section required proof to this higher standard.
The court rejected the application for leave to appeal.
Erwin Mill Arden SC and Karl Finnegan BL, instructed by Eoin O’Connor solicitors, Naas, for the applicant; Alex Owens SC and Paul Green SC (then BL), instructed by the Chief Prosecution Solicitor, for the DPP; the complainant was represented by Vincent Hennigan BL;
The full judgment is on www.courts.ie