DPP v M.X.
| Jurisdiction | Ireland |
| Judge | Ms. Justice Donnelly |
| Judgment Date | 02 March 2020 |
| Neutral Citation | [2020] IECA 46 |
| Docket Number | Record Number: 3/2019 |
| Court | Court of Appeal (Ireland) |
| Date | 02 March 2020 |
[2020] IECA 46
Birmingham P.
McCarthy J.
Donnelly J.
Record Number: 3/2019
THE COURT OF APPEAL
Conviction – Sexual assault – Intoxication – Appellant seeking to appeal against conviction – Whether in her charge to the jury the trial judge had dealt with the defence of intoxication correctly
Facts: 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. 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. The appellant appealed to the Court of Appeal against conviction. 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.
Held by the Court that not permitting the appellant to rely upon a defence of intoxication was neither illogical or unfair to him; 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. The Court rejected the issue raised on appeal concerning the refusal of the trial judge to permit a defence of intoxication to go to the jury. The appellant submitted that the reference to the barring order was excessive but the Court held that 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 Court held that 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. The Court rejected the second ground of appeal.
The Court held that the appeal would be dismissed.
Appeal dismissed.
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.
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.
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.
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.
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.”
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.
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.
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.”
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.
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.”
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.
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.
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...
To continue reading
Request your trial