Court of Appeal quashes sexual assault conviction due to jury instruction error on proof beyond reasonable doubt standard.

An Chúirt Achomhairc Choiriúil

The Court of Appeal

Court of Appeal Record number: 129/2024 Bill No: DUDP0146/2022 Neutral Citation Number: [2025] IECA 261

Charleton J Kennedy J Butler J

Between

The People (at the suit of the Director of Public Prosecutions)

Prosecutor/Respondent

AND

SM Accused/Appellant

Judgment of Court delivered by Mr Justice Charleton, 20 November 2025

1. On the 24 March 2024, following a trial before Her Honour Judge Berkeley and a jury in Dublin, SM, the appellant, was convicted of 10 counts of sexual assault contrary to s 2 of the Criminal Law (Rape) (Amendment) Act 1990, as amended by s 37 of the Sex Offenders Act 2001. A sentence of five and a half years imprisonment was imposed on the 18 April 2024.

2. The prosecution contended that the appellant had sexually abused his cousin, who was born in 2001. This was repetitive and was alleged to have occurred during a holiday in Leitrim and after that at the home of a grandmother in Dublin. During this time, the complainant was aged between

6 and 10 years old. Her recollection of SM was of him being in his early to mid-teenage years. The relevant dates are 2007 to 2011.

3. Due to significant family issues, the appellant was being cared for by a grandmother. Following a written note being found, it is alleged, in the room of the complainant by her brother, this series of events was started. This set in train a series of events that culminated in the trial which is the subject of this appeal.

4. Two confrontations were in issue. As the law of evidence enables, when a person is confronted by an allegation in which it is reasonable to deny a grave assertion, then a statement that does not positively assert innocence can be treated as an admission. One confrontation was to a social worker, which the trial judge held did not meet the conditions for admissibility. The other was a family confrontation and this was admitted in evidence.

5. The case made at trial by the appellant was that the allegations were untrue. Additionally, evidence was called by the defence demonstrating that the appellant was a vulnerable person who had had significant engagement with support services in respect of his developmental and intellectual shortcomings. His vulnerability was particularly significant in the context of his need for support and accommodation and the complicated family dynamics involving his aunts and uncles and his grandmother, over his care. It was the defence’s case that reliance by the prosecution on an alleged failure by the appellant positively to assert his innocence was inappropriate and that in these circumstances, that the probative value of his response to the allegations was extremely low and, ought to have been ruled inadmissible.

The alleged admission

6. The case is made that the appellant’s failure to assert positively his innocence in the presence of the allegations by the family should not have been produced in evidence as an admission. This is a matter of principle. Generally, what is said in the presence of the accused is admitted in evidence where that dialogue advances understanding of the case. Where, however, what is said is to be attributed to him as a confession to crime, a particular rule applies. A declaration made in the presence of a party to a case, here the accused, which is such as naturally to elicit a response by denial since an allegation of crime is made, can be an admission where the circumstances are such that contradiction should be the only reasonable response. What weight, if any, is to be attached to that asserted admission is a matter for the jury. But, here, it is argued that because of the psychological issues which the appellant has, which were within the realm of expert analysis, it was not reasonable to expect a similar response as from an individual that is not vulnerable, due to the high-risk factors said to exist, which would make a false confession, it is argued, highly likely. In that regard, the evidence of a psychologist was called both on a voir dire and before the jury.

7. The Court needs to make a comment on the evidence in front of the jury. A case is not strengthened in law where an assertion is made in court and then evidence is called of that same assertion being made to others who had no personal knowledge of the issue asserted. An exception is a recent and spontaneous complaint of sexual violence. There, that limited evidence is called not as proof of what was previously said, since that is hearsay, but to demonstrate consistency only. Self-corroboration is not evidence. Hearsay is a statement other than that made by a person testifying, as proof of the truth of an experience. What a witness has experienced may be testified to, but not what a witness has told others of that experience. While in expert medical evidence it may be expected that a history was taken, that history cannot be repeated as if to prove the validity of assertions made in the consulting room. A truncated summary may be acceptable to the effect that the assertions made to the specialist were part of the background and accord with what is already in the case or which may shortly be put in evidence through the accused’s evidence.

8. The evidence of the psychologist was to the effect that because the appellant is diagnosed with ADHD, has a low cognitive ability, poor stress responses, and is otherwise affected, the appellant was a vulnerable individual, and that the personality traits and neurological conditions he has greatly increase the likelihood of a false confession. However, when admitted, it was of course proper for that testimony, subject to control as to narrative, to be given to the jury. The trial judge, in admitting the evidence, accepted the diagnoses offered by the psychologist. However, the report setting out risk factors which may tend towards a false admission was considered limited by the trial judge, owing to the fact that the psychologist relied solely on the accused’s account, without access to other information such as other medical reports. Moreover, the trial judge noted that the psychologist’s research was based on false confession risk factors which arise in the context of police custody, which was seen as another reason for which the report may be of limited value in this case. In determining whether the admission was voluntary, or was rather a result of pressure and insistence, the judge outlined the following factors:

[The appellant’s aunt] knew the accused extremely well, reared him, in effect, and lived with him and her mother for some months after the confrontations with no hostility. There was no pressure, no threats or circumstances that would give rise to any concern in relation to the alleged false confessions being made to the family members. Taking into account this particular accused's disabilities, circumstances and history even, I do not accept that the risk factors outlined by [the psychologist] have any direct application to this situation where family members are angry and upset at allegations of very serious abuse, confront the accused, a family member, in what I accept to be an appropriate and reasonable, calm manner. His reaction was to say he did not remember and if [the complainant] said it happened it did. He did not quite confess and certainly was not under any pressure. He left. He was asked to attend a meeting, he did and he left. He was asked to tell the truth and it appears that the family believe that [the complainant] is telling the truth and want the accused to accept that responsibility. There was nothing in their words or actions that were in any way inappropriate or unreasonable in the circumstances, even given his level of functioning and there are no grounds to exclude his admissions on that basis.

9. From the ruling of the trial judge, it is clear that the matter was properly analysed and in accordance with the applicable principle. It is a matter for assessment in all the circumstances.

Delay warning

10. Older cases, of which there are many, where the alleged victim asserts abuse going back years or decades, are difficult to try. But, that is not impossible. Often, a deeply traumatic experience may be held back and only revealed because of some triggering event. What needs to be borne in mind by a jury is that an allegation always has a context and that the detail of that context may be lost because time has passed. Where the setting of alleged sexual violence has faded from memory or where witnesses have become unavailable, there will be a disadvantage to the person accused. When reported immediately, controversy often arises as to consent in the case of adults but where there is delay, it is very often a case of a child being subjected to abuse by an older person and then the issue is that of whether something happened. The warning given by Haugh J occurred in the course of a trial. It was repeated, however, in a judgment of the Court of Criminal Appeal in The People (DPP) v RB (Court of Criminal Appeal, 12 February 2003) [17] and cited in Charleton, McDermott, Criminal Law and Evidence (2nd edn, Bloomsbury Professional, 2020) at [11.196] thus:

I now want to move from the general, not totally to the particular, but to this kind of case.

You have heard in this case, and it is undoubtedly a further difficulty for the case, that this is a case of an old complaint. The events that you have to decide here are alleged to have occurred more than fifteen years ago. It obviously makes the task for a jury and the task for a court in trying these cases a lot more difficult. As Mr. McKeon says, they normally degenerate into one man’s word against another, a ‘you did, I didn’t, you did, I didn’t’ kind of a contest and that is because when you are dealing with old complaints, you are dealing with events from a long time ago and for the very reason that they are so old they generally lack precision, they generally lack detail.

And it is in precision and in detail that crossexaminations generally take place. Witnesses seldom change their stories and admit that what they had said was a fabrication or a lie. You probe looking for the truth by questioning people in relation to detail. If there are contests, as there is in this case or any case where there is a plea of not guilty, again it is much easier to defend an allegation when there is detail alleged against you. If somebody alleged that any one of you had assaulted me in the middle eighties and left it no more than that, it is very, very hard for you to defend it.

I think that would be accepted by all of you and it is, no doubt, so. But if I had complained that one of you had assaulted me last July, if I had complained that one of you had assaulted me on the 17th of July, the chances are that you will be able to work out your whereabouts at that time and who can vouch for you at that time and be able to grapple with issues on the basis of detail. You will be able to look up your diaries maybe, if you keep them, or check with your employers if you have them and you may have been on holidays. But how can a person be expected to attack the allegation, to contest the allegation with any subtlety, with any detail, with any forensic form of attack if all you are told about it is that you did it about 15 years ago on some date unknown over a period of eighteen months? That, I suggest to you, makes it far harder to defend it than it is to prosecute it.

In fact, to prosecute it is easier if you do not nail your colours to the mast because there is less you can be crossexamined on. But the law does not say that stale cases, old cases, cannot be tried. But what I must tell you is that an accused person cannot in your minds or in your consideration be disadvantaged because the case is old, because the complaint is related to events from a long time ago. You have to be all the more careful and it should be much harder to satisfy you in relation to an event that is phrased in a vague and general way, rather than an event which carries details or particulars.

You cannot let the fact that Mr. B. is handicapped by reason of the lack of precision in the charge cause you to come easier to a decision adverse to him. The State should not take benefit from old cases. Their life should not be made easier by bringing old cases. Juries must, with their hand on their heart, recognise the huge difficulty that accused persons have of dealing with old cases and be all the more careful and take that into account when arriving at a decision.

11. The direction promulgated as ideal on behalf of the appellant from the remarks of Haugh J, notes the contrast as between a case heard within a reasonable time after an allegation is made and one where there has been a delay of years or decades: memories fade, witnesses become unavailable, the context may become blurred, mistakes as to places and settings may sew confusion, facts which may exonerate or cast doubt cease to be available to be checked. In short, where the allegation of what happened today is made today, an assertion of innocence may bring forth evidence that in a decade may be lost or may be wiped from memory.

12. The essentials of that were given by the trial judge in unimpeachable form. Then another point is made which is that Leitrim was a setting for alleged abuse. On being interviewed by Gardaí, the appellant said he did not remember a trip down the country and the setting alleged. Instead, there was a reference to a holiday in County Cavan.

13. This is a detail that if it was to be made important, the defence should have commented on. But this did not happen. It is not now possible to assert that it was in any way a turning point within the trial.

Jurors and debate

14. It is also argued that the judge should have given a novel direction to the jury: that those of a point of view should not hold out and be pressured by what other jurors thought. Essentially, the idea here is that with the necessity to make a decision some jurors in favour of acquittal might weigh in for the sake of peace with a guilty verdict. That would be a breach of the jurors’ oath to “well and truly try the issue of whether the accused is guilty or not guilty of the offences charged and a true verdict give in accordance with the evidence.” Jurors are a collective and are also individuals. There is no need to give a warning about pressure. The conduct of the jury deliberations is a matter for the jury. Were it to happen that some juror had a strong view, that would not be pressure. Instead, the issues are there to be tested as to fact and inference from fact as to objective validity. In community, it helps to debate an issue. In arriving at a decision, the experience of the world and the analysis of other jurors become valuable.

Beyond reasonable doubt

15. While “a judge’s charge ought not readily to be approached with a fine-tooth comb, the individual sentences prised for any trivial error of law”, The People (DPP) v Eadon [2019] IESC 98, [2021] 1 IR 417 [91], the fundamentals as to the burden and standard of proof have to be correct. Here, the judge addressed the jury thus:

So, that is unless the prosecution have proved their version beyond a reasonable doubt, and you'll only have a reasonable doubt if the prosecution have not proved their version beyond a reasonable doubt and that's a natural consequence of the presumption of innocence and that's what we call the benefit of the doubt.

Secondly then is the onus of proof. The onus of proof of every element of each of the offences charged is on the prosecution. The might of the State must prove each charge, each element of the offence and they must prove it to you beyond a reasonable doubt and the onus never shifts or moves to the defence.

So, in this trial, there was no obligation on the accused to prove he's not guilty and he was under no obligation to say anything, to explain anything or to make any case or give evidence on his own behalf. He chose to give evidence at his trial and his evidence now forms part of all of the evidence that you have to consider. He could have decided not to give evidence, that would be his right, his prerogative and you wouldn't be able to infer anything from that.

The standard of proof. Proof beyond reasonable doubt, a doubt based on reason. In the civil courts the standard of proof is the balance of probabilities. So, if I hear a case accident at work or road traffic case and I decide that I prefer, I'm more convinced of the evidence of the plaintiff, it's more probable, what is more likely to have happened, the balance of probability lies in favour of the plaintiff, I will hold for the plaintiff. It's a much lower standard, as you can see, it might only be 51/49%, like the justice scales although we don't compare things to scales or mathematical situations. But as you can see from that, it's a much lower standard of proof. In criminal trials, like this trial, the onus of proof is much higher, and the prosecution must prove that the accused person is guilty of the charge beyond reasonable doubt.

And another way we compare it, we compare it to the civil standard, we compare it to serious decisions that people make in their lives. So, no reasonable person will take a serious decision on an important matter in his or her life without thinking very carefully about it. They would weigh up the pros and the cons, will I move jobs? Will I move house? Will I move abroad? And they'll weigh up the options, the points for and the points against and if a reasonable person has a doubt about taking such a decision and can identify reasons for that doubt which makes sense to them, that would be a reasonable doubt.

So, although it's not a mathematical calculation, you want to be fairly sure and fairly certain and if you're in school with your ruler and you're doing your maths, that ruler, that wooden ruler, I don't know if you all got that, but that's what we sometimes compare it to, you'd want to be fairly close to the top of the ruler. At the end of the day, you must sleep soundly and have no misgivings about your decision. Your decision is final as a jury, and you can't come back and I'm sure you're well aware of this. All of these things I have to say to you.

If you make a mistake, you can't come back. There is an appeal and obviously you hear about appeals, but that's on grounds of law about things I say, not about your decision, so that's very important.

16. Central to a trial “in due course of law” under Article 38 of the Constitution is that the prosecution prove its case and that such case be proven beyond a reasonable doubt; O’Leary v AG [1993] 1 IR 102, 107. That is not to say that upon the proof of core elements of a charge, a reversed burden of the proof of a reasonable doubt may fall on an accused; Charleton, McDermott’s Criminal Law and Evidence, chapter 2; CW v Minister for Justice, Ireland and the AG [2023] IESC 23.

17. As a matter of principle, legal rules are promulgated, or become part of the common law, through both the experience of judges and the application of reason. The common law generally proceeds on the proposition that the prosecution must prove the charge. Thus, with exceptions pursuant to common law or statute, that means that defences left to the jury, meaning those with an air of reality within the body of evidence, must be disproved by the prosecution. Exceptions may arise by statute, such as the defilement of a child under 17 years of age, where a reasonable doubt by way of mistake by the accused as to age lies within the proof of the accused, or the probability of mistake where the child is 15 years or younger, lies on the accused; CW. Or, through the ease with which insanity may be put into the matrix of homicide, that defence and diminished responsibility must be clearly proven by the defence; The People (DPP) v Heffernan [2017] IESC 5, [2017] 1 IR 82, [2017] 1 ILRM 118.

18. Coming first to the presumption of innocence, juries are judges and objectivity is of the essence of clear judgment. Thus, the presumption of innocence is correctly likened to a blank sheet of paper. On it is to be put, in the consideration of whether the prosecution have proven their case, nothing more than whatever facts the jury accept as proven beyond reasonable doubt. If, having heard all the evidence, there is no testimony upon which the jury is content to rely to that standard, there is no case upon which to return a guilty verdict: the presumption of innocence is not displaced. If, having heard the evidence, the testimony is not sufficiently strong to enable the jury to say that the case has been proven beyond reasonable doubt, a guilty verdict cannot be returned: the presumption of innocence is not displaced. The presumption of innocence is only displaced if what is proven establishes the guilt of the accused beyond a reasonable doubt.

19. Essential to any jury direction is that the judge explains the burden and the standard of proof. As was observed by Edwards J in The People (DPP) v Herda [2017] IECA 260 [79]-[80]:

While the term beyond a reasonable doubt might be second nature and carry an obvious meaning to a lawyer, its intended meaning to a lay person will not be quite so clear. It is a difficult enough concept to explain to a lay person, and in particular, between any doubt and reasonable doubt. In his charge to the jury on this subject, the learned trial judge directed the jury that they should approach the cases on the basis of making a particularly important decision in one's life. He advised them to consider their verdict on the basis of making such a decision having considered it uphill and down dale in the most thorough possible fashion. His concluding remarks to the jury on the subject was in the following terms:-

‘It is the sort of doubt a reasonable person would entertain on a matter of the

(most) importance which would cause them to turn away from the proposal or idea or course of action which one was contemplating.’

The suggestion of an analogy between the decision the jury has to make and similar life changing decisions in order to illustrate the height of the standard is an approach which has found general approval in this jurisdiction.

20. Analytically reasoning through a legal rule brings up the question of why a rule exists. In turn, the nature of the principle involved may be illustrated. Criminal offences strike at the heart of the community. Of their nature, fraud, sexual violence, homicide and the myriad of other serious crimes, are an affront to true social order and an attack on the human rights of the victims. As an attack on both the victims and on the community, the nature of the evidence and its sufficiency for a conviction are matters of public interest. This is reflected in both media interest and in those attending and representing the public out of legitimate interest. It becomes an affront to true social order if a reasonable person with knowledge of the evidence, as opposed to out of mere opinion or speculation, on thinking through why the accused had a guilty verdict returned, were able to say: for this reason, I consider it possible that this person may not have actually perpetrated that crime.

21. Proof in a criminal trial is beyond reasonable doubt. It is much more satisfactory if counsel leave this direction which is one of law to the judge and not muddy the waters with their own sectional advocacy and appeals to emotion. Here is a model direction, but in setting this out the Court is conscious that it is the essence of the burden and standard of proof that needs to be conveyed:

Proof beyond reasonable doubt means that, having listened to all the evidence and the arguments of counsel, you are satisfied beyond reasonable doubt that a charge, or one or more charges, has been proven. A reasonable doubt is not a manufactured doubt. It is a doubt that can be reasoned through: because of a particular factor on the evidence, it is reasonable to doubt the guilt of the accused.

In every criminal case the prosecution must prove their case beyond reasonable doubt.

You may only find a fact against the accused if it is proven beyond reasonable doubt, not because it is more likely than not. That may be by direct proof, as in a witness saying that he or she saw the accused committing the crime, or by putting facts together through inference. You may only infer a fact against the accused if it is proven beyond reasonable doubt, not because it is likely. An inference is a fact that you find to exist because of the proof of another fact, or facts. An example of an inference is: if you go out into the street from here and everywhere is drenched with water, you may infer it has been raining. Where two views are possible, you only find the fact, or make the inference from the facts, where that fact, or where that inference, is proved beyond reasonable doubt. You must give the accused the benefit of any reasonable doubt on the facts, or on the interpretation of the facts, or in making an inference from the facts. Even if the view in favour of the prosecution on the facts, or on inference from the facts, is more likely, that is not enough.

Any inference you make can be made only because you are satisfied beyond reasonable doubt that it should be made.

In a civil case you would be deciding this case on the balance of probabilities. Is something more likely or not? That is not the standard here: it is higher: it is proof beyond reasonable doubt. If you were to consider important decisions in your own life, such as buying a new house, or emigrating to another country, you would weigh up all the factors in favour and against, you would discuss the matter with your friends and associates, who are now your fellow jurors, and if you were left in a state of indecision as to whether you were making the right decision, or needed more information to be sure, that is an example of a reasonable doubt. The evidence need not eliminate unreal or imaginary doubt because everything in life is open to some possible or imaginary doubt. Thus, proof beyond reasonable doubt is not a mathematical or scientific proof but is that very high standard of satisfaction.

A reasonable doubt, therefore, is not one manufactured out of nothing; not one which arises through fantasy or out of irrational scruple. A reasonable doubt is one that can be reasoned out: “for the following reason, because I doubt this piece of evidence, or because this evidence is missing, or is not strong enough, or because I do not trust the witness, or their memory, on this or that fact necessary to prove the accused committed the crime, I doubt that the accused is guilty.”

22. Being fairly sure of guilt means having a probable appreciation of guilt but to a moderate or reasonable degree only. That phrase, which undermined an otherwise impeccable charge to the jury, was compounded by the ruler analogy and the uncertainty as to what degree of perhaps 12 inches or maybe 30 centimetres had to be achieved.

Result

23. In the result, the Court has no option but to overturn the conviction and order a re-trial.