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You are here: BAILII >> Databases >> Supreme Court of Ireland Decisions >> C.W v The Minister for Justice, Ireland and the Attorney General and the Director of Public Prosecutions (Approved) [2023] IESC 22 (28 August 2023)
URL: http://www.bailii.org/ie/cases/IESC/2023/2023IESC22(CharletonJ).html
Cite as: [2023] IESC 22
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An Chúirt Uachtarach
The Supreme Court
Dunne J
Woulfe J
Hogan J
Murray J
Supreme Court appeal number: S:AP:IE:2022:000082
[2023] IESC 22
High Court record number 2021/3473P
Between
CW
Plaintiff/Respondent
- and -
The Minister for Justice, Ireland and the Attorney General and the Director of Public Prosecutions
Defendants/Appellants
Judgment of Mr Justice Peter Charleton delivered on Monday 28 August 2023
1. In concurring with the joint judgment of O’Donnell CJ and O’Malley J, it is here proposed only to offer concise observations on the history of reversed burdens of proof and on any potential indicia whereby the State may validly legislate to take an essential element of proof of a true criminal offence and require an accused to prove innocence by establishing a negative as to that element. A standard example of reversed burden comes from the Misuse of Drugs Act 1977, as amended, where the prosecution prove that: (1) A had possession; which also requires (2) a mental element of intention to possess; of (3) controlled drugs; whereupon A must prove (4) no awareness of the drugs. Here, the issue arises in the context of a sexual act, unlawful by reason of age under s 3 of the Criminal Justice (Sexual Offences) Act 2006 s 3 as substituted by s 17 of the Criminal Justice (Sexual Offences) Act 2017. The elements of the charge are proof: (1) of sexual intercourse or other prohibited sexual act; with (2) a child below a certain birthday; but where (3) the accused must demonstrate unawareness as to the element which makes that activity criminal as to its nature, namely (2), the age of the victim. Sexual act is defined in s 1 of the 2006 Act, as amended by the 2017 Act, as “sexual intercourse” or “buggery”, where the people are not married to each other, or (a definition taken from s 3(1) of the Criminal Law (Rape)(Amendment) Act 1990, as amended, “a sexual assault that involves serious violence or the threat of serious violence or is such as to cause injury, humiliation or degradation of a grave nature to the person assaulted”, or (as taken from s 4(1) of same) “a sexual assault that includes (a) penetration (however slight) of the anus or mouth by the penis, or (b) penetration (however slight) of the vagina by any object held or manipulated by another person.” Of course, a sexual assault, an aggravated sexual assault and a section 4 rape, may all be prosecuted as separate charges. Sexual intercourse is as defined in s 1(2) of the Criminal Law (Rape) Act 1981, which, in turn, is as defined in section 63 of the Offences against the Person Act, 1861, but may be described as any penetration by the penis of the male of the vagina of the female.
Fundamentals
2. While some textbooks vary as to terminology, the terms here used coincide with those of the joint judgment and, in turn, with traditional common law usage. What is considered here are the fundamentals of the proof of true criminal offences, ones usually prosecuted on indictment and carrying a sense of moral opprobrium as an attack on the social order, as opposed to regulatory offences that establish and enforce rules for the proper running of a civic society.
3. The burden of proof in a criminal trial is on the prosecution and, save exceptions provided by statute or as to defences of mental infirmity, does not shift to the accused. That burden on the prosecution is proving the accused’s guilt and proving that guilt beyond a reasonable doubt. That burden prevails in respect of every element of the case: external as to what was done or participated in by the accused (robbery: stealing something from another and using violence or a threat on that person, is an example); and mental, as to intending (having the action or result as the purpose of what was done) or consciously disregarding a risk (recklessness) or being wilfully blind (which is equivalent to a knowing action).
4. The elements of an offence, when broken down, carry within them all that the prosecution must prove. Sometimes, in addition, there may be a defence notwithstanding that proof. For example, while the accused may have been proven to have possession of controlled drugs, he or she may only have done so at gun-point; as with the bank official who steals but whose family is kidnapped. There is a difference, which can sometimes be hard to delineate, as between a defence and an element of a charge. But, counsel for an accused are not entitled to suddenly address a jury on provocation (in murder only) or self-defence (in assault-based cases) or mistake of fact (in theft case, as in taking someone else’s bicycle instead of your own) unless there is first laid some evidential basis for that. Issue of fact are the subject to the same constraint. Counsel cannot, effectively, pull a rabbit out of a magician’s hat and claim, without evidential basis, that, for instance the injuries to the corpse in a homicide case were due to incompetent ambulance para-medics trying to revive the victim and not the accused beating up the unfortunate deceased. In both, defence or facts perhaps leading to a defence, the issue has to be fairly before the jury. This, enabling a defence requirement, is called the burden of adducing evidence. It means that the defence cannot ask the judge to leave open an argument to the jury unless there is on the prosecution case or on the defence evidence (if any) some rational basis for a jury perhaps concluding that the homicide resulted from a complete loss of self-control in the face of provocation, or that the accused in hitting the victim was acting in proportionate self-defence, or that in taking the bicycle there was a potentially genuine and reasonable mistake. Fact is the same. This burden of adducing evidence is only to show a rational basis for enabling a jury to consider a defence, either one of fact or as to an element of culpability. If a defence is in the case, the prosecution must normally (unless there is a reversed burden) disprove the evidence of a mistake; as in undermining the suggestion of an attack (self-defence) and proportionate response or mistaken taking (genuine and reasonable mistake).
5. The prosecution having proved certain elements of an offence (for instance possession of a controlled drug, or of explosives, or sexual activity where the victim was below a certain age) a burden may be reversed onto an accused to demonstrate, on the defence evidence (if any) or on the prosecution evidence, a reasonable excuse (for having, for example, explosives) or of not realising (meaning not having knowledge or recklessness) something (that the parcel contained controlled drugs, or the age of the other person in sexual activity, for example). Where there is such a burden, that carries a burden of persuading the court of something. But there are degrees of persuading a court or jury of something. Here there are sets and there is a subset. The subset, is the burden of adducing evidence (that of enabling something to be argued before the jury), and the set within which that exists: that of persuading the jury of something. The prosecution burden is proving there is no reasonable doubt: and that is the normal case because the prosecution carry the burden of proving all the elements of the case and of disproving any element of defence that is properly adduced in evidence. But where an element is validly (meaning constitutionally acceptably) reversed whereby the accused has a burden to persuade, this burden is met by demonstrating to the court, on the whole of the evidence in the case (prosecution case and defence evidence, if any), that there is a reasonable doubt as to that element (that there might reasonably be a reasonable excuse for having explosives, that there might reasonably have been a mistake made by the accused as to the age of the other person engaged in the sexual activity). Where that persuasive burden is put by legislation on the accused, then the accused must demonstrate a reasonable doubt on that specific issue; on the entirety of the evidence, whether there is any defence testimony or not. See the analysis of Costello J in O’Leary v AG [1993] 1 IR 102, 106-111.
Reversed burdens of proof
6. In the search for an appropriate way of dealing with reversed burdens, as to what standard the accused must meet in answering a charge where legislation requires that person to demonstrate a fact that would render his or her actions innocent, it seems that, historically, the courts first based their reasoning on consistency. The example present in the common law over centuries of a reversed burden was that of the defence of insanity. Since insanity is about a disease of the mind, and since the accused has the strongest connection to their own mental processes, bearing in mind also the prospect of unjustifiable acquittals, a reversed burden was demanded from those pleading the specifics of mental infirmity. Long used to the policy considerations which governed those proved to have killed a person, but who pleaded insanity as generating the ostensible crime, judges had invariably required that the accused prove clearly that he or she was legally insane while dealing death to the victim. Hence, in Sodeman v R [1936] 2 All ER 1138, that standard which the accused had to meet in proof was described by the Privy Council as not being “as heavy as the burden resting upon the prosecution to prove the facts which they had to establish” (proof beyond reasonable doubt) but, rather, that it would suffice “that the burden in cases in which an accused has to prove insanity” would not be “higher than the burden which rests upon a plaintiff or defendant in civil proceedings [namely, proof on the balance of what is probable].”
7. In The People (AG) v Fennell (No 1) [1940] IR 445, 450, the Court of Criminal Appeal affirmed that standard for the proof by the defence of insanity as probability and described as “chopping logic” to differentiate the standard of proof as between “clearly”, or “specifically” or “to the reasonable satisfaction of the jury”. In R v Carr-Briant [1943] 2 All ER 156, Fennell was taken as authority for the proposition that a reversed burden, where imposed by statute outside the context of an insanity defence, could not be higher than a probability: that an accused had to demonstrate the innocence of his or her position on the balance of probabilities. In Carr-Briant, an official had accepted a sum of £60, then about sufficient to purchase a family car, from a firm seeking the continuation of a war-time service contract, and the prosecution allegation was that this was a corrupt payment; one whereby their generosity would be later rewarded with favourable consideration when applying for public business. It is useful to split offences into elements that the prosecution must prove. The elements of that offence would be: (1) proof of a payment; (2) to an official in public office; (3) not for any legitimate purpose; but (4) in anticipation of creating a corrupt obligation. Once the prosecution proved a payment to an official, the Prevention of Corruption Act 1916 s 2 provided that it was for the person paying or the official receiving a payment, either could be guilty of this crime, to demonstrate an innocent purpose (a transaction in good faith; for instance, to buy a horse at market value, or a payment for repairing a flat roof at standard rates). Hence, the disproof of elements (3) and (4) are on the accused. The trial judge in Carr-Briant had instructed the jury that, in a criminal case, since the prosecution had to prove every element beyond reasonable doubt, the non-corrupt nature of the transaction had to be proved by the accused official beyond a reasonable doubt. That jury instruction was rejected on appeal to the Court of Appeal and the conviction overturned: probable innocence as to the transaction leading to the payment in question was all that an accused need establish. Thereby, the probability standard for all burdens of proof reversed by legislation onto an accused was firmly established at common law, since that is the standard authority followed generally in common law systems.
8. It must be remembered that it was not until Wolmington v DPP [1933] AC 462 that the “golden thread” was identified as central to the common law analysis of the burden and standard of proof in criminal cases: namely that the prosecution always bore the burden of proof, and that this burden did not ever shift since the role of the prosecution was always that, in asserting liability on a criminal charge, “the prosecution must prove the guilt of the prisoner” beyond reasonable doubt. A consideration of earlier textbooks and of the analysis in earlier judgments demonstrates that considerable uncertainty must have attended both the analysis of legislation and the approach of judges as to how both defence assertions, such as self-defence, and reversed burdens, were to be dealt with. The course of a trial is one of shrewd analysis by a jury, or a judge if sitting alone, as to whether the prosecution case is sufficiently sound or whether it lacks credibility as to the proof of all of the elements of an offence and as to whether any defence offered has been sufficiently undermined by the prosecution to enable a decision that a case has been proven beyond reasonable doubt. This fact-based analysis is ultimately one of common sense. Which is where the ordinary human quality shrewd assessment comes into it.
9. It is central to criminal law that juries look at what the accused has been proven to have done and ask themselves as to whether any excuse, if one is offered, could stand up as a matter of ordinary sense. In everyday life, it is inferred that where someone does any action which on the face of it is established to be a willed action, that this person intended to do what they have been seen to do. In the sphere of criminal law, where it is demonstrated that a person lights a taper and sets a couch in someone’s sitting room alight it is fair and right to infer that their purpose was to start a house fire. Where someone is demonstrated to have taken up a butcher’s knife and stabbed it into the chest of the victim, it is common sense to infer an intention to kill or cause serious injury. But that, while a sensible inference of fact, is not legally demanded of a jury: they make up their own minds. If a bomb is put among luggage in a plane and timed to explode in flight, natural reasoning will lead to the conclusion that the purpose of so doing was mass murder. If the bomb was not wired to cause it to detonate in flight, it may be that transport of a terrorist explosive from one place to another would be the possible conclusion instead. Hence, there is nothing new in s 4 of the Criminal Law Act 1964 in stating that a person “is presumed to intend the natural and probable consequences of their actions, but that presumption may be rebutted.” Ordinarily, without a reversed burden as to an element of the case, that the presumption has not been rebutted is the legal burden for the prosecution.
10. No inference establishing guilt can be required of a jury as an inevitable consequence of proving a fact but, equally, no jury may be stripped of ordinary sense in their analysis. Their task is always the shrewd assessment of fact in the light of ordinary experience.
Standard common law patterns
11. Normally, the burden and standard of proof follows a standard pattern: that of remaining at all times on the prosecution. An accused, in order to validly have a potential defence left to the jury, or tribunal of judges in the District Court or Special Criminal Court, has always a duty of adducing evidence; but this minimal burden does not imply any legal duty to supply evidence or to establish something. This evidential burden is to demonstrate to the judge that a defence is potentially and realistically open on the totality of evidence; that a reasonable jury might find self-defence, or duress, or that - in terms of fact - the insult to the body of the deceased was caused by someone other than the accused. This means that on the prosecution case, where no evidence is given by or on behalf of the accused, or on any defence evidence, a jury could focus on some evidence whereby it might reasonably be said that the accused acted in self-defence, or under duress, or out of inescapable necessity, or was so intoxicated as to not have a specific intent (for instance to kill), or that the State invented the crime and inveigled participation (entrapment), or that provocation caused complete loss of self-control leading to homicide, or that based on a mistake which a reasonable person might make, the facts in the mind of the accused were not such as to constitute a crime (coming to the aid of a person under attack, but not realising that civilian-attired police officers were attempting to restrain a violent suspect); generally see Glanville Williams - Evidential Burdens on the Defence (1977) NLJ 182.
12. Drawing on the central principle established in Wolmington, the golden thread that the prosecution must prove all elements of a case beyond a reasonable doubt, and that absent statutory intervention that the accused has no burden of establishing anything, the decision in The People (AG) v Quinn [1965] IR 366 confirms that where there is evidence over the entire of the testimony in a case, whether from prosecution witnesses or from those called by the accused, if any, whereby a defence might reasonably be accepted by a jury, the prosecution must address that evidence and show how it should not be accepted as disturbing the proof of the accused’s guilt beyond reasonable doubt. That burden on the prosecution of undermining a defence that was open on the evidence, or of demonstrating that the presumption of intention as to the natural and probable consequences of an action has not been rebutted, may be addressed either by contrary evidence, or by cross-examination of witnesses so testifying, or by argument to the jury as to the frailty of the evidence contended as underpinning a defence or as demonstrating fragility as to weight: but the burden remains always on the prosecution. Normally, all of that is done on the prosecution case and not by rebuttal evidence; The People (DPP) v Nevin [2003] 3 IR 321.
13. Common sense assists in analysing testimony. If evidence is weak or untenable or if assertions are made of acting in a state of unawareness, of mental innocence, where the facts point otherwise, a jury, required as they are to approach their deliberations with shrewdness and common sense, are entitled to reject defence evidence or a defence proposition based on the testimony in a case overall. Hence, while there may be a legal burden by legislation on an accused (that there was a reasonable excuse for having explosives, or that there was no awareness that the girl with whom the sexual activity took place was under 17, for instance) the prosecution remains entitled to address that issue on the prosecution case; but any reversed burden remains on the accused: through cross-examination of prosecution witnesses, through argument before the jury as to circumstances adduced in evidence, or through defence testimony.
Excepted issue: mental compromise
14. Excepted at common law from the Wolmington/Quinn doctrine of the requirement of proof remaining always on the prosecution are the specific defences of insanity and diminished responsibility; the defences of mental infirmity. There, the law developed with scepticism of madness-claims by requiring clear proof from the defence that the accused did not know what he or she was doing, or was unaware that the action was morally wrong or legally wrong, or was acting under an uncontrollable compulsion in consequence of mental illness. In diminished responsibility, where those factors are not overwhelming, as is required in insanity, but substantially diminish normal controls, and do not result from substance abuse, again the burden on the accused is of establishing a probability; The People (DPP) v Heffernan [2017] 1 IR 82. While earlier cases relied on the development of the analysis of reversed burdens created by statute conforming with the insanity exception in their application, this requirement of a burden of proof on an accused to establish a probability in order to prove innocence may not always be just.
15. The law is not always going to be perfectly logical or utterly consistent. Resort to logic can assist, as in Sodeman, in establishing conformity over different branches of the law, but experience and the necessities of policy to outwit plausible fraud also have a role which a drive to conformity would defeat. Sometimes, too, through the policy made to speak through legislation, it may be said that enough is enough: that the prosecution need only prove a set of facts and that since ordinary sense inexorably pulls a jury, or judge if sitting alone, towards a guilty conclusion from what is proven, if there is a defence, then the accused must establish it. Hence, apart from marketplace transactions for ordinary value at established rates, which everyone must engage in, public officials are not gifted money because someone feels that civil servants deserve more pay. That is just plain sense. Who would know, apart from those involved, as to why money changed hands? Hence, the legislative attitude is here, and in some other statutory exceptions establishing a reversed burden - they apparently got the money for nothing, and once we’ve proven they are a public official, let them prove this was an innocent transaction.
16. It also commonly happens in criminal law that it is not just the nature of the transaction but it is also in the nature of the thing involved that a reversed burden comes about in legislation. Gifting money to a public official raises more than suspicion. That is a transaction needing explanation. Having particular kinds of weapons without being properly licenced and outside an appropriate work context also raises more than suspicion. Who, after all, needs explosives outside their licenced use in a quarry or in infrastructure works? Why accept a package at an airport from a stranger to be delivered on arrival to an unknown address or a person in a pub? What is behind the possession of an assault rifle, unauthorised by a licence?
General legislative pattern
17. Hence, reversed burdens in legislation tend to arise in three sets of circumstances in indictable crime: (1) those dictated by the nature of the thing involved (dangerous drugs, explosives, firearms); (2) those where the circumstances proven are highly suggestive of serious illegal conduct (going about armed with weapons or with instruments for burglary, paying over money to police officers or to government officials); and (3) where it is legitimate to require the accused to make an answer demonstrating a lawful excuse (sometimes, but not always, because any such response is within the peculiar knowledge of the accused). These are not fixed categories and may also overlap. Where the offence is regulatory, not true criminal offences but offences designed to properly regulate society, reversed burdens occur more frequently. The third category is rare in serious criminal offences and is more common in the sphere of regulatory offences. In indictable crime, s 6 of the Prohibition of Forcible Entry and Occupation Act 1971 provides for the accused to prove a claim of right to occupy a building: the prosecution are relieved of proving ownership in another person. See also Minister for Industry and Commerce v Steele [1952] IR 305 where matters peculiarly within an accused’s knowledge, the pork content of sausages or his or her own nationality, tips over into matters the proof of which is on the defence, since the prosecution could not know by any reasonable means; R v Kakelo [1923] 2 KB 793.
18. Another example of the third category is McNally v Ireland [2009] IEHC 573, [2011] 4 IR 431 where s 99 of the Charities Act 2009 rendered it an offence to sell cards claiming the offering of Mass for a deceased without an arrangement in that regard with a bishop of the Catholic faith or the head of a religious congregation. There is a potential 10 year imprisonment on conviction. Proof of that arrangement was on the accused. Since, world-wide, that arrangement could be made with thousands of bishops or principals, it was legitimate for the accused to prove the statutory excuse. That reversal of proof was proportionate. MacMenamin J stating at paragraph 187:
Progress of statutory inferences from proven circumstances
19. One of the earliest instances of circumstances raising a statutory inference, thereby requiring an explanation from an accused once particular circumstances were proven, was s 58 of the Larceny Act 1861. This provided that where a person was found at night-time with housebreaking tools in their possession “without lawful excuse” an offence would be committed. The elements of the offence were: (1) being about outside one’s own property; (2) at night; (3) possession of tools used for housebreaking; and (4) having no lawful excuse. Possession requires awareness of what is possessed. That can be inferred from the circumstances. But, once the first three elements were proven, the accused had to demonstrate a lawful purpose to the activity of wandering at night-time with tools for burglary in his or her possession. That excuse might involve pursuing the avocation of locksmith and answering a late-night call or being detained at factory work and returning home habitually with one’s own tools which, it so happened, might also be used to force locks or jemmy open windows. Certainly, since Carr-Briant, the lawful excuse in such a statutory model was sufficiently established where the accused proved that his or her purpose was probably an innocent, in the sense of lawful, one. That probability standard, as the level of proof needed from an accused where there was a reversed burden, survived as unchallenged until later constitutional analysis required its recalibration.
20. Later instances of a statutory reversal of the ordinary Wolmington/Quinn burden of proof (always on the prosecution save in the mental infirmity defences) emerged subsequent to the Larceny Act of 1861. What tends to characterise these is the inherently unlawful nature of what is involved. Of itself, on this legislative model, possession of the thing is outlawed, engaging in the activity is outlawed. Hence, s 4 of the Explosive Substances Act 1883 provides that a person “who makes or knowingly has in his possession or under his control any explosive substance under such circumstances as to give rise to a reasonable suspicion” then bears the burden of showing “that he made it or had it in his possession or under his control for a lawful object”. A constitutional challenge in Hardy v Ireland [1994] 2 IR 551 saw this Court affirm the conformity with the Constitution of such an arrangement of proofs. The probability standard for a reversed burden was affirmed but, in truth, no contrary argument was made on appeal. Murphy J, at 568, noted that the section “affords to an accused a particular defence of which he can avail if, but only if, he proves the material facts on the balance of probabilities.” The judgment of Hederman J, however, at 565, emphasised, as does MacMenamin J in McNally, the overall fairness of the proofs involved. The section protected the presumption of innocence as “it required the prosecution should prove its case beyond all reasonable doubt” since what was involved, on his analysis, was merely an inference (meaning a deduction whereby accepting a fact as proven may logically lead to accepting other facts) from circumstances thereby proven. His caveat was that there was an “essential requirement that at the end of the trial and before a verdict can be entered the prosecution must show that it has proved its case beyond all reasonable doubt.” See also Rock v Ireland [1997] 3 IR 484.
21. Section 27A of the Firearms Act 1964, substituted by s 8 of the Criminal Law (Jurisdiction) Act 1976 and amended by s 14(4) of the Criminal Justice Act 1984 provides for a similar offence in a context which is similar to explosives, namely lethal firearms and ammunition for firearms. Under that provision, it is an offence to have “a firearm or ammunition” in the possession or under the control of the accused “in such circumstances as to give rise to a reasonable inference that” the accused “has not got it … for a lawful purpose”. The section similarly provides for conviction arising from proof of possession of any such lethal implement “unless [the accused] has it … for a lawful purpose”. This is construed as requiring a reversed burden. The reality remains that where a person has a firearm, that person must also come up with an excuse as to why there should be no conviction. In general, the proposition is that possession without a licence of these lethal weapons is unlawful. Section 24(2) of the 1964 Act provides that where “possession, use or carriage of a firearm by a person is proved, it shall not be necessary [for the prosecution] to prove” the absence of a licence or other permission (such as membership of the Defence Forces or gardaí).
22. Another example of a reversed burden in the context of an inherently unlawful activity, which is also in the category of possessing something declared illegal, arises from ss 15 and 29 of the Misuse of Drugs Act 1977 as amended by s 6 of the Criminal Justice Act 1999. These sections prohibit the possession for sale or supply of a controlled drug. Section 15(2) provides that the quantity of drugs or “such other matter as the court considers relevant” can lead to it being “reasonable to assume that the controlled drug was not intended for the immediate personal use” of the accused. Section 29 requires the prosecution to prove possession of a drug (meaning that the substance is shown to be under the control of the accused either personally or through an agent, the intention to possess being inferable from the circumstances), but if that is established, and the substance is a controlled drug, the package issue is then confronted. Drugs are powdered, in liquid incipient, or consist of dried plants (like mushrooms or cannabis leaf) or blocks of resin (cannabis). Of their nature, drugs, whether pharmaceutical products or recreational drugs are kept in boxes, jars or bottles. Where possession of a package is proven, then, under the 1977 Act, the accused must demonstrate a lack of awareness that the thing in his or her possession was a controlled drug.
23. The correct concept to be deployed in the context of the legislation is that of awareness, since if the accused knew or suspected or had reason to suspect (meaning wilful blindness) then avoiding the circumstances of possession (such as taking a package from someone else, handling a package as merchandise, allowing someone to store a package) is what the law requires. In The People (DPP) v Byrne, Healy and Kelleher [1998] IR 417, Keane J, for the Court of Criminal Appeal, approved the judgment in R v McNamara (1988) 87 Cr App A 246 where the analysis was that upon proof of possession of huge boxes of cannabis resin, which there occurred under cover of darkness on Ballyconneely beach, which requires the mental element of intention to possess, and that what was possessed was a controlled drug, “the burden is cast on the defendant to bring” themselves with the defence section; one traditionally understood to be proof on the balance of probabilities.
The burden of raising a reasonable doubt
24. That traditional approach (where there is a reversed burden on an accused, the accused’s legal burden is to persuade the jury that this is probable) was reconsidered in The People (DPP) v Smyth and Smyth [2010] 3 IR 688. The facts were similar, in terms of common-sense inference of criminal conduct, to what occurred in the Ballyconneely case. The prosecution had proven that the accused had been moving around and handling packages (possession) in circumstances which did not accord with ordinary and lawful conduct (addressing a possible defence on the prosecution case, which is legitimate) and that the packages contained controlled drugs (proof of infringement of the prohibition). Were the accused required to prove as a probability that their state of awareness was innocent when handling these containers?
25. According to the analysis given by the Court of Criminal Appeal, Article 38.1 of the Constitution in requiring criminal trials to be conducted “in due course of law” could not admit of a situation where in issuing a verdict of guilty in a true criminal offence, a jury might consider that there were factors whereby as a matter of common sense they might shrewdly consider that guilt was to be doubted while nonetheless that a guilty verdict was required because the accused had not met the standard of proving his innocence as a probability. Hence, the burden on the accused was to persuade the jury that there was a reasonable doubt. This, it must be emphasised, is more than merely adducing sufficient evidence that there is a potential defence open. Enabling an argument as to self-defence or as to duress or that a fact essential to proof was caused other than by the accused, is merely to pass a threshold whereby that issue may be addressed by the jury on a consideration of the case. It is not a burden of proof. It is a requirement of the law of evidence to show that some issue is reasonably in the case. Proving a reasonable doubt is a higher burden: it is that of demonstrating that such a doubt exists; not simply that an issue might be arguable. This Court conducted a similar analysis in The People (DPP) v Forsey [2019] 2 IR 471.
Anomalies
26. Whether constitutional analysis requires a reversed burden to circumscribe that of establishing a probability but of establishing a reasonable doubt depends on the circumstances of the offence, the background to the legislation, public policy and how the elements of the offence ultimately enable a just result. The reality is that the criminal law is based in our system not on an overall and universally applicable theory, but on the piecemeal response to social issues. These, in turn, may require differing responses. Nor, in terms of mental element, for serious criminal offences, is mental awareness always required since in criminal negligence manslaughter what the prosecution must establish is not that the accused was aware of the gross action or inaction leading to the death of the victim but that a reasonable person in the circumstances of the accused would have such awareness; see Charleton & McDermott’s Criminal Law (2nd edition, Dublin, 2020) chapter 10.
27. Anomalies are part of life and also of law, especially criminal law which was developed over centuries and in response to both experience and in reaction to terrible violations of the rights of victims. Where inconsistencies show themselves in the development of the law, these may not be inconsistent with proper interpretation but, instead, be justified by experience. The insanity/diminished responsibility defence requirement for an accused to demonstrate a probability in answer to a charge is one such. But it is justified: The People (DPP) v Heffernan. Similarly, a life sentence for murder is built in to the Criminal Justice Act 1984, while the judicial power determines the level of sentence for all other serious crimes, the legislature merely setting a maximum; Ellis v Minister for Justice and Equality [2019] 2 IRLM 420. While interference with sentencing leading to an unjust result (along the model of, so called, three strikes leading to life imprisonment) is constitutionally unacceptable, other legitimate anomalies may be pointed to in a discussion of the logic of criminal law.
28. One such anomaly was R v Prince (1875) LR 2 CCR 154 where the offence of abduction of an underage girl was defined as to its separate elements as requiring proof of an intentional taking of the girl from under the tutelage of her parents, of her age being less than 16 years, and that no defence was thereafter available, such as reasonable mistake as to her age. As a matter of futility, the accused had testified that the young victim had told him that her age was 18 years, and not 14 as it was in fact proved to be. Dissenting, in CC v Ireland [2006] IESC 33, [2006] 4 IR 1, Denham J held that such an absolute prohibition on proof of an element establishing innocence was not part of the offence. In other words that a prohibition on sexual relations below 17 or 15 years under the Criminal Law (Jurisdiction) Act 1935, required that some element of defence be open to the accused as to the mental element whereby blameworthiness was established. That is the normal rule. Criminal offences, properly so called as opposed to regulatory offences, are an attack on the moral order of society. What indictments are, properly so called, correspond to the ordinary usage of language; that of an action being an indictment of wrong or of incompetence. In criminal offences, there is a core of culpability. Why an offence is a crime is because of an essential wrong that the prosecution must prove, or having proven certain culpable elements, that the accused is enabled to answer on a reversed burden. Conviction means, on this systemisation, that the accused really is guilty.
29. In The People (DPP) v Murray [1977] IR 360 the general presumption was reaffirmed that for serious criminal offences, the elements which externally make up the commission of a crime (the theft, the hijacking of an aeroplane, the assault, the homicide) also presumptively require a mental element (of intending to steal, of intending to take over the aeroplane, of intending to strike, of intending to kill someone). In other words, the old maxim actus non facit reum nisi mens sit rea whereby the action of what is seen to be the crime does not establish liability unless the mind of the actor is also culpable. In this context, culpability means an act carried out purposively, or one where in morally culpable circumstances a person takes an unjustifiable risk (as to consent to sexual conduct, where a mere enquiry would remove any doubt; or where a package is accepted and mental alarm is ignored as to what it might be), or where the person knows what they are dealing with (drugs or firearms), or suspects the illegal nature of the transaction and chooses to quiet their own disquiet (wilful blindness), or, as in manslaughter, acts or neglects to act with a high degree of culpable negligence, whether aware or not. For every external element of the offence, there is a corresponding mental element. It is not just the doing of the action that establishes guilt but the culpable mental state. Hence, in Murray, it was an offence punishable by life-imprisonment to kill, intending to kill or cause serious injury to the person killed on any person, but where the penalty was to be increased to death by hanging or a minimum term served without remission because the victim was a member of An Garda Síochána, that culpability required a corresponding mental element of advertence.
30. Certainly, Prince is an example of a criminal offence being constructed on the basis of policy, the origins of which are obscure as to when or how judges so decided, whereby the essence of the maxim requiring not just the commission by the accused of defined fact but also mental culpability was stripped away from the core element of an offence. Common law principles had always sensibly been designed to protect the young from sexual exploitation. Thus, the young who did not yet understand sexual actions could not consent to sexual acts; AG (Shaughnessy) v Ryan [1960] IR 181 SC. Or, as in the maxim that fraud unravels everything, deceit as to the nature of a sexual action vitiates consent; R v Flattery [1877] 2 QBD 41; R v Williams [1923] 1 KB 340. Deceit as to the identity of the accused will also render consent invalid; R v Dee [1884] 15 Cox 5791 LR IR 468.
31. But, how a principle of criminal seduction based on age, whether consisting of intercourse or, as in Prince, bringing a girl out of the custody of her family, which was regarded as effectively the same offence in terms of the mischief involved, could be established as an offence but without culpable suspicion as to the essence of that offence, age, is, as Denham J adumbrated in her dissenting judgment, anomalous to the general body of criminal law. Constitutional considerations may have required a different analysis based on construction.
Inapplicability of standards from regulatory offences
32. What may be understood both from common law and constitutional analysis of the nature of criminal law is that, at the level of indictable crime, both the victim and the democratic society which exists for the protection of its citizens, is attacked. Crime violates human rights and in a gross way. Thus, the phrase prohibiting a trial “save in due course of law” in Article 38.1 of the Constitution, importing as it does a fairness in process, also, according to the analysis in Smyth and Smyth, may require, depending on the circumstances and on the nature of the human rights violation involved in the offence, the maintenance of a standard whereby, in final analysis, the verdict of a jury must mean that there is no reasonable doubt as to the guilt of the accused in consequence where the jury’s decision is that the prosecution have proven their case.
33. This general standard does not apply to regulatory crime, which is a different species. Of their essence, these (usually) summary offences require the proof of fact. Inferences from such facts, and the ordinary way of proving intention or knowledge or recklessness, become irrelevant as there is no mental element. Hence, it does not matter on a charge of parking on a double yellow line or in a bicycle lane, or in a disabled parking space, that the driver did not notice the prohibition or did not read the information on the lamppost. Nor does it matter that such prohibitions are not enforced because a police force confines itself to barracks. Fact alone is what the prosecution have to prove. Other examples are multiple, as to traffic regulation, as to food preparation, as to pollution, as to planning compliance: the list seems unending. Cited in argument, as ostensibly establishing that there might be no culpable element in indictable crime, was the offence of dangerous driving causing death or serious injury, contrary to s 69 of the Road Traffic Act 2010. That is a serious criminal offence, not regulatory merely, since conviction not only carries real moral opprobrium on a finding of guilty, and can lead to a 10 year jail term. It is not merely a regulatory offence. Part of the elements of that offence require advertence, and therefore culpability. The prosecution must prove the driver to be at fault. Fault means culpable fault: dangerous driving is not a no-mental-element offence. There must be a wrong step, a fault. That may readily be inferred from proven circumstances. But if the evidence is that, for instance, a driver was directed by temporary road signs to drive up the wrong side of a motorway, that circumstance may indicate an absence of culpability.
34. This judgment cannot be exaggerated so as to be mis-applied to regulatory offences. Even in indictable crime, properly so-called, there can be conviction where there is no culpable awareness, as in gross negligence manslaughter. But, in addition, there are regulatory offences without a mental element, created for the purpose of establishing society properly. An example, in contrast to the dangerous driving example, is possession of a television without paying for a licence contrary to the Broadcasting Authority (Amendment) Act 1976 s 13, which carries a fine. The accused does not have to be at fault and lack of awareness or being misled by someone cannot be an excuse. As Henchy J stated in An tÁire Poist agus Telegrafa v Cáit Bean Uí Chadhain [1980-98] IR (Speisialta) 21, 26:
In ionchúiseamh mar seo, nuar a cruthaitear go raibh gléas telifise ag an gcosantóir agus nach raibh ceadúnas ina leith aige no aici, tuiteann dlitheanas daingean neamh-choinníolach ag an gcosantóir. Ní gá mens rea a chruthú. Is Cuma gura cheap na cosantóir go raibh ceadúnas aige no aici, is prionsabail (mar is amhlaidh sa chás seo) nach raibh na ceadúnas ag na gcosantóir - is Cuma cén leithscéal a cuirtear ar aghaidh, ní fiú tráithnín é. Ní mór na cosantóir a chiontú. B’fhéidir go mbeadh baint ag na leithséal leis an bpíonós, ach níl aon bhaint aige le dliteanas na chosantóra sa chion.
35. In contrast to there being serious criminal offences (generally requiring fault) and regulatory offences (where fault is irrelevant, as in Uí Chadain), a bi-partite classification, the analysis of the Canadian Supreme Court in R v City of Sault Ste Marie [1978] 2 SCR 1299 enables proof by the prosecution of particular facts with a reversed burden of no fault where charges are on an intermediate level. Hence, in this third classification, evidence from an accused demonstrating that everything was done that was reasonably possible to avoid the commission of the fact, for instance pollution, imparts a defence to regulatory offences. Where a charge is absolute in nature, mere proof of the relevant external facts making up the crime suffices, and no defence of due diligence relieves of liability. Hence there may be three categories of offence: true criminal offences requiring fault; regulatory offences which may be defended by proof of probable due diligence (an excuse often written into statute); and regulatory offences where it matters not how much care the accused can demonstrate was taken to avoid the factual occurrence (like pollution of a lake, or parking in a bicycle lane), once the prosecution prove the relevant facts, the offence is committed.
36. In Gammon Ltd v A-G of Hong Kong [1985] 1 AC 1, the approach suggested as to the discovery of whether a mental element was excluded by the legislature in setting the terms of a criminal offence could also be applied to the analysis of whether an offence is (1) truly criminal (in the sense of an indictable crime carrying societal opprobrium and with a commensurate sentence) which requires an element of mental culpability for its commission, or is (2) a regulatory crime (meaning one where the prosecution have to prove facts but proof of due diligence enables an acquittal if proven and accepted), in other words a strict liability offence, or is (3) instead a crime of absolute liability (where proof of the facts suffices and no defence of diligence in attempted avoidance is possible).
37. All depends on a close analysis of the nature of the charge. The best place to start is to look at the definition of the offence: what are the elements, what is the penalty and is any statutory excuse written in to the legislation. As with the approach in Murray, it is to be presumed that all offences of a serious kind carry a mental element (knowledge, intention or recklessness) with the central fault condemned so as to enable a conviction only where actual culpability is proven. Statutory offences, in modern drafting, tend to make this clear. It is only when moving on to issues as to social concerns and public safety that statutes tend to baldly state that “it shall be an offence” and then proceed to state the facts which are prohibited.
38. Sometimes, it may be specified that it would be a defence to prove an absence of negligence. Regrettably, however, even in the sphere of indictable crime, there can be multiple different statutory definitions of intention or knowledge or recklessness. That would not happen in a codified system: there, all fundamental principles would be of universal application and precisely defined for all offences. According to the analysis in Gammon, the presumption of requiring fault continues but may be displaced by the objects of the statute concerned in promoting general safety and in placing onto citizens the duty of vigilance to ensure that the prohibited action does not occur. Often as well, there may be a licence-enabling provision; that an action may take place, or an object possessed if the actor holds a licence. This is construed as placing proof on the accused of the existence of that licence (firearm or explosive or other licence). The prosecution do not have to prove the accused did not have the licence or did not have a reasonable excuse, the accused is required to answer the charge with the licence or by elucidating a reasonable excuse. And as McNally demonstrates, that construction can be built into legislation carrying serious penalties where that approach is proportionate.
39. Thus, since this situation of regulation by criminal offence is anomalous to the construction of true criminal offences in category (1) above, (serious offences carrying high moral opprobrium) there is nothing to require an analysis placing the burden of proof at all times on the prosecution and nor is there in category (2) above (strict liability offences) any aspect of constitutional analysis which prevents there being a duty of proof on the balance of probabilities on an accused to demonstrate all due diligence in preventing the occurrence of the facts of the event that make up the charge. For offences in category (3) above (those of absolute liability, where once facts are proven no aspect of due diligence will provide an answer) it is a matter of analysis of the wording of any statutory prohibition as to whether proof by the defence of due care may enable an acquittal once the prosecution prove the culpability of the accused by bringing about the prohibited facts.
This legislation
40. The Criminal Justice (Sexual Offences) Act 2006 s 3 as substituted by s 17 of the Criminal Justice (Sexual Offences) Act 2017 provides that a “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 be liable on conviction on indictment” where “he or she is a person in authority, to imprisonment for a term not exceeding 15 years” but otherwise a term of 7 years. Explicitly, subsection 3 provides for an exception of proof of reasonable mistake as to age and subsection 5 provides that the “standard of proof required to prove that the defendant was reasonably mistaken that the child had attained the age of 17 years shall be that applicable to civil proceedings.” Other provisions provide for consent being irrelevant and of a defence of the accused person being younger than the victim, or not more than two years older than the victim. It is not in any way exceptional that the legislation provides that the jury should look to the presence or absence of reasonable grounds for any mistaken belief. That is a normal aspect of reasoning and does not need statutory declaration. It is a general principle of criminal law. Such a statutory formulation also occurs in s 2 of the Criminal Law (Rape) Act 1980.
41. Under-age sexual intercourse is not necessarily rape or sexual assault but in terms of how society, rightly, views the seriousness of exploiting those who are outside the category of being capable of consenting to sexual activity, it is a crime requiring a culpable fault element. Two questions arise. In the context, firstly, of the general criminal law as it has developed in relation to the principle of the burden of proof being at all times on the prosecution (subject to the accused having a burden of adducing some reasonable evidence to support a potential defence), is a reversed burden possible whereby the accused must demonstrate a reasonable mistake that the victim was 17 years or older? Secondly, as this is outside the category of regulatory offences and is not one of the exceptions requiring a defence of mental illness (insanity or diminished responsibility), is it possible for such a serious offence to end with a result of a guilty verdict which leaves open the real possibility of a gap as between the accused having proven a reasonable doubt of belief that the victim was 17 years old but not having established that reasonable belief on the balance of probabilities?
42. In itself, it is a grave social wrong to engage in the physical expression of sexuality with those whom society has deemed to be immature. Consequently, such conduct is in the category of that which is culpable in itself. Similar culpability arises in the possession of an explosive outside the limited and licenced circumstances whereby that source of destructive energy may lawfully be used. Another example is in firearms, which can be licenced for possession for legitimate purposes but the proof of the application of a valid licence is by reason of the lethal nature of that weapon directed to the accused. This is not different in terms of the principle underlying the legislation at issue here. Under-age sexual relations are unlawful of their nature. Consequently, there can be no prohibition on reversing the burden of proof of a lawful circumstance onto the accused.
43. Where a problem arises is in the accused being unable to prove that the mistake which is asserted was one which on the balance of probabilities deceived him or her. Here, the categorisation is of what sometimes may be a fine difference as between a young person’s appearance when in the later, as opposed to earlier, teenage years. It leaves a sense of abiding unfairness for the essence of this offence as to the later teenage years that an accused has proven that it was reasonably possible, though not probable, that a reasonable mistake was made. Such a genuine mistake may be made not only on the basis of appearance but also on what the victim told the accused as to their occupation or education. Such mistakes become far less tenable in the earlier teenage, much less prior to teenage, years.
Respecting legislative intention
44. The intention of the Oireachtas in the 2017 Act was clearly to protect young people from sexual exploitation. The scheme of the offence for the later teenage years is to require the prosecution to prove the prohibited sexual activity, as element (1) of the offence, and that the victim was under 17 years, as element (2). That is all that the prosecution need prove, though there is no prohibition in them, as is sensible, leading evidence as part of the prosecution case as to what discussion took place as to age and as to what were the circumstances that might lead to awareness of that factor. Thereafter, the accused must demonstrate a lack of knowledge or suspicion that the victim was under 17 years. This placing of a reversed burden on an accused, more than a mere evidential burden, that of proving to the jury that there is a reasonable doubt as to the central culpable element (in Smyth, that of knowledge or suspicion of possession of a controlled drug, or here as to the age of the victim) is not negligible. The reversal of burden as to the culpable element of awareness of age achieves two practical results.
45. Firstly, any application for no case to answer on the basis of the absence of proof of suspicion as to the age of the victim, occurring at the close of the prosecution case, cannot be granted. Since the burden of proof is on the accused to establish such a doubt; whether on a specific and identified element of evidence within prosecution case or through defence testimony. Secondly, it will be for the accused to decide whether whatever testimony has been given on the prosecution case is sufficient to raise a doubt that a jury might reasonably hold or whether, additionally, defence testimony is necessary. In this context, often a statement asserting a lack of culpability will be made while in police custody. But it must always be remembered, and a jury should always be instructed that any such self-exculpatory statement is in a lesser category of evidence than sworn testimony. Such an exculpatory statement is not sworn and is not tested in cross examination. Those characteristics of such an unsworn statement from the accused prior to trial, trial judges should instruct juries, make it inherently less in terms of weight than testimony on oath and which is subject to cross-examination. It is for the jury to assess the weight, if any, to be attached to an out-of-court exculpatory statement. Will such an unsworn assertion be enough? That question has become one for the accused in terms of what the appropriate action to be taken at trial might be.
Focus in criminal cases
46. It cannot be forgotten that this theoretical and historical analysis is all very well, may be digestible by law students, but must be geared to judges doing the ordinary work-a-day job of keeping criminal trials focused and in telling juries what the law is. In what follows, the accused persons are designated male, though they might also be women.
47. The law cannot become over complex. Hence, three examples are given. None of these constitute anything more than a suggestion and a trial judge is not to be criticised for their own approach. What is increasingly missing in the conduct of trials, which have become over-long and over-complex, is a realisation that counsel must come to the point and that what matters is substance. Judges are entitled to and may impose that necessary discipline.
Sample jury directions
48. The first example of a jury direction is that of the normal burden being on the prosecution. There is no reversed burden. Hence, the prosecution must prove all the elements of the offence.
MURDER Ladies and gentlemen of the jury, the charge in this case is that the accused on DATE at PLACE murdered CD. That is, that he unlawfully killed CD, intending to kill him or to cause to him serious injury. The prosecution must prove to you beyond all reasonable doubt that the accused, as they claim, took up a knife and stabbed CD and that in doing so his purpose was to kill him or to cause him serious harm. It is to be presumed that a person intends the normal and probable consequences of their action.
It is for you, ladies and gentlemen of the jury, to consider if you find that the accused did stab CD in the chest whether he intended to kill CD or to cause him serious harm. The consequence of a stab wound deep in the chest may be a serious injury. But that presumption may be rebutted. It is not for the accused to rebut the presumption; rather since the burden of proof is on the prosecution to establish the guilt of the accused on the entire of all the evidence you have heard, the prosecution must demonstrate to you that this presumption has not been rebutted.
49. That is a normal direction: there is no reversed burden of proof. If self-defence were left in the case or provocation, on the trial judge’s ruling that sufficient evidence had been adduced by the defence, it would be for the prosecution to prove beyond reasonable doubt to the jury that the accused did not defend himself using proportionate force; or that the accused was not provoked by the actions of the deceased so that he suffered a sudden and temporary loss of self-control and that in consequence of that he killed the victim. For provocation to be left to the jury there would have to be evidence on which a jury might reasonably act, evidence that carries a sense of reality, that there was some action on behalf of the victim that might have caused a reasonable person with the accused’s fixed characteristics (age, race if relevant, state of health) to lose all control so as to intentionally kill the victim; see The People (DPP) v McNamara [2021] 1 IR 472.
50. Under the Misuse of Drugs Acts 1977-1984, the prosecution must prove possession by the accused of drugs, then the accused must establish that there is a reasonable doubt that he neither knew nor suspected that he was in possession of controlled drugs. In contrast to the burden being completely on the prosecution, as in the murder example, the burden shifts to the defence, not just of adducing enough evidence to enable a defence to be argued (because here the lack of awareness is equivalent to a defence of genuine and reasonable mistake) but of establishing to the jury that there is actually a reasonable doubt as to his culpable awareness. Hence, a jury direction might run along these lines:
DRUGS Ladies and gentlemen of the jury, the charge in this case is that the accused had in his possession 1 kilo of cocaine on DATE at PLACE. First element: the prosecution must prove possession. That is an ordinary concept. You have possession of something by having control over it: ownership is not necessary. The control has to be such that the accused has the ability to put the drugs where he wants to and thus has them, to return to an ordinary concept, in his possession. Here the prosecution evidence of possession is SET OUT. Do you accept that evidence beyond reasonable doubt or is there anything in the entire of the evidence whereby you may say: I doubt that the prosecution have disproved the suggestion that the accused had no actual control over the cocaine? The second element is that this substance, white powder, 10.3 kg in a cardboard box, is a controlled drug: the prosecution must prove that, again beyond reasonable doubt. We heard from DR N of the National Forensic Laboratory, she told you SET OUT. Do you accept that evidence beyond reasonable doubt? The prosecution must prove both possession and that the possession was of a controlled drug.
The third element in this case is one that the prosecution do not have to prove: that the accused man did not know, nor did he suspect, that this box which the prosecution say he was handling, contained cocaine or any controlled drug. There, the burden of proof is on the accused. But that burden is not at all as heavy as the burden on the prosecution on the elements of possession and of that possession being of a controlled drug. The prosecution must prove those elements beyond reasonable doubt. The accused need only demonstrate on the entire of the evidence that there is a reasonable doubt that in what he did he was acting innocently, that is without any knowledge or suspicion that the box contained cocaine. The prosecution point to what they say are “suspicious circumstanced” to assert that the accused has not proven there is a reasonable doubt that he neither knew or suspected he was handling cocaine. The accused points to his doing an ordinary job as a truck driver and to how these “suspicious circumstances” may not have seemed so at the time. That is the case: are you certain, beyond reasonable doubt, that the accused possessed this substance and that it was cocaine - the prosecution must prove that beyond any reasonable doubt. What was the state of knowledge or suspicion as to substance in the box being controlled drugs, whether cocaine or not? There the accused must demonstrate on the whole of the evidence that there is a reasonable doubt whereby you may say that it is reasonably possible that he acted without knowledge or suspicion that he was handling cocaine.
51. Coming then to a jury direction in this kind of case, a jury direction in such a case would be along these lines:
UNDER-AGE SEXUAL VIOLATION Ladies and gentlemen of the jury, the charge in this case is of a sexual act with a person under the age of 17 years. The elements of the case which the prosecution must prove beyond all reasonable doubt are, firstly, the sexual activity with CD. Here you have the evidence of CD that SET OUT at PLACE on DATE. Does this evidence satisfy you beyond all reasonable doubt as to its truth and accuracy that there was sexual activity between the accused and CD? Sexual activity is defined under this legislation as including sexual intercourse, which is the penetration by the penis of the male of the vagina of the female, however slight such penetration. The accused has denied that any such thing ever happened. It is for the prosecution to satisfy you that this act did take place and to disprove any evidence that may suggest otherwise. The second element of the charge, as you can see from the charge sheet, is an allegation that CD was then 15 years old OR AGE. You have heard her evidence and that of her mother as to her date of birth and you have a birth certificate. Is that evidence accurate: the prosecution must prove it so. Thirdly, there is the issue of what the accused was aware of as to the age of CD, suppose you come to the conclusion, which is entirely for you, that both the sexual activity as testified to and the age as claimed at the time have been proven by the prosecution.
On the issue of what the accused knew of the age of CD or actually believed as to her age, the prosecution do not have to prove that element. There, the accused must demonstrate to you that there is a reasonable doubt that he did not know and was not recklessly taking a conscious risk that this girl CD was under the age of 17.
Naturally, there is both prosecution evidence and some defence evidence on this: the prosecution say there was discussion between the accused and CD as to SET OUT. But the accused in evidence says there was no such discussion and that he at all times mistook the girl to have been SET OUT years old. On the entire of that evidence, has the accused demonstrated to you that you may reasonably doubt that this was his state of mind? He has the burden of proving that reasonable doubt exists on the whole of the evidence that he was unaware of her age.
Result
52. In the result, and expressly concurring with the joint judgment of O’Donnell CJ and O’Malley J that this finding may not be either overstated or taken out of its specific context, only s 3(5) of the 2006 Act, as substituted in 2017, is required to be declared incompatible with the Constitution:
The standard of proof required to prove that the defendant was reasonably mistaken that the child had attained the age of 17 years shall be that applicable to civil proceedings.
53. Further, the Oireachtas must be declared to have made a legitimate choice in placing the burden of establishing as a defence to a charge of under-age sexual activity on the accused. That burden is a persuasive burden. The accused must persuade a jury, on the entirety of evidence in the case, that a reasonable mistake was made by that accused as to age, that of believing the victim was 17 years of age or older. However, the standard of proof that an accused is required to reach according to s 3(5), that of proving a probability, is too high to be compatible with the principles of criminal law and the Constitution in the specific instance of the later teenage years. The accused has the burden of proving a reasonable doubt.
Result: Dismiss Appeal
Appendix: the prohibition in s 3
(1) A 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 be liable on conviction on indictment—
(a) to imprisonment for a term not exceeding 7 years, or
(b) if he or she is a person in authority, to imprisonment for a term not exceeding 15 years.
(2) A person who attempts to engage in a sexual act with a child who is under the age of 17 years shall be guilty of an offence and shall be liable on conviction on indictment—
(a) to imprisonment for a term not exceeding 7 years, or
(b) if he or she is a person in authority, to imprisonment for a term not exceeding 15 years.
(3) It shall be a defence to proceedings for an offence under this section for the defendant to prove that he or she was reasonably mistaken 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.
(4) Where, in proceedings for an offence under this section, it falls to the court to consider whether the defendant was reasonably mistaken 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 consider whether, in all the circumstances of the case, a reasonable person would have concluded that the child had attained the said age.
(6) Subject to subsection (8), 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.
(7) No proceedings for an offence under this section against a child under the age of 17 years shall be brought except by, or with the consent of, the Director of Public Prosecutions.
(8) Where, in proceedings for an offence under this section against a child who at the time of the alleged commission of the offence had attained the age of 15 years but was under the age of 17 years, it shall be a defence that the child consented to the sexual act of which the offence consisted where the defendant—
(a) is younger or less than 2 years older than the child,
(b) was not, at the time of the alleged commission of the offence, a person in authority in respect of the child, and
(c) was not, at the time of the alleged commission of the offence, in a relationship with the child that was intimidatory or exploitative of the child.