The Court of Appeal has quashed a father’s conviction for sexually assaulting his daughter, finding that the jury needed more focused guidance on whether he was awake when the alleged touching occurred.
The court said the issue was central to the trial and the evidence left room for argument about the accused’s state of awareness. Without a more detailed review of that evidence in the judge’s charge, the appeal court had “some doubt whether the verdict can be said to be safe”. It therefore quashed the conviction.
The appellant had been convicted on 24 May 2021 of one count of sexual assault. He was later sentenced to three years and four months in prison, with the final four months suspended on terms. The judgment dealt only with his appeal against conviction; it does not determine his separate appeal against sentence.
The alleged incident took place during a visit to the appellant’s home between January and April 2017, when the complainant was ten. The prosecution case was that, after the complainant’s mother left the bed they had been sharing, the complainant woke to find the appellant touching her and putting a finger inside her. The defence accepted that father and daughter had been in bed together and alone, but denied an assault. It also argued that, if any touching occurred, the appellant was asleep and could not form the required intent.
In extracts from her Garda interviews reproduced in the judgment, the complainant gave differing or uncertain accounts about timing and whether the appellant was awake. She said the incident happened in the morning, that she spoke to him in bed, and that he may have been asleep. The appeal court noted that the prosecution relied on a conversation said to have followed the incident as support for the conclusion that he was awake. The court said jurors should have been clearly directed to decide whether they were satisfied beyond reasonable doubt that he was awake at the actual moment of touching, regardless of when they thought the conversation happened.
The court rejected the separate grounds concerning the judge’s treatment of the complainant’s sister’s evidence, corroboration and the risk that jurors felt pressured to agree. It observed that the jury had deliberated at length and had been told they could disagree. The conviction was quashed because of the concern about the directions on the awake-or-asleep issue.