The Court of Appeal has dismissed M.X.’s appeal against his conviction for sexually assaulting his eldest daughter, rejecting arguments about the trial judge’s directions on intoxication and the admission of evidence concerning a barring order.
A jury convicted M.X. in July 2018, at a retrial, of sexually assaulting his daughter on 26 July 2015. His sentence was four years’ imprisonment, with the final 18 months suspended on conditions. The appeal concerned the conviction only.
The court said the defence at trial was that M.X. had mistakenly believed he was touching his partner while in a sleepy, hungover state. The complainant’s account was that she woke to find his hand inside her underwear, touching her vagina. M.X. accepted at trial that her account was true, but argued that he had not intended to assault his daughter.
The appeal judges noted that the trial judge had told the jury that voluntary intoxication was not a defence and re-emphasised that direction after the prosecution raised the point. The Court of Appeal said it had serious concerns about whether intoxication had actually been advanced as a defence at trial: the case had been presented as one of mistake while half-awake, and the defence had not initially objected to the prosecution’s proposed direction.
The court said any error in the direction was not substantial in the circumstances. It nevertheless considered the legal issue and concluded that sexual assault, on the facts before it, was a crime of basic intent. It held that voluntary intoxication was not available as a defence. The judges did not decide how the law might apply in rare cases involving an equivocal act that required proof of a specific purpose.
The second appeal ground concerned evidence that M.X. had been subject to a barring order after a physical incident involving his youngest daughter. At trial, he had said he left the family home by agreement. The appeal court said the evidence showed he left after gardaí told him to move out, and that he accepted the interim barring order was the reason he left. It found the cross-examination was permitted to correct a misleading account and was relevant to credibility. The prosecution had clarified that the earlier incident was not sexual in nature.
The Court of Appeal rejected both grounds and dismissed the appeal. The appeal was against conviction only; the court did not alter the sentence.