The Court of Appeal has dismissed S.W.’s appeal against four convictions for sexual assault, rejecting challenges to the trial judge’s refusal to discharge the jury and his directions on the standard of proof.
A jury in Cork Circuit Criminal Court convicted S.W. on counts 1, 2, 3 and 10 on 30 October 2018. The offences occurred between May 1993 and about July 1997, when the complainant, S.W.’s younger brother, was aged nine to 12. Three counts concerned the family home in Cork; count 10 concerned a stay with family at the Shelbourne Hotel in Dublin. S.W. was acquitted on counts 4 to 9. A six-month prison sentence imposed on 23 November 2018 had been served in full by the time of the appeal judgment.
The first ground concerned evidence given during cross-examination. The complainant referred to earlier disclosures of the allegations, including evidence heard in separate District Court proceedings about an access application concerning his son. The prosecution had not proposed to call witnesses to give evidence about those disclosures at the trial. The appeal argued that the evidence was inadmissible and significant enough to require the jury’s discharge.
The Court of Appeal said the defence had put the case that the allegations were recently fabricated, particularly for the access proceedings. Evidence of prior complaints was admissible to rebut that claim, and the complainant’s answer did not provide a basis for discharging the jury. The court rejected this ground.
The second ground challenged the trial judge’s use of the words “substance” and “convinced” when explaining reasonable doubt. The Court of Appeal considered the charge as a whole. It said the judge had repeatedly explained the prosecution’s burden, including the requirement to prove every element beyond reasonable doubt and the need to give the accused the benefit of any reasonable doubt. In that context, the jury could not have been in doubt about the required standard, the court said.
The Court of Appeal dismissed the appeal against conviction. The judgment addressed the conviction appeal; it did not set out a new sentence order.