Court reserves decision in case concerning ‘reasonably incorrect’ defense of underage sexual activity – The Irish Times

The Supreme Court has reserved its decision in the state’s appeals process over the legal burden of proof of a defendant seeking to prove he was reasonably wrong as to the age of a child with whom he is accused of having committed a sexual act .

The appeal primarily addresses the question to what extent, if at all, the prosecution must prove that the accused is “guilty” with regard to the age of the child.

The High Court last June overturned a section of the Criminal Justice (Sex Offenses) Act 2006 that required an accused to plead the defense that he was “quite wrong” as to the age of the minor in order to appeal to a jury to convince that these are “true on balance probabilities”.

It is unconstitutional, Justice Siobhán Stack ruled, to place more than one burden of proof on a defendant in a matter involving a core element of a crime. A burden of proof would result in an acquittal if the jury had “reasonable doubts” that the defendant was not reasonably mistaken about the age, she noted.

The plaintiff in this case was sentenced to one year and 10 months in prison for sexual activity with a person under the age of 17. The events underlying the criminal proceedings took place around five years ago, when the man was 19 years and four months old and the applicant was 15 years and 10 months old.

On Wednesday, the state’s lead attorney Remy Farrell told a seven-judge Supreme Court that if that error was unreasonable, a defendant could be convicted of that offense despite being wrong about age.

A defendant’s mental intent regarding age is “in the mix” but it’s not an element of the offense itself, he added.

If the Supreme Court, like the High Court, rejects the state’s contention that this was not part of the offense itself, then the question arises whether this burden shifting is justified, said David Fennelly BL, who also represented the Minister for Justice, the Attorney General, the Chief the Prosecutor’s Office and Ireland.

The Oireachtas, he said, are “not absolutely out of the question” in shifting the burden of justice to a defendant over an element of the defense, but they use that power “very sparingly.”

“We recognize that [subsection] is at or near the limit of what the Constitution might allow,” he added.

Mr Fennelly continued that this reversal was justified for this particular offence. He pointed to the state’s duty to protect and uphold constitutional rights, a duty he says is “increased” where a child is concerned. It is “very difficult,” he said, for prosecutors to prove that a defendant was not reasonably mistaken about age.

Ronan Munro SC argued on behalf of the plaintiff that the matter under investigation was a “core element” of the offense that carried significant social stigma and legal consequences. Prosecutors should have to prove beyond a reasonable doubt that a defendant’s mind was “guilty” about age. He said a “mentally innocent” person accused of this offense has “only one avenue of escape”: the reasonably false defense.

The presumption of innocence is violated, he said, when that defense cannot succeed by simply creating a reasonable doubt in the jury’s mind about a child’s sense of age. This Rubicon “cannot be crossed” as the spiritually innocent need a way out, he added.

Fiona Murphy SC, also for the plaintiff, said there is an objective element to adequate error defense that sets a “high test”. It is difficult to see why one burden of proof should not be sufficient in these circumstances. It is not permissible to commit a criminal offense in which no acquittal is possible.

The case was heard by Chief Justice Donal O’Donnell, Ms Justice Elizabeth Dunne, Mr Justice Peter Charleston, Ms Justice Iseult O’Malley, Mr Justice Séamus Woulfe, Mr Justice Gerard Hogan and Mr Justice Brian Murray.

The court reserves its decision.