A Dublin man has won his appeal against his conviction and six-year sentence for the rape, attempted rape and indecent assault of his daughter. A retrial was ordered by the Court of Criminal Appeal.
The man, who cannot be named to protect his daughter's identity, was convicted at the Central Criminal Court in January 2001, of the crimes between January 1st, 1998, and October 21st, 1998.
In his appeal, Mr George Birmingham SC, for the man, had advanced a number of grounds, including grounds relating to the trial judge's failure to refer, in his charge to the jury, to the presumption of innocence.
The judge was requisitioned on that point at the close of his charge, and, after recalling the jury, did refer to the presumption of innocence. However Mr Birmingham contended he did so inadequately.
In a reserved judgment yesterday, Mr Justice Hardiman, presiding, said the presumption of innocence "is a vital, constitutionally-guaranteed right of a person accused in a criminal trial..."
It was important the presumption itself should be explained as an essential feature of the criminal trial, while the prosecution's burden of proof, to prove its case beyond reasonable doubt, should be separately explained.
In this case the trial judge had stated the onus of proof without explaining its basis in the presumption of innocence, and without explaining as its ultimate corollary the entitlement of the defendant to the benefit of any reasonable doubt.
The trial judge had also failed to contrast the standard of proof in a criminal case - beyond reasonable doubt - with the standard in a civil case - proof on the balance of probabilities.
While the trial judge had recalled the jury on the presumption of innocence point, he was under the inaccurate impression he had already mentioned the presumption of innocence.
When recharging the jury, he had referred to the presumption in a single sentence.
