A young man on trial for sexually assaulting his cousin after a night when they both got drunk was asked if he could have done it in his sleep and he said, “It possibly is possible.”
He has been found not guilty.
The complainant wept as the verdict was delivered.
Defence senior counsel Tom Creed said it hit him like a bolt when he heard the prosecution referring to this reply made by the accused man when questioned by the gardaí.
Mr Creed said to the jury, “If you think it is possible he sexually assaulted her then you must acquit… You have to be sure – that is the standard that has to be reached.”
He said it was not a matter of possibility but of being beyond reasonable doubt.
The contested sexual assault dates back to January 21 2019 at a house in North Cork. The defendant is 24 years old and the complainant is 21.
Now at Cork Circuit Criminal Court the jury of four women and eight men have returned a verdict of not guilty on the single charge on the indictment of sexual assault.
Judge Helen Boyle told the accused man he was free to go as there was nothing further against him.
It was agreed by prosecution and defence that both parties had a lot to drink on the night of a relative’s birthday party and that they stayed in the same house that night and ended up in the same bed.
The complainant said that during the night she was sexually assaulted by the defendant: “He rubbed my belly, I said stop. He ruby my thighs, I said stop. He rubbed my vagina, I froze.”
When gardaí put this part of her statement to the accused he replied, “I don’t recall none of it, it didn’t happen.”
The complainant said, “I shoved him off me. He pretended he was asleep.” She said she was in complete shock.
Asked about this, the defendant said he was in complete shock, adding, “I cannot remember any of that. That did not happen… If I was awake I definitely would not have done it.”
The defendant told gardaí, “With my girlfriend, she says that in the middle of the night I would be rubbing her when I am asleep. And I wouldn’t remember a thing about it in the morning.”
Asked, “Is it possible you did these things when you were asleep,” he replied, “It possibly is possible.” Asked if he would remember being shoved during the night and woken up, he replied, “No, after drink I don’t remember anything, I can promise you that.”
Prosecution barrister, Imelda Kelly, asked the eight men and four women of the jury at Cork Circuit Criminal Court to consider the responses made by the accused.
Tom Creed SC for the defence said, “He was entirely consistent in what he said to gardaí. He is quite clear – he didn’t do this. The fact that he doesn’t recall anything, that he was asleep, that does not make them guilty.
“Can you really be satisfied beyond reasonable doubt that what she said occurred, occurred, on the basis of the inconsistencies in her evidence. If this was your brother or son, would you be satisfied to convict him on the evidence of such inconsistencies?”