Saturday 24 February 2018

Court of Appeal reserves judgment in case of man (47) convicted of sexually assaulting member of his family

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Ruaidhrí Giblin

The Court of Appeal has reserved judgment in the case of a Clare man convicted of sexually assaulting a member of his family.

The 47-year-old man, who cannot be identified, pleaded not guilty to two counts of sexual assault committed against a teenaged female member of his family between January 1 2007 and January 31 2007.

He was found guilty by a jury at Ennis Circuit Criminal Court and sentenced to 18 months imprisonment by Judge Seán O'Donnabháin on July 13 2012.

His barrister, Giollaíosa Ó Lideadha SC, submitted to the Court of Appeal today that evidence from a psychiatrist, who testified the complainant had been “sexually abused” and had “suffered”, was opinion evidence, unjustified and inadmissible.

Mr Ó Lideadha said there was no justification for a psychiatrist to get into the box and say 'I have treated this person for these allegations'.

He said the only meaning that could be attached to the psychiatrist's comments were that the allegations were true. It clearly indicated to the jury, that the psychiatrist was “expressing an opinion that these allegations were true”.

If the court found that proper, Mr Ó Lideadha said, then the criminal process will be transformed because trials will be “conducted on the basis of experts coming into court, offering opinion on whether or not the accused is guilty”.

“That would be a radical change to the criminal justice system,” Mr Ó Lideadha said.

Mr Ó Lideadha said it had been put to defence counsel that the psychiatric evidence was admissible because he had asked why she was in acute psychiatric care but “there was no question of that kind ... she was asked about self harm”.

He said the psychiatrist's opinion was put forward as proof that the allegations were true rather than as corroboration.

Mr Ó Lideadha asked the court to consider whether this was a fair trial where justice was seen to be done.

Counsel further submitted that the trial judge had failed to give a corroboration warning to the jury.

Mr Ó Lideadha said the allegation was very brief in its description. The complainant had said there was kissing involved but that was not in her evidence.

The failure to give a corroboration warning in this case was not properly considered and looking at the case as a whole “one cannot look at this trial and say justice was seen to be done here,” Mr Ó Lideadha said.

Counsel for the Director of Public Prosecutions, Shane B Dwyer BL, said a cloud of suspicion was put over the complainant's credibility when she was cross examined in relation to self harm. It was in that context that the calling of the psychiatrist must be seen, he said.

The psychiatrist didn't say 'I believe this person was sexually abused in my professional opinion,' Mr Dwyer said. The psychiatrist said the complainant had come to the acute unit of a psychiatric ward “because of the allegations and the sequela” and “sequela” was clarified in an attempt to define a word not familiar to the average juror.

He said the evidence was admissible because her credibility was brought into the case.

Mr Dwyer said the judge wasn't invited to warn the jury such as 'these people are experts but they're not all knowing'. He wasn't invited to give such a warning and a warning wasn't mandatory.

In relation to corroboration, Mr Dwyer said the court must determine whether the discretion was exercised.

He said there was clearly evidence which was capable of being corroboration, the judge had said it wasn't and that was another example of a favourable charge from the appellant's point of view.

President of the Court of Appeal Mr Justice Seán Ryan, who sat with Mr Justice Garrett Sheehan and Mr Justice George Birmingham, said the court would reserve judgment until March 10.

The court did not accept as fresh evidence a conversation the complainant allegedly had with the accused's wife. Mr Ó Lideadha claimed that a relative of the complainant had told the accused's wife to stay away from the children, 'you're husband is in jail and you'll end up there too'.

That amounted to an admission of making a false allegation, Mr Ó Lideadha submitted.

Mr Justice Birmingham posed the question: two people who had been involved in a trial confront each other later, "so what?"

Mr Justice Ryan remarked that things have often been said after trials, somebody looking crooked at another and so on, and if the court found those relevant there would be no end to any appeal.

This court would be clogged with endless issues because of what one person alleged what another person had said in a conversation, Mr Justice Ryan said.

The fresh evidence, as claimed by Mr Ó Lideadha, was not accepted by the court.

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