Thursday 14 December 2017

Farmer loses appeal over raping teenage niece

Tim Healy

A FARMER jailed for nine years for raping and sexually assaulting his teenage niece has lost his appeal against conviction. 

The girl was previously sexually assaulted by her father and a cousin.

Her uncle was convicted on one count of rape and 14 counts of sexually assaulting the girl between 2002 and 2004, when she was aged between 13 and 15.

After she made a complaint against her uncle, she also revealed she was sexually assaulted at a young age by her father, who later pleaded guilty, and by a cousin who later died. She told the uncle's trial she had not mentioned her father's assaults earlier because of pressure from her mother not to do so.

Her uncle appealed his conviction on grounds including the trial judge misdirected the jury in relation to how it should approach the girl's testimony of a sexual assault which she said occurred in summer 2002.

She alleged her uncle put his hand high up her leg when they were both in a tractor engaged in baling hay. He denied baling hay at all that year but a man interviewed by gardai produced business records showing he baled hay for the farmer in 2002. 

The farmer's son also testified he recalled baling silage in 2002 but claimed, on the date the girl was involved in the baling, he, the son, was driving the tractor and not his father.

Giving the three-judge Court of Criminal Appeal's decision, Mr Justice John MacMenamin said it was argued the trial judge should have told the jury the farmer's statement there was no baling in 2002 must be seen in the context of a man who made bales on and off for years,  was as likely to be a "mistake" as a "lie" and he should be given the benefit of the doubt.

The charge on that count of sexual assault was "meticulous" and the trial judge told the jury, if they found the farmer had lied, that could only be corroborative evidence for that count of sexual assault, the CCA found. 

The trial judge had also said the issue of whether or not it was corroborative evidence was a matter for the jury as people lie for many reasons, such as panic, and not just a realisation of guilt.

There was no misdirection in the trial judge's warning on this issue and an accused was not entitled to have a judge use their lawyer's choice of words, Mr Justice MacMenamin ruled. 

He also dismissed arguments the trial judge's use of the word "lies" a number of times in his charge favoured the prosecution over the defence. 

Further complaints about how the trial judge dealt with the girl's delay in revealing the full picture concerning the assaults by her father and cousin were also rejected. It was argued the charge was flawed in characterising her conduct as "something in the nature of a half truth" and telling the jury to bear in mind she was young. 

Those matters were not of substance, Mr Justice MacMenamin said. The words used by a trial judge need not always be those most favourable to an accused provided there was an accurate summary of the law and facts.

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