Friday 22 November 2019

Man's conviction for sexually assaulting wife's niece described as 'very divisive' case for family - court

(Stock photo)
(Stock photo)

Ruaidhri Giblin

A Co Clare man has had his conviction for sexually assaulting his wife's niece upheld by the Court of Appeal in what was described as a "very divisive" case for the family.

The 47-year-old, who cannot be identified, had “strongly denied” two counts of sexual assault committed against a teenage 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.

Upholding his conviction in the Court of Appeal today, Mr Justice George Birmingham said the evidence was that on both occasions the teenager had been babysitting in the man's home.

In the first incident she was helping the man to look for his phone when he came around her, kissed her, put his hand in her underwear and performed an act of digital penetration, the judgment stated.

The second incident some weeks later involved the teenager retrieving a TV remote control when the man came in after her, grabbed her, put his hand inside her underwear and once more digitally penetrated her.

His barrister, Giollaíosa Ó Lideadha SC, had submitted that the trial judge allowed a psychiatrist to say the teenager was admitted to acute care because of the effects of sexual assault.

However, the court held that where the defence were suggesting a pre-history of self harm, it was reasonable to allow the psychiatrist to refer to the recorded reason for her admission to acute care. “Not to do so would have been unfair on the prosecution.”

The court noted that the psychiatrist did not say, nor was an attempt made to have her say, that the teenager had as a matter of fact been sexually abused or that her allegations were reliable.

The psychiatrist's evidence was more restricted than that.

It was further submitted that the trial judge made inappropriate remarks when he referred to his client as “the bold {name redacted}” during his charge.

Mr Justice Birmingham said the court would “deprecate strongly any use of language by a trial judge when referring to an accused person which was disrespectful or disparaging of him of her”.

It was certainly an “unusual” reference for the judge to make, the judgment stated, but when seen in context, it was clearly used by the judge while summarising or paraphrasing a point made by the defence.

“Excessive informality in a charge by way of shorthand of this nature is to be avoided,” the judgment stated but the court could not hold that the remark could have impacted the jury's view of the accused.

Mr Justice Birmingham, who sat with President of the Court of Appeal Mr Justice Seán Ryan and Mr Justice Garrett Sheehan, said the appeal was accordingly dismissed and the conviction upheld.

The judgment noted one further matter. The man had sought to admit fresh evidence, an application which was refused by the court.

The evidence related to an incident involving the man's wife and the teenager's aunt. The man claimed the aunt told his wife: “You dirty rotten bitch, you stay away from my kids or I will put you in jail like I did your husband, and you will be in there together. You know I can you tramp”.

Mr Ó Lideadha said the inference to be drawn from this remark is that the aunt was prepared to give false evidence against the wife so as to cause her to be imprisoned as she had done previously in the husband's case.

Mr Justice Birmingham said the court was of the view that what was said or not said during the course of a confrontation more than two years after the trial took place was too remote to be admitted in evidence.

Even at trial it was obvious the allegations proved “very divisive” within the extended family. That tensions and difficulties would persist is not at all surprising.

However, the inference which the appellant said should be drawn was “simply a step too far”.

The occasions when evidence relating to event that occurred years after a trial and conviction will be admitted are “likely to be few and far between” and this was “certainly not” one of those cases.

The man, who had obtained bail for the appeal, has 13 weeks yet to serve on his sentence.

Mr Justice Ryan said the man had surrendered to his bail and will resume his sentence.

Any portion of his sentence which remains unexpired by May 1 next was suspended for a period of six months on condition he enter into his own bond of €100, keep the peace and be of good behaviour.

When asked if he undertook to be so bound, he said: "I do".

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