Monday 23 April 2018

Music teacher jailed for indecently assaulting pupil in his home 25 years earlier moves to appeal his conviction

O'Rourke moved to appeal his conviction today on two main grounds.
O'Rourke moved to appeal his conviction today on two main grounds.

Ruaidhrí Giblin

A music teacher jailed for indecently assaulting a pupil in his home 25 years earlier has moved to appeal his conviction.

Breffni O'Rourke (67), who was living in Ferrybank, Waterford at the time of his trial had pleaded not guilty at Dublin Circuit Criminal Court to indecently assaulting the then nine-year-old girl in his Stamullen home in June 1987.

He was found guilty by a jury and sentenced to two years imprisonment with the final 12 months suspended by Judge Desmond Hogan on July 30, 2012.

O'Rourke moved to appeal his conviction today on two main grounds.

His barrister, Colman Cody SC, submitted to the Court of Appeal that the jury should have been discharged in relation to alleged prejudicial evidence given by the complainants twin sister.

She had said that O'Rourke, a music teacher, was 'friendly' and had a 'habit of tickling us'.

The complainant's twin sister went on to tell the Circuit Court that O'Rourke would put his hands under the clothes and feel skin.

Mr Cody said her evidence was not probative of any of the matters before the court and it was “prejudicial to a very high degree”.

What she was describing was comparable in certain respects to an indecent assault, he said.

The allegations were that tickling was O'Rourke's “modus operandi”, he said, and the witness' comments went beyond the mere concept of tickling.

He said no amount of directing or warning by the trial judge to the jury was going to obviate the prejudice.

Mr Cody further submitted that a number of matters relied upon for an application to have the case withdrawn from the jury were not made available to the defence.

Most significant was the loss of notes compiled by an English teacher to whom the first disclosure of any account of alleged indecent assault was made in 1992.

The court heard that the notes may have been lost in a flood.

Mr Cody said the defence were deprived of the opportunity to consider what was in those notes and to compare what was said by the complainant at that time to what she was saying years later.

He said there were potential islands of fact which could have afforded the jury an opportunity to determine the credibility of the complainant.

Counsel for the Director of Public Prosecutions, Martina Baxter BL, said the witness' remarks had been contained in her statement and they were not prejudicial.

Ms Baxter said the witness was talking generally about how she found Mr O'Rourke.

Mr Justice Garrett Sheehan, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards said the court would reserve judgment.

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