Sunday 17 December 2017

Man acquitted by jury of sex assault of niece

Alleged assault took place on girl (9) who was in the care of HSE

The trial took place over five days at Sligo Courthouse
The trial took place over five days at Sligo Courthouse

Paul Deering

A jury of seven men and five women took just under two and a half hours to return a not guilty verdict in the case of man who allegedly sexually assaulted his niece who was nine at time.

The man, in his mid 40's broke down in tears and was hugged by his sister at the back of the court after he was formally acquitted by Judge Brian O'Callaghan soon after the jury had returned to deliver its unanimous verdict last Wednesday evening.

The jury came back with its verdict just minutes after Judge O'Callaghan had dealt with a request from them that they be allowed to be shown again a DVD of the alleged victim's interview with a Garda and HSE care worker in from 2012 in which she had outlined her complaint and also a recording of her evidence by video link given at the trial.

Judge O'Callaghan explained to the jury that it wasn't possible for the DVD recording to be shown to them again nor was it possible to show them a recording of her evidence to the trial by video link because it wasn't recorded but he pointed out that if they had a query regarding any single aspect or parts of her evidence then they could get back to him on this.

The jury then retired briefly to consider before coming back and indicating they had reached a verdict.

The trial had last five days at a sitting of the Circuit Court at Sligo Courthouse.

The trial heard that the alleged victim had a learning disability and was also diagnosed with ADHD. The accused was also said to have a mild learning disability and other health related issues.

Judge O'Callaghan excused the jury from further service for five years and he thanked them for their attention and time. The Judge said the court noted that the the complainant and the accused were in receipt of services of the State and he hoped this would remain in place.

He also complimented the HSE for its support to date.

The trial heard that the girl was on an access visit to her mother's house on January 8th 2012 when the alleged incident had occurred.

The girl's mother was upstairs when the accused came into the home. The girl was downstairs watching television in the sitting room and playing with toys.

It was alleged the accused asked his niece to come over to him and he touched and squeezed her "down there." He also allegedly tried to kiss his niece.

The girl's mother came downstairs and the accused left the house. She went out after him. The girl subsequently returned to her foster parents.

Her foster mother noticed that she was clingy and hadn't mixed at a birthday party some four hours later she had gone to on the Saturday which was unusual as she enjoyed parties.

She was also upset in the car and the girl told her foster mum what had happened with her uncle.

The foster mother contacted the HSE and the Gardaí were also informed. The girl wasn't sent to school on the Monday and was brought for a medical examination which was normal.

The accused denied he had been in the house or that anything had happened with his niece, saying that she must have been mistaken.

Ms Dara Foynes BL with State Solicitor Mr Hugh Sheridan told the jury in her closing address that sexual assaults generally occurred in private with no witnesses about.

There was no scientific evidence she said but added that they had heard all of the evidence and once they were satisifed it reached the standard of proof necessary they could convict.

Ms Delia Flynn SC with Mr Noel Kelly, solicitor (defending), in her address to the jury stated that the accused did not give evidence and was not required to do so. He did not have to prove or disprove anything with the burden on the State to prove to a standard beyond reasonable doubt.

Ms Flynn said there were unusual features to the case. She pointed out that anyone person under 14 or of a mental disability was allowed to give evidence by video evidence and also then to be cross examined by video link with the complainant present in the courthouse but not in the courtroom.

Ms Flynn recalled how soon after her interview began with the HSE worker and a specialist Garda, she had asked was she going to see her mother again.

Ms Flynn said this was a child with a dynamic background and "we cannot assess how suggestible she is."

Ms Flynn also stated how the alleged victim's care worker since 2009 had been chosen to undertake the interview and she queried if this was an appropriate choice given his background during family law proceedings the previous year involving the HSE and the family.

The senior counsel also submitted that after the alleged assault the girl had continued watching television and playing with toys.

"Is that compatable with a child who had just been sexually assaulted? I would say it's not. Is that a natural reaction of a child who has been subjected to an indecent assault?" Ms Flynn asked the jury.

With regard to her interview, Ms Flynn asked if the alleged victim had "just wanted to get out of there?"

Ms Flynn stressed that a complaint has to be given freely and voluntarily by a person. Ms Flynn also referred to how it was put to the complainant if she could be mistaken and she replied that she didn't know. The issue of possibly lying was also raised during cross examination and the alleged victim had replied: "Who's telling lies here?"

Ms Flynn asked if this was anywhere near the standard required to convict somebody beyond a reasonable doubt.

Ms Flynn suggested the alleged victim couldn't be relied on based on what she had said in response to questions put to her.

It was also pointed out that while the alleged victim was reportedly upset the night of the alleged assault and had been upset in the car earlier and didn't go to school on the Monday, when the care worker called to the house she had been out playing on her bicycle.

The accused, who has a mild learning disability and was diabetic, was interviewed by experienced Gardaí, said Ms Flynn and if "anyone was susceptible to saying anything this would have been the sort of man who would do that."

"Despite this and his medical difficulties he denied again and again that he did this," she said.

During his charge to the jury, Judge O'Callaghan asked the jury to scrutinise the alleged victim's evidence with particular care given the absence of corroboration.

Sligo Champion

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