A man who was found not guilty of raping and sexually assaulting his niece will face trial again on the same charges after the Court of Appeal quashed his acquittal.
After making a rare order to overturn an acquittal, the three-judge court took the decision to put the case back into the trial list at the Central Criminal Court.
The 46-year-old is charged with rape contrary to the Criminal Law (Rape) Act 1990 on a date unknown between May 18, 2001 and March 20, 2006. He is also charged with two counts of sexual assault contrary to Section 2 of the Act over the same time period.
At his trial in Cork earlier this year Ms Justice Carmel Stewart, having heard the prosecution evidence, directed the jury to acquit. She said she was concerned that the prosecution had shifted the burden of proof onto the accused by failing to call two witnesses who had made statements to gardai. President of the Court of Appeal Mr Justice George Birmingham, in a judgment delivered earlier this month, said he was "in no doubt that the trial judge was in error in halting the trial and directing the jury to acquit."
He said the defence application for an acquittal focused on the failure of the prosecution to call the complainant's grandmother and father, who had both given statements to gardai. The appeal judge said the application was "surprising", and said he finds it "hard to imagine" why the trial was halted given that it was open to the defence or the judge to call those witnesses if they wished.
He said the complainant's father had no relevant, admissible evidence to give and there was evidence that the grandmother was "not reliable and would not be truthful". He said that, "no responsible prosecutor could have called her if he didn't believe her to be truthful."
Following a brief hearing today, Mr Justice Birmingham, sitting with Ms Justice Isobel Kennedy and Mr Justice Patrick McCarthy, quashed the acquittal and ordered a retrial under the provisions of Section 23 of the Criminal Procedure Act 2010. The Act allows, in certain circumstances, for a person who has been acquitted of an offence to be tried again for the same alleged offence.
Mr Justice Birmingham said the nature of the allegations were "of such gravity that there is a public interest that they should be adjudicated upon to conclusion following a fair trial." He said the court was satisfied that a fair trial is possible and noted that the complainant did not resile from her position when giving evidence in trial and during cross examination. He further noted that it is her wish that a retrial take place.
The original trial heard that the woman alleged she was raped by her uncle at her grandmother's house following her First Holy Communion in 2001 or 2002. He was, she said, playing piggy back with her and then followed her into a bedroom where the alleged rape occurred. The second alleged offence occurred when she had a friend over at her grandmother's home for a sleepover. She said she awoke to find her uncle with his hand under her clothes on her vagina. She asked him to stop and he left. She further alleged that on the third occasion she was in the kitchen of her grandmother's house when her uncle came up behind her and put his hand under her clothes and on her vagina. She told the trial that she screamed and when her grandmother came into the kitchen she told her grandmother that her uncle was "at me" and her grandmother told him to stop.
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