A man found guilty of sexually assaulting his 10-year-old goddaughter at his home in 2016 has had his conviction overturned on appeal.
The man's barrister, Colman Cody SC, had argued before the Court of Appeal that the trial judge had presented "an imbalanced view of the evidence" in his charge as he failed to make any reference to the cross-examination of the complainant, when reading transcripts of interviews with her to the jury.
Mr Cody said Judge Thomas Teehan should have made some reference to inconsistencies that had been raised by the defence about the girl’s evidence "to ensure fairness and balance" and his failure to do this had prevented “a fair synopsis” of the overall case being presented to the jury.
The man, who cannot be identified for legal reasons, was sentenced to seven years in prison with the final three years suspended after being found guilty of the offence by a majority verdict following a Circuit Criminal Court trial in January 2019.
The appellant denied that he had sexually assaulted his wife’s niece, who was also his goddaughter, at his home on November 27, 2016.
Appealing his conviction to the Court of Appeal last month, Mr Cody submitted that whilst the trial judge is not required to rehearse the cross-examination of a witness in detail, it is incumbent on the judge at a minimum to have reminded the jury that the direct evidence was not the entire evidence of the witness and it was necessary to assess all of the evidence, which included the cross-examination.
Roisin Lacey SC argued on behalf of the Director of Public Prosecution (DPP) that there was no standard formula for how a trial judge should charge a jury so long as they substantially dealt appropriately with all relevant matters. “It was a fair trial and a fair charge to the jury,” Ms Lacey said. She claimed the man’s defence was “fundamentally no more nuanced than an absolute denial – that the offence simply did not happen.”
In a written judgement delivered electronically today, Wednesday, December 9, Ms Justice Isobel Kennedy said it was "less than ideal" that the trial judge made no mention "even of the fact of cross-examination". The charge must be a balanced one by whatever means a judge in any given case considers appropriate and it is essential that a judge presents an "impartial review" of the evidence in a fair manner, she noted.
"While a judge is under no obligation to remind the jury of all the evidence or all the arguments, nonetheless, the jury must be reminded of the salient features in the trial in order to assist the jury in its role and to direct them to the issues of fact which require determination," she highlighted.
Ms Justice Kennedy said that where the entire transcript of the direct testimony was read over verbatim, the trial judge ought to have invited the jury "at a minimum" to consider all the evidence of the witness including her cross-examination.
Furthermore, Ms Justice Kennedy said a cause of concern for the court was that having read the entire transcript of interviews and failing to refer at all to the cross-examination, the trial judge compounded the error by then advising the jury: "That is the evidence concerning the night in question from [the complainant].” This, Ms Justice Kennedy said, rendered the charge imbalanced and amounted to an error in principle.
Ms Justice Kennedy, sitting with the Court of Appeal President Mr Justice George Birmingham and Mr Justice Patrick McCarthy, said the court would quash the sexual assault conviction.
In a subsequent hearing this afternoon, the three-judge panel granted the State's request for a retrial and the man was remanded on bail.
The trial heard that the girl and her mother were visiting the home of the man and his wife for an overnight stay before a family trip to visit Santa.
All three adults had attended a table quiz in a local pub but the man was first to leave to go home to allow a babysitter to leave.
The court heard that the man allegedly entered the bedroom where his niece was sleeping and sexually assaulted her.
The girl told specialist interviewers that she pretended to be asleep when her uncle rubbed her neck before penetrating her “front bum” with his finger for several minutes.
The court heard the incident had a devastating impact on the girl and she was afraid her uncle would come to her home or school because she had told her mother what had happened.
When asked to write down how she felt, the girl wrote on a piece of paper: “very sad, scared, lonely, angry and disappointed.”
Subscribe or register today to discover more from DonegalLive.ie
Buy the e-paper of the Donegal Democrat, Donegal People's Press, Donegal Post and Inish Times here for instant access to Donegal's premier news titles.
Keep up with the latest news from Donegal with our daily newsletter featuring the most important stories of the day delivered to your inbox every evening at 5pm.