The Court of Appeal dismissed Niall Counihan’s appeal against his convictions for two counts of rape and two counts of indecent assault. It found the convictions safe and the trial satisfactory, rejecting the argument that the trial judge should have told the jury there was no explanation for the delay in reporting the abuse.
The judgment, delivered ex tempore on 3 March 2015, concerned offences over a period of months in 1985 and 1986. The complainant was then 13 or 14 and sometimes babysat for Counihan, who was married to her elder sister. The court said the offences occurred in a box room bedroom while the complainant was staying at the home.
At trial, the complainant testified that she had been reluctant to tell her mother because of her mother’s personality. She also said that in early 1986 she told her sister she could no longer babysit, without giving the reasons. Her sister confirmed that evidence. The complainant did not report the abuse until 2009.
The appeal focused on the trial judge’s directions about the delay. The judge had warned the jury about the effect of delay, and repeated the warning after jurors sought a copy of the charge or more information. The defence then asked the judge to distinguish the evidence about why the complainant had not told her mother from the later period before she made a complaint. The prosecution had not led evidence explaining that later period, and the defence had not questioned the complainant about it.
The Court of Appeal said it would have been inaccurate and unfair for the judge to tell the jury there was no explanation. A potential explanation was available, though the court did not decide whether it was satisfactory or should be accepted. The court also said the defence had chosen not to explore the issue at trial and could not then complain that the judge failed to describe an absence of explanation.
The court distinguished the 2003 case of L.G., cited by the appellant, and noted that delayed disclosure of child abuse may have explanations involving shame, guilt or embarrassment. It dismissed the appeal on conviction. The judgment then turned to the Director of Public Prosecutions’ application to review the sentence; it does not state the result of that separate application.