The Court of Appeal has refused an appeal against a man’s conviction by a jury on three counts of sexual assault, rejecting arguments about an unasked witness, the timing of alleged offences and directions given to the jury.
The judgment, delivered by Ms Justice Ní Raifeartaigh on 7 April 2022, concerned an appellant identified as M.C. The complainant, whose identity is protected, was his granddaughter. The offences were alleged to have occurred between July 2015 and May 2016, when she was a child.
A central appeal issue concerned 29 December 2015, the date of a wedding attended by the complainant’s parents. The complainant said an incident happened when they were away. Her mother was unsure whether she stayed overnight at her grandparents’ home or went to a friend’s house. The appellant’s wife said the complainant’s three brothers stayed at the home that night, implying the complainant did not.
The defence argued that Gardaí should have taken a statement from the friend’s mother, identified as P, about where the complainant stayed. The Court of Appeal said it would have been preferable for Gardaí to interview her and that her evidence might have clarified the matter if she remembered. But there was no indication what she would have said: she might not have remembered, or might have given evidence supporting either side. The court held that the possibility of helpful evidence for the defence was speculative. It also noted that the defence could have contacted P or asked the prosecution to interview her after receiving disclosure. The failure to obtain a statement did not create a real risk of an unfair trial, the court said.
The court also rejected the argument that allegations said to predate 29 December 2015 should have been withdrawn from the jury. Having reviewed the complainant’s evidence as a whole, it said the jury could decide when the alleged offending began. The trial judge had directed jurors to acquit if they found the allegation concerned the night or following morning of 29 December, when the evidence did not establish offending at that time. An allegation relating to daytime was left to the jury to resolve amid conflicting evidence about whether the complainant was at the home.
The appeal court found no error in the trial judge’s refusal to give a corroboration warning or further directions concerning the complainant’s age and evidence. It also rejected challenges concerning a requested jury recharge about discussions between the complainant and her mother, and the judge’s direction to focus on this case rather than another case cited by the defence.
The court dismissed the appeal against conviction. The judgment does not state the sentence imposed.