The Court of Appeal has quashed the conviction of an anonymised appellant who had been found guilty of two sexual assaults, ruling that the trial judge should have allowed defence counsel to correct a serious error in her closing speech.
The judgment, delivered by Mr Justice McCarthy on 7 March 2019, concerned convictions entered at Waterford Circuit Court on 12 December 2016. The appellant was sentenced on 25 April 2017 to three years in prison, with the final year suspended.
At trial, the complainant, who was 13 at the time of the alleged incidents, gave evidence that her father sexually assaulted her on two occasions during a weekend in January 2015. The prosecution relied on her uncorroborated evidence. Her mother and stepfather also testified about what she had told them in phone calls after the alleged incidents.
In her closing speech, defence counsel argued that the complainant had told her mother that the appellant had “tried to touch” her, rather than that he had touched her, and said the account had changed. The trial judge said the mother’s evidence was that the complainant had told her that her father had touched her in her private parts. He refused the defence application to discharge the jury and corrected the impression in his directions to them, but did not allow counsel to address the jury again.
The appeal court said the judge was right not to discharge the jury. It held, however, that the error was serious, prominent in the defence case and capable of remedy by exceptionally allowing counsel to reopen her speech. The complainant’s credibility was central, the court said, and the refusal to let counsel correct the point exceeded the trial judge’s broad discretion. It concluded that the convictions were unsafe and unsatisfactory and quashed them.
The court rejected the appellant’s other grounds: that the case should have been withdrawn from the jury and that the jury should have received a corroboration warning. It found no error in the trial judge’s decisions on either application.
The judgment does not state whether a retrial was ordered.