The Court of Appeal has dismissed B. O’R.’s appeal against his conviction for indecent assault, rejecting arguments that a witness’s evidence was prejudicial and that alleged investigative shortcomings and delay meant the case should have been withdrawn from the jury.
The judgment, delivered by Mr Justice Sheehan on 11 May 2016, concerned a conviction returned after a seven-day jury trial in February 2012. The jury found the appellant guilty on one count by a 10-2 majority, acquitted him on two counts and disagreed on a fourth. He was sentenced to two years’ imprisonment, with the final 12 months suspended.
The allegations concerned a complainant who was nine or ten at the time and received music lessons from the appellant. The judgment says the alleged offences took place on dates unknown between September 1986 and October 1987. The complainant’s twin sister, identified as CH, testified that the appellant tickled pupils and put his hands under her clothes. The defence argued that this suggested criminal conduct unrelated to the charges and that the jury should have been discharged.
The appeal court held that the trial judge was entitled to refuse that application. It noted that the defence had been aware of the evidence and had not objected before it was given. The appellant had also admitted in Garda interviews that he tickled children. The jury had been directed that CH’s evidence was neither a complaint nor corroboration of the complainant’s account. The court concluded that the evidence did not make the trial unfair.
The appellant’s second ground challenged the refusal to stop the trial at the close of the prosecution case. The defence pointed to the delay in reporting, missing notes, and matters it said Gardaí had not investigated, including the colour of a van, possible lesson records, travel to an event and parents of other pupils. The prosecution argued that some points were speculative and that the diary was first raised by the appellant in his own evidence.
The Court of Appeal found the alleged investigative gaps were of no importance to the fairness of the trial. It said the defence could have made its own inquiries and found that the trial judge had adequately warned the jury about delay and fairly summarised the defence case. The court considered the claimed prejudice from missing notes minimal, noting that the former teacher who made them was available for cross-examination and that the witness from the ISPCC was not cross-examined.
The court concluded there was sufficient evidence on each complaint for a properly directed jury to convict and no real risk of an unfair trial at the time of the application to stop proceedings. Both grounds failed and the appeal against conviction was dismissed.