The Court of Appeal has dismissed Anthony McCabe’s appeal against his conviction for indecent assault, ruling that the evidence was sufficient for the charge to be left to the jury.
McCabe was tried before a jury at Tullamore Circuit Criminal Court on two counts of indecent assault on a male person. The jury found him guilty on one count by an 11–1 majority on 14 February 2014 and acquitted him on the other the previous day. He received a 12-month prison sentence, suspended subject to conditions for 12 months. His appeal concerned the conviction only.
The complainant, identified in the judgment as “C”, was a vulnerable person with a mild intellectual disability and physical ailments. He had lived at a residential care centre for 24 years, and McCabe worked there as a carer.
C told the jury that, while he was bathing, McCabe put his hand into the bath and wanted to “feel me up”. C said he turned from side to side to get away. He also testified that he had described the incident to a nurse at the centre in December. The judgment says an internal investigation followed, McCabe was suspended with pay and later resumed work. Gardaí investigated, and McCabe denied the allegations. He denied bathing C or supervising him alone during bath time, while acknowledging supervising him when another carer was present.
McCabe argued that the prosecution had presented the case as involving actual physical contact, but that the evidence, taken at its highest, showed at most an unsuccessful attempt. He said the trial judge should therefore have withdrawn the count from the jury. He also challenged the judge’s consideration of evidence he said was irrelevant or inadmissible.
The prosecution accepted that it had opened the case on the basis McCabe described, but argued that C’s testimony included evidence of actual inappropriate contact. The Court of Appeal said indecent assault can involve either apprehension of unwelcome physical contact or actual contact. It held that the count could properly have been left to the jury on either basis. It also found that C’s statements, including his rejection in cross-examination of the suggestion that McCabe had not touched him inappropriately, provided sufficient evidence for the jury to consider actual contact.
The court found no evidence that the trial judge relied on irrelevant or inadmissible material. It dismissed the appeal on all grounds. The conviction and sentence were not set aside.