The Court of Appeal has dismissed A.Z.’s appeal against convictions for five counts of indecent assault and one count of sexual assault, finding that the absence of a potential defence witness did not deprive the appellant of a realistic opportunity to pursue an obviously useful line of defence.
A jury convicted A.Z. on 20 January 2017 after a seven-day trial. The appeal court judgment, delivered on 21 October 2021, records concurrent eight-year prison sentences on all counts, with the final two years suspended. It does not address a separate appeal against sentence.
The allegations concerned events said to have occurred between April 1989 and April 1991, when the complainant was aged 14 to 16. The complainant said he stayed at A.Z.’s home in a South Dublin suburb and was abused in A.Z.’s bedroom. The prosecution’s case was that the house’s box room was unavailable. A.Z. denied the allegations and said the complainant always slept in that room.
A.Z.’s appeal focused on the death of his mother, who had lived in the house and died in 1998. The defence argued at trial that her evidence about the upstairs rooms and sleeping arrangements was crucial, and that the long delay before the complaint left A.Z. prejudiced in defending himself. The trial judge refused an application to withdraw the case from the jury, concluding that delay and corroboration warnings could address the risk of unfairness. The jury convicted A.Z. at a retrial in January 2017; an earlier trial had taken place in January 2012.
On appeal, the court applied guidance from the Supreme Court’s 2019 decision in *The People (DPP) v. C.C.* It considered whether there was a realistic prospect that the deceased witness could have provided evidence and whether her absence had removed an obviously useful line of defence.
The court said the grandmother might have assisted the defence if she could have confirmed that the complainant slept in the box room or that the alleged abuse could not have happened as described. But there was no evidence showing what she would have said. She might have supported the complainant’s account, contradicted it, or been unable to remember. The court described her absence as a “lost opportunity” to explore the issue, but held it did not make the trial unfair under the applicable test.
The court dismissed the sole ground of appeal pursued and, concluding that the trial was satisfactory and the verdict safe, dismissed the appeal against conviction.