The Court of Appeal has dismissed Paul Flaherty’s appeal against his sexual assault conviction, ruling that the trial was not unfair or unsatisfactory and that the verdict was not unsafe. The judgment, delivered on 31 July 2019, dealt only with the conviction appeal; the separate appeal against sentence was outside its scope.
Flaherty was convicted after a three-week trial in the Central Criminal Court, which ran from 21 November to 12 December 2017. He was sentenced in March 2018 to five years in prison, with the term dated from 7 March 2018. The jury acquitted him of oral rape and threatening to kill, and disagreed on the rape count. The Director of Public Prosecutions was not seeking a retrial on that count.
The appeal challenged the trial judge’s refusal to halt the prosecution or direct an acquittal after the prosecution case, and the refusal to discharge the jury. The defence also argued that the guilty verdict for sexual assault was perverse or irreconcilable with the other verdicts, and that the sexual assault count had not been sufficiently particularised.
The defence relied on alleged investigative delay, the failure to pursue a possible witness enquiry relating to the complainant’s former partner, similarities between two accounts given by the complainant to Gardaí, and the unavailability of Dr Gouri Columb, who had cognitive memory difficulties. These were arguments advanced by the defence; the appeal court did not accept that they justified stopping the trial.
The court said the delay and failure to designate the home as a crime scene did not establish material prejudice. It found that the jury had heard evidence about the complainant’s previous sexual experience and that the similarities between her accounts were matters for comment and assessment at trial, not a basis to exclude the evidence or halt proceedings. The trial judge had concluded that the complainant had not learned her first account by rote; the appeal court described that explanation as unconvincing and said the similarities did not prevent the evidence being received.
On the differing verdicts, the court said juries may reach different conclusions on separate counts. It identified possible reasons for distinguishing the rape count, including uncertainty over penetration, and said the jury could have found evidence supportive of untoward sexual activity without finding specific support for every count. The trial judge had explained that the sexual assault allegation covered alleged sexual misconduct apart from the rape counts, including the removal of clothing. The Court of Appeal found the count was properly left to the jury and dismissed the conviction appeal.