The Court of Appeal has dismissed a man’s appeal against his conviction for 20 counts of sexual assault, finding that the trial judge was entitled to leave the case to the jury and reject an application based on delay.
The judgment, delivered on 1 April 2021 by President of the Court of Appeal Birmingham, concerns alleged offences between September 1993 and September 1996 at the complainant’s family home in Ballymun, Dublin. The complainant was a boy aged about 11 to 13 at the time. The appellant was the brother of the complainant’s father’s partner. The complainant alleged that the appellant sexually assaulted him repeatedly while they shared a bedroom.
A jury in Dublin Circuit Criminal Court convicted the appellant in May 2019. He was later given an effective aggregate sentence of seven years. This appeal concerned the convictions only; the judgment did not determine his separate appeal against sentence.
The appellant argued that inconsistencies and credibility issues in the complainant’s evidence were so serious that the trial judge should have directed the jury to acquit. The Court of Appeal said the defence had made some points in cross-examination, but the evidence was not so weak that the case should have been withdrawn from the jury. Assessing the complainant’s credibility and the weight of inconsistencies was the jury’s role.
The appellant also argued that the passage of time had deprived him of a fair trial by making several potential lines of defence impossible to test. These included the complainant’s account of trying to wake his father, who died in 2002; the absence of the class teacher, who might have been able to address whether the complainant slept in school; unavailable Garda station records concerning whether the appellant had to sign on after temporary release from prison; and missing medical records about when the appellant injured his leg.
The court considered each issue in context. It noted that the complainant did not say he had told his father about the alleged abuse, and that the father’s possible failure to respond did not establish that the account could not be tested fairly. The teacher’s evidence was unlikely to advance matters significantly, the signing-on issue was peripheral, and the argument about the leg injury’s timing was speculative.
The court concluded that the missing evidence, considered individually or together, had not deprived the appellant of a realistic opportunity to pursue an obviously useful line of defence. It was satisfied that the trial judge could reject the delay application and found no basis to conclude that the trial was unfair, the verdict unsafe, or that the appellant had been denied a trial in due course of law.