The Court of Appeal has dismissed an appeal by M.J against his conviction on five counts of indecent assault, rejecting his argument that the passage of time and unavailable evidence had made his trial unfair.
The convictions, recorded on 4 October 2018, concerned assaults on Mr L.J.C at an address in County Mayo between 1 May and 31 August 1978. The complainant told the trial that he had stayed at the appellant’s home during the summer and described repeated sexual abuse there. M.J denied the allegations during a Garda interview and said the complainant had only visited the house with his parents.
At the close of the prosecution case, the defence asked the trial judge to withdraw the case from the jury. It argued that the delay had caused real prejudice, including because M.J’s parents had died and could have given evidence about whether the complainant stayed at the home, the visit’s length and the sleeping arrangements. The defence also relied on gaps or absences in records from organisations where the complainant had received treatment or counselling.
The appeal concerned the trial judge’s refusal of that application. The Court of Appeal considered whether the missing evidence had deprived M.J of a realistic opportunity to pursue an obviously useful line of defence. It said the parents could have addressed the complainant’s visit and the household arrangements, but there was no basis to determine what they would have said. The sleeping arrangements were not in dispute at trial, and the court said it could not speculate whether the parents’ evidence on other matters would have helped the defence.
The complainant’s mother gave evidence about the visit. The appellant’s brother was present at trial, although the appeal judgment said he was not called as a witness. The court also noted that potential neighbours could have been approached about the alleged killing of a sheepdog, an incident the complainant described. It did not draw conclusions about what their evidence would have been.
On records, the court said records from one treatment organisation probably did not exist, while the extent of any missing counselling records was speculative. It found no fault by the Gardaí or English police in their efforts to obtain material and concluded the records could not establish the complainant’s credibility through contradiction in the way suggested.
The Court of Appeal was not persuaded that the deceased parents’ absence, alone or together with the possible absence of records, made continuation of the trial unfair. It upheld the trial judge’s decision to refuse the application and dismissed the appeal. The judgment addressed that ground of appeal; it did not set aside the convictions.