Man who abused cousin over six-year period appeals conviction

Man was tried in front of one jury on charges relating to two separate cases, court hears

The man was sentenced to six years and four years for offences committed as a child and young adult. File photograph: Dave Meehan/The Irish Times

The man was sentenced to six years and four years for offences committed as a child and young adult. File photograph: Dave Meehan/The Irish Times

 

A man who abused his young cousin by making him perform sex acts over a six-year period has asked the Court of Appeal to quash his conviction.

Lawyers for the 53-year-old Dubliner, who cannot be named to protect his victim’s identity, argued to the three-judge court that their client was tried in front of the same jury on a separate allegation of abusing a young girl.

He was acquitted on charges relating to the girl’s allegations.

Hugh Hartnett SC for the appellant said no legal basis existed for trying both sets of allegations together and the joint trial created a risk that the jury was prejudiced against his client.

The jury at the Dublin Circuit Criminal Court found the appellant guilty in 2019 of 24 counts of indecent assault of his male cousin on dates between April 1st, 1984 and January 1st, 1990. Judge Melanie Greally sentenced him to 10 years in prison.

Mr Hartnett pointed out that in opening the trial the prosecution told the jury it would be “improbable” that two people would make such similar false accusations.

But by the end of the trial, Mr Hartnett said, the prosecution conceded they could not rely on similarities between the allegations or “cross corroboration” because none had been established.

Mr Hartnett added that there was never any evidence to support cross corroboration and therefore the trial judge had erred in refusing an application by the man’s lawyers to have the allegations tried separately.

Mr Hartnett also complained that when addressing the prosecution’s failure to establish cross corroboration, the trial judge told the jury: “You may have been led slightly astray by something said by the prosecution.”

It was not, Mr Hartnett said, a matter of being led “slightly astray. It is a question of being led entirely astray in relation to a matter of potentially huge prejudice.”

He added: “Juries are but human. It is easy for a trial judge to say, ‘ignore this’, but they had heard all of the evidence against the backdrop of being told that the trying of these two matters together was significant because one can support the other, and it was improbable that two people would make similar, false allegations.”

Counsel concluded that if there is a risk of prejudice the trial is unsatisfactory and the conviction should be quashed.

Derek Cooney BL for the Director of Public Prosecutions, said the decision not to pursue cross corroboration at the end of the trial was taken because the evidence had fallen short of what was expected.

President of the Court of Appeal Mr Justice George Birmingham, sitting with Mr Justice Patrick McCarthy and Mr Justice John Edwards, reserved judgement.

During the man’s trial the jury heard that there was a nine-year age gap between the two and the offending behaviour commenced when the victim was aged six.

The victim said he was “made to” perform oral and intercourse acts and remembers cleaning up afterwards and being told to be quiet.

Passing sentence Judge Greally said the victim impact report made it clear the victim felt “irreversibly tainted” by his childhood experiences. She said the victim had experienced considerable isolation as a result of the division in his family as a consequence of him disclosing the abuse.

Judge Greally said the case was aggravated by the extreme nature of the offending, the long period of time over which the offending occurred, the regularity of the offending, the extreme youth of the victim, the breach of trust and the intense emotional and psychological turmoil the offending caused the victim.

She pointed to mitigating factors including that the offender was a minor during the initial crimes and a very young man during the later crimes.

He had no previous convictions, lived a productive life since the offending, and had made achievements in business and lived a pro-social family life.

Judge Greally distinguished between the 10 offences of indecent assault committed as a minor and the 14 later offences of indecent assault committed when he was an adult.

She sentenced him to four years imprisonment for the earlier offences and six years for the later offences. She ordered that the sentences run consecutively for an effective sentence of 10 years imprisonment.