Shop owner’s conviction of sexual assault set aside on appeal

A shop owner found guilty of sexually assaulting a 13-year-old girl sent to the shop by her mother to buy a household item, has had his conviction set aside on appeal.

The 62-year-old man, who cannot be identified for legal reasons, had pleaded not guilty at Dundalk Circuit Criminal Court to a single count of sexually assaulting the 13-year-old girl in the shop he owned in May 2012.

He was found guilty by a jury and was given a wholly suspended three-year sentence by Judge Michael O’Shea on October 22nd, 2015.

The man successfully appealed his conviction on Thursday on grounds that his trial was unfair by reason of a ruling from the trial judge relating to the showing of CCTV footage from the shop in which the alleged offence was said to have been committed.

While the CCTV footage was played to the jury, it was, in accordance with the trial judge’s ruling, played to the jury only after the complainant’s direct evidence and cross-examination had been completed.

Setting aside the man’s conviction on Thursday, Mr Justice Michael Peart said the offence is alleged to have taken place in a shop owned by the man and which is quite close to where the young complainant lived with her family.

She had been asked by her mother to walk to the shop to get a household item. She made the purchase and chose some sweets to buy with the change. There were other girls in the shop and she allowed them to be served ahead of her.

When those girls left she paid for her sweets and went to leave. It was then that an area of controversy arose in the case.

The complainant said that as she was making her way to the shop door she was called back by the man into a kitchen area at the back of the shop and the alleged offence was then committed.

The man said he did not call her back, that she voluntarily went back into the kitchen area uninvited as she had forgotten to take a bag of sweets she had bought. She denies this.

CCTV footage

The kitchen area at the back of the shop is not seen on any CCTV footage but it does show her turning back as she was making her way to exit the shop. There is no sound on the footage.

The man’s barrister, Roderick O’Hanlon SC, wished to cross examine the complainant on her direct evidence by reference to what was seen on the footage, her turning back and making her way towards the back area as well as in relation to some interaction between her and other girls in the shop who she allowed go ahead of her to the counter.

There was some question as to whether she knew those girls which counsel wished to explore by reference to the CCTV footage.

Mr Justice Peart said the complainant was aged 13 at the time of the alleged offence and her statement was video recorded pursuant to the rules of evidence (section 16 of the Criminal Evidence Act 1992).

That statement formed her direct evidence and was shown to the jury at the outset of the trial. Normally she would be cross examined via video link from outside court so she would not be able to see the CCTV to which the man’s counsel wished to refer.

For that reason, counsel sought some directions as to how the evidence would proceed.

Cross-examination

The trial judge allowed a short period to see what arrangements could be made. He stated that it would be impossible to conduct a cross-examination if counsel was trying to put matters to her about what was on CCTV she could not have seen and therefore could not comment upon.

Mr Justice Peart said one could have every sympathy with the trial judge who was faced with such an issue on the morning of the trial commencing and having sworn a jury which was waiting in the jury room for the trial to commence.

It would have been desirable that the question of facilitating the showing of the CCTV during cross-examination should have been raised with the DPP’s legal team well in advance but that is not what happened. “Though somewhat inconvenient, there is no question but that it would have been possible to facilitate what was requested”. The request was not impossible to achieve or unreasonable.

Given the nature of the case where the complainant was the only witness to what he was alleged to have done and where the only evidence he can give in answer is to deny that it happened, he must, as a matter of constitutional fairness, have been permitted to deploy the CCTV during cross examination.

For those reasons, Mr Justice Peart, who sat with Mr Justice George Birmingham and Mr Justice Alan Mahon, said the court would set aside the conviction and hear counsel, at a later date, in relation to ordering a retrial.

His barrister, Roderick O’Hanlon SC, submitted that the man was denied the opportunity to cross-examine the complainant in relation to what could be seen on the footage, while at the same time being able to show her the footage by reference to which she was being questioned.

Mr O’Hanlon submitted that it was important to be able to do this in a case such as this, where there were no witnesses to what was alleged to have occurred, and where the complainant’s credibility was an important matter for the jury to consider.

Mr O’Hanlon said he was “hampered unfairly” in attempts to cast doubt upon the correctness of her account in her direct evidence of what happened by not being permitted to show her the footage while he was questioning her about what could be seen on it.