The man was convicted at the Central Criminal Court
A CONVICTED paeodophile who is serving a number of sentences for abusing family members has moved to appeal his conviction for raping a niece.
The 83-year-old man, who cannot be named to protect the victim's identity, was found guilty by a Central Criminal Court jury of rape and sexual assault of the child then aged 11 in August 1971 in County Clare.
He had denied the two charges.
He was sentenced to seven years imprisonment by Ms Justice Margaret Heneghan on July 11, 2016.
The man moved to appeal his conviction this Tuesday principally on the trial judge's refusal to stop the trial at the close of the prosecution's case on grounds of prejudice caused by delay.
His barrister, Michael Delaney SC, said the complaint was made in 2004, some 30 years after the rape, and the trial 44 years after.
Mr Delaney said the rape was said to have occurred in a house where the victim was staying with her mother and siblings.
The victim told gardaí that the man's then girlfriend took her out of her own bed and put her in the bed of the naked man.
She recalled the man's then girlfriend brushing her (the victim's) hair and leaving the room before she was raped.
Mr Delaney said this woman, the man's then girlfriend, died in 2008 and the real risk of an unfair trial was created by her absence due to the lapse of time.
Mr Delaney said the defence were limited in their efforts to undermine certain versions of events owing to her absence.
Citing case law, Mr Delaney said the test was not demonstrated certainty of an unfair trial but the real risk of an unfair trial and the real possibility of a useful line of defence being lost.
Mr Delaney said the woman's role was “absolutely unusual”. On the complainant's account, the woman takes her out of bed, undresses her completely and puts her in a bed next to the naked accused. “One would expect her to have something to say”.
When the accused was interviewed in 2004, he denied the allegation and added that the woman would be able to verify that. She was still alive at the time, Mr Delaney said but was unable to be located by the time she died four years later.
Mr Delaney said there were certain cases where the prejudice is such that the case cannot proceed and this was one of those cases.
He further submitted that the trial judge erred in a number of her instructions to the jury specifically in her warnings to the jury about corroboration, delay and an alleged lie told by the accused.
Counsel for the Director of Public Prosecutions, Conor Devally SC, said the deceased woman had left no means of communication with anybody so as to know where she was and all of the evidence indicated that she was not amenable in any event.
Mr Devally said it was known that she didn't want any of this known to her then partner in the 1990s.
If it were 2008, and it was unknown that she had died, would the matter have been adjourned generally until she was found, counsel asked. “I suggest not”.
Mr Devally said the case law was decided in reference to two pieces of evidence related to record keeping and records of practice. A record was highly likely to be decisive of an accused's presence on a premises. It could be answered one way or the other.
But there were so many permutations to what the woman could have said, had she been located and called to give an account, it was difficult to pin down. She was not a record which could have decided a fact one way or the other, he said.
She could have said it never happened, she could have said she couldn't remember, she could have said she did bring the child into the room and she might have said yes something did happen.
Mr Justice George Birmingham, who sat with Mr Justice Gerard Hogan and Mr Justice Alan Mahon, said the court would reserve judgment.
In 2015, the man was separately jailed for four and a half years after he was convicted by another Central Criminal Court jury of 11 counts of indecently assaulting one daughter in Clare between January 1971 and December 1973 and a second daughter in 1980.
Both girls were aged between 11 and 13 years old at the time.
In May of this year, he was jailed for four years for three counts of indecently assaulting a male relative in the 1970s.