Court of Appeal quashes Limerick pensioner's conviction for abusing nieces

A PENSIONER from Limerick who was sentenced to seven years' imprisonment for indecently assaulting his two nieces in the 1980s has had his conviction overturned by the Court of Appeal.

In June of last year the now 73-year-old man, who cannot be named in order to protect the identities of the two complainants, was convicted by a jury at Limerick Circuit Court of three indecent assaults against his nieces.

He was subsequently sentenced to seven years' imprisonment by Judge Patrick Meghan.

The offences were alleged to have taken place on dates during the 1980s in the accused's family home which he shared with his parents, who were the grandparents of the two complainants. The man had pleaded not guilty to all three charges.

The trial heard the first alleged assault happened while a niece was in the appellant's vehicle and that, when she was sitting on his lap under the guise of teaching her how to drive, he allegedly rubbed her breasts in a circular motion outside of her clothes.

The second charge alleged that the man was alone in the house with another niece, a sister of the first complainant, who described the man laying her on a bed in her grandparents' room before allegedly inserting his fingers into her vagina.

The third charge related to an incident which allegedly occurred when the second niece was hoovering and the accused allegedly came up behind her, put his hand down her pants and put his fingers into her vagina.

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The conviction was appealed on the sole ground that the rebuttal evidence of the first complainant's husband should not have been put before the trial jury.

The first complainant was cross-examined about her memory of the incident and told counsel for the defence that although she had "blocked out" the trauma of the incident, it was not that it had "disappeared".

Counsel for the defence, Anthony Sammon SC, had asked the complainant if she had "recovered" a memory, which, counsel said, went towards the consistency of her recollection.

The complainant had replied that "some of the details are sketchy but only some of them".

On foot of that exchange, the prosecution called the husband of the complainant on the basis that the complainant's evidence was challenged as being a "recent fabrication".

The prosecution contended that the evidence of the complainant's husband regarding a disclosure she had made to him in 2004 was now admissible to rebut the imputation made of the complaint evidence being "recently fabricated".

However, the defence had rejected the assertion that the cross-examination amounted to an imputation of a "recently fabricated" complaint which would allow the rebuttal evidence of the complainant's husband.

The complainant's husband told the court he remembered that his wife had told him in the early 2000s that "it happened when she was young" and had named her uncle.

Counsel for the appellant said it was "right, proper and legitimate that she be cross-examined on the issue and moreover that it would have been remiss not to have raised the issue with her, when the reliability and credibility of the complainant were central for the defence of the accused".

In delivering judgement this Friday, the Court of Appeal ruled that "the law permits rebuttal evidence to rebut a suggestion of fabrication where, during cross-examination, a witness is alleged to have fabricated evidence".

Ms Justice Isobel Kennedy said the appellant submitted that the complaint was made 32 years after the incident and that this "posed concerns of an alleged flawed recollection and alleged recovered memory".

However, Ms Justice Kennedy said the appellant's lawyers argued there was no suggestion that the complainant had "recently invented" the allegation and, therefore, the rebuttal evidence of the complainant's husband should not have been admitted.

The judge said that the "starting point of the attack must constitute one of recent invention; this simply was not the case here. Accordingly, we are persuaded that the judge erred in the exercise of his discretion".

"The evidence adduced [from the complainant's husband] was such as to bolster the complainant's credibility in circumstances where there was no proper basis to adduce the evidence. It can only have operated to reinforce her credibility and cannot be excised from the trial at this point," said Ms Justice Kennedy.

The first count of indecent assault was alleged to have occurred between May 1, 1986 and October 31, 1987 when the older niece was aged between 10 and 12 years old and the appellant was 36 to 37 years old.

The second and third assaults were alleged to have occurred between May 25, 1987 and May 25, 1989 on the second niece when she was between 10 and 12 years old and the man was between 37 and 39 years of age.

The man had lodged an appeal against his conviction for the first offence only.

However, Ms Justice Kennedy said it could not be the case that only the first count of alleged indecent assault was under appeal as "all counts were heard together" and that "the jury were entitled to rely on the similarity of the complaints in that the evidence on each was cross-admissible".

In allowing the appeal, Ms Justice Kennedy concluded that "therefore, having found an error regarding the conviction on count one, the entire conviction must be quashed".