A father who was found guilty of sexually assaulting his 19-year-old daughter on Christmas morning in 2017 has had his conviction overturned on appeal.
The man’s barrister, Sean Guerin SC, had argued before the Court of Appeal that the trial judge had erred in refusing to permit the defence to cross-examine the complainant in respect of the contents of a diary found in her room, in which the words “Hate Dad” were written, in order to show “pre-existing malice”.
The defence contended that these words authored by the complainant herself contained evidence of ill-will towards the appellant. It was submitted that they were relevant to her potential motive in making the complaint of sexual assault and contradicted her evidence that she and her father had a good relationship.
The man, who cannot be named to protect his daughter’s identity, went on trial at Cork Circuit Court in May last year. His daughter gave evidence that she had woken in the early hours to find him sexually assaulting her. The man, who had no previous convictions or allegations against him for sexual assault, testified that he had been asleep in his own room.
On May 24th, 2019 a jury found the man guilty and Judge Brian O’Callaghan subsequently jailed him for two years.
Appealing his conviction to the Court of Appeal in June, Mr Guerin submitted that the trial judge should have permitted the defence to cross-examine the complainant in respect of the content of a diary, which the defence contended was authored by her.
He said that it contained evidence of ill-will towards her father and was relevant to her potential motive in making the complaint of sexual assault. He drew the court’s attention to the words, “Hate Dad”. “The diary would be proof of pre-existing malice,” he said. Counsel said that such “a strong dislike” of the accused predating the complaint could be a possible explanation for making a false allegation.
Mr Guerin further submitted that the judge had erred in his treatment of corroboration. “The trial judge adopted the reasoning that because there was evidence capable of amounting to corroboration, there was therefore no place for a corroboration warning,” he said. He argued that this was an error, suggesting that there would never be a corroboration warning if this were the case.
Mr Guerin submitted that the judge had erred in particular, by “failing to warn the jury of the weakness” of the potential corroboration of demeanour. He referred to the complainant’s upset when she made a complaint to her friend that morning.
He noted that the complainant had drunk three bottles of wine the evening before. This could be an explanation for her upset demeanour, he said, along with the hour of the night and the history of discord between the complainant and her father.
The barrister also noted that the presence of wet socks in her bedroom was used as corroboration of the complainant’s account that she had run out of the house in wet weather after the alleged incident. However, he said, there was also evidence that she had done so before the alleged assault too.
Imelda Kelly BL argued on behalf of the DPP that the judge’s ruling in relation to the diaries was preliminary and that it had been open to the defence to raise the issue again. On the issue of corroboration, Ms Kelly said that she thought it was “curious” that it had not been raised with the trial judge. She accepted that there were two potential explanations for the socks, but noted that there had been no requisition to the trial judge after the charge.
In a written judgement delivered electronically on Friday, the Court of Appeal President Mr Justice George Birmingham called this an “unusual case”. “We say that because the experience of the members of the Court has been that while cases involving a pattern of inter familial sexual abuse are by no means uncommon, the cases involving a single allegation without any background are rare,” he said.
The judge said the Court found themselves “feeling a degree of disquiet”, both as to the manner in which the issue as to the diary was dealt with and as to the treatment of corroboration in the trial judge’s charge. Mr Justice Birmingham said that neither issue on its own would have been sufficient to cause the Court to have any doubts as to the fairness of the trial or the safety of the verdict. However, he said the combination had given rise to unease, to a degree that the Court could not confidently say that the trial was fair and satisfactory and that the verdict was safe.
Mr Justice Birmingham, sitting with Mr Justice John Edwards and Ms Justice Isobel Kennedy, said the court would quash the sexual assault conviction and would list the matter in the coming days to deal with any application there may be in relation to whether a retrial should be ordered.