Uncle acquitted of raping and sexually assaulting niece may be tried again for same charge

Eoin Reynolds

Reporter:

Eoin Reynolds

Uncle acquitted of raping and sexually assaulting niece may be tried again for same charge

A man who was acquitted of raping and sexually assaulting his niece may face trial again for the same charges following a decision by the Court of Appeal.

The three-judge court found that the trial judge was wrong to halt the man's trial and direct the jury to acquit. The court will hear submissions from the man's lawyers on November 26 before deciding whether the man should face a retrial.

The respondent was charged with rape contrary to the Criminal Law (Rape) Act 1990 on a date unknown between May 18, 2001 and March 20, 2006. He was also charged with two counts of sexual assault contrary to Section 2 of the Act over the same time period. His trial was held earlier this year at the Central Criminal Court in Cork.

After the prosecution closed its case the trial judge Ms Justice Carmel Stewart directed the jury to acquit, saying she was concerned that the prosecution had shifted the burden of proof onto the accused by failing to call two witnesses who had made statements to gardai. Delivering judgment today (FRI) the president of the Court of Appeal Mr Justice George Birmingham said he was "in no doubt that the trial judge was in error in halting the trial and directing the jury to acquit."

The court heard that the girl alleged she was raped by her uncle at her grandmother's house. He was, she said, playing piggy back with her and then followed her into a bedroom where the alleged rape occurred. The second alleged offence occurred when she had a friend over at her grandmother's home for a sleepover. She said she awoke to find her uncle with his hand under her clothes on her vagina. She asked him to stop and he left. She further alleged that on the third occasion she was in the kitchen of her grandmother's house when her uncle came up behind her and put his hand under her clothes and on her vagina. She told the trial that she screamed and when her grandmother came into the kitchen she told her grandmother that her uncle was "at me" and her grandmother told him to stop.

Mr Justice Birmingham said the defence application for an acquittal focused on the failure of the prosecution to call the complainant's grandmother and father, who had both given statements to gardai. The appeal judge said the application was "surprising", and said he finds it "hard to imagine" why the trial was halted given that it was open to the defence or the judge to call those witnesses if they wished.

He said the complainant's father had no relevant, admissible evidence to give and there was evidence that the grandmother was "not reliable and would not be truthful". He said that, "no responsible prosecutor could have called her if he didn't believe her to be truthful."

Mr Justice Birmingham, sitting with Mr Justice Patrick McCarthy and Ms Justice Isobel Kennedy, will hear arguments from John O'Kelly SC for the DPP and Alice Fawsitt SC for the respondent as to whether a retrial should be ordered under Section 23 of the Criminal Procedure Act 2010. The Act allows, in certain circumstances, for a person who has been acquitted of an offence to be tried again for the same alleged offence.