Convicted child abuser has conviction for raping niece quashed on appeal
A 66-year-old man, who had previously served prison time in America for child abuse, has had his subsequent conviction for raping his niece in Galway quashed on appeal.
The Galway man, who cannot be identified for legal reasons, had pleaded not guilty to rape, oral rape and three counts of sexual assault committed against his nine-year-old niece in his native county in the first week of August 1993.
He was found guilty by a jury at the Central Criminal Court and sentenced to eight years imprisonment with the final three suspended by Mr Justice Garrett Sheehan on October 21 2013.
Arguing that the case should have been withdrawn from the jury, Patrick Gageby SC, successfully submitted to the Court of Appeal today there were major inconsistencies in the charges and the evidence adduced at trial.
Mr Justice George Birmingham said the trial judge gave very careful warnings to the jury and having been so warned the jury convicted.
Given the difficulties in the case it must have meant the jury regarded the complainant as “convincing and reliable,” he said.
She could take satisfaction that the jury, who saw her giving evidence and saw her being challenged on her evidence, “believed her,” Mr Justice Birmingham said.
However, he said, each of the five counts on which the man was convicted were inconsistent with evidence adduced at trial.
None of the issues in relation to the five counts on their own would see the case withdrawn from the jury, Mr Justice Birmingham said.
It was their cumulative effect – as well as matters which gave rise to specific prejudice for the accused in an old case – that had to cause concerns such that the conviction could not be allowed to stand, he said.
Mr Justice Birmingham, who sat with Mr Justice Alan Mahon and Mr Justice John Edwards, allowed the appeal and quashed the conviction.
There was no direction for a retrial.
The Court of Appeal heard yesterday that the man had been deported from the United States in 2006 having served a seven year sentence for the sexual abuse of two young girls in the 1980s.
Mr Justice Birmingham said the rape conviction was inconsistent with evidence that there was no upstairs room in the house in which it was alleged to have occurred. Furthermore, the evidence at trial was that there were no thatched houses in the area at that time contrary to what the complainant believed.
The oral rape conviction, alleged to have occurred between a parked car and the side of a house, was inconsistent with evidence that it would have been impossible to park a car there at the time.
In relation to count three – the alleged hands inside the shorts incident – there had been no death in the extended family of the homeowner around that time to explain the funeral situation as described by the complainant, the judge said.
The conviction for the bedroom incident was inconsistent with sleeping arrangements described by the complainant and another witness.
Finally, there were a number of inconsistencies with the alleged hayfield incident, the judge said.